(b) If a disallowed claim or grievance is to be appealed, such appeal must be in writing and must be taken within 60 days from receipt of notice of disallowance, and the representative of the Carrier s notified in writing within that time of the rejection of his decision. Failing to comply with this provision, the matter shall be considered closed, but this shall not be considered as a precedent or waiver of the contentions of the employees as to other similar claims or grievances. It is understood, however, that the parties may, by agreement at any stacre of the handlincrof a claim or grievance on the property, extend the 60-day period for either a decision or appeal, up to and including the highest officer of the Carrier designated for that purpose.

" (c) The requirements outlined in ParagraQhs (a) and (b),ipertaininci to aoveal by the employee and decision by the Carrier, shall govern in appeals taken to each succeeding officer, except in cases of appeal decision of the highest officer designated by the carrier to handle such disputes. All claims or grievances involved in a decision by the highest designated officer shall be barred unless within nine (9) months from the date of said officer's decision proceedings are instituted by the employee or his duly authorized re before the appropriate division of the National Railroad Adjustment Board or a system, group or regional board of adjustment that has been agreed to by the parties hereto as provided in Section 3 Second of the Railway Labor Act. It is understood, however, that the parties may by agreement in any particular case extend the nine (9) months period referred to herein."

This rule clearly requires that the Carrier notify whoever files an appeal, in writing, of its reasons for disallowing the claim within sixty (60) days. In this case, the parties had agreed to a thirty (30) day extension of the time limit for the Carrier to respond to the appeal of this claim, extending the time limit to ninety (90) days from the date the appeal was filed. Hence, the resolution of the time limit violation in this instance is properly decided on the basis of whether the person who filed the appeal was notified, in writing, of the reasons for its disallowance within ninety (90) days of November 1, 1989. That is, the notification had to be on or before January 30, 1990. The General Chairman plainly stated, in a letter dated February 26, 1990 and hand delivered to the Carrier, that he had r appeal. In response to the February 26, 1990 letter, the Carrier sent a copy of a denial letter dated January 26, 1990. However,

AWARD 10173:

"Article V, Section 1 places correlative obligations upon the parties with respect to the progression of claims. Once a claim is properly filed, the Carrier has the responsibility for making a timely denial thereof, if it is to be denied. The Organization bears the obligation of making a timely appeal from the denial desires further progression of the claim. When either party is charged with failure to discharge the resuonsibilitv placed upon it by the Agreement in thi

that party has the burden of proving it properly met its responsibility. The Carrier cannot be expected to prove it failed to receive a claim or an appeal. Likewise, the Organization cannot fairly be charged with the obligation to establish that it did not receive a claim denial.

In the instant case the Carrier has not presented proof that a denial letter was mailed on or about December 30, 1955 or at any other time within the prescribed time limit. ***"

AWARD 14354:

"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 Employes 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 disallowance.

"Notification connotes communication of knowledcre to another of some action or event. The method of communication in the instant case was left to the 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 us (sic) certi registered mail service offered by the Post Office Department, probative evidence of delivery would be available to support the 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."

AWARD 16163:

"We believe that our best reasoned and most recent Awards place the responsibility on the Carrier to be certain that a letter of disallowance is properly and timely transmitted and delivered. The Carrier has the burden of proof in this regard, and in the instant claim we cannot conclude this burden of proof has been met. Reference is made to Award 14354 and same is cited with approval."

AWARD 17291:

"We do not find in the record, sufficient evidence that Carrier complied with its obligation to notify the Claimant of reasons for disallowance within 60 days from the date the claim was filed. The display of a copy of such alleged disallowance, timely dated and stamped as timely received by Carrier's supervisory personnel, is not sufficient proof of timely mailing of notice to Claimant. (Awards 10173 and 10742).

We find therefore that Carrier has not met its burden of proving timely notification and Claimant must therefore be sustained."

AWARD 25100:

"When dealing with issues such as this the Board must rely on both precedent and substantial evidence of record. There is considerable precedent emanating from this Board, by means of prior Awards, wherein the Board

"has held that it is the responsibility of Carrier's to be certain that letters of declination are properly delivered to the appropriate organization officer under Agreement time rules (Third Division 10173; 11505; 14354; 16163). With respect to substantial evidence, which has been defined as such 'relevant evidence as a reasonable mind might accept as adequate to support a conclusion' (Consol. Ed. Co. vs Labor Board 305 U.S. 197, 229), this Board has ruled in the past that statements alone on the part of Carriers to the effect that letters have been mailed do not sufficiently meet the evidence test even when copies are produced and even, which evidence is lacking in the instant case, when copies are 'stamped as timely received by Carrier's supervisory personnel' (Third Division 17291; also Third Division 10173; 10742).

On procedural grounds, therefore, the claim must be sustained. Objection by the Carrier that the Claimants named in this case are not the proper ones because others had a better right is dismissed. Such objection does not relieve the Carrier of penalties arising from the violation of the Agreement (Third Division 18557)."

AWARD 25309:

"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)."

AWARD 29891:

"Since, in light of the appropriate burdens of proof, the Carrier has not demonstrated that the Organization was notified as to the denial within t

"ments of Rule 26 (a), the time requirements for appeal mandated by Rule 26(b) do not come in to play." AWARD 30241:

"It is the date of mailing of the denial, not the date it is written, that is determinative. As required by that Rule, the claim will be sustained as presented."

Inasmuch as the Carrier failed to prove that the General Chairman was timely notified of its decision to deny the claim and its reasons therefor, the Majority erred in finding that the Carrier had complied with Rule 40 by su allegedly written within the agreed time limit and, as a result, this award is palpably erroneous on that account.

In addition to failing to meet its burden of proof of compliance with Rule 40 during the handlin property, the Carrier made the following statement within its submission to the Board:

"*** The Carrier has little doubt that the General Chairman, being a respectable and honest man, did not receive the January 26, 1990, letter as he alleges. ***"

Hence, the Carrier obviously does not dispute that the General chairman was not timely notified of the disallowance of his appeal. In view of this fact, the Majority's refusal to sustain the claim on the basis of Rule 40's clear and unambiguous requirements is

"Beginning on November 18, 1985, Carrier assigned an employee holding seniority on the former L Railroad to operate a crane (termed a pile driver by the Organization) to assist a Seaboard Coast Line Railroad Bridge Gang to remove a bridge on the Atlanta Division of the former Seaboard Coast Line. ***

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