This claim raises both an issue of the timeliness of Carrier's response to the Organization's appeal, and the applicability of Appendix No. 8 Exceptions to the particular repairs in issue.
With respect to the issue of timeliness, the record reveals that the original claim was filed on October 5, 1995, protesting Carrier's sending M&B Railcar 4132 to GE Railcar Shop on October 4, 1995 for minor door and door hardware repairs. In Carrier's November 9, 1995 denial, it asserts that said railcar was returned to GE Railcar at their request for upgrading and repainting.
The Organization appealed this denial by letter dated November 16, 1995. The next correspondence in the Organization's file is a letter dated March 15, 1996 requesting that the claim be paid based upon Carrier's failure to answer its appeal within the requisite 60 day time limit.
Carrier's March 20, 1996 response indicates that it did timely respond to the Organization's November 16 letters, and attaches a copy of a letter dated December 1, 1995, which states, in relevant part:
By letter dated March 22, 1996, the Organization pointed out to Carrier that it had appealed another time claim on November 16, 1995 on behalf of the four named Claimants for work subcontracted on several M&B Series 4000 boxcars, and that the December 1, 1995 response referenced by Carrier related to that claim, not the instant one. It noted that the instant claim was appealed on behalf of Frazier and Hinson for subcontracting on M&B 4132 along with a claim appealed on behalf of Blanks and Brown for subcontracting work on M&B 5139.
Based upon a careful review of the record, the Board concludes that it need not reach the merits of this claim, since the Organization has met its burden of proving that Carrier failed to respond within the 60 day time limit to the instant claim. There is no doubt that the Organization appealed a number of different claims on November 16, 1995. However, there has been no showing by Carrier that it either had a practice of issuing one denial letter for more than one claim filed on the same date, or that it was acceptable procedure to do so. In fact, it appears that Carrier routinely responded separately to each claim filed by the Organization, referencing the Claimants named, appeal date and substance of the claim, even if the reasons for denial were the same as other claims.
Since there is no dispute that another claim was appealed on November 16, 1995 that directly corresponds to the December 1, 1995 denial letter which Carrier asserts covered the instant claim, the Board cannot say that the Organization should have reasonably known that the December 1, 1995 denial letter was intended to respond to this claim. Further, the wording of that denial letter references only one appeal letter of November 16,1995. Carrier's contention on March 29,1996 - after the Organization requested payment due to the lack of timely response - that it intended the December 1, 1995 denial letter to reply to more than one claim and that it should have read "letters" in the plural rather than singular, cannot be said to timely cure the defect in its response or put the Organization on notice of its intention within the contractual 60 day time limit.
Accordingly, the claim is sustained on the basis that Carrier failed to timely respond to the Organization's appeal as required by the Agreement, and the Board need not reach the merits of the subcontracting issue in this case.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.