PROOF OF MAILING (42)

Third Division Award No. 17999 (Dolnick) 

"It is difficult for the neutral member of this Board to decide with absolute certainty whether or not the General Chairman received Carrier's denial letter of September 29, 1967. He has had no opportunity to observe and hear the testimony of relevant witnesses, and he had no opportunity to interrogate them. He cannot fairly judge the credibility of either party upon that evidence which is the record. Assuming, however, that the letter was dictated and was mailed by Mr. Beal's stenographer, there is no absolute proof that the letter was received. While there are some conflicting Board decisions on the subject, the prevailing view is that the burden of proof is upon the Carrier to show that the Employes were duly notified in writing of the reasons for the disallowance. It is also the prevailing view that the `Employes cannot be held responsible for the handling of Carrier's mail by the Post Office Department.' (Award 14354). Also see Awards 15070, 16163, 17227, 16000 and 17291."

Third Division Award No. 11505 (Dorsey)

"It is a general principle of the law of agency that a letter properly addressed, stamped, and deposited in the United States mail is presumed to have been received by the addressee. But, this is a rebuttable presumption. If the addressee denies receipt of the letter then the addressor has the burden of proving that the letter was in fact received. Petitioner herein has adduced no proof, in the record, to prove de facto receipt of the letter by the Carrier."

Third Division Award No. 16537 (McGovern)

". . . The Local Chairman did not receive a reply from the Carrier and claims a violation of Rule 701(a) of the Agreement in view of the sixty day time limit.

"Carrier retorts that the claim was never received, hence no answer was required and no violation occurred. We agree with Award 11505 (Dorsey), wherein it was stated `It is a general principle of the law of agency that a letter properly addressed, stamped, and deposited in the United States mail is presumed to have been received by the Addressee. But, this is a rebuttable presumption. If the Addressee denies receipt of the letter then the Addressor has the burden of proving that the letter was in fact received. Petitioner has adduced no proof, in the record, to prove de facto receipt of the letter by the Carrier.'"

Fourth Division Award No. 3097 (Friedman)

"Whether letters have been mailed, and when, and whether they have been received, and when, are matters that must be dealt with in the same way as any controverted facts. Decisions of referees have placed the burden of proving timely mailing on the Organization, when Carriers have denied receiving an appeal. For example, Third Division Award No. 11505 holds that `then the addressor has the burden of proving that the latter was in fact received.' Third Division Award No. 16537 cited No. 11505 and dismissed a claim even though evidence in the form of affidavits tended to prove that, despite Carrier's denial, it had knowledge of the letter of appeal."

Third Division Award No. 20763 (Lieberman)

"The issue of alleged non-receipt of correspondence and the correlative violation of the time limits imposed by Article V of the 1954 National Agreement has been before the various Divisions of the Board on many occasions. While there are some conflicting decisions, the preponderance of the better opinions, in our view, hold that the Carrier has the burden of proving that the Claimant, or his representatives were duly notified in writing of the disallowance of the Claim at each level. In Award 14354 (Ives) the Board held:

"`As we stated in Award 10173, "Article V, Section 1 places correlative obligations upon the parties with respect to the progression of claims." Just as Employees bear the responsibility of being able to prove that a claim is timely filed with a Carrier, so the burden of proof rests with a Carrier to prove that Employes are duly notified in writing of the reasons for the disallowance. Notification connotes communication of knowledge to another of some action or event. The method of communication in the instant case was left to the discretion of the party bearing the responsibility of notification and the Carrier apparently elected to use the regular first class Mail service rendered by the Post Office Department. Had the Carrier elected to use certified or registered mail service offered by the Post Office Department, probative evidence of delivery would be available to support Carrier's assertion.

"`Employes cannot be held responsible for the handling of Carrier's mail by the Post Office Department. It was the responsibility of the Carrier to be certain that the letter of disallowance was properly delivered to the Employes' Local Chairman.'

"Also see Awards 10742, 15070, 16000, 17227, 17999 and many others."

Fourth Division Award No. 3760 (Carter)

"Many awards have been issued by the different Divisions of the Board involving the time limit rule of the 1954 National Agreement. Numerous awards have held that where the addressee denies receipt of a claim or a denial within sixty days, it is then the responsibility of the addressor to ensure receipt by the addressee within the time limit. See Third Division Awards Nos. 21088, 20763, 18661, 18004, 17999, 16357, 16000, 14354. See also Fourth Division Awards Nos. 3615, 3234 and 3097."

Third Division Award No. 27787 (Carter)

"In his Submission to this Board the Claimant insists that the Claim be allowed as presented because the alleged appeal of January 17, 1987, was not denied within sixty days. The Carrier reiterates its position that it has no record of receiving a request or appeal letter from Claimant.

"Numerous Awards of this Board have held that where the addressee denies receipt of a Claim or a denial within sixty days, it is then the responsibility of the addressor to ensure receipt by the addressee within the time limit. (Third Division Awards 11505, 25417 and others cited therein, Fourth Division Award 3760). The Claimant has not proved receipt of the letter of January 17, 1987, by the Carrier. Therefore, we must find that the Claimant did not timely process the Claim. The Claim could properly be dismissed by the Board. However, rather than dismiss the Claim, it will be denied because the Claimant's job abolishment was unrelated to the implementation of train control movement procedures since this was a consolidation with the Milwaukee Road and did not trigger separation allowances."

Third Division Award No. 21373 (Eischen) 

"We have reviewed carefully the record of handling and mishandling of this case. It appears that neither of the parties' representatives at the property level distinguished themselves for astute grievance processing. Carrier's frontline supervisors received an individual employe's claim letter, certified mail-return receipt requested, and chose to respond via first class mail. It is one of the oldest recognized common-law contract doctrines that the sender (respondee) authorizes a channel of communications by usage and a response placed in that channel is as good as received. But where, as here, the responder chooses to use another medium of communication then the risk of nonreceipt lies with him and the responder's message is not considered communicated until actually received by the respondee."