This claim raises both an issue of the timeliness of Carrier's response to the Organization's appeal, and the propriety of its contracting out to Custom Car Corp. the work of repairing a side sheet and replacement of a corner post on M&B car 5139 on September 1, 1995.

With respect to the issue of timeliness, the record reveals that the original claim was filed on October 5, 1995. In Carrier's November 9, 1995 denial, it asserts that the repairs were beyond the capacity of the M&B shop to make.

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:

"This acknowledges receipt of your letter dated November 16, in which you appealed the decision of A. W. Creel concerning various time claims filed on behalf of Carmen G. Frazier, E. Blanks, W. Brown and M. Hinson regarding work on MB 4000 Series boxcars .

. . . It is my opinion that Appendix No. 8 of the Agreement covers this matter, specifically the 2nd paragraph, `Exceptions.' We have been after GE to upgrade these cars . . . and it is (and will be) our position that GE Railcar is obligated to keep these cars in reasonable condition . . . ."

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 Blanks and Brown for subcontracting work on M&B 5139.

In its response of March 29, 1996, Carrier states:

"This refers to your March 22nd letter with specific notation that claims on MB 5139 and MB 4132 were not answered by me.

The intent of my December 1, 1995 letter was to serve as a reply to all of your November 16th letters. The first sentence should have read `your letters dated November 16.' As a matter of fact, the 2nd paragraph refers to CLAIMS . . . ."

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 to the instant claim within the 60 day time limit. It appears that the Organization appealed a number of different claims on November 16, 1995. However, unlike the other claims which dealt with Carrier sending leased cars back to GE Railcar, this claim deals with the subcontracting of repairs on one of Carrier's own cars to a different named contractor. The fact that the December 1, 1995 letter specifically references series 4000 boxcars and GE Railcar, neither of which is applicable to the instant dispute, undermines Carrier's contention that such letter was intended to respond to this claim. Additionally, there is no dispute that there was another claim that was appealed on November 16,1995 that directly corresponds to the December 1, 1995 denial letter which Carrier asserts covered the instant claim. Under such circumstances, there is no way that the Organization could have been put on notice by its language that the December 1,1995 denial letter was meant to apply to this claim.

Further, 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.

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.

AWARD