4. MAINTENANCE AND OPERATION OF RAILROAD TRAFFIC

Railroad shall be responsible for all

transportation functions (including train

movements, the personnel involved therein, and

associated operations), maintenance of

equipment functions and maintenance of

existing and future railroad improvements

located in the vicinity of Harold Interlocking

as identified in Exhibit A. Such

responsibilities shall be performed in such a

manner as not to unduly interfere with

Amtrak's provision of rail passenger service,

the operation of trains, or Amtrak's ability

to perform its legal railroad obligations to

third parties consistent with the Joint

Facility Agreement. Railroad shall conduct

its operations so that no part of its

equipment shall foul any track, transmission,

signal or any other structure of Amtrak,

unless Amtrak agrees under certain

circumstances to permit such fouling.

Throughout the term of this Agreement,

Railroad shall, at its sole cost and expense,

maintain and repair the specified tracks in

the vicinity of Harold Interlocking as

identified on Exhibit A in accordance with the

minimum Federal Railroad Administration

("FRA") standards for class one track, and

shall comply with all FRA standards pertaining

to track and signal operation and

maintenance."

"The Carrier entered into, without the knowledge of the Union, an arrangement whereby certain tracks outside the vicinity of Harold Interlocking would be leased from Amtrak to the Long Island Railroad. This agreement was entered into on March 9, 1988 and was made available to the Union on January 25, 1990.

Statement of Claim:

That this agreement provided that work historically performed by BMWE Southern District workers would now be performed by the Long Island Railroad.

This arrangement violates the current Agreement, particularly Article 4 of the Scope Rule in effect between Amtrak and the BMWE ...."

"Please consider this appeal in accordance with Rule 64 of the Agreement... The original claim is dated March 12, 1990 and was sent to Division Engineer Fazio via certified mail number P 479 399 997. The original claim objected to the leasing of certain tracks outside of Harold Interlocking from Amtrak to the Long Island Railroad and makes specific objection to the transfer of BMWE work performed by BMWE represented Amtrak employees to Long Island Railroad workers.

This should be considered a continuing claim as per Rule 64(e).

Although the Division Engineer has had this claim for over sixty days, he has elected not to respond to the claim ...."

"Your claim referring to an Agreement established between Amtrak and the LIRR pertaining to the 'Harold' Interlocking has been received by this office on may 29, 1990.

However, the date of the letter is March 12, 1990, which is not timely according to the 60 day limit established by our Agreement. This is a fatal flaw and on its own, reason for denial in its entirety of this claim.

Secondly, this office took no part whatsoever in the negotiations or arranging of the Agreement between Amtrak and LIRR. Such action was not initiated nor handled at this level. Therefore, this office is simply not in a position to further respond to your claim.

However, it must be noted that no Amtrak BMWE employees have been furloughed as a result of this Agreement."

Rule 64 (a) specifically stipulates that claims for compensation must be presented, in writing, within 60 days from the date of the occurrence on which the claim is based. Rule 64 (b) also requires that when such claims are not allowed, the employee or his representative will be notified, in writing, within 60 days from the date the claim was filed.

In this dispute, the Organization submitted a stale claim two years after the grievable occurrence and this is not a valid "continuing claim" as that term of art is used in Rule 64 (e). But Carrier also erred when it neglected to respond to the claim received on March 14, 1990, within the requisite 60 days. Instead, almost two and one-half months later, Carrier responded, asserting that since the initial claim was untimely under Rule 64 (a) Carrier was free to ignore the time limits set forth in Rule 64 (b). To the extent that Third Division Award 26549, cited by Carrier, supports such handling, we are persuaded that it is wrongly decided and does not deserve to be considered valid precedent. On the other hand, we are not persuaded that the intent and purpose of the time limits provisions of Rule 64 (b) requires us to sustain ad infinitum this plainly invalid claim. On balance, we hold that the better reasoned disposition of these countervailing time limits violations, and one expressly approved in Disputes Committee Decision No. 16, is to sustain the claim only for the period from date of receipt by the Carrier, March 14, 1990 through date of denial by Carrier on June 29, 1990.

AWARD