(Brotherhood of Railway, Airline & Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific ( Railroad Company

1) Carrier violated the T-C Division BRAC Rules Agreement, and particularly Article VI of the Memorandum of Agreement dated April 5, 1974, when it failed and refused to grant G. A. Taylor, Minneapolis, Minn. separation allowance when he was affected by abolishment of permanent positions in the Twin City Terminal on July 2, 1975.

 2) Carrier shall now be required to pay G. A. Taylor a lump sum separation allowance on the basis set forth in the Agreement.

 OPINION OF BOARD: We are called upon to resolve a dispute arising
 over whether or not Claimant had "five (5) or more
 years of employment relationship" when, on July 5, 1975, he exercised
 his rights under Appendix 8, Article VI, Section 1 of the effective
 agreement.

 Claimant, having been displaced from his position as relief telegrapher on July 2, 1975, and, being unable to secure a position within thirty miles of his residence, elected, in writing within the specified time period, to resign and accept a separation allowance in lieu of all other benefits as his choice under the terms of the agreement.

 Carrier declined to pay Claimant his separation allowance and did not exercise its right to "retain said employe in service" under paragraph 3 of the May 23, 1974 Agreement, but, contrary thereto, advised Claimant that he would "be subject to recall for any position with /in/ that district pursuant to the schedule agreement and will be expected to protect whatever service you are recalled for." Carrier's


declination of the requested separation allowance was based on its assertion that Claimant did not have "five (5) or more years of employment relationship."

        The pertinent agreement provisions read as follows:


            APPENDIX N0. 8 - MEMORANDUM OF AGREEMENT

            ARTICLE VI - Separation Allowances, Moving Expenses and

            Protection From Loss With Respect to Homes


          Section 1. (a) In the case of abolishment of permanent positions as set forth in Article I hereof as result of any of the changes outlined in Article 1V, Sections 1(a), (b), (c) and (d), a protected employe whose permanent position is abolished as set forth in Article I hereof or is directly affected through related chain of displacements will have one of the following option be exercised within seven (7) calendar days from date employe is affected by changes referred to above:


                  1. Follow his position or work, seniority permitting.

                  2. Exercise seniority displacement rights in accordance with current Rules Agreement.

                  3. Any such protected employe who has five (5) years of employment relationship and who would be required to move his residence in order to follow his position or work to point of transfer may resign from Carrier's service and accept a lumpsum separation allowance on basis set forth in Section 3 of this Article.


          (b) In the case of abolishment of permanent positions under conditions other than as specified in Article IV, Sections 1(a), (b), (c) and (d), a protected employe whose permanent position is abolished who has five (5) or more years of employment relationship and who would be required to move his residence in order to obtain the nearest available position in his seniority district, may elect to resign from Carrier's service and accept a lump-sum separation allowance on basis set forth in Section 3 of this Article.

Award Number 22059
 Docket Number CL-21916

 LETTER AGREEMENT OF MAY 23, 1974
3. Carrier has the option of allowing a protected employe to resign and accept a lump-sum separation allowance under the provisions of Section 1 of Article VI of the Memorandum of Agreement dated April 5, 1974, as hereby amended, or retaining said employe in service with the understanding said employe will not be required to perform service on any position which is more than 30 normal route miles from his residence or which is further from his residence than was his former position.

 Page 3

 Early in the handling of this claim on the property, Claimant advised Carrier that he had commenced working for the Carrier in June 1967 and that, through records and evidence, he could prove a continuous employment relationship back to "at least May of 1970." Carrier denied same on the allegation that "when you returned to school you were not available for all service your seniority, fitness and ability would have entitled you to and such unavailability resulted in a break in your employment relationship."

