for his contention that he had a right to displace Mr. Hanrahan on No. 5 July 22nd. The Carrier insists it had no advice, upon which it could act in accordance with the rules, from Conductor Mundy prior to 9:15 A. M. July 22nd that it was his intention to displace on No. 5 July 22nd, 1951. Conductor Mundy's note was a confirmation of nothing because that note was dated July 21st, 1951 and up to 9:15 A. M. July 22nd, 1951 Conductor Mundy had not signified his intention of making a displacement. The truth of the Carrier's contention in this regard is supported by a notarized statement of Signout Man Lee S. Trela which is attached as Carrier's Exhibit "E".

8. As will be noted from the provisions of Rule 34 (f) the responsibility of signifying his intention of making the displacement to the designated official at least 2 hours prior to the roporting time was that of Conductor Mundy. The signout man had no responsibility in connection therewith, nor did any other representative of the Carrier. The schedule rule provides that "a conductor shall signify his intention of making a displacement to the designated official at least 2 hours prior to the reporting time" which Conductor Mundy did not do.

It is the Carrier's position that the claim is barred because an appeal was not made in connection with the Superintendent's decision within the 30-day period provided by Rule 41.

It is also the Carrier's position that Conductor Mundy did not signify his intention of making the displacement to the designated ofcial at least 2 hours prior to the reporting time and therefore, he has no rightful claim to payment for service trips on Trains 5 and 6 July 22nd and 23rd, 1951 which he did not perform.

The Carrier therefore respectfully requests that the claim be denied.

(Exhibits not reproduced).

OPINION OF BOARD: On July 14, 1951, Sleeping and Parlor Car Conductor S. M. Mundy's regular assignment was discontinued. He reverted to the status of an extra conductor until and unless he exercised displacement rights under the provisions of Rule 34 titled "Displacement Rights of Conductors." This rule sets forth the manner and method by which such rights may be exercised. On July 29, 1951, Conductor S. M. Mundy was used as an extra conductor Chicago to St. Paul and deadhead return in service arriving at Chicago on return trip 11:45 hours late, or about 8:30 P. M., as stated by the Carrier, or 7:310 P. M., as stated by the Employes, July 21, 1951. Upon arrival from the trip he deposited in the Company mail bag a written statement to his immediate superior, his Superintendent, that it was his intention to displace a junior conductor who was operating in regular assignment and who was due to report in Chicago for C. M. St. P. & P. Train No. 5 at 9:45 A. M., July 22, 1951. This displacement request was denied on the ground of non-conformance to Rule 34.

Rule 41 was invoked by the Employes, entitled "Claims." We believe that an interpretation of Rule 41, as it applies to the facts in the instant case, determines this dispute. That part of Rule 41 necessary to be interpreted is as follows, and we divide the rule and apply the facts thereto as we conceive the applicability of one to the other.

"When a conductor considers that any rule of the Agreement has been violated, he or his duly authorized representative may present a claim of rule violation to his Superintendent. Such claim shall be made in writing by the conductor, or his representative, within 60 days from the date of the occurrence of the alleged violation. If not so presented, claim will be barred." The record shows that on July 23, 1951, Conductor Mundy wrote a letter to the

Superintendent, M. P. Ayars, filing a claim because he considered he was denied the right to displace a junior conductor. The alleged violation would be that the Carrier failed to properly conform to Rule 34 dealing with dis placement. He also requested that he be granted a hearing on his claim in the event the Superintendent would not compensate him for the trip he lost. This request, made in writing in conformance with Rule 41, was made within 60 days from the date of the occurrence of the alleged violation, therefore it was timely filed.

Rule 41 further provides: "If a hearing is desired by the party alleging rule violation, it shall be arranged within 20 days from date of claim. A transcript of all hearings shall be made and two copies furnished the conductor or his representative." Conductor Mundy, in his letter of July 23, 1951, requested a hearing. There was no hearing arranged within 20 days, as contemplated by the rule. No hearing was granted.

Rule 41 further provides: "Decision of the Superintendent shall be made in writing within 30 days after hearing is completed, or within 30 days from date claim is filed, if hearing is not desired." The Superintendent, without granting a hearing, denied Conductor Mundy's claim 8 days after he received notice of the request for a hearing. The decision of the Superintendent dated July 31, 1951, was not a valid denial of the claim under the provisions of Rule 41, for the reason that hearing was requested to develop the facts and circumstances for which the claimed violation arose. The final denial which establishes the basis for time limit of appeal, must be given in writing within 30 days after the hearing. It is indicated clearly the procedure taken by the Superintendent was in violation of Rule 41.

Rule 41 further provides that when this final decision is made within 30 days after the hearing is completed and it is not satisfactory, the employe or his representative must file notice of appeal within 30 days from the date of the decision or the claim is barred.

The Carrier takes the position that in the instant case the decision was rendered 8 days after the claim was first submitted in writing; that under the rule Conductor Mundy was required to give notice of appeal to his Superintendent within 30 days, which was not done. However, on September 3, 1951, the Local Chairman directed a letter to the Superintendent in which letter there was nothing that could be considered as a notice of appeal. As a consequence, under Rule 41, the claim is barred.

There was no basis for appeal. There was no hearing as required by Rule 41, where the merits of the claim were discussed, nor had final decision been made after hearing in conference to Rule 41. We conclude that the Carrier's contention is without merit. Under the circumstances we have no other alternative than to conclude that the Carrier violated Rule 41 of the Agreement. This being true, the merits of the claim are not before us.

For the reasons given herein, the claim should be sustained.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties to this dispute waived oral hearing thereon;

That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21,1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the claim should be sustained.

AWARD