MARCH 31, 1977


        PARTIES TO DISPUTE:


            BROTHERHOOD OF RAILWAY, AIRLINE AMID STEAMSHIP CLERKS,

            FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES


            v. .


            SOUTHERN RAILWAY COMPANY


        -STATEMENT OF CLAIM:


            Claim filed for and in behalf of Mr. E_ W. Yountz, former Agent-Operator, Albemarle, North Carolina, for lump sum separation pay, as provided in the Z·1ASTER IMPLEMENTING AGREEMENT COVERING MOBILE AGENCY ROUTES, dated April 1, 1971, when his former position, Agent-Operator, Albemarle,. North Carolina, was closed with close of business 5_00 P.M., Friday, January 10, 1975, to become a part of Mobile

. Agency Route NC-10.

                  FINDINGS: This Board upon the whole record and all the evidence finds that:


        The carrier and the employees involved in this dispute are respectively carrier and employees within the meaning of the Railway Labor Act, as amended.


        This Board has jurisdiction over the dispute involved herein.


        OPINION: The Claimant is a former employee of the Norfolk Southern


        Railway Company (NS) who entered the employ of this Carrier via the


        acquisition in 1973 of the NS by the Carolina and Northwestern


        Railway Company (C&NW) , which is a wholly owned subsidiary of this


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      Carrier. After working for this Carrier for a period of time,

      the Claimant applied for a lump sum separation allowance under the

      protective provisions of Article 11 of the parties' Agreement con

      cerning Mobile Agency Routes dated April 1, 1971. The Carrier

      declined to pay the allowance on the,ground that the Claimant had

      lost his protected status under Article 11 while in the employ of

      the NS, and that this fact is established by the notation of "NP"

      which is set opposite the Claimant's name on the NS seniority


      roster, and which is said to signify a non-protected employee..

      The Carrier also asserts a time limits defense, in that the Claim

      ant did not protest the NS seniority roster bearing "NP" after his


      name within six (6) months after its issuance. -

      There is no dispute that the Claimant has a May 1958 seniority date with the"NS and that he acquired a protected status while in


- the employ of the NS; consequently, there is no dispute that such

      status, if still existing, is applicable to this Carrier's April.

      .1, 1971.Agreement, subject, of. course, to the Carrier's time limits defense.


            The facts of the case now follow.

      The Claimant entered the employ of the NS as an Operator

      Clerk on May 12, 1958. On December 28, 1973,,this Carrier, the

      NS, the C&NW, and BRAG entered into an agreement whereby the oper

      ations, facilities, and employees-of the three railroads were

      coordinated and the clerks and agent-operators on the NS and

      C&NW were placed under the existing Agreement between this Car,

      rier and BRAC. Provision was also made, in three protective

      agreements, for the merger of the NS and C&NW seniority districts.

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      and seniority rosters with those of this Carrier, and for the retention of full pre-merger, seniority rights by all NS employees. On January 1, 1974, the Carrier gave notice that certain positions, including the one held at that time by the Claimant, were to be abolished as part of the plan for combining operations. The Claimant, in accordance with the above mentioned protective agreements, transferred with his 1958 seniority to the Carrier's Charlotte Seniority District and displaced the junior Agent-Operator at Albemarle, N.C. The Claimant held this position until it. was abolished by the Carrier effective January 10, 1975, because of the establishment of Mobile Agency Route NC-10 which began servicing the Carrier's customers in the Albemarle area effective Jan- .' uary 12, 1975. On January 13, 1975 the Claimant made a claim for a lump sum separation payment under Article 11 of the April 1, 1971 Master Implementing Agreement Covering Mobile Agency Routes, Addendum N-8, which reads as follows:


            "Il. Any protected employee transferring to a new paint

            of employment with the Carrier as a result of these tech

            nological, operational or organizational changes made under

            this Agreement will be entitled to all the protective bene

            fits of the Mediation Agreement of April 3, 1965 (Southern

            System Lines) or April 15, 1965 (C&NW). Regularly assigned

            occupants of the agency positions at stations to be closed

            within a mobile agency route, as well as those who may be

            displaced as a result of the change, may, when their posi

            ti'ins are abolished or they are displaced, exercise their

            seniority rights under the basic Telegraphers' Agreement or ,

            accept a lump sum separation allowance (consisting of 360

            days' per) if they have fifteen-(15) or more years of employ-

            ment relationship and are protected em,~loyees, as provided in

            Article V of the.aforementioned Mediation Agreements. (See

            appended excerpts from Stabilization Agreements of 1965 and

            Washington Agreement of 1936. (Underlines added.)

            The pertinent above mentioned excerpt from the Stabilization

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      Agreement of 1965, Article = of Addendum N-7, reads as .follows:

      "Section 1 -


          Ail employees, other than seasonal employees, 'who were in active service as of October 1., 19'04, or who after October

    _ 1, 1964, and prior to the date of this Agreement have been

          restored to active service, and who had tuo years or more

          of employment relationship as of October 1, 1964, arid had..

          fifteen or more days of compensated service during 1964,

      ' will be retained in service subject to compensation as here-

      inafter provided unless or until retired, discharged for

      cause, or otherwise removed by natural attrition."

      The Carrier, as previously noted, interposes the defenses that

      the claim is barred by the six month time limits provision regard

      ing the seniority roster and that the notation of "1P" on that

      roster signifies that the Claimant is a non-protected employee.'

      The record does' not support this first defense, in that the claim

      is filed under the April 1, 1974. Agreement and the seniority ros

      ter's time limits are not applicable to that Agreement. The Car

      rier's second defense is in the nature of an affirmative defense

      and thus the carrier has the burden of proving that the Claimant

      is in fact a non-protected employee under the April 1, 1971 Agree

      ment.. On the whole record, the Carrier has not met this burden

      and the claim will therefore be sustained.

      The record indicates, and there is no dispute between the.

      parties, that at some time prior to 1965 the Claimant was a pro

      tected employee of 1S.. There also is no dispute that the Claimant

      had employee status, protected or unprotected, with the NS at the

      time of the 1973 merger; his status did not change between that

      time and the time this claim; was filed. The Carrier "stepped in

      to tile shoes" of Ns in regard t0 the status of the Claimant. it

      thus follows that the Carrier must assume the burden of explaining


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the asserted loss of the Claimant's protected status, and this it has failed to do.
 There are. obvious and understandable difficulties involved when one Carrier takes over the files o£ another and is limited to the information contained in such files. However, such difficulties cannot be permitted to outweigh a Claimant's right to have his claim . adjudicated upon a proper evidentiary basis. In the herein case .. the Carrier presented.no evidence to indicate the cause.for the , Claimant's loss of protected status. In fact, the record indicates that the Carrier does not know ho;a this status was allegedly lost because the file on the Claimant contains no.indication: The Organization on the other hand asserts that the Claimant's protected stat-as was.never lost, and goes on to give an account of his activities in 1964. and 1965 which appears on its face to be consistent with the retention of his protected status- Tire credibility and probative value of the Claimant's explanation is not, however, in issue in this case because the burden is not his but the Carrier's. On the overall record, the Carrier has failed to carry this burden and the claim :nest be sustained.

 A?·:ARD: Claim sustained.

        By Order o£ Public Law Board No. 1682


                  e~d~Bla_ckwell, Neutral Member


v. `rJ. taley, CaLra.er .~n;oer S. . Bishop, Em loye~ ?%
            94

            ie:·Wer


Dated at Washington, D. C. this 31st-day of ' March l977-

 OFDEk: The Carrier shall comply with this; Award within thirty (3C) days from
 the date hereof.. .>.

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