(1) The claim as presented by General Chairman L. W. Borden on April 12, 1993 to Director M of W Equipment and Shops F. Gschwandegger shall be allowed as presented because said claim was not disallowed by Director M of W Equipment and Shops F. Gschwandegger in accordance with

Rule 12.2(a) (Carrier's File 930459) MPR)."

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.

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

On April 12, 1993, the organization filed a claim with the Carrier's Director of M of W Equipment and Shops because work was being assigned to employees from a seniority district different than the Claimants. The April 12, 1993 letter reads as follows:

Equipment Mechanics I. W. Jones, SSN 491-60-0886, T. E.

Eaton, SSN 553-66-9106 and E. L. Hardiman, SSN 429-84

3486 for all time worked by Katy Mechanics working with

System Rail Gangs #9101 and #9109 beginning February 15,

1993, and continuing.

Carrier has three (3) IAM Katy Mechanics John Ferguson, Kevin Curtis and Jim Livingston working alongside the System Mechanics with System Rail Gangs #9101 and #9109. In February they were working near Big Spring, Texas, in March near Gurdon, Arkansas and presently in the vicinity of Utica, Kansas. These employes do not hold seniority on this property and should not be allowed to work with this gang. They are still being paid wages and expenses from their assigned territory and under the Katy agreement.

This is a definite loss of work opportunity for System Mechanics. These jobs should be bulletined so that the proper employes could be assigned. If Carrier lacks mechanics to fill these positions, promotions should be made.

We contend that rules of our agreements have been violated, especially Rules 1, 2, 10 and 11 of our current working agreement.

Please advise if you will allow this claim."

"Rule 12. Section 2. (a) All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the carrier authorized to receive same within 60 days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the carrier shall, within 60 days from the date same is filed, notify whoever filed the claim or grievance (the employe or his representative) in writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the carrier as to the other similar claims or grievances."

On July 27, 1993, the carrier responded to the initial claim, denying same.

The Organization argues that the claim should be allowed as presented because of the violation of Rule 12.

The Carrier argues that the original claim was not filed in a timely manner because the work had been assigned prior to February 15, 1993.

While the Carrier's position may be correct, Rule 12 requires that its position must be taken within 60 days from the filing of the claim. Failing to do so makes the claim payable as presented: however, without precedent. The Agreement was violated.

AWARD