Arbitration Pursuant to Appendix III, Section 11

(Finance Docket No. 28250!

Involving the

"New York Dock Protective Conditions"

Imposed by the

Interstate Commerce Commission

on the

Burlington Northern Railroad Company


Award No. 2

 Parties to Dispute: Burlington Northern Railroad Company

 and

 Brotherhood Railway Carmen of the United
 States and Canada

 Statement of Claim:

 "l. That the Burlington Northern Railroad Company violated the
 terns of our Agreement, in particular the provisions
 of ICC Finance Docket no. 28250 (commonly known as New
 'fork Dock Conditions?, Sections 4, 5, 6, 7, 8, 9, and 10
 thereof, when they furloughed Childress, Texas Carman
 Clark Ropers III and refused to provide said employee with
 the protective benefits as provided for under the.
 provisions of New York Dock.

Committee Members: Chairman and Neutral Member: Gil Vernon

Carrier Member: J. N. Locklin, Manager -
 Labor Relations
 BACKGROUND

 On December 31, 1982, the ICC approved the Merger of the Carrier (BN) and the Fort Worth and Denver Railroad (FWD). There is no real dispute that this was a "paper merger" in as much as FWD was effectively, as of January 1, 1982, a wholly owned subsidiary of the Carrier. This was the result of the January 1, 1982 merger of the BN and the Colorado & Southern Railway (C&S), which at the time owned the FWD. Prior to this, the Carrier owned a controlling interest in the C&S.
 In July, September and October of 1982. a number of employees, who are Claimants in Case No. 3 of this Board, were furlouqhed. On various dates in April 1983, the 28 remaining Carmen -- along with other crafts -- were offered separation allowances. The Carrier terms these "voluntarily separations allowances". The Organization 'laims they were pursuant to Section 7 of Finance Docket 28250 (New York Dock Conditions), which reference Section 9 of the Washington ,Job Protection Agreement.
 Twenty-two of the employees accepted the separation allowance. Of the six remaining carmen, three exercised seniority elsewhere, one had died, and the Claimant in this case, and Employee J. N. Ray, a Claimant in Case no. 3, were furloughed. The Claimant, since that time, has performed, when available, vacation relief at another point.
 The Claimant rejected the separation allowance, and on May 27, 1983, made a claim for wage protection. The claims were denied .June 1, 1983. On July 14 and 15, 1983, they were appealled. On
 September 8, 1983 the appeals were declined. On April 25, 1984, they were discussed in conference. On June 27, 1984, the `lice General Chairman indicated in a letter to the Carrier that they were still waiting for a response to the Carrier's committment in the April conference to investigate the matter further. However, in any event, they rejected the Carrier's position. The case was then appealled to arbitration June 5, 1985. A hearing was held on the matter September 29, 1985 in St. Paul, Minnesota.

 FINDINGS

 Regarding the time limit argument made by the Carrier, it is noted that there are no strict time limits in the New York Dock conditions. With respect to laches, it is the committees' opinion that this principal does not apply under these circumstances.
 With regard to the merits, as noted in Case 1, Section 11(e)
 sets forth the Parties' respective burdens of proof. In this case,
 the transaction identified is the merger and later discontinuance
 of all carman work at Childress, Texas. As evidence that the
 Claimant was affected by a transaction, the Organization, among
 other things, points to the fact that all 28 employees, including
 the Claimant, were offered separation allowances. They also point
 to internal Carrier correspondence dated approximately two months
 after the furloughs referring to the "discontinuance of facilities
 at Childress, Texas." The correspondence relates to the removal
 and disbursement of tools and machinery from Childress. Last, they
 argue that without the merger, the total disccntinuance of carmen
 activity at Childress could not have occurred.
 -3-
 It is the opinion of the committee that the fact that all 28 carmen were offered separation allowances, combined with the timing of the discontinuance of carmen activity at Childress, raises a sufficient presumption that the Claimant was, in fact, affected by a transaction pursuant to the merger. Thus, it is the finding of this committee that the Organization has satisfied their burden under Section 11(e).
 Accordingly, the burden shifts to the Carrier. Additionally, it is the finding of the committee that the Carrier failed to show that factors, other than a transaction, caused the Claimant's furlough. Moreover, there was no challenge to this committee's jurisdiction or the applicability of the New York Dock Conditions on the property. Therefore, the Claimant is entitled to reject the separation allowance and accept the dismissal allowance.

AWARD

 The Claim is sustained.

 i Vernon, airman an Neutral em er

 oVowicz, , Lay Member

 Dated this -7lfV day of January, 1986.

4 ` 1 ,v.c


oc in, Carrier Member