(1) The Agreement was violated when the Carrier arbitrarily terminated Machine Operator J. Lockhart, Jr. when, by letter dated December 18, 1992, it advised him that he had forfeited his seniority rights under the Agreement (System File C-02-93-A380-02/8-00119 CMP).

(2) The Agreement was further violated when Division Manager Mr. D. J. Lyons failed to notify the General Chairman in writing of his reasons for disallowing the initial claim

filed under date of January 5, 1993.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Machine Operator J. Lockhart, Jr. shall be reinstated to service and he shall be allowed all straight time, overtime, vacation and benefits lost from December 18, 1992 and continuing.

Parties to said dispute waived right of appearance at hearing

On December 18, 1992, Carrier advised Claimant, in writing that he had voluntarily forfeited his seniority rights as provided in Rule 17(e) which reads:

"(e) An employee accepting a leave of absence other than as specified in preceding sections (a), (b) and (c) will forfeit all seniority rights."

On January 5, 1993, the organization presented a claim to the Carrier Officer designated to handle claims and/or grievances in the first instance, seeking reinstatement and pay for all time lost.

On April 1, 1993, the Organization appealed the claim to the highest Carrier Officer designated to handle claims and/or grievances on final appeal. In that letter, not only were the merits appealed, but the organization raised a procedural violation in that they contended they had never received a response from the Carrier Officer to whom the claim was presented in the first instance. The organization contended the claim was thus payable as presented and that claimant's seniority should be reinstated immediately.

The Carrier responded on May 28, 1993, to the organization's letter of April 1, 1993, but the argument raised to offset the alleged procedural mishandling was lacking in substance.

On October 15, 1993, following conference on August 20, 1993, the organization again wrote Carrier expanding their basic position on the merits and furnished a number of documents it intended to use to support their position. In a letter dated November 9, 1993, the organization filed its notice of intent to bring this dispute before the Board.

On November 15, 1993, the Carrier wrote the organization stating, simply, that it intended to respond to the Organization's letter of October 15, 1993, shortly and on November 17, 1993, it did just that.

Suffice to say, the matter has remained unresolved and that it

First and foremost is the question of the alleged procedural error. When the Organization raised the procedural argument, stating the specifics it had established a prima facie case. To defend against that charge, Carrier was obligated to produce sufficient evidence to show that they complied with the agreement.

To reiterate, their first reaction and/or response to the claim of a procedural error was extremely sparse in detail. The Carrier did not even go so far as to say when the first Carrier Officer did respond nor was a copy of that letter even furnished. Even if that would have been done, it would not have been sufficient as it would be only assertions of facts, not evidence.

Carrier's letter of November 17, 1993, that is being protested as material never handled on the property prior to the date the dispute was moved off the property, did address the procedural question, somewhat. It did not offer a copy of the first declination, nor even mention the date thereof, but simply says that if the Employees want proof of the timely declination they would furnish a statement from the employee who typed and then mailed the declination after it was signed. This offer, of and by itself is insufficient. A statement would be evidence. It is sufficient for this Board to have proof of mailing. Receipt can be, literally, any time thereafter.

This is not the first time this Board has been called to adjudicate the same procedural question. In Third Division Award 25309 it was held:

"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)."

In Third Division Award 29891 found, as follows:

"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.'1

Concerning the argument about the lateness of Carrier's material contained, more specifically, in its letter of November 17, 1993, from the file: the only correspondence besides the parties submissions, is the notice of intent of the Organization to file this dispute with the Board dated November 9, 1993. The carrier in its Submission asserted the organization " ·..attempted to docket this dispute on November 15, 1993...'1 and before this Board it was argued that the Carrier did not receive official notification of the filing until November 18, 1993. one hould speculate when the Board advised the Carrier of the filing and when the Carrier may have received the notification, but facts, not speculation, is what carries the day.

From the record before this Board, it is evident that this dispute was advanced off the property on November 9, 1993. When the Carrier received notification from the Board is an unknown. November 18, 1993, is nine days after the filing of the notice of intent and could be considered late, but then, with the Post Office's current track record, not unbelievable. But again, this would be speculation.

The Carrier has failed to furnish substantial evidence that it did, indeed, respond to the initial claim in a timely fashion, as obligated by Rule 47 of the Agreement. This Board, basing its decision solely upon the procedural issue, sustains the Claim as presented.

The argument made concerning National Disputes Committee Decision No. 16 in an effort to mitigate damages and allow the Board to rule on the merits comes too late to be considered.

AWARD