The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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 issue raised by this claim is whether the Carrier timely denied the Organization's appeal in compliance with the requirements of Rule 64(b) which states, in pertinent part:
The claim, alleging a violation of Rule 55 in the assignment of a junior employee to perform the duties of material man on the second shift in preference to the Claimant, was riled on November 11, 1998, and denied by the Division Engineer on January 14, 1999. By letter dated February 25,1999 Vice Chairman Manning filed an appeal to Division Manager-Labor Relations Blair.
By letter dated May 4, 1999 Blair notified Manning that the denial letter, dated April 28, 1999, was mailed on that date by certified mail but, for some unknown reason, was returned to the office on May 3, 1999. She noted that the original denial letter remained unopened in the tile for review by the Organization, and enclosed a copy of the envelope and certified mail receipt, bearing a time stamp of April 28, 1999. The enclosed April 28, 1999 denial letter set forth the Carrier's position on the merits of the claim.
The Organization appealed the denial by letter dated June 9,1999 arguing, in addition to the merits, that the Carrier violated Rule 64 because the denial was not mailed properly until May 4, 1999, and is untimely and payable as presented. The case was discussed in conference on June 17,1999. The denial from the Carrier's Director of Labor Relations dated July 30, 1999 does not address the Organization's timeliness argument.
The Organization argues that this is a simple default case, as neither the properly mailed denial on May 4 nor the original April 28, 1999 denial letter met the 60-day time limit requirements of Rule 64, mandating that the claim be sustained as presented, citing Public Law Board No. 4768, Award 30; Third Division Awards 17085, 20900, 21755, 27640, 28403, 30596, 30974.
The Carrier contends that the envelope and mailing receipt for the response from the Division Manager-Labor Relations proves that the decision was timely rendered. The Carrier asserts that it is not responsible for ensuring receipt of the decision and cannot be held liable for errors of the U.S. Postal system. It argues that the Organization's timeliness argument on the property related to the May 4 mailing date, and the Board should not consider its belated claim that the April 28 date was similarly untimely. Because the Organization abandoned its appeal on the merits, the Carrier requests denial of the claim.
A careful review of the record convinces the Board that the Carrier failed to respond to the Organization's February 25,1999 appeal within the required 60-day time limit set forth in Rule 64. In this case it is immaterial whether the May 4 date of successful mailing is the one considered in determining timeliness, as contended by the Organization, or the April 28,1999 Form 1 Award No. 36047
date of the original denial letter, due to the Carrier's contention that it followed proper procedures in delivering it to the post office and the fault lay with the U.S. Postal Service. The fact remains that even April 28,1999, the admitted date of the original denial letter, is outside the 60-day time limit agreed to by the parties in Rule 64. The Organization raised timeliness at its earliest possible opportunity. Even if it referred to the May 4 date in arguing a violation of the time limits in its appeal, and not the April 28, 1999 date, it did contend that Rule 64 required that the claim be sustained without consideration of the merits. The Carrier had an opportunity to respond to this argument on the property and failed to do so. It cannot now assert that the Organization should be foreclosed from also noting that April 28, 1999 was similarly untimely.
We therefore conclude that the claim must be sustained on the ground that the Carrier defaulted by not timely denying the claim that had been filed with the Division Manager - Labor Relations on February 25, 1999. This decision is based solely on the procedural violation by the Carrier, and expresses no opinion on the merits of the claim, including the Carrier's argument that payment at the overtime rate is excessive.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.