"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Louisville & Nashville Railroad:

Claim on behalf of J. J. Caudill for payment of the skill differential of 5.65 per hour for all hours outside of his regular hours performing work such as preparing reports and lining up the work of the Signal Gang, including all `accumulative' hours, beginning August 1, 1994 and continuing for the term of the violation, account Carrier violated the current Signalmen's agreement, particularly Agreement No. 15-168-93, when it denied payment of the differential for those hours. Carrier also violated Rule 54 when it failed to notify the General Chairman of its disallowance of the claim within the time limits. Carrier's File No. 15(9590). General Chairman's File No. 94-208-27. BRS File Case No. 9657L&N."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

This claim seeks payment of a $.65 per hour skill differential under Agreement No. 15-168-93 for Claimant for all hours outside his regular hours performing certain work. The claim-designated as a "`continuous claim' starting with the first day of August, 1994"-was dated October 26, 1994. The claim was discussed in conference on January 10, 1995. The Organization appealed on January 17, 1995. On March 6, 1995, the Carrier denied that appeal in writing stating reasons for the denial.

The second problem with this case is that the Carrier did not timely deny the claim. Rule 54 states that "[slhould any such claim or grievance be disallowed, the Carrier shall, within sixty (60) days from the date same is filed, notify whoever filed the claim or grievance (the employee or his representative) in writing of the reasons for the such disallowance. If not so notified, the claim or grievance shall be allowed as presented." The continuing claim from August 1, 1994 is dated October 26, 1994 and was not denied by the Carrier in writing with reasons until March 6, 1995--clearly beyond the 60 day time limit specified in Rule 54.

Thus, the Organization has a burden to show under Section 1.3 of Agreement No. 15-168-93 that there was "time actually worked" by Claimant. That is something the Organization did not do. On the other hand, while it is understood that after the claim was filed and progressed, it was not really clear precisely what theory for relief was being pursued by the Organization, nevertheless, under Rule 54, the Carrier was obligated to deny the claim in a timely fashion. That is something the Carrier did not do.

Given the above, this Board shall sustain the claim, but only for the period August 1, 1994 through March 6, 1995. See Third Division Award 26239 and Awards cited

therein ("It is well established that a late denial is effective to toll the Carrier's liability for a procedural violation as of the date of that denial. From the date of the late denial, disputes are thereafter considered on their merits."). The Carrier's liability shall toll as of the date of its late denial-March 6, 1995. Because the Organization did not meet its burden to show "time actually worked", the claim shall be denied after March 6, 1995.

We have considered the Carrier's cited authority standing for the proposition that the Organization cannot bootstrap an otherwise procedurally defective claim through the argument that a carrier did not meet a procedural requirement for denying the claim. See Third Division Awards 29894, 29581, 29197, 28922, 28806, 28560, 28121, 27656, 27495, 26549; Second Division Award 8294. This claim was clearly a continuing claim which, because of payroll delay periods, did not become apparent immediately upon the date the claimed differential was not paid.

AWARD