“Mailbox Rule” Established Evidentiary Presumption Which Could Be Rebutted

While union sought to obtain presumption under “mailbox rule” that a properly stamped, addressed and mailed letter was received, on the facts of the case the presumption was rebutted and did not apply, in Laborers’ International Union Of North America, Local 578 v. NLRB, 594 F.3d 732 (10th Cir. Feb. 2, 2010) (Nos. 08-9564, 08-9569)

FRE 301 recognizes the operation of presumptions in civil cases where a statute or rule does not otherwise apply. In general the rule provides that “a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or moot the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.” One example of a civil presumption is the “mailbox rule.” More than one hundred years ago, the Supreme Court explained the rule:

“The rule is well settled that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. As was said by Gray, J., ‘the presumption so arising is not a conclusive presumption of law, but a mere inference of fact founded on the probability that the officers of the government will do their duty and the usual course of business, and when it is opposed by evidence that the letters never were received, must be weighed with all the other circumstances of the case, by the jury in determining the question whether the letters were actually received or not.’ The presumption that a letter was received is based on such considerations that it is perfectly clear that it applies without regard to the contents of the letter.”

Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884) (citations omitted). A recent Tenth Circuit case considered whether a presumption under the “mailbox rule” was rebutted.

The case involved review of a decision by the National Labor Relations Board (NLRB) concluding that a union had engaged in unfair labor practices by persuading a construction company to fire an employee for non-payment of union dues. One factual issue concerned the mailing of a letter by the union on October 12, 2006 addressed to the construction company that “request[ed] the dismissal of” the employee since he “owed the union $120 in late dues and $25 for reinstatement.” Laborers’ International, 594 F.3d at 734. The union claimed that it did not actually send the letter to the construction company but had sent the letter to the employee as a means to urge his payment. The administrative law judge heard the testimony of the employee that he did not receive the October 12th letter. Consequently, the ALJ concluded that union failed to discharge its fiduciary duties since the letter had not been received.

Under the National Labor Relations Act, the union held a fiduciary duty of fair dealing with the employee, which includes: “(1) provid[ing] the employee with actual notice of the precise amount due, including the months for which dues are owed; (2) explain[ing] how it computed the amount due; (3) giv[ing] the employee a reasonable deadline for payment; and, (4) explain[ing] to the employee that failure to pay will result in discharge.” Laborers’ International, 594 F.3d at 738 (citations omitted). The NLRB concluded that on the facts of the case the union had breached its fiduciary duties. On appeal, the union argued that it fulfilled its obligations by mailing the October 12th letter. Under the “mailbox rule,” the union claimed it was entitled to the presumption that the letter was sent and received.

The Tenth Circuit considered the application of the “mailbox rule.” Assuming the rule applied in the administrative proceeding, the circuit noted that the “mailbox rule”:

“is not the sort of immutable legal command the union suggests. Rather, it is simply an evidentiary presumption — a presumption that items placed in the United States mail normally arrive where they are directed because of the ‘probability that the officers of the [postal service] will do their duty.’ Rosenthal v. Walker, 111 U.S. 185, 193 (1884). Even in 1884, when the Supreme Court decided Rosenthal, no one claimed perfection for the post office and the ‘mailbox rule’ was and never has been more than a presumption that may be rebutted by other evidence suggesting that the addressee did not receive the letter. See id. at 193-94. In fact, we have explained that, after a party makes a presumptive showing of receipt using the ‘mailbox rule,’ an opposing party’s sworn denial of receipt can ‘create[] a credibility issue that must be resolved by the trier of fact.’ Witt v. Roadway Express, 136 F.3d 1424, 14-2930 (10th Cir. 1998) [(“A rebuttable presumption of receipt does arise on evidence that a properly addressed piece of mail is placed in the care of the postal service. Because the presumption is rebuttable, however, evidence denying receipt creates a credibility issue that must be resolved by the trier of fact.”) (citations omitted)]; see also S. Frederick Sansone, 127 NLRB 1301, 1302 n.4 (1960). And that’s exactly what occurred here. In this case, the ALJ, as trier of fact, received extensive and conflicting sworn testimony from both sides about the letter’s mailing and receipt. Ultimately, he credited Mr. Lopez’s testimony that he hadn’t received the letter, explained his reasons for doing so, and the Board adopted the ALJ’s determination as its own. The record, moreover, contains other evidence supporting Mr. Lopez’s sworn testimony that he didn’t receive the October 12 letter — perhaps most notably that he took no action after the October 12 letter but acted immediately after receiving the substantially similar November 1 letter. Under the substantial evidence standard governing our review of this case, we can insist on no more. … Here, the ALJ heard live testimony from the various competing witnesses, found Mr. Lopez credible, explained his bases for doing so, and other record evidence tends to confirm that finding. Unavoidably, we must conclude substantial evidence exists to support the ALJ’s finding as adopted by the Board.”

Laborers’ International, 594 F.3d at 740. For other reasons, the circuit concluded that substantial evidence supported the board’s conclusion that the union had engaged in unfair labor practices.

The case highlights the operation of a long-standing presumption, specifically the “mailbox rule.” As with other presumptions, and consistent with FRE 301, the presumption of mailing and receipt could be rebutted. On the controverted facts, the factfinder concluded that the presumption had been rebutted by other evidence.


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