(Brotherhood of Maintenance of Way fployes PARTM TO DI:~1;~:

STA EENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it assigned work of the Maintenance of Way Department at Hardvick, West Danville.. Morrisville.. Greensboro Bend, Sheldon and East Fairfield, Vermont to outside forces January 2 through April 4t 1979.

 (2) General Manager D. A. 8nyder failed to disallow the claims (appealed to him in four letters - two dated May 10, 1M, one dated July 12, 1979 and one dated July 13, 1979) in writing as contractually stipulated within Agreement Rule 36-2(a).

 (3) As a consequence of either or.both (1) and/or (2) above, the claims* shall be allowed as presented.

OPINION Og 'HOARD: The Carrier contracted with an outside concern to
,lanuary 2 through April 4, 1979. The Organization contends that such
 track maintenance work is encompassed within the scope of the went
 and that the work should have been performed by maintenance of way employes.
 By letters dated January 32, 1979,, January 28,, 1979, march 9, 19T9 and
 may 7, 1979., the three claimants made claim for all time lost by then by he work tars been performed March 22, June sad 9 July 6

 oadmester1979,
 bg letters atad denied all the claims.

 By two letters dated May 10 and one each dated July 12 and 13, 1979, the General Chairman appealed the four claims to the General Manager. The General Manager did not respond to the appeals made within the sixty days as set out in Rule 3$, Section 2(a).
                    Docket Number MW-2339


There are two issues before the Board. The first is the question of whether the work is within the scope of the agreement and the second is the effect of the failure of the general Manager to respond to the appeal within the sixty days provided for in Rule 36.

 We will consider the latter first bees if this is decided in favor of the ciaiemaats, then it will be unnecessary to address the first issue.

        Sections 2 (a) and (c) of Rule 36 provide as follows


__ All claims or grievances shall be bandied as follows:

    (a) All claims or grievances must be presented in writing by or on behalf of the employee involved, to the officer of the Carrier authorised to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the carrier shall, within 60 days tmm the date same is filed, notify whoever filed the claim or grievance (the employee or his representative) in writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, bat this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances.


    (c) The requirements outlined in paragraphs (a) and. (b), pertaining to appeal. by the employee and decision by the Carrier, shall. govern in appeals taken to each succeeding officxr, except in cases of appeal from the decision of throe highest officer designated by the Carrier to haad3.e such disputes. All claims or grievances involved in a decision by the highest designated officer shall be barred unless within 9 months from the date of said officer's decision proceedings are instituted by the employee or his duly authorized rawesentati4e before the appropriate division of the National Railroad Adjustment Hate or a system, group or regional board of adjustment that has been agreed to by the parties hereto as provided in Section 3 Second of the Railway IAbor Act. It is understood, however, that the parties may be agreement in any pe:rticular case extend the 9 months period herein referred to."

          Award Number 23265 Page 3

                    Docket Number MW-23


There is no disagreement that the Ge=neral Manager did not respond to the appeals within the 60-day period.

 In-a letter dated February k, 1980 addressed to the General Chairman by the General Manager, he stated "Rule 36 does not demand a written denial of an appeal to the highest officer of the company." ,Further in the Carrier's submission, it is stated that the GeneSal Manager does not understand Rule 36,, 2(a) to require that the denial be in writing.

 We have reviewed the Awards cited by the Organization and find they hold consistently that the procedural time limits must be adhered to.

 In the Opinion of the Board., the ~snguage of Rule 36 does require that the appeal, as contemplated in Section 2(c), clearly is subject to the requirements in Section 2(a) that the matter be disposed of in writing within 60 days.

 Carrier cites a conference held on July 30, 1929 during which the appeals were verbally declined. Carrier also cites a memorandum of October 22, 19T9 confirming the denial. We find that neither of these items, a verbal decline nor a late written denial satisfy the specific requirements of the rule.

 Because of the failure of the Carrier to respond in writing in a timely manner, we find it necessary to sustain the claim and do not address the merits of the case.

        FINDI=: 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 'r."tcployes involved in this dispute are respectively Carrier and -Employes within the meaning of the Railway Labor Act, as approved June 21., 1934;
                    Aeerrd Number 23265 pw

                    Docket Nmber NW-23394


That this Division of the Adjustment Board has jurisdiction
 over the dispute involved herein; and

        Thet the Agreement was violated.


                      A V A R D


        Claim sustained.


                            NATIONAL RAIIWAD ADJUSTMT HOARD

                            By Order of Third Division


Arms
 Rzecutive Secretary

 Dated at CbLicw~ Illinois., this 15th day of April 1981.