The Second Division consisted of the regular members and in addition Referee Joseph S. Cannavo, Jr. when award was rendered.

"1. That the Union Pacific Railroad Company violated the controlling agreement, particularly Rule 37, when they unjustly withheld Electrician T. M. Wingett from service beginning on June 1, 1989,. and following investigation held on June 8 and 9, 1989, suspended him from service for a period of thirty (30) days or to 12:01 A.M., July 14, 1989, North Platte, Nebraska.

2. That the Union Pacific Railroad Company

scheduled and -attempted to hold a hearing on -

June 5, 1989, _L0:00 A.M. prior to Mr. Wingett

or his representative being properly notified

in line with the controlling agreement.

3. That accordingly the Union Pacific Railroad be ordered to compensate Electrician Wingett as follows:

a) Compensate him for all time lost at the prime rate of interest;

b) Return him to service with seniority rights unimpaired;

c) Make him whole for all vacation rights;

d) Make him whole for all health, -

- welfare and insurance benefits;

e) Make him whole for pension benefits, including railroad retirement and unemployment insurance;

4. That this claim be allowed as presented account Carrier's violation of Rule 35 of the controlling agreement when Director Locomotive System Shop, Mr. R. R. Bussard, failed to make reply to claim initiated by General Chairman Mr. Vic Janecek, within the sixty (60) day time limit as prescribed by Rule 35."

The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved .in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

On June 1, 1989, Claimant was withheld from service pending formal Investigation due to his alleged failure to perform his duties as requested by a foremen thereby violating General Rules A & B and Rule 607 of Form 7908, "Safety, Radio and General Rules for All Employees." A formal Investigation was held on June 8-9, 1989. On June 23, 1989, the Claimant was advised that he was found guilty as charged and that he was being assessed discipline of 30 days actual suspension from service.

The position of the organization is that the claim should be allowed as presented because the Carrier violated Rule 35 of the controlling agreement when it failed to make reply to claim initiated by the General Chairman within the 60 day time limit as prescribed by Rule 35. The Organization further argues that the Claimant was not apprised of the precise charge against him and was not treated in a fair and impartial manner in accordance with Rule 37. The Organization also states that the evidence does not ,__,r

support the conclusion of the hearing officer. Also, the organization notes that the Claimant should not have been withheld from service on June 1, 1989; that he posed no danger to himself or his coworkers; that as a result of being withheld from service on June 1, 1989, he served an actual suspension of 43 days. The organization advises that the Claimant is a 19 year employee with an unblemished record and holds a position with the Organization. On the basis of the foregoing, the Organization requests that the claim be allowed.

The position of the Carrier is that it did respond to the claim initiated by the General Chairman within 60 days and as such it did not violate Rule 35. The Carrier claims that the evidence supported a finding that 'the Claimant refused to hook up a battery pack and that no safety considerations justified the Claimant's refusal to obey an order thereby being insubordinate. The Carrier also charges the Claimant: with using profanity toward the relief foreman.

This Board has reviewed the evidence and finds as follows:

The Board rejects the organization's claim that the Carrier failed to respond to the General Chairman's claim within 60 days thereby violating Rule 35.. The evidence establishes that the claim was filed by letter dated July 6, 1989, via U.S. Postal Service, certified mail/restricted delivery. The date of delivery was established as July 15, 1989, and the Carrier's response was dated September 12, 1989. It is well established by the Board that the date of receipt determine; the 60 day time 1 imit which commences to run from that date and that the Carrier stops the running of the time limit by mailing or posting the notice required within the 60 days of the date that the claim was received. (See Second Division Award 8833.)

However, the weight of the evidence does not support the Carrier's claim that the Claimant was insubordinate. The Claimant and two other witnesses disputed the relief supervisor's testimony that the Claimant was ordered to hook up battery packs. Their testimony establishes that the Claimant was ordered to hook up batteries to which he responded that he would do so upon approval by his supervisor; that his concern was out of fear that an electrician may be working on the locomotive and he wanted to avoid any potential danger. Furthermore; the relief foreman's testimony that only two people could occupy the area in .which he had the conversation with the Claimant was rebutted by the testimony of the Claimant, two other employees and the Claimant's regular supervisor. They testified that 20 to 40 people could occupy that area. Also rebutted by the weight of the evidence was the relief foreman's claim that the Claimant used profanity toward him. While

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