The Organization argues that the Carrier did not deny the Claim within the 60 days required by Rule 26(a) and accordingly, the Claim must be allowed.

Rule 26(a) provides:

"A claim or grievance must be presented, in writing, by an employee or on his behalf by his union representative to the Division Engineer or other designated official within sixty (60) days from the date of the occurrence on which the claim is based. The Division Engineer or other designated official shall render a decision within sixty (60) days from the date same is filed in writing, to whoever filed the claim or grievance (the employee or his union representative) When not so notified, the claim will be allowed."

"(e) The time limits specified in paragraph (b), (c) or (d) may be extended by agreement in any particular case. When the U. S. Mail is used the postmark will govern in determining compliance with the various time limits."

The Carrier argues that it denied the original Claim in a letter to the organization dated May 28, 1987. The Carrier has

submitted a copy of this letter. The Carrier further argues that the appeal was not listed with the Labor Relations office within the time limits of Rule 26(B). The Carrier contends that the original Claim was denied May 28, 1987, and the denial was not appealed until June 21, 1988, well beyond the sixty day time limit under Rule 26.

The Carrier contends that the issue of whether the Carrier denied the Claim in a timely manner cannot be resolved by this Board because the issue involves one factual assertion against another which this Board cannot resolve.

This Board has been very clear in its resolution of this issue involving the same agreement provisions and these same parties.

In Third Division Award 25309, a case in which the carrier did not respond within the time restrictions under 26(a) the Board sustained the Claim,

"In ruling on this procedural issue, this Board must consider both precedent and substantial evidence of record. There is considerable past precedent that it is the responsibility of carrier to unequivocally assure that letters of declination are properly delivered to the appropriate organization official within the Stated time limits (Third Division Awards 10173: 11505: 14354; 16163; 25100). With respect to substantial evidence, this Board has long held that assertions alone that letters have been mailed will not suffice. Specific to the case at bar where such problems have already occurred, it is even more incumbent that attention be paid to the issue of meeting the evidence test that such letters were sent as argued. Carrier assertions alone that letters were mailed, even when copies of such letters are produced, do not provide the necessary evidence required in cases of dispute which come before this Board (see Third Division Awards 17291, 10173, 10742."

It is clear that the burden of proof with respect to this issue is on the Board and submission of the denial letter alone does not satisfy that burden. Moreover, while this Board is not punishing the Carrier for errors it may have made in the past, this Board has made clear that where similar problems have already occurred, as they have with these parties, it is even more important that the Carrier meet the evidence test that the letter of denial was sent. The Carrier has not met its burden in proving that the Claimant was properly notified of the denial of the Claim within the time limits of Rule 26.

since, in light of the appropriate burdens of proof, the Carrier has not demonstrated that the organization was notified as to the denial within the requirements of Rule 26(a), the time requirements for appeal mandated by Rule 26(b) do not come in to play.

The Claim must be sustained on procedural grounds.

A W A R D