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Employes have not held conference on the property concerning the issue of timely denial of their appeal by the Director of Personnel.

OPINION OF BOARD: On September 9, 1965, the individual Claimant, Mr. Henderson, exercised his seniority, and displaced another employe as Senior Rate Clerk, System Freight Agency, Denver, Colorado. On September 14, 1965, Mr. Greear, the Manager of this Agency, wrote Mr. Henderson that he was disqualified and released effective with the end of the shift that date. Mr. Henderson asked for in writing and was granted a formal Investigation Hearing which was held in Mr. Greear's office October 1, 1965. Mr. Henderson appeared at this hearing in person and with an Organization representative of his choice, Mr. Gallo. Mr. Eno presided. Mr. Greear and one other witness testified in support of Mr. Greear's September 14th decision. Mr. Henderson testified in his own behalf. On October 8, 1965, Mr. Greear wrote Mr. Henderson that the investigation sustained the disqualification. The Manager further added in this letter that the original decision disqualifying Mr. Henderson remained effective.

Although this is a difficult issue to resolve, we do not believe the present claim is before us for decision in regard to the basic merits of the grievance. We conclude that on September 6, 1966, the Organization elected to stand on procedural grounds, namely, that Carrier failed to comply with the Time Limit Rules of Article V of the August 21, 1954 National Agreement.

Consequently, we do not reach the issues pertaining to Mr. Henderson's ability to qualify for the position in question, i.e., whether he was afforded sufficient time and sufficient managerial cooperation.

The Brotherhood appealed the decision of Mr. Greear, the Manager of the System Freight Agency, to Mr. Norwood, the Superintendent of the Denver and Rio Grande Western Railroad Company, by letter dated October 20, 1965. In this letter the appeal is made and the basic claim presented

fully. The claim was denied by Mr. Norwood in a letter dated November 12, 1965. The record shows this letter makes no complaint that the grievance procedure was improper. The Organization appealed Mr. Norwood's denial to Mr. Herdman, the Director of Personnel of the Carrier, by letter dated January 7, 1966. The record indicates this letter was not received by Mr. Herdman until January 10, 1966. Mr. Herdman wrote the final denial letter on March 11, 1966. It is not contended that the Organization received this denial letter on March 11, 1966. It must be concluded the denial letter was received by the Organization one or more days after it was mailed, for usually two or three days had transpired between the date of mailing and the date of receipt, e.g., the appeal letter to Mr. Herdman was dated January 7, 1966, but not received by him until January 10, 1966.

The foregoing events resulted in a failure of the Carrier to comply with the Time Limit Rules of Article V, and dictates a finding that Part 1 of the Claim should be sustained and that Part 2 thereof should be sustained for the time period covering September 15, 1965, to and including March 11, 1966.

We must reach the above and foregoing conclusion unless we accept one or more of the Carrier's defenses in regard to procedure. These defenses in the main are:

1. That the claim was not properly filed in the first instance.

2. That a conference was not held on the property in regard to the issue of time limits. And, that procedural defects could be raised by either party with the other at any time before the filing of a notice of intent to submit the dispute to the Third Division-reference being made by Carrier to NDC Decision 5.

3. That Carrier made a timely denial.

4. That, in any event, the Claimant had the duty to mitigate his damages, and that he declined to do this by turning down positions offered him by the Carrier during a period of time up to October 28, 1965, when he was dropped from the service for failure to protect a position to which he had been assigned under the Agreement.

Briefly, we are of the opinion that these defenses are insufficient to justify a dismissal or denial decision, except in regard to limiting Carrier's financial liability up to the time period prior to Carrier's March 11, 1966 final letter of declination.

As to the launching of the Claim initially, Carrier contends the grievance should have been filed with Mr. Greear, the Manager of the System Freight Agency. If there is an exception to the routine order, this case is an outstanding example. Mr. Greear was the officer who disqualified the Claimant initially (four days after he had been on the job), he appeared as a witness against Claimant at the Investigation Hearing, October 1, 1965 [which Hearing was at his office], and on October 13, 1965, Claimant belatedly received a letter from Mr. Greear stating the investigation confirmed the correctness of Mr. Greear's first decision, and that the disqualification of Mr. Henderson as Senior Rate Clerk remained in effect. We cannot escape the fact that at this point the Manager of the System Freight Agency had

already made two written decisions disqualifying Claimant. It is difficult to understand the contention that in view of all of the foregoing circumstances, it was essential that Mr. Greear should have been in the position of declining a grievance a third time before it could be processed. Rule 24 (d) of the Agreement of the Parties provides, in part, as follows:

. The initial appeal from the decision of the officer whose decision is appealed must be made in writing . . and a copy furnished to the officer whose decision is appealed." (Emphasis ours.)

Mr. Greene was the officer whose decision was appealed, and the record shows that when Claimant appealed the decision against him to Mr. Norwood, the Superintendent of the Carrier, on October 20, 1965, carbon copies were simultaneously mailed to Mr. Greear, Manager of the System Freight Agency, and Mr. Herdman, Director of Personnel, the officer empowered to make the last decision in the grievance procedure on the property. By letter of November 12, 1965, Mr. Norwood declined the claim, stating:

"Hearing upholds decision and action taken; therefore, claim is denied."

