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NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 22829

THIRD DIVISION Docket Number CL-22596

William M. Edgett, Referee

(Brotherhood of Railway, Airline and

( Steamship Clerks, Freight Handlers,

( Express and Station Employes PARTIES TO DISPUTE:

(Norfolk and Western Railway Company

STATEMENT OF CLAIM; Claim of the System Committee of the Brotherhood (GL-8581)

that:

1. Carrier violated, and continues to violate, the agreement between the parties, when, on March 3, 1977, B. A. Rather was arbitrarily released from position of Assistant Chief Clerk and her request for a hearing to determine the cause of such action was denied.

2. Carrier shall pay Ms. Rather the difference in rate of Assistant Chief Clerk and other positions held from April 28, 1977 and until such time as she is returned to the Assistant Chief Clerk position or until such time as the agreement is complied with and she is given the hearing requested per Rule 28.

OPINION OF BOARD: Claimant was removed from her Section 6 position by
Carrier and received notice of the removal in a letter dated March 2, 1977. On April 28, 1977 she requested a hearing Carrier did not respond to her request and on May 24, 1977 the local Chairman filed a claim, requesting the difference in pay between her former position and the position she exercised seniority to after release from her excepted position.

Carrier has argued that the claim is not timely and that, in any event, Claimant is not entitled to a hearing under Rule 28, which reads:

"RULE 28 - UNJUST TREATMENT

An employe who considers himself unjustly treated, otherwise than covered by these rules, shall have the same right of investigation, hearing, appeal and representation as provided in these rules, if written request which sets forth the employe's grievance is made to his immediate superior, within sixty (60) days of cause of complaint."

Award Number 22829 Page 2

Docket Number CL-22596

This Board has decided the latter question in Award 22444 which sustained an employe's request for a hearing in similar circumstances. Therefore, the question of Claimant's entitlement to a Rule 28 hearing is settled. She is entitled to a hearing. The remaining question is whether a timely request was made for the hearing.

Claims must be filed within sixty days of the date of the occurrence. Claimant filed her request for a hearing in a timely manner on April 28. Carrier made no response. Her local chairman filed a further claim on May 24, asking for the difference in pay, and citing her request for a hearing On June 16 Carrier denied the claim, as untimely, on the ground that the local chairman's claim was out of time since it had been filed some 83 days after the date of the occurrence.

Time limits are set for a purpose and it is the Board's obligation to carry out the parties' purpose by respecting them. However, they mast be given a reasonable application. They are not intended to provide a technical defense in those instances when no meritorious defense is available. Here there has been substantial compliance with the letter and spirit of the Rule. Carrier was placed on actual notice that Claimant was seeking a hearing under Rule 28 within the 60 days period provided by the role. It never answered Claimant's request. The Local Chairman made a request for the difference in pay between the position in question and that part of the claim came after sixty days. However, the Local Chairman referenced Claimant's request for a hearing and Carrier took the position that it came too late. If it had been made for the first time by the Local Chairman, Carrier would be correct. However, Claimant's April 28 request was not too late and it could not be simply ignored. Carrier had actual notice of a request by Claimant for a Rule 28 hearing, on a timely basis, and is estopped from raising a time limit argument as to that request. In part that finding follows Carrier's failure to make a response to the request for a Rule 28 hearing.

The claim cannot be sustained, as presented. However, the Board will sustain that part of the claim which requests Carrier to grant a Rule 28 hearing.

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;

Award Number 22829 Page 3

Docket Number CL-22596

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and That the Agreement was violated. A W A R D Claim sustained to the extent expressed in the Opinion. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division ATTEST; ~4ealt pzzlf~ Executive Secretary Dated at Chicago, Illinois, this 30th day of April 1980.