NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20468
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company (Lake
( Region)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed
to recall furloughed Track Laborer B. J. Binnion to service on December 21, 1971 but instead recalle
(System File MW-DEL-72-1)
(2) The Carrier shall pay to B. J. Binnion the amount of
monetary loss suffered by him beginning December 21, 1971 until the
date he is returned to service.
OPINION OF BOARD: On November 10, 1971, Claimant was displaced as
an Assistant Foreman. Thereafter, he requested
and received vacation from November 11 through November 19. On
November 19, there were no junior employees for Claimant to dis
place, and he was placed in a furlough status.
Claimant asserts that on November 23, 1971 he notified
the appropriate Roadmaster, in writing, of his desire to retain his
seniority, and gave notification of his address.
Carrier did not recall Claimant to service on December 21,
1971 when junior employees were recalled.
Carrier states that it never received any notification from
Claimant of his desire to retain seniority and accordingly, Claimant
forfeited his seniority under Rule 5(a):
"Employees laid off by reason of force reduction desiring to retain their seniority, must file w
seniority officer, a written statement indicating their
desire, and setting out their address. This statement
must be filed within ten days after being laid off. They
must immediately notify their superior officer of any
change of address. Employes failing to comply with these
av
Award Number 20293 Page 2
"provisions or to return to service within ten days for a
regular bulletined position after having been notified
in writing by their superior officer will forfeit all
seniority unless a leave of absence is obtained under the
provisions of this agreement."
Further, Carrier states that even if a notification was given,
it was not filed within ten (10) days after the lay off (November 10,
1971).
Claimant disputes that November 10 is the date when time
limits started to run, because he was not laid off on that date, but was
merely displaced. It was not until November 19, when Claimant was
unable to displace, that Rule 5(a) became operative. While it does
not appear that such a distinction was raised while the matter was
considered on the property-in those specific terms, the Board feels
it is unnecessary to consider that asserted distinction because,
regardless of which date (November 10, 1971 or November 19, 1971)
is considered as bringing Rule 5(a) into operation, the Claimant has
failed to establish the fact of notification.
On at least four occasions while the matter was being considered on the property, the Claimant i
1971 he notified the Roadmaster, in writing, of his desire to retain his seniority. The alleged noti
document, quoted here in its entirety:
" November 23, 1971
G. P. Vickery
I wish to hold my rights and Seniority.
My address is
Billy Joe Binnion
Box 615
Venedocia, Ohio 45894 "
In reply to each assertion that the Claimant had notified
the Carrier in writing, the Carrier stated that it had no record of
ever having received such notice. In Award 11505 (Dorsey), this Board
noted:
Award Number 20293 Page 3
Docket Number MW-20468
"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.
The perils attendant to entrusting performance of an
act to an agent are borne by the principal."
In Award 11568 (Sempliner), the Board cited Award 11505 and, in
addition, noted that the method of presentation is the choice of
the Claimant, and with that choice goes the responsibility that
it is adequate. The Award concluded that the burden of proving
presentation is on the petitioner. See also, Awards 15496 (House)
and 16537 (McGovern).
A petitioner is required to prove de facto receipt of a
letter which is properly addressed, stamped and deposited in the
United States mail, when the addressee denies receipt. But, we find
that the facts of record in this dispute do not raise as strong
an initial presumption as in the situation cited above. While
there is a suggestion in the documents submitted to this Board
that the notification was placed in the United States mail and
was never returned to the sender, the record developed on the
property fails to show use of the United States mails.
The Claimant asserted that the Roadmaster was notified in writing. The specific method of notifi
The responsibility of notification is upon the Claimant under the
cited Rule. See Award 17596 (Gladden). The burden of proof is
on petitioner and under this record, we are unable to conclude that
he carried that burden.. Accordingly, we will dismiss the claim
for failure of proof.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
i
Award Number 20293 Page 4
Docket Number MW-20468
That the Carrier and the Employes involved in this dispute are rexpectively Carrier and Employes
the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
That the claim be dismissed.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 14th day of June 1974.