PARTIES TO DISPUTE: Chicago and North Western Transportation Company

1. Carrier violated the terms of the current Agreement, particularly Rules 13 and 21, when it foreclosed and/or terminated the employment of Ms. Linda J. Wilson on November 3, 1979 an the basis that her application far employment was not accepted, rather than afford her a fair and impartial investigation; and

 2. Carrier shall now be required to reinstate Ms. Linda J. Wilson to service with all rights unimpaired, and compensate her for all losses account . improperly denied of work opportunities, to include fringe benefits which would have accrued to her couttdued employment.

 OPINION OF BOARD: . The basic facts are not is dispute. The claimant initially
 began employment on August 3, 1979. On November 3, 1979, the
 claimant was disqualified from service and her application for employment was
 rejected. It is also noted that she was reinstated on March 17, 1981.

 The pertinent contract language Rule 13 and Rule 21(a). Rule 73 and Rule 21(a) are quoted below:












        be represented, may be accompanied and represented by the 'duly accredited representative' as that term is defined in this agreement. He may, however be held out of service pending such investigation in which event he shall be immediately apprised in writing of the precise charge against him. The investigation shall be held within seven calendar days of the alleged offense or within seven calendar days of the date information concerning the alleged offense has reached his supervising officer. In cases where discipline is administered, a decision is writing, with copy to the duly accredited representative, will be rendered within seven calendar days after the completion of investigation. Investigations shall be held, whenever practicable, at the point of employment of the employee two5ved sad at such time as not to cause the employee to lose rest or time. The Employee shall have reasonable opportunity to secure the presence of representatives and/or necessary witnesses. Fortyeight hours will, under ordinary circumstances, considered reasonable time."


The Organization contends that under Rule 13, the claimant's application was clearly accepted because she was not notified to the contrary during the sixty days subsequent to August 3, 1979. Moreover, they note that there was no agreement with the General Chairman to extend the sixty day period. 'Taasmuch as her application was accepted, the carrier was obligated under Rule 21 to conduct as investigation before dismissing her. There is no doubt in the organization's mind that the carrier failed to conduct an ixmestigation prior to the dismissal. Inasmuch as the carrier failed to conduct an investigation, the dismissal is improper and the claimant is entitled to time lost.

 The carrier argues the claimant's application was properly rejected. It was the intent of the claimant's supervisor, Mr. Ricketts, to reject her application on October 1, 1979, a date within the sixty days of August 3, 1979. However, because she had bees absent much of the probation period, he agreed with the local committeeman, Golubski, to extend the probationary period 30 or 60 days. Inasmuch as Mr. Ricketts was not informed by Mr. Golubski that Golubski did not have the authority to extend the probationary period, the carrier acted reasonably in good faith is reliance of what Mr. Ricketts thought to be a proper agreement. The carrier also argues that the claim'£or back pay should be mitigated due to the delays is the organization's response to a compromise offer made by the carrier is an attempt to settle the claim.

 Ea considering the merits of the respective arguments, the conclusion of the Board is that the carrier violated Rule 21 and that the claimant was improperly discharged. Rule 21 requires that "employees who have been in service sixty days or more or whose application has been formally approved" will not be discharged without an investigation. It is clear under the unambiguous language in Rule 13 that inasmuch as the claimant had been in the service of Me carrier more than sixty days and that she had not been notified at the expiration of sixty days that her application was rejected, her application should have been
                      Award Number 24076 Page 3

                      Docket Number CL-24063


considered "accepted". Once her application became accepted, as it did, the carrier was obligated to hold an investigation before dismissal, which they undisputably failed to do. Therefore, the claimant is entitled to all time lost.

 The carrier defends its actions based on a reliance agreement to extend the sixty day probationary period. This agreement was made between Mr. Ricketts and a local union official. However, we do not find this defense persuasive. Under the clear, unambiguous language of Rule 13, the only extensions of the probationary period are those sanctioned by agreement of the officer in charge of Labor Relations, which Mr. Ricketts was not, and the General Chairman, which Golubski was not. The language of Rule 13 is clear and not subject to interpretation sad must be applied as written.

