CONCLUSION

Carrier submits that the employe's claim was without merit, but concedes that because a timely disposition was not made on the property, the claimant is entitled to the amount demanded for November 13, 1959. In all other respects, the claim should be denied.

OPINION OF BOARD: The merits of this claim were not discussed by either side. The only question is whether the continuing claim should be sustained "as presented" or limited to the time the carrier actually declined the claim on the property.

The claim was filed on January 11, 1960 for continuous payment from November 13, 1959 until the relief position in dispute was established.

On March 3, 1960 the Carrier denied the claim on its merits but admitted that it bad failed to meet the time limit rule in Rule 61 (c). It agreed to pay the claim, however, for November 13, 1959 only since, in the Carrier's opinion, the Agreement does not provide for continuous claims. On March 10, 1960, however, the Carrier changed its mind and denied the claim in its entirety. Upon further consideration and still contending that the Agreement does not provide for continuous claims, the Carrier on May 27, 1960 agreed to pay the claim for November 13, 1959 for failure to meet the time limit rule.

The relief position in issue was established commencing June 17, 1960, hence the dispute with respect to the position terminated on June 10, 1960.

The validity of continuing claims is too well established for the Carrier's position on this point to be seriously considered.

It does not seem to be well established, however, whether the Carrier is obliged to pay continuing claims "as presented" when it fails to observe the time limit rule or pay only that part of the claim up to the time it actually declines the claim. If the claim in this case were paid, as presented, the Carrier would be required to pay the claim up to June 10, 1960. If the claim were paid up to the time the Carrier actually declined the claim, it would be required to pay up to March 3, 1960 when it declined the claim on its merits, but agreed to pay for one day because it had failed to observe the time limit rule.

The employes' position on the question is clear. They contend that the time limit rule, which provides specifically that "the claim will be allowed" if the Carrier fails to notify the claimant of its decision within the prescribed time limits, means just what it says-that "the claim", whether continuous or not, should be allowed as presented no matter what the consequences.

While there is a division of opinion on the point, the preponderant and more recent authority is that the claim should be allowed up to the date the Carrier actually denies the claim. See Awards 8318, Daugherty; 10401, Mitchell; 10644, Bailer; 11211, Miller; 11326, 11798, Dolnick; 12713 Reagan. These opinions and others, however, which limit compensation to the date the Carrier belatedly denies the claim, do not provide clear reasons why this conclusion has been reached. At best, there is the implied argument that continuous claims should not be sustained prospectively after the Carrier belatedly denied the claim, because of potentially absurd results, as where one union claims work which actually belongs to another union.

Understandably, this rationale, having an equitable rather than a legal base, has concerned the employes who properly resist decisions which they think make rather than interpret contract provisions.

While the majority view makes good sense in equity the same results can be reached through analysis of the existing time claim and time limit rule.

Just as Rule 61 does not provide for continuing claims, but are accepted within the intention of the rules, so should it be accepted that a continuing claim is not one claim but a series of claims to which the time limit rule applies successively as each claim matures. Given such construction of "the continuing claim rule," it follows that each of the series of claims should be allowed (measured by days since this is the standard used in the time claim and time limit rule) for so long as the Carrier remains in default of the time limit rule. At the point the Carrier notifies the claimant in writing of its decision, the Carrier cures its procedural default and the substantive issue is joined prospectively. If the employes win on the merits, their claim will be sustained for the full period of the claim. If not, their claim will be sustained for the period in which the Carrier was in default of the time limit role.

In this case, the employes did not support their claim substantively, hence the claim cannot be sustained for the full period. The claim can be sustained, however, up to March 3, 1960 since this was the first time the Carrier notified the claimant in writing of its decision.

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

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 was violated.

AWARD