1938 under the auspices of the National Mediation Board when the aforementioned Mediation Agreement was consumated.

It will be noted that throughout this discussion both sides of the table gave convincing evidence that they understood that the underlying principle involved in this Agreement was the following:

"If and when head end work, i. e., the handling of baggage, newspapers, mail, etc., increased in volume beyond the ability of a trainman member of the crew to handle it incident to the primary duties of his position, an additional employe would he assigned for such purpose and that employe would be classified as a Baggage and Mail Messenger. Conversely, in the event the volume of head end work declined again to a point where trainmen could again resume it incident to the primary duties of their job they would do so and the Baggage and Mail Messenger would be removed and his removal would not be violative of the Mediation Agreement" (Emphasis supplied)

As further evidence of the intent of the parties, attention is directed to the settlement of two cases on the property-Cases 34 and 56. Copy of the decision in each of these cases is attached hereto and made a part hereof marked Carrier's Exhibits 18 and 19.

The facts in Case 34-1 were that the Carrier, effective May 1, 1946 abolished 4 positions of Baggage and Mail Messenger at a time when there was no reduction in the amount of Baggage and Mail work on the trains involved in the assignments. In fact, after a review of the operation was made, the 4 positions plus 5 additional positions were established on November 11, 1946. Since the Carrier could not support the abolishment of the 4 positions by a reduction in the amount of Baggage and Mail work, the claim in that instance was allowed.

In Case 56 the number of hours comprehended in the assignment were reduced by having the Baggage and Mail Messenger involved leave Train 236 at Mineola instead of continuing through to Farmingdale as he had previously.

Neither Cases 34 or 56 are analogous to the instant case since in the instant case the Post Office Department unilaterally removed 50% of the bulk mail previously handled by this Railroad from the rails. This great reduction in the volume of bulk mail handled necessitated revising the Baggage and Mail Messenger forces accordingly and since the remaining head end work could again be resumed by trainmen incident to their primary duties, such work was returned to them.

In conclusion the Carrier reiterates each and all of the points previously made and holds that based on the facts present and the evidence aduced, there is no basis for the instant claim and it should, therefore, be denied.

(Exhibits not reproduced)

OPINION OF BOARD: Claim is here made that the Respondent violated provisions of the effective Agreement by improperly abolishing certain Baggage and Mail Messenger positions and assigning work belonging to this group to employes not covered by said Agreement. Reparations are sought for all employes affected for that period of time between April 1, 1952 and June 1, 1954 at which time the alleged violation ceased.

The Organization asserts that the work here involved was placed within the Scope of the effective Agreement by the jointly executed Mediation Agreement of January 27, 1938, and that prior settlement on the property recognize this fact to be true. It was further asserted that this particular claim was presently valid in its entirety because of the Respondent's failure to comply with the 90 day requirement provided in Rule 4-D-1-(c).

The Respondent contended that the Baggage and Mail Messengers were entitled to perform the work in question only when the amount thereof was in excess of the Trainmen's ability to perform same under the ebb and flow doctrine which was in truth and in fact recognized by the aforementioned Mediation Agreement. In connection with the proper application of Rule 4-D-1-(c). the Respondent asserted that this claim was in effect denied on June 16 1952 but most certainly denied on August 15, 1952 for which reason the 90 day cut off provision of the Rule makes this claim valid only for that period of time extending from April 1, 1952 to May 15, 1952.

While the record contains an abundance of extraneous matter this dispute can be determined by resolving (1) the proper interpretation and application of Rule 4-D-1 (a) (b) (c) and (2) whether or not the work here was improperly withdrawn from the Claimants in question. Rule 4-D-1 (a) (b) and (c)

"4-D-1 (a). Claims for compensation alleged to be due, may be made only by an employe or by the `duly accredited representative' as that term is defined in this Agreement, on his behalf, and must be presented, in writing, to the head of the department involved within ninety (90) days from the date the employe received his pay check for the pay period involved, except:

1. Time off duty on account of sickness, leave of absence, suspension or reduction in force, will extend the time limit specified in paragraph (a) of this Rule 4-D-1 by the period of such time off duty.

2. When a claim for compensation alleged to be due is based on an occurrence during a period employe was out of active service due to sickness, leave of absence, suspension or reduction in force, it must be made, in writing, within ninety (90) days from the date the employe resumes duty.

(b). If claims are not made within the time limit specified in the foregoing paragraph (a) of this Rule (4-D-1) including Exceptions 1 and 2, they will not be entertained nor allowed.

(c). When claims for compensation alleged to be due have been presented in accordance with the foregoing paragraph (a) of this Rule (4-D-1) including Exceptions 1 and 2, and are not allowed, the employe will be notified to this effect, in writing within ninety (90) days from the date his claim was presented. When not so notified claims will be allowed."

This Rule is clear and without ambiguity. Paragraph (a) provides (with two exceptions that are not here applicable) by whom, in what manner, and within what time limitation claims are to be presented. Paragraph (b) provides that if claims are not presented within the time limitation of 90 days provided in paragraph (a) they will not be considered or allowed. Paragraph (c) provides that when claims are presented in accordance with paragraph (a) and are not allowed, the employe will be notified, in writing, of the disallowance within 90 days from the date the claim was presented, with the further provision that when no such notification is given claims will be, allowed.

The alleged violation occurred on April 1, 1952. The General Chairman presented the claim, in writing on April 26, 1952. That this act was accomplished in accordance with paragraph (a) of the rule is not questioned.

Paragraphs (b) and (c) are cut off provisions that apply in the first instance to the employe and in the latter instance to the Carrier. The purpose of the Rule is to expedite procedure and prevent delay in handling on the property,

We cannot read a denial of the confronting claim into the Carrier's Letter of June 16, 1952. We are of the opinion that these claims were not denied, within the meaning of paragraph (c), until August 15, 1952, which is obviously beyond the 90 day period provided in this portion of the Rule.

Rules similar to the one here in question have been interpreted by this Board both with and without the assistance of a Referee. Awards 4529 and 3013. In Award 4529:

"* * * We think the rule requires that a decision actually has to be made by the officer of the Carrier on whom that responsibility has been laced, which in this case was Manager Keene, within the time as therein specified, that Rule 22 requires that e give his reasons for so doing if the claim is disallowed, and that the employe and his representative be notified thereof in writing within the time as required by Rule 44 (c). Having failed to comply with Rule 44 (c) the claims, by the express provision thereof, must be allowed. Nor does the provision of the rule contemplate, wen it is applicable, that the merits of the Claim shall be considered. Consequently, we shall not do so."

Here the Respondent could have limited the amount of its obligation but it having failed to do so this Board has no alternative but to find that this claim is meritorious from the date of its inception on April 1, 1952, until the date the parties reconciled their differences on June 1, 1954.

Having found that Rule 4-D-1-(c) is controlling and applicable here, no purpose can be served by a consideration of merits of the claim.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dspute are respectively Carrier and Employes 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 Carrier violated the Agreement.

AWARD