NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 30
Carrier File No. 4MWB 89-01-17B
Organization File No. T-M-634
STATEMENT OF CLAIM
The claim as presented by Vice General Chairman A.
R. Hohbein on September 20, 1088 to Minnesota Division
Superintendent D. G. Anderson shall be allowed as
presented because said claim was not disallowed by
Superintendent Anderson in accordance with Rule 42A
(System File T-M-634/4MWB 89-01-17B).'
The organization seeks to have this claim sustained on
procedural grounds. The Organization initiated a claim by
certified mail on September 20, 1988. This, according to the
record, was timely received by the Carrier. On November 29, 1988
the General Chairman wrote to the Carrier stating that the claim
should be paid as presented, contending that he had not received a
reply to the claim within 60 days, as required by Rule 42A.
The Carrier in turn advised the General Chairman that a denial
answer had been sent to the Organization by timely letter dated
November 18, 1988. The Carrier supported its position by supplying
a file copy of such letter, stating that the letter was "typed,
signed and mailed on November 18, 1988". The reply was sent by
ordinary U.S. mail.
This, of course, is by no means the first instance in which
such circumstances have been reviewed. The Board must be guided by
the time limits in Rule 42A, as well as the many interpretations
thereof. The Carrier cites second Division Award No. 10940, which
denied a similar claim. The organization, however, refers to a
number of Awards, many of which cite other Awards as precedent.
Some of these are of no relevance here, since there was no question
but that the Carrier had either failed to respond or admittedly had
responded tardily. Other Awards, however, are directly on point.
These include Third Division Award Nos. 17227, 17291, and 25100.
Award No. 25100 states as follows:
Irrespective of the merits of the instance case the
record shows conflicting evidence with respect to the
procedural issue raised. The organization claims that it
never received the Carrier's first delineation letter
dated May 25, 1082 and the carrier claimed that the
letter was sent. The latter produced a copy of the
letter from its files which it sent to the Organization
on July 9, 1982.
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 Carriers 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 "stamped as timely received by Carrier's
supervisory personnel" (Third Division 17291; also Third
Division 10173; 10742).
The Board finds no basis to disregard this reasoning.
Claim sustained. The Carrier is directed to place this
Award in effect within 30 days of the date of this Award.
L.'
7
HERBERT L. MARX, Jr, Chairman and Neutral Member
--1
MARK J. 9-LAPPAUGH, Employee Member
WENDELL A. BELL, Carrier Member
NEW YORK, NY
DATED:
4 ~ - z I-I