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

1. Carrier violated the provisions of the effective Clerks' Agreement when it failed to render a decision in appeal taken with the General Manager of the Carrier on September 11, 1931, within the sixty (60) day time limit provided for in Rule 26.

 2. Carrier shall now be required to compensate Henryka Rusniak for all time lost as a result of her suspension from service, including the time she was improperly withheld from service pending the hearing and that her record shall be cleared of the charges placed against her.

 OPINION OF BOARD: Organization claim is based solely on alleged procedural
 defect as this relates to application of Rule 26 of current
 Agreement. After Claimant, Henryka Rusniak, received notice on May 14, 1981 to
 attend an investigation on May 18, 1951 to ascertain her responsibilityp if
 any, in connection with her allegedly having been found sleeping while covering
 her assignment on May 8, 1981, she was notified on May 20, 1981 that she
 had been found guilty as charged and was assessed fifteen (15) working days' sus
 pension without pay. On June 182 1981 the Organization, over the signature of the
 local chairman, appealed the discipline to the Company's General Supervisor
 of Building Services. On August 14, 1981 appeal was declined by same. On
 September 11, 1981 a second appeal was addressed by the Organization to the
 General Manager of the Company. The Company purportedly then answered this
 appeal by letter on November 5, 1981 which the Organization states it never
 received. By date of November 20, 1981, the Organization purportedly sent a
 letter to the Company stating that the time limits as stipulated in Rule 26
 had been violated and that claim should be allowed in accordance with this
 violation. It is the Company's position that it had not received this piece
 of correspondence. A conference was held between the parties on December 9,
 1981 at which time the appeal was again denied. By letter dated December 10,
 1981 the Organization discussed the substance, from its point of view, of the
 conference held on December 9, 1981 and requested claim allowance on proced
 ural grounds. By letter purportedly sent on December 22, 1981 the Company
 denied request for settlement on the grounds that the denial reply had been
 properly made on November 5, 1981 in accordance with time limits of Rule 26.
 Organization further states that it never received correspondence of December
 22, 1981.






Section 1.

 (a) All claims oar grievances must be presented in writing by or on behalf of the employe involved, to the officer of the Company authorized to receive same, within sixty (60) days from the date of the occurrence on which the claim or grievance is based. Should any such claim or g (60) days from the date same is filed, notify whoever filed the claim or gievance (the employe or his representative) in writing of the reasons four such disallowance. If not so notified, the claim or gievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Company as to other similar claims or grievances.

 (b) If a disallowed claim or grievance is to be appealed, such appeal must be in writing and mast be taken within sixty (60) days from receipt of notice of disallowance, and the representative of the Company shall be notified of the rejection of his decision. Failing to comply with this provision, the matter shall be considered closed, but this shall not be considered as a precedent or waiver of the contentions of the employes as to other similar claims or grievances. It is understood, however, that the parties say, by ageement, at any stage of the handling of a claim or gievance on the property, extend the sixty (6o)-day period. for either a decision or appeal, up to and including the highest o designated far that purpose.

 (c) The requirements outlined in paragaphs (a) and (b), pertaining to appeal by the employe and deci shall govern in appeals taken to each succeeding officer, except in cases of appeal from the decision of the highest officer designated by the Company to handle such gievances involved in a decision by the highest designated officer shall be barred unless within nin (9) months from the date of said officer's decision proceedings are instituted by the employe or his duly authorized represen division of the National Railroad Adjustment Board or a system, goup or regional board of adjustment that has been agreed to by the parties hereto as provided in Section 3 Second. of the Railway Labor Act. It is understood, however, that the parties may by agreement in any particular case extend the nine (9)-months' period herein referred to."


A review of the record before the Board shows that the Organization denies having received not only the decisive declination letter of November 5, 1981, but also the letters of December 22, 1981 and an undated notarized statement accompanying this letter.* The ompaqy.. on the other hand, affirms not only that it sent all three documents by Q. S. Mail., but it makes them part of the record accompanying its submission to the Board by means of exhibits. As an additional point, the Organization rejects validity of these three documents as part of the record before the Boar! on grounds that they were not part of the record on the property.

 The evidentiary masse as it relates to the instant case would normally be settled by this Board by reference to precedent cases dealing with conflicting testimony (Third Division Awards 21612; 23085 inter alia). Such prior Awards have always held that the Board would not substitute its own judgment in cases of conflicting testimony as long as Carrier position is not so devoid of probity that its acceptance would not be per se arbitrary and unreasonable. The issue at stake here is the reasonableness of the Company's affirmation that it sent three pieces of correspondence, in two separate letters, all of which Organization claims it never received.

 The test of the reasonableness of Company position that it mailed the disputed correspondence, including the declination letter, must be put in the context of total record before this Board.

 The total record before the Board in the instant case collectively points to a pattern of negligence on the part of the Company when processing grievance cases on the property. Since such is the case, it would be unreasonable for the Board to deal with this only as a conflicting testimony case and it would not be unreasonable for it to sustain 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 teas violated.


Company denial of having received the Organization's letter of November 20, 1981 is nowhere confirmed by the Company itself in the record before the Board, but is found in Organization's December 10, 1981 letter to the Company which is part of the record.

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            Award Number 244'8~51~ Page 4

                      Docket Number CL-24564

                      A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 i

 By 'L ~Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 14th day of July 1983.

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