PUBLIC LAW BOARD No. 76 '

BROTHERHOOD OF NAINTENAXCE OF WAY EMPLOYES

VS.

NSISSOURI-f:ANSAS TFXYAS RAILROAD COMPANY

Roy R. Ray, Referee '


STATEMENT OF CLAIti: -




OPINION OF TIM- BOARD: The following facts are undisputed: Rito S. Perez, a
 Machine Operator was cut off in a force reduction November 10, 1967. F:e promptly
 filed his name and address with the proper; officers of Carrier as required b5 ·
 Article 3, Rule 11 of the Agreement, thus protecting his right to recall in
 Seniority order and all other rights under the Agreement. On April 15, 1968
 Perez was notified that he uas_recalled to service. In the meantime, he had found
 employment elsewhere and failed to respond to the. recall. On t-lay 4, 1968, Carrier's
 Roadmaster Reid sent a letter to Perez advising him that by failure to report for
 service within the time limit he had forfeited his seniority rights. A copy of this
 letter was sent to General Chairman Uptergfove. Upon receipt of his copy of this
 letter, Uptergrove wrote to Perez on May 9, 1968 stating "Since . . . you have now
 lost your seniority and all other riahts,'I would suggest that you irmediataiy
 write Division Engineer J. E. Clark, tnT Railroad Company, Waco, Texas and request
 such pay aswmay be due you in lieu of vacation for 1963. Furnish me a copy of your
 letter directed to Mr. Clark and if your request is denied, advise r..e and .I drill
                                          DGc,et :1G. 20


attempt to assist you. May I impress upon you that it is important that you write Mr. Clark i;a;,ediately."
On July 16, 1968, Uptergrove wrote Clark charging that Carrier had violated Article 28, Rule 1(a) (time limit rule) by not responding to a claim alle.,edly instituted by Perez by letter of May 14, 1968 for payment in lieu of vacation, and because of such failure by Carrier the claim should be allowed. With his letter Uptergrove enclosed a photocopy of the alleged letter of Perez. By letter of August 7, 1968 Clark responded to Uptergrove stating that since his letter :with the attached photocopy.of Perez's alleged letter was the first notice which had been received in his office requesting vacation pay in lieu of vacation for Perez, the claim was declined for failure to comply with Article 28, Rule 1(a) of the Agreement.
The Organization first asserts that when Carrier severed Claimant's seniority rights on May 4, 1968, it was required to pay him his accumulated vacation pay and that its failure to do so then violated the Agreement. In Award No. 1 of this Board ere ruled that the time limit provisions of Article 28, Rule 1(a) apply to claims in lieu of vacation. In this case the Organization is in fact asserting a brae limits violation against Carrier. It contends that Carrier violated the second sentence of Article 28, Rule 1(a) when it failed to notify Perez within 60 days after his claim was filed that it had been disallowed.
        Article 28, Rule 1(a) reads:


        All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Carrier shall, within 60 days from the date same is filed, notify whoever filed the claim or grievance (the employe or his represcntative) in writing of the reasons for such disallowance. If. not so not`ied, the claim or grievance s:lall be allowed as presented, but this shall. not be considered as <_ precec.'cnt or waiver of the contentions of the Carrier as to other similar claims or grievances.


                            _ n

PL Ci roo.146 a.::~-r~ :;o. 20
 Lcc'cec ::o. 20

 But it is clear from ArCicie 23, Rule 1(a) that Carrier's obligation to respond to the claim arises only after the claim has been presented. Tire burden is

 upon the emaloye or his representative to prove that the claim was presented within -
 60 days after it arose. This can be accomplished only by evidence that the proper '
 officer of Carrier received the claim. Here there is no such proof. '

        There is a general principle of lava that where there is proof that a letter-


cans correctly addressed, stamped and deposited in the United States mails it is .-,
 presumed to have been received by the addressee. But that principle does not avail
 the Organization here. It has no evidence to this effect. In his letter of July 16,
 1963 Uptergrove slates that Perez directed a letter to Clark. But there is no'
 evidence from anyone that the letter was properly addressed, stamped and tailed.
 In fact the alleged copy of the letter which Uptergrove enclosed in his letter has no
 address for Clark. So the presumption does not arise. The Organization has relied
 upon certain, awards to support its argument that we should presume the Perez letter
 to have been received by Clark. Award 62, Special Board of Adjustment 272; Award

 3285 Second Division; Award 1206 Fourth Division; National Disputes Cc=.;:ittee, -
 Decision 12. None of these decisions is in point here. In all of the-: t1he Referee
 stated that there cans proof that the letter had been correctly addressed and mailed.
 In our case there is no evidence of these facts and the presumption, therefore, does -
 not arise.
- Moreover., even if the presumption were recognized it is rebuttable and =
 where the alleged addressee denies the receipt of.the letter the presumption vanishes -
 and 1S Of no effect. Award 11505, Third Division (Dorsey). Thus the burden is upon
 the Organization to prove the de facto receipt of the letter. Fare it has utterly =
 failed to do so. In the absence of proof that the. claim was presented cait:un 60 days
 it is obvious that no violation of the Contract by Carrier has been es*_.^.blis'.md. The _-
    ": ~__. _ (j(,,l~ N~ ·7 (~ AWARD NO. Zo

- :i·:c':,. ,. f0

    claim, there=ore, has no leV1 basis.


          Our denial of this claim is iaadc reluctantly. Carrier does not der-7 _hat

    Claimant worked a sufficient number of days in 1967 to become entitled to qualify for

    some vacation in 1968. Morally and equitably Claimant is entitled to pay .`.or vacation

    which he did not get to take due to severance. lut Carrier is with-_n its ri~,hts in

    standing on the time limit rule. We have no equity powers and are hoLnd by such

    procedural rules. However, it seems to us that the parties nigh t vell consider

    the amendment ` Rule 28, Rule 1(a) to make it inapplicable to vacation pay. T.?a see

    amendment o ~ no reason why aayment for time earned,toward vacation should not be automatic upon

    severance from service. Unless and until such action is taken it behooves the

    General Chairman to see that all such claims are promptly and properly filed.


                              A 4J A R D


          The claim is denied.


                        Public Law Board No. 76


                      Roy it. Ray

                      Neutral Member arid Chairman


            ./W · Na.J ~~'·.r

        A. J. Cunningha. Fred R. Carroll

        F , loye Member Carrier Member


    ~c:llas, Texas,

    October 31, 1969


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