This written declination, a carbon copy of which was mailed Mr. Greear, makes no contention that incorrect procedure is involved. The claim was accepted and decided on the merit issue alone.

It should be remembered that shortly after October 20, 1965, the Manager of the System Freight Agency, the Superintendent of the Carrier, and the Director of Personnel were all cognizant of the nature and substance of the Claim and the manner in which it was being processed. Months passed without Carrier's objecting to procedure. Finally, on March 11, 1966, the Director of Personnel wrote a letter to the General Chairman, denying the Claim on procedural grounds, stating, in part: "Mr. Greear's decision has never been appealed properly or timely." By the time this letter was received, the 60 days' time limit for declining a claim under Article 5 of the National Agreement of 1954 had expired. At panel hearing, it was contended ably that since the Claim was still on the property, the issue of noncompliance with the requirements of Article 5 could yet be raised, and NDC Decision 5 was cited as support for this argument. NDC Decision 5 was issued March 17, 1965. Granting that the issue of a procedural defect may be "raised" (or presented) while the Claim is still on the property, the right to raise it belatedly does not mean that the new argumentation must necessarily be accepted as correct and meritorious. We accept the legality of the presenting of the procedural exception out-of-time, but in considering its merits, we deem the point weakened by circumstances akin to estoppel and implied waiver over a considerable period of time. For this and other reasons indicated above, we find the argument that the claim at hand was not properly initiated is untimely and lacking in merit. It is, therefore, rejected. Award 15408 (Lynch). As to the running of the time limits, Award 24 of Special Board of Adjustment No. 564 is cited with approval. And, also, Award 14502 (Dorsey).

The neutral referee has read the numerous Awards presented in behalf of the Carrier. These were found to be distinguishable from the case at hand in varying degrees. A few examples are: Awards 4027 (Second Division-

Johnson), which states, in part: `. . . and the objection was not waived by the Carrier but on the contrary was raised by it at the first opportunity." (Emphasis ours); Award 12490 (Ives), which states, in part: "Thereafter, the Carrier carefully preserved its exceptions to the Claim during its further progress on the property . . and no valid basis for implying waiver has been established." (Emphasis ours.) Award 9684 (Elkouri) states: "Nor does the Record indicate any adequate basis for finding a waiver by the Carrier . . ." (Emphasis ours). Special Board of Adjustment 685 in its decision of January 12, 1965, states in part that one of the Carrier's officers in the chain of appeal "was never notified of the rejection of his decision." Award 11575 (Hall) did not involve a continuing claim, but, instead, had a definite termination date, in contrast to Award 15408. Many other examples could be mentioned, but to do so would be needless indulgence in detail.

Mr. Greear either did or did not study and decide upon the case at hand. If he did (and we are convinced this is the truth of matter) Carrier cannot be heard to complain that he was by-passed. On the other hand, if events made it impossible and/or unreasonable for Claimant to process his claim at the first step, where he should have had the opportunity to obtain an independent decision, then Claimant would not have had the benefit of due process of law, i.e., an independent review of his claim at Step 1. This is why we are convinced Mr. Norwood, as Superintendent, accepted and acted upon this Claim at Step 2 without questioning the procedure used by the Employes. It is reiterated that when this Claim was sent to Mr. Norwood, all concerned had notice of the procedure being used, namely, Mr. Greear and Mr. Herdman. Implied waiver existed from then until after the time limit rules for declination had expired. After expiration of the mandatory time rule, the procedural issue was raised. But, as in Award 15408, we conclude that although the procedural issue could still be raised, we cannot accept this untimely argumentation as meritorious or persuasive.

It is contended by Carrier and in behalf of Carrier that conferences were not held on the property in regard to all of the key issues involved, including Article 5 of the 1954 National Agreement. We have scrutinized the Record, and believe it shows sufficient conferences were held by the parties on all issues prior to submission to this Division. A fair distinction can be made between adequate conferences and interminable conferences. We interpret Paragraph Second of Section 2 of the Railway Labor Act to provide that conferences be expeditious.

In regard to mitigation of damages (here a job opportunity was apparently available October 28, 1965), the neutral referee is inclined to follow Award 15408 and other recent Awards, such as 14502, where the claim is a continuing one and Article 5 of the 1954 National Agreement is involved and NDC 16 is applicable. These decisions do not delve into mitigation of damages, but, on the contrary, grant relief by a prescribed formula. We do not reach the issue of mitigation of damages under the particular circumstances of this case.

Since this decision turns on Carrier's violation of the time limit rule of the National Agreement, Carrier's violation of Rule 24 (a) of Article IV of the Agreement of these parties requires no remedial action. This Award grants relief which cures that particular defect.

Therefore, this Claim is allowed in part and denied in part-as indicated above.

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

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute 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

I. That the Employes elected on the property to base this Claim upon procedural issues.

II. That the time limit rules of Article 5 of the 1954 National Agreement were violated by Carrier.

111. That the Claim shall be allowed as presented, except that Carrier's financial liability is terminated as of March 11, 1966.

AWARD