 Regarding the issue of unreasonable delay, the Board finds that the delay in this case cannot operate to mitigate the damages. While the delay is bothersome, there is no evidence it was deliberate or intentional. The wording of the first offer of compromise extended by the carrier did not request any advice of refection and, as a matter of fact, implied clearly that the offer was a take-it or leave-it matter. It stated "if you concur with this disposition, please indicate so by signing and returning one copy of this letter. If you do not agree, your claim is again denied for lack of support of scheduled rules and agreements." The compromise offer, as extended by the carrier, was in fact not acceptable to the organization, and they proceeded to appeal the case to the Board within the specified time limit based on the belief that the claim was being denied by the carrier. Nor is there any evidence in the record that the carrier sought out advice from the union as to the acceptance or' refection of their offer during the period of delay. Under the wording of the carrier's offer, the carrier should have assumed that the absence of an acceptance was clearly a refection of the compromise as it was in this case. Under the circumstances, the organization did not act unreasonably.

 In summary, it is the finding of the Board that contract was violated and the claimant is entitled to back pay per Rule 21(c).

        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 Employee involved is 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 violated.

                      Award Number 24076 Page 4

                      Docket Number CL-24063

                      A W A R D


        Claim sustainedin accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Breach - Administrative Assistant

 Dated at Chicago, Illinois, this 14th day of December 19 2.

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                NATIONAL RAIIRQ9D ADJUSTMENT BOARD

                Award Number 24076

                THIRD DIVISION Docket Number CL-24063


                    Gilbert H. Vernon, Referee


(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago and North Western Transportation Company

              STATEMENT OF CLAIM: Claim of the System Cotxmiittee of the Brotherhood (GL-9406) that


1. Carrier violated the terms of the current Agreement, particularly Rules 13 and 21, when it foreclosed and/or terminated the employment of Ms. Linda J. Wilson on November 3, 1979 on the basis that her application for employment was not accepted, rather than afford her a fair and impartial investigation; and

 2. Carrier shall now be required to reinstate Ms. Linda J. Wilson to service with all rights unimpaired, and compensate her for all losses account improperly denied of work opportunities, to include fringe benefits which would have accrued to her continued employment.

 OPINION OF BOARD: The basic facts are not in dispute. The claimant initially
 began employ went on August 3, 1979. On November 3, 1979, the
 claimant was disqualified from service and her application for employment was
 rejected. It is also noted that she was reinstated on March 17, 1981.

 The pertinent contract language Rule 13 and Rule 21(a). Rule 13 and Rule 21(a) are quoted below:

        "Rule No. 13 - Applications


        The applications of new employees shall be approved or disapproved within sixty calendar days after the applicant starts work, unless investigation develops complications requiring longer time, and such additional time is mutually agreed to by the officer in charge of Labor Relations and the General Chairman. Applicants not so notified at the expiration of sixty calendar days will be considered accepted."


        "Rule No. 21 - Discipline and Investigation


        (a) An employee who has been in the service sixty calendar days or more or whose application has been formally approved, shall not be disciplined or dismissed

        without a fair and impartial investigation, and prior --

        thereto will be notified in writing of the precise charge.

        At the investigation the employee, if he desires to

                      Award Number 2!.00 ?age 2

                      Docket Number CL-24063


        be represented, may be accompanied and represented by the 'duly accredited representative' as that term is defined in this agreement. He may, however be held out of service pending such investigation in which event he shall be immediately apprised in writing of the precise charge against him. The investigation shall be held within seven calendar days of the alleged offense or within seven calendar days of the date information concerning the alleged offense has reached his supervising officer. In cases where discipline is administered, a decision in writing, with copy to the duly accredited representative, will be rendered within seven calendar days after the completion of investigation. Investigations shall be held, whenever practicable, at the point of employment of the employee iwoived and at such time as not to cause the employee to lose rest or time. The Employee shall have reasonable opportunity to secure the presence of representatives and/or necessary witnesses. Fortyeight hours will, under ordinary circumstances, considered reasonable time."


