THIRD DIVISION
(Supplemental)
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS
EMPLOYES' STATEMENT OF FACTS: Since time immemorial, crossing protection over the Carrier's tracks at Crawford Avenue, Parsons, Kansas has been assigned to and performed by crossing watchmen who hold seniority within the scope of the Agreement here in question.
In fact, Ordinance No. 3587 of the City of Parsons, Kansas as amended by Ordinance No. 3634 requires that Crossing Flagmen be maintained at the "Crawford Avenue Railroad crossing" while permitting other crossings to be protected by other means, the ordinance reading:
AN ORDINANCE amending Ordinance No. 3587 of the City of Parsons, Kansas, relating to railroad crossings, providing for certain regulations pertaining thereto, and repealing Section 1 of Ordinance No. 3587.
SECTION 1. Flagmen at Certain Crossings. It shall be the duty of the Missouri-Kansas-Texas Railroad Company to keep and maintain a flagman at the Crawford Avenue Railroad crossing in the City of Parsons, Kansas, daily, between the hours of 8:00 A. M. and 1:00 P. M., and between the hours of 5:00 P. M. and 8:00 P. M., and such flagman shall be provided with the necessary signal equipment and shall stand at said crossings and notify and warn all persons approaching said crossings, or passing over the same, of the approach of engines, trains, or cars, by exhibiting danger signals as herein provided, and who shall exhibit signals when to proceed.
The Carriers request ample time and opportunity to reply to any and all allegations contained in Employes' and Organization's submission and pleadings.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, deny each and every, all and singular, the allegations of the Organization and Employes in alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim and grant said Railroad Companies, and. each of them, such other relief to which they may be entitled.
OPINION OF BOARD: On July 10, 1957, Carrier abolished the position of Crossing Watchman at Crawford Avenue, Parsons, Kansas, and laid off the watchman.
Petitioner alleges that it deposited in the United States mail a letter under date of July 25, 1957, stamped and correctly addressed to Carrier's. Assistant Chief Engineer. In the letter, a copy of which is in the record, Petitioner claimed that the watchman's job was abolished in violation of the Agreement.
Petitioner, not having received a reply to its July 25 letter, wrote to, Carrier's Chief Engineer, under date of October 14, 1957, advising him that it had not received a reply and demanding that the claim be allowed, as presented, since it was not disallowed within 60 days in compliance with Article V 1. (a) of the National Agreement of August 21, 1954. The Carrier replied that Petitioner's July 25 letter had not been received.
Carrier takes the position that the claim is barred because Petitioner failed to file it within 60 days of the occurrence (July 10) as required by Article V 1. (a) of aforesaid National Agreement.
The issue is whether Petitioner timely filed the claim. It asserts that depositing the claim in the mails, correctly addressed and stamped constitutes presenting the claim. Petitioner says that since its return address was impressed on the envelope containing the July 25 letter, and said letter was, not returned to it, this is evidence that the addressee did in fact receive the letter.
There can be no dispute that by application of Article V 1. (a) a claim_ such as the instant one, is barred if within 60 days of the occurrence, upon: which it is founded, it has not been presented, in writing, to Carrier; and,, presentation can only be accomplished by Carrier's receipt of the writing..
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. 11505-31
The perils attendant to entrusting performance of an act to an agent are borne by the principal.
Upon the record before us we find that Petitioner has not proven that it presented the claim, to Carrier, within the time limitation agreed to by the parties; and, in the absence of such proof the claim is barred. We are compelled to dismiss.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the claim was not presented to Carrier within the time limit prescribed in Article V 1. (a) of the August 21, 1954 National Agreement; and, therefore, the claim is barred.