Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27787
THIRD DIVISION Docket No. MS-28350
89-3-88-3-87
The Third Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.

(Charles J. Chotkowski PARTIES TO DISPUTE:


STATEMENT OF CLAIM:

"Claim of Charles J. Chotkowaki for a lump sum separation payment equivalent to 360 times the daily rate of the position to which assigned, account his position of Operator at Shoreham was abolished on August 8, 1986."

FINDINGS:

The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.



The record shows that Claimant was formerly employed by the Carrier as a Train Order Operator at Carrier's Shoreham Yard in Minneapolis, Minnesota. Claimant's position 1986, he presented a Claim to the Carrier's Manager-Twin City Agency for a lump sum separation allowance equivalent to 360 times the daily rate of the position that was abolished on August 8, 1986. In the Claim he stated:



The Claim was denied by the Manager-Twin City Agency on November 19, 1986.

On May 15, 1987, Claimant appealed his Claim to the Vice President Labor Relations 6 Personnel. In his appeal to the Vice President, Claimant
Form 1 Award No. 27787
Page 2 Docket No. MS-28350
89-3-88-3-87

contended that he had appealed his Claim to the Division Superintendent, on January 17, 1987; that his appeal had never been denied; and that the Claim was payable under the Time Limit Rule. On June 3, 1987, the Carrier's Vice President, Labor Relations S Personnel, responded to Claimant:



On March 3, 1988, the Vice President Labor Relations S Personnel wrote Claimant confirming a telephone conference with Claimant on February 29, 1988, in which the Carrier reiterated its position that the alleged appeal letter by Claimant dated January 17, 1987, was not received by the Division Superintendent and that the Implementing Agreement to consolidate Shoreham and St. Paul Yard contained no provision for separation allowances.

The record shows that on November 14, 1986, Claimant resigned from the service of the Carrier.

In his Submission to this Board the Claimant insists that the Claim be allowed as presented because the alleged appeal of January 17, 1987, was not denied within sixty days. The Carrier reiterates its position that it has no record of receiving a request or appeal letter from Claimant.

Numerous Awards of this Board have held that where the addressee denies receipt of a Claim or a denial within sixty days, it is then the responsibility of the addres time limit. (Third Division Awards 11505, 25417 and others cited therein, Fourth Division Award 3760). The Claimant has not proved receipt of the letter of January 17, 1987, by the Carrier. Therefore, we must find that the Claimant did not timely process the Claim. The Claim could properly be dismissed by the Board. Howev denied because the Claimant's job abolishment was unrelated to the implementation of train control m with the Milwaukee Road and did not trigger seperation allowances.




Form 1 Award No. 27787
Page 3 Docket No. MS-28350
89-3-88-3-87
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division

Attest:


Dated at Chicago, Illinois, this 29th day of March 1989.