(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Pacific Fruit Express Company

(a) The Pacific Fruit Express Company violated current Clerks' Agreement on July 2, 1973 when it to the rules thereof; and,

 (b) The Pacific Fruit Express Company shall now be required to reinstate Mr. Julia Feirro and co rate of Clerk-Inspector each and every work day commencing August 1, 1973 in addition to payments for Southern Pacific Employes Hospital Association and Travelers Policy GA-23000 for dependents, and for all other contractual benefits he has been deprived of commencing August 1, 1973 and continuing until restored to service with the Pacific Fruit Express Company.

 OPINION OF BOARD: This dispute, involving discharge of Claimant, deals with the
 alleged failure of Claimant to report back from his vacation:
 failure to protect his assignment. Both parties raise serious procedural ques
 tions which must be considered first.

 The investigation in this dispute was held on June 25, 1973 and Claimant was dismissed from serv present at the investigation, nor was his representative. The generally agreed upon facts pertaining to this dispute are that Claimant went on vacation on April 11, 1973 which was to end on May 16, 1973. Upon receipt of a telegram from Claimant indicating he was ill, he was granted sick leave until May 20th. On July 18, 1973 Claimant appeared at the office and picked up his checks. Carrier was aware that Cl
Petitioner contends that Claimant was deprived of his right to a fair hearing in that he did not receive the notice of hearing and therefore did not participate in the investigation. The pertinent provisions of Rule 38 provide:













Petitioner also states that Claimant's representative, the Local Chairman, did not receive the copies of the transcript of the investigation or the decision until September 20, 1973.

 Carrier asserts that timely appeal of the dismissal was not made locally nor was any claim filed locally at any time, thus barring the dispute from further handling. On August 16, 1973 the Local Chairman wrote to the Plant Manager requesting that the matter be reopened; the Plant Manager declined by letter dated August 28th. Finally on September 26, 1973 the Local Chairman wrote to the Carrier Officer who assessed the discipline and filed a formal appeal to the dismissal.

 It is noted that although there is no evidence that Claimant received the Notice of the Investigation, there is no denial that said notice was received by his representat Notice of Dismissal upon his return from Mexico at an unnamed date.


The record of this dispute is quite clear in that Claimant did know of his discharge no later than July 18th. In spite of this, no claim or appeal was filed until more than two months later. The provisions of Rule 38 (e) are quite unequivocal: the appeal must be filed within 15 days and with the officer who assessed the discipline. Regardless of other possible questions with respect to the of the notice of discipline was July 18th, the appeal was not timely filed and may not be considered. Carrier raised its objections to the untimely filing of the appeal consistently in the course of the handling on the property and there is no evidence of any expressed or implied waiver. This Board has held in a number of prior disputes that similarly defective appeals warrant dismissal: Awards 19147, 19663, 20035, 19070 and 20063 among others. For the reasons indicated we may not consider the merits of this dispute; it must be dismissed.



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






                        By Order of Third Division


        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 14th day of November 1975.