 The preponderance of a student since December 1969, service under the agreement as

 evidence shows that Claimant had not been was employed on June 20, 1967, and performed follows:

          Days of Months of

          _Year Service Status Service

1967 91 Extra N/A (at least 3)
 1968 123 Extra 11
 1969 88 Extra 10
 1970 120 Extra 11
 1971 248 Regularly Assigned 12
 1972 N/A Regularly Assigned 12
 1973 N/A Regularly Assigned 12
 1974 N/A Regularly Assigned 12
 (to July 2) 1975 N/A Regularly Assigned 6
                      Award Number 22059 Page 4

                      Docket Number CL-21916


Under the facts of record Claimant had a contractual right to resign and accept a separation allowance as specified in Article VI of Appendix 8, sue, and the Carrier had the obligation to either grant the separation allowance or make its election then and there under paragraph 3 of the March 23, 1974 Agreement quoted above. Carrier did neither. Carrier denied, and continued to deny, Claimant's right to a separation allowance on its argument that he did not have five or more years of continuous employment relationship. Carrier's contention is that Claimant's employment relationship was broken, i.e., that he forfeited his seniority and was rehired a number of times but that the Carrier has "no record of just how many times Claimant chose to forfeit his seniority and, likewise, no record of the number of times Carrier chose to rehire him. A record of such action is not necessary in this type of situation."

 As the agreement will show, "seniority" is not the proper criterion. The criterion is "continuous employment relationship" and the Board cannot agree with the Carrier that a record of such action (alleged severance of employment) is not necessary. Claimant made a prima facie case of entitlement to a separation allowance when he showed that he was employed on June 20, 1967 and continued in employment to and including the date of his election to accept separation July 5, 1975. The record clearly shows that as of July 2, 1975, when Claimant was displaced, he had enjoyed at least fifty-four (54) months of uninterrupted and uncontested service as a regularly assigned telegrapher since acquiring the regular assignment in January 1971, immediately prior to which he had performed service on 120 days, working in each of eleven different months during calendar year 1970, for which he received a vacation with pay in January 1971. The arguments Carrier raised to Claimant's prima facie case for separation allowance are in the nature of an affirmative defense which it is required to prove. See, e.g., Award 12363 (Dorsey), reading in part:

            "In the case before us Carrier argues that Claimant's work from March 27 to May 26 was not within the Scope of the Clerks' Agreement. This is an affirmative defense. The burden of proving it is Carrier's. Assuming arguendo, that this would be a defense, Carrier has failed to adduce, in the record, any evidence to support it."

                    Award Number 22059 Page 5

                    Docket Number CL-21916


Carrier here, on its arguments relative to rehiring and forfeiture of seniority causing a "break in service," is much like the Carrier in Award 18472 (Rimer) wherein a similar "argument" was advanced with the following result:

            "The record of the event which occurred on July 3, 1967, variously described as 'dismissal' or `discharge' is too meager to be considered a break in service. The Carrier simply makes that assertion without offering sufficient evidence in its support."


Here, Claimant was hired once - June 20, 1967 - and there is simply no evidence of his termination, dismissal, discharge, separation, or, in fact, re-employment during that period up to and including July 5, 1975. Claimant did act timely to elect a separation allowance and Carrier refused to honor his request and, likewise, did not exercise its right to retain Claimant in service. Carrier does not now have that right. It chose, instead, to contest Claimant's continuous service.

 Claimant effectively resigned on July 29, 1975, after his instant claim was disputed, and without prejudice thereto. We view this as did the Board in Award 4124 (Robertson):

            "In effect, the question presented to this Board in this submission is whether or not the employe, by submitting a resignation effective as of the date on which her vacation was scheduled to end, forfeited her right to a vacation with pay. We hold that it did not."


Here, we hold that Claimant's subsequent resignation did not forfeit his right to a separation allowance and will sustain the claim as presented.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                    Award Number 22059 Page 6

                    Docket Number CL-21916


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        The Agreement was violated.


                    A W A R D


        Claim sustained.


NATIONAL RAILROAD ADJUSTMENT BOARD
 ATTEST: IAd'e-'- By Order of Third Division

        Executive Secretary


Dated at Chicago, Illinois, this 12th day of Ioy 1978.

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