Forth 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 31290
 Docket No. MW-31638
 95-3-93-3-588

 The Third Division consisted of the regular members and in addition Referee Robert L. Hicks when award was rendered.
PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the
 Brotherhood that:

          1) The Agreement was violated when the Carrier assigned Central Division Gang No. 4129 to install crossings at various locations between Osawatomie (Mile Post 335.5) and Stillwell (Mile Post 307), Kansas on the Kansas Division territory between July 29 and September 15,

          1992 (Carrier's File 920636 MPR).


          (2) The Agreement was further violated when the Carrier failed to give written reasons for the denial of the claim as required by Rule 12, Section 2(a).


          (31 As a consequence of the violations referred to in Parts (1) and/or (2) above, under the provisions of Rule 12, Section 2(a), the claim shall be allowed as presented, i.e., Foreman O.R. Bowers and Trackmen B.K. Morgan, G.L. Hughey, T.C. Edwards and M.B. Clark shall each be compensated at their respective rates of pay for an equal proportionate share of all man-hours consumed by the members of Central Division Gang No. 4129 while working on the Kansas Division territory between July 29 and September 15, 1992.'1


FINDINGS:
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.
 Form _ Award No. 31290
 Page 2 Docket No. MW-31638
 95-3-93-3-588

This Division of the Ad]ustment Board has -urisdiction over the dispute involved here=n.


Parties to said dispute waived right of appearance at hearing thereon.


Before any discussion of the merits can take place, a procedural challenge has to be resolved.


The claim was timely and properly presented and the Carrier Jfficer to whom the claim was presented, responded by saying:


      Your request :s respectfully declined in its entirety."


-pon appeal, -.^. addition to the merits, the irganization argues chat since ::o reason was given for the declination, a vioiacion of Rule : , Section 2(a) occurred and the claim is payable as presented


The Appeal Officer argued merits and presented an excellent argument chat would have perhaps exempted the Carrier from any Rules violation, but said nothing to counter the procedural argument. In fact, nothing was said about the Organization's procedural argument until the case was advanced to this Board and, of course, that =s coo late.


Carrier did decline the claim, but no reason for declination was given. As a result, the claim is sustained solely because of the fatal procedural error. The merits have not been considered.


                          AWARD


      Claim sustained.


                          ORDER


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.

Form 1 Award No. 31290
 Page 3 Docket No. MW-31638
 95-3-93-3-588
 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

 Dated at Chicago, Illinois, this 19th day of January 1996.