The Organization contends that under Rule 1.3, the claimant's application was clearly accepted because she was not notified to the contrary during the sixty days subsequent to August 3, 1979. Moreover, they note that there was no agreement with the General Chairman to extend the sixty day period. Inasmuch as her application was accepted, the carrier was obligated under Rule 21 to conduct an investigation before dismissing her. There is no doubt in the organization's mind that the carrier failed to conduct an investigation prior to the dismissal. Inasmuch as the carrier failed to conduct an investigation, the dismissal is improper and the claimant is entitled to time lost.

 The carrier argues the claimant's application was properly rejected. It was the intent of the claimant's supervisor, Mr. Ricketts, to reject her application on October 1, 1979, a date within the sixty days of August 3, 1979. However, because she had been absent much of the probation period, he agreed with the local committeeman, Golubski, to extend the probationary period 30 or 60 days. Inasmuch as Mr. Ricketts was not informed by Mr. Golubski that Golubski did -not have the authority to extend the probationary period, the carrier acted reasonably in good faith in reliance of what Mr. Ricketts thought to be a proper agreement. The carrier also argues that the claim for back pay should be mitigated due to the delays in the organization's response to a compromise offer made by the carrier in an attempt to settle the claim.

 In considering the merits of the respective arguments, the conclusion of the Board is that the carrier violated Rule 21 and that the claimant was improperly discharged. Rule 21 requires that "employees who have been in service sixty days or more or whose application has been formally approved" will net be discharged without an investigation. It is clear under the unambiguous language in Rule 13 that inasmuch as the claimant had beer. in the service of the carrier more than sixty days and that she had not teen notified at the expiration of sixty days that her application was rejected, her application should have been
                      Award Number 2 4070 Page 3

                      Docket Number CL-24063


considered "accepted". Once her application became accepted, as it did, the carrier was obligates to hold an investigation before dismissal, which they undisputably failed to do. Therefore, the claimant is entitled to all time lost.

 The carrier defends its actions based on a reliance agreement to extend the sixty day probationary period. This agreement was made between Mr. Ricketts and a local union official. However, we do not find this defense persuasive. Under the clear, unambiguous language of Rule 13, the only extensions of the probationary period are those sanctioned by agreement of the officer in charge of labor Relations, which Mr. Ricketts was not, and the General Chairman, which Golubski was not. The language of Rule 13 is clear and not subject to interpretation and must be applied as written.

 Regarding the issue of unreasonable delay, the Board finds that the delay in this case cannot operate to mitigate the damages. While the delay is bothersome, there is no evidence it was deliberate or intentional. The wording of the first offer of compromise extended by the carrier did not request any advice of rejection and, as a matter of fact, implied clearly that the offer was

      X ,'L a take-it or leave-it matter. It stated "if you concur with this disposition, please indicate so by signing and returning one copy of this letter. If you do not agree, your claim is again denied for lack of support of scheduled rules and agreements." The compromise offer, as extended by the carrier, was in fact not acceptable to the organization, and they proceeded to appeal the case to the Beard within the specified time limit based on the belief that the claim was being denied by the carrier. Nor is there any evidence in the record that the carrier sought out advice from the union as to the acceptance or rejection of their offer during the period of delay. Under the wording of the carrier's offer, the carrier should have assumed that the absence of an acceptance was clearly a rejection of the compromise as it was in this case. Under the circumstances, the organization did not act unreasonably.


      In summary, it is the finding of the Board that contract was violated and the claimant is entitled to back pay per Rule 21(c).


            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 "thin 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 violated.

Award Number 2l;p7E Page 4
 Docket Number CL-24063

 A W A R D
Claim sustained to the extent indicated in the Opinion.

 NATIONAL RAILROAD ADJLSTrENI BOARD
 By Order of Third Division

 Attest: Acting Executive Secretary
 National Railroad Adjustment 3oard

 J 111007 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 14th day of December 1832.
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