Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27640
 THIRD DIVISION Docket No. SG-27709
 88-3-87-3-171
 The Third Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

 (Brotherhood of Railroad Signalmen
 PARTIES TO DISPUTE:
 (Consolidated Rail Corporation

On behalf of Signalmen J. Lira, R. Mancuso, M. James, J. Sandilla, B. Briese and other employees who were headquartered at Porter, Indiana for two (2) hours pay, each day, beginning 60 days prior to August 15, 1985 and continuing until this claim Signalmen's Agreement, as amended, particularly, Rule 5-E-2, when it failed to provide adequate headquarter facilities for all signal employees in accordance with the Agreement." Carrier file SD-2256

 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.




Form 1 Award No. 27640
 Page 2 Docket No. SG-27709
 88-3-87-3-171
 Rule 4-K-1 (a) All grievances or claims other than those
 involving discipline must be presented, in writing, by the
 employee or on his behalf by a union representative, to the
 Supervisor-C&S (or other designated supervisor), within sixty
 (60) calendar days from the date of the occurrence of which
 the grievance or claim is based. Should any such grievance
 or claim be denied, the Supervisor shall, within sixty (60)
 calendar days from the date same is filed, notify whoever
 filed the grievance or claim (employee or his representative)
 in writing of such denial. If not so notified, the claim will
 be allowed as presented."
 The Claim was initiated by the Organization on August 15, 1985, and
 read as follows:





The initial reply of the Carrier was dated September 12, 1985, and read as follows:




Form 1 Award No. 27640
 Page 3 Docket No. SG-27709
 88-3-87-3-171

 This reply was signed by the C&S Supervisor. Assuming the requested delay to have been granted, this would have required a reply from the Supervisor by November 22, 1986, the Local Chairman wrote to the Supervisor, noting that "nothing has been done" in reference to the Porter facilities; that the Supervisor had not "complied with the claim process"; and that the "claim is payable now."

 The Claim was further processed to the Senior Director-Labor Relations, who denied the Claim on by letter of July 3, 1986, asserting that the Claim should be paid as presented, under the provision
There can be no question but that the Carrier failed to comply with Rule 4-K-1 (a) when it did not deny the Claim in timely fashion, even under the requested 60-day extension. The Rule is then self-enforcing in that it states, under such circumstances, "the claim shall be allowed as presented."

 The Carrier further argues, however, that the Claim for compensation is improper since "this Board has no authority to award any 'penalty pay' to the Claimants." But for the requirement of Rule 4-K-1 (a), the Board might well have been in a position to consider whether the Claim seeks "penalty pay" for readily implied admission of violation of Rule 5-E-2 or whether the remedy sought is proper compensation for alleged imconvenience. However, the Board is clearly precluded from reviewing this aspect of the dispute.

 Even if the Carrier's denial of May 29, 1986, were to be found to halt liability based on previous failure to answer, this would be of no consequence. As acknowledged up to March, 1986, when new facilities were provided for the Claimants.




Form 1 Award No. 27640
 Page 4 Docket No. SG-27709
 88-3-87-3-171




                              By Order of Third Division


Attest:
      Nancy J. e - Executive Secretary


Dated at Chicago, Illinois, this 16th day of December 1988.

CARRIER MEMBERS' DISSENT

TO

AWARD 27640, DOCKET SG-27709

(Referee Marx)


      The Honorable Justice J. Frederick Motz, of the United


States District Court of Maryland, in Docket JFM-84-3140, B&0 vs.

 BRAC, stated, when he overturned Third Division Awards 24861,

 24862, 24863, 24864, 24865 and 24866, that:

    " ..The Fourth Circuit has held that penalty pay is proper only if the employer had been guilty of willful or wanton misconduct or if the collective bargaining agreement provides for penalty pay.


                        * * *


      Likewise, it is clear that the collective bargaining agreement does not provide for penalty pay. Indeed, BRAC does not argue to the contrary ....There is no authority in the agreement to apply this rule to the alleged violation of Rule 87, by awarding penalty pay, the Fishgold panel was merely dispensing its own brand of industrial justice."


In First Division Award 23816, the Majority found that:

    "We have considered with care Mr. Holland's position before this Board, relying solely on the evidence he presented to the Board, since the Carrier failed to timely file an Ex Parte Submission.


                        * *


    While Mr. Holland contends that the August 17, 1983 Agreement is in violation of the constitution and Bylaws of the BLE, this Board has no jurisdiction to determine the validity of contracts..."


In Second Division Award 9321, the Majority found:

    "Numerous awards of this Board indicate that we are without ]urisdiction to enforce legislatively created rights. In addition, Claimant has not shown that any federal or state safety laws were violated. Nor has Claimant shown that the Carrier failed to

      "pledge to comply" with such laws. Finally, Claimant has failed to indicate under what power we might award the requested remedies.


      Since this Board does not have jurisdiction over this claim, the lateness of the Carrier's answer to the grievance is of no consequence. As Referee O'Brien noted (Award No. 19766):


'Before the time limits of Article V become applicable, the claim as presented must come within the term "claims or grievances" upon which Article V is premised. Accordingly, the claim must be denied. A W A R D Claim denied." Ignoring the aforequoted precedent, the Majority in this dispute holds that:

      "There can be no question but that the Carrier failed to comply with Rule 4-K-1 (a) when it did not deny the Claim in timely fashion, even under the requested 60-day extension. The Rule is then selfenforcing in that it states, under such circumstanc 'the claim shall be allowed as presented.'


The Carrier further argues, however, that the Claim for compensation is improper since 'this Board has no authority to award any 'penalty pay' to the Claimants.' But for the requirement of Rule 4-K-1 (a), the Board might well have been in a position to consider whether the Claim seeks 'penalty pay' for readily implied admission of violation of Rule 5-E-2 or whether the remedy sought is proper compensation for alleged inconvenience. However, the Board is clearly precluded from reviewing this aspect of the dispute." Unless Penalty Payments are provided for in the negotiated contract (or levied for continued wanton violations) they are beyond the jurisdiction of this Board who's authority flows only to "...the interpretation or application of Agreements" (Third Division Award 26074).

The majority limited the review of the dispute only to determine whether there was a time limit violation and looked no further, refusing to consider if that which was sought was within the jurisdiction of this Board to grant. Apparently this Majority believes that once the time limits are blown, that is it.


      We Dissent.


R. L. Hicks M. W. Fingerh t
 M. C. Lesnik P. V. Varga

 r
 J. E. Yost