awarded a promotion from his former Truck Driver position to a B&B Carpenter position on Crew 614, pursuant to Bulletin No. 121, dated April 25, 1994. Some 62 days later, on June 28,1994, the Claimant's Foreman handed him a handwritten note advising that he was disqualified from his Carpenter position and that he was to return to his B&B Truck Driver position.

On July 14,1994, the Claimant sent Manager Maintenance Engineering Edwin E. Howard a handwritten note requesting an "Unfair Treatment" Hearing under Rule 20 of the Agreement. The Carrier was struck by the UTU commencing July 15,1994 which apparently accounts for the fact that Mr. Howard may not have received that request. In any event, it is not disputed that when the Claimant made a telephone inquiry on September 9, 1994, Mr. Howard suggested that the Claimant send him another copy of that Unjust Treatment request. The Claimant did so on September 12, 1994 and Mr. Howard responded by letter of September 15, 1994, denying the request on grounds that the July 16, 1994 request was more than ten days after the June 28, 1994 disqualification. By letter of November 8, 1994, the Organization filed the instant claim, pointing out to Mr. Howard that the language of Rule 20, infra, gives an employee 20 days to file a request for an Unjust Treatment Hearing, rather than the ten days which Mr. Howard had erroneously quoted in rejecting the Claimant's request for an Unjust Treatment Hearing. Specifically, the General Chairman noted that due to a September 1991 amendment, Rule 20 states that an employee who considers himself unjustly treated must submit a request for a Hearing within 20 days from the date of the incident rather than the ten day time limit upon which the Carrier had premised the denial.

According to the USPS certified mail return receipt the November 8,1994 letter was received in Mr. Howard's office on November 9,1994. So far as the record shows, neither Mr. Howard nor any other Carrier representative ever responded to the claim. By letter of June 23, 1995, the Organization advised the Carrier's highest designated officer that no response had ever been received to the November 8, 1994 claim:

"We maintain that this failure to respond constitutes a violation of Rules 21-1(a) and 21-1(b) of the Schedule Agreement dated October 1, 1987, which requires the Carrier to reply within sixty days from the date our claim was filed. Our claim in this instance should now be allowed as presented."

While acknowledging that the Organization presented a copy of a Certified Mail Receipt for the November 8,1994 presentation of its claim, the Carrier noted that there was no record evidence to support the Claimant's initial submission of a July 14,1994 request for an Unjust Treatment Hearing. Therefore, according to the Carrier, since the Claimant was disqualified on June 28, 1994 and the claim was not presented until November 8, 1994, the Organization had "far exceeded" the requisite 60 day limit as provided for in Rule 21 of the Agreement. Additionally, the Carrier asserted that

"RULE 9 - QUALIFYING FOR PROMOTION

(c) An employee who considers himself unfairly disqualified may request a hearing pursuant to the provisions of Rule 20.

RULE 20 - DISCIPLINE AND GRIEVANCES

(a) An employee who has been in the service of the Soo Line for sixty

(60) days or more, and whose application has been approved will

not be disciplined or dismissed without a fair and impartial

hearing and shall be advised in writing of the specific charges . . .

. An employee who considers himself unjustly treated shall be

given a fair and impartial hearing provided that the request for a

hearing is made in writing to the Regional/Divisional Engineer

within twenty (20) days from the date of incident.

(b) The hearing will be held within twenty (20) days of the date of the

occurrence or within twenty (20) days from the date the

information is obtained by the appropriate officer of the company

(excluding company security forces) and the decision shall be

rendered within fifteen (15) days from the date the hearing is

completed.

RULE 21 -TIME LIMIT-CLAIMS OR GRIEVANCE

1. All claims or grievances shall be handled 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 authorized 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 from 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, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances."

disallowance of the timely filed claim of November 8, 1994 protesting Mr. Howard's September 15, 1995 erroneous denial of the Claimant's request for an Unjust Treatment Hearing pursuant to Rule 20. Any belated challenge to the authenticity of the original July 14, 1994 request was effectively waived by Mr. Howard's handling of this matter. The record supports the Organization's position that Mr. Howard instructed the Claimant to refile his July 14, 1994 request on September 9, 1994, received the refiled request on September 13, 1994, raised no challenge to its authenticity or to the fact that it had originally been filed on July 14, 1994 and then treated it as if it had been filed on July 14, 1994 by denying it on grounds that it was filed "16 days after your disqualification." It is manifest that Mr. Howard erred in his reading of the governing Agreement time provisions, because the literal language of Rule 20 gave the Claimant 20 days after the disqualification to make his Rule 20 request. Finally, it is shown beyond refutation that Mr. Howard never responded at all to the November 8, 1994 claim letter which pointed out his previous error. Based on all of the foregoing, Rule 21 (a) requires that this claim be sustained.

AWARD