(Brotherhood of Maintenance of Way Employer
 PARTIES TO DISPUTE:
 (Southern Pacific Transportation Company
 ( (Pacific Lines)

 STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
 _.. that:

 (1) The claim in favor of H. Q. Rodriguez (S.S.#556-34-6451), as presented on appeal to Labor Relations Officer D. C. Taylor in a letter dated wovember 4, 1976, be allowed as therein presented because decision thereon was not tendered in conformance with the provisions of Sections 1(a) and 1(c) of Agreement Rule 44 fSystem File MofW 148-411).

 (2) Notwithstanding and without prejudice to (1) above, the aforesaid claim in favor of H. 2. Rodriguez be sustained on its merits."

 OPINION OF BOARD: Carrier mailed a letter on January 26, 1977 denying
 H. q.. Rodriguez' appeal following a conference on
 January 25. The General Chairman advised Carrier in May, 1977 that he
 had not received Carrier's letter of denial. Carrier reproduced a copy
 of the letter from its file and hand delivered it to the General
 Chairman. In July, 1977 the General Chairmen asked that the claim be
 allowed as presented, taking the position that Carrier's decision was
 untimely rendered.

The Agreement does not specify the use of registered or certified mail, and the practice has been to use the regular mail. Carrier has an obligation to prove that _t mailed the letter to place it in line for timely receipt, and the cofsrd is satisfied that it has met that obl'_gation. It is clear that the lack of tir..e3y receipt was due solely to the failure of the Postal Service to deliver the letter. It was last in the mail.

 In same decisions the Board has indicated that party mast insure receipt, and in order to do so should use registered or certified mail. This is an unreasonable imposition upon them. If they choose to undert&ke the direct and administrative expense necessary to :writor the

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                    Award Number 22531 Page 2

                    Docket Number W-22376


constant flow of correspondence between them, then the Board should recognize their choice. if they choose to avoid the expense of tracking each letter they exchange, then the Board should recognize that choice. When the parties have decided to use the regular mails then neither of them should be charged with the failure of the Postal Service to deliver a letter.

 Here the parties have followed the practice of using the regular mail. Carrier has established that it mailed its letter of denial in timely fashion. Carrier did all that it could do under the system jointly chosen by the parties. To hold it responsible for the failure of the postal service would be unrealistic.

 Award No: 20724, which involved these parties, settled the points raised by the organization on the merits in this case. There the Board said:

            "This Board has held over mart' years that Management has the right to determine the fitness and ability of an employee for a particular position and such determination will not be disturbed unless it can be shown by a preponderence of evidence that Carrier acted arbitrarily and capriciously. Such evidence is lacking in this dispute, even under the special provisions of Rules 7 and $. It must be noted that promotion to supervisory positions is of particular importance to Carriers and the skill and ability demonstrated in a class within the grcrap does not necessarily qualify an employee for supervision; leadership and supervisory aptitude, at very least, are generally required. Carrier's failure to give proper notice under Rule 8 (c) is not sufficient to overcome Petitioner's omission of awry probative evidence to support its allegations. The claim must be denied."


        The Board win follow Award No. 20724 and denyy the claim.

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        ' Award Number 22531 Page 3

                    Docket Number 1·81-22376


        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;


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 Agreement was not violated.


                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUM·SENT BOARD

                            By Order of Third Division


ATTEST: ~. ~~ /
 Executive Secretary

        Dated at Chicago, Illinois, this 28th day of September 1979.