NATIONAL RAILROAD ADJUSTMENT BOARD

            Award Number 22542

            THIRD DIVISION Docket Number MW-22426


              George S. Roukis, Referee

              (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Fort Worth and Denver Railway Company

                            STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:


              (1) The ten (10) day suspension (commencing 8:00 A.M.$ February 28, 1977 and ending 5:00 P.M., March 11, 1977) imposed upon C,,. M. Beard was improper and without just and sufficient cause LSystem File F-8-77/G-90(MW)_//.

                             (2) The personal record of the Claimant be cleared of said suspension and he be reimbursed for all wage loss suffered in accordance with the provisions of Rule 26(c)."

                             OPINION OF BOARD: This Board has carefully examined the procedural
                             objections raised by the parties and, of necessity,
                             must reject them.

                             Claimant's contention that the discipline notice was untimely rendered in violation of Agreement Rule 26 (a) is unsupported by the record or the Board's definitional requirements regarding the word "rendered."

                             Claimant did not adduce confirmatory proof such as the envelope containing the date the notice was mailed or convincingly demonstrate that the word "rendered" as used in this context is synonymous with the word "received."

                    In Third Division Award 13219, we held in pertinent part that,


                "This line of authority holds, in effect, that notice of the decision must be dispatched within the time limit in such manner as may reasonably be relied on to actually get the notice to the employe, and that prima facie evidence of compliance with the rule stems from the date not from the date it is received."


                We believe this principle applies to the facts herein.

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                                Award Number 22542 Page 2

                                Docket Number MW-22426


              On the other hand, carrier's lateness in waiting until the May 5th and 6th conference to discuss its averment that claimant didn't send a carbon copy of the March 7, 1977 declination letter to the General Manager did not cure its failure to cite this omission in its March 22, 1977 response. It was under a procedural obligation to raise this argument earlier.

                             In the instant dispute, claimant was given a ten (10) day suspension, following an investigative hearing held on September 25, 1977 in connection with his alleged failure to secure proper permission to be off from work on Janua position, he argues that his automobile's fuel pump malfunction, unavoidably kept him from reporting to work and that he tried to call his foreman between 7:20 A.M. and 7:30 A.M. and the Star Agent located at Dalhart, Texas. He submitted a receipt showing a $14.64 expenditure for auto parts, dated January 14, 1977.

                             Carrier, contrawise, asserts that his foreman was at home during the purported telephone attempt and that the Star Agent was at work at the Dalhart station. It contends that the auto parts receipt was altered, since the number 4 in the date section marked 1-14-77 was different from the number 4 written in the cost columns.

                             In our review of the case, we agree with carrier's position that claimant failed to notify his foreman properly that he would have to be off from work that day. His assertions that he called his foreman between 7:20 A.M. and 7:30 A.M. and the Star Agent are unsupported. Claimant was under a mor particular employment circumstances to insure that he notified his superiors promptly of any prospective absences.

                             There was no indication that his foreman was not at home between 7:20 A.M. and 7:30 A.M. and the record shows that the Star Agent was at his assigned location on this date.

                             Even assuming arguendo, that the Star Agent had momentarily stepped outside his office that morning, it is inconceivable that he could not be eventually reached, since grievant testified that he tried "on and off" to contact him.
                                Award Number 22542 Page 3

                                Docket Number I8d-22426


              When the dubiously dated auto parts receipt is factored into the sum total calculation and measured objectively against his prior attendance record, we believe that the ten (10) day suspension penalty was not unreasonable or excessive. We will deny the claim.-

                    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

                    That the Agreement was not violated.


                                A W A R D


                    Claim denied.


                                    NATIONAL RAILROAD ADJUSTMENT BOARD

                                    By Order of Third Division


                    ATTEST: Executive Secretary


                    Dated at Chicago, Illinois, this 28th day of September 1979.