PARTIES TO DISPUCE:

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

 (1) The claims as presented by the General Chairman on September 25, 1980 to Division Engineer J. M. Sundberg shall be allowed as presented because said claim was not disallowed by Division Engineer J. M. Sundberg in accordance with Rule 49(x) 1 (System File 5-18-11-14-55/013-210-B/W).

OPINION OF BOARD: The claim before the Board involves two claimants, C. M.

 Wid and &. A. Bittern. The record shows that the claim is behalf of C. M. Wid has been settled in full by the parties; therefore, that portion of the claim is moot apd must be dismissed.

 The record shows that on September 19, 1980, C. M. Wid and R. A. Bittermn were notified by letters from the General Track Foreman, with copies to the General Chairman, Local Chairman, and others, as follows:







On September 25, 1980, the General Chairman wrote to the Division Engineer:



        The Carrier has violated the current Agreement between the Union Pacific Railroad Company and the Brotherhood of Maintenance of Way Employes effective January 1, 1973, revised October 1, 1978, Rule 48, when it removed them from service prior to a hearing, and did not apprise the individuals involved of the precise nature of the charges against them.


        The Carrier's letter is deficient, and these employees should now be reinstated with pay for all time lost as a result of that violation."


In the meantime, on September 23, 1980, the General Track Foreman had written to Wid and Bitterman, with copies to the General Chairman and others who had received copies of his letters of September 19, 1980, to disregard his letters of September 19, and be governed by the letter of September 23, 1980, wherein he informed Wid and Bitterman of their dismissal from service pursuant to Rule ii8(1) of the Agreement, and advised them of the rules they allegedly violated on September 17, 1980.

 On October 1, 1980, the General Chairman wrote the Division Engineer requesting a hearing for the Claimants, without waiving the position set forth in his letter of September 25, 1980. Nearing was scheduled for October 17, 1980, and conducted on that date. On October 29y 1980, the.hearing officer wrote the Claimants that the dismissal action was upheld based on the evidence produced at the hearing.

 On December 30, 1980, the Assistant Chairman wrote the Division Engineer, appealing the decision of the hearing officer dated October 29, 1980. The Carrier contends this appeal was not timely under Rule 118(e) of the Agreement, which provides for appeal within sixty calendar days following the date the decision is rendered.

 Also on December 30, 1980, the General chairman wrote to the Division Engineer, citing his claim letter of September 25, 1980, and asserting 96 days had elapsed with no response to his claim of September 25, 1980. The General Chairman alleged a violation of Rule 49, the time limit rule, and requested that "Claimants Bitterman and Wid be returned to work immediately with pay for time lost".

 On January 28, 1981, the Division Engineer wrote the Assistant Chairman emphasizing that his claim of December 30, 1980, was untimely. Also on January 28, 1981, the Division Engineer wrote the General Chairman:

        "Referring to your letter of December 30 concerning your claim letter of September 25 relative to discipline cases of Mr. R. A. Bitterman and Mr. C. M. Wid.


        Your letter of September 25 makes reference to Mr. Moreau's letter of September 18 as being deficient with regard to the stipulation of Rule 118. Previous to your letter of

                      Award Number 24298 page 3

                      Docket Number Z5W-2461_3


        September 25, Mr. Moreau rescinded his original letter of September 18 and wrote a corrected letter of September 23, which was 1revious to your lettxr of September 25. Your claims were based on the September 18 letter and inasmuch as this letter was corrected previous to your latter of September 25, your claims of asserted violations have no basis.


        Because of the above, Rule 49 wan not violated and the. claims will not be paid."


Claim was subsequently appealed on the property on the basis of the of the General Chairman's letter of September 25, 1980, and the Division Engineer's denial of January 28, 1981. The claim as appealed was denied by the Carrier, and the claim before this Board is on the same basis - an alleged violation of Rule 49, the time limit rule, by the Carrier.

 Upon careful consideration, the Board finds that Rule 49(&)1 was violated by the Casier, as the claim of September 25, 1980, was not denied until January 28, 1981. Even though the Carrier considered the claim as invalid and without basis in view of the General Track Foreman's letter of September 23, 1980, it was obligated under Rule 49(x)1 to render a decision on the claim within sixty, days. The question then presents itself as to the proper remedy for such violation.

 As we indicated in the .beginning, the claim in behalf of C. M. Wid is moot and will be dismissed. Therefore, the only claim before us is in behalf of E. A. Bitterman.

 Many awards have been rendered by this Division involving late denial of claims by Carriers, especially since Decision No. 16 of the National Disputes Committee. See also Decision No. 15 of the same Disputes Committee. Decision No. 16 of the National Disputes Committee, and awards following the issuance of that Decision, have generally held that a late denial is effective to toll Carrier's liability for the procedural violation as of that date. From the date of late denial, disputes are considered on their merits if the merits are properly before the Board.

 We find that the proper measure of damages for Carrier's violation of Rule 49(x)1 in the dispute before us, is compensation for claimant R. A. Bitterman at his straight time rate from September 18, 1980, through and including January 28, 1981. See Award No. 5 of Public Law Board No. 1844, as well as Third Division Awards No. 19842 and 21289 dealing with investigations not timely held, also Atlantic Coast Line RR v. BRAC, 120 F. 2d 812 (1954).

 As to the merits of the dispute, considering the offenses Claimant Bitterman was clearly guilty of, we will not award that he be reinstated to service or compensated beyond January 28, 1981.
                Awash Number 24298 page 4

                _ Docket Number Z$1-24673


        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 Employee within the meaning of the Railway labor Act, as approved June 21, 1934;

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

        That the Agreement was violated to the extent shown in Opinion.


                        A W A R D


Claim in behalf of R. A. Bitterman sustained in accordance with the opinion.

        Claim in behalf of C. M. Wid is dismissed.


                            NATIONAL RAIIROAD ADJUSTMNT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By . --

;~ E'E44~'z


Rosemarie Breach - Administrative Assistant

 je cEivEp :.
 Dated at Chicago, Illinois, this 14th day of April 1983. ,~i

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