The Second Division consisted of the regular members and in addition Referee Robert M. O'Brien when award was rendered.


                  ( System Federation No. 7, Railway Employes'

                  ( Department, A. F. of L. - C. I. 0.

    Parties to Dispute: ( (Carmen)

    (

    ( Camas Prairie Railroad Company


Dispute: Claim of Employes:
 1. That in violation of current agreement, Upgraded Carman Helper L. G.
 Cleveland, Lewiston, Idaho, was unjustly dealt with when on February
 13, 1972 Carrier intimidated and coerced him into resigning from the
 service of the Carrier.
 2. That accordingly, the Carrier be ordered. to restore Upgraded Carman
 Helper L. G. Cleveland to service with all seniority, pass privileges,
 hospitalization, holidays, vacations, and any other rights, privileges
 or benefits allowable under rules, agreements, and/or laws, and
 compensated for all time lost (claim for lost wages to begin with the
 t date of February 13, 1972 and to continue until claim is adjusted),
 ' and all other benefits claimed to be in accord with the Claimant's
 original seniority date and service rendered.
 Findings:
 The Second Division of the Adjustment Board, upon the whole record and.
 all the evidence, finds that:
 The carrier or carriers and the employe or employes involved in this
 dispute are respectively carrier and employe within the meaning of the Railway
 Labor Act as approved June 21, 1934.
 This Division of the Adjustment Board has jurisdiction over the dispute
 involved herein.
 Parties to said dispute waived right of appearance at hearing thereon.
 Upon returning to work following an illness, claimant reported to the
 Car Foreman's office at approximately 3:00 P.M.,, February 13, 1972. The Car Foreman
 thought that claimant had resigned since he had not reported his absence to him. He
 told claimant that he could either ask for an investigation or resign. He then gave
 claimant paper on which claimant wrote out his resignation. Claimant attempted to
 retract his resignation two hours later but Carrier would not accept it.
    Form 1 Award No. 6628

    Page 2 Docket No. 61177

    2-CP-CM-'74


    The issue presented for determination herein is whether claimant's resignatinn was voluntary or whether it was obtained by duress and coercion? There is no dispute that if it was obtained by duress or coercion then the resignation was null and void and failed to sever the employer-employee relationship. Yet if it was voluntary then the resignation could not be retracted without the concurrence of the Carrier.


    It is the Organization's position that, first, Carrier violated Rule 39 of the applicable Agreement when it failed to afford him a hearing, and secondly, the resignation was void since Carrier's Car Foreman had coerced and intimidated claimant into signing it.


    The pertinent facts necessary to a determination of this issue are somewhat in dispute. Claimant stated the Car Foreman, Mr. Beaker, told him he had better write out his resignation from which claimant implied that if he did not he would be fired. Claimant assumed that since he failed to personally call in sick he could be fired so he felt he had no alternative but to resign. Mr. Becker contends that he merely told claimant to ask for an investigation or resign and when claimant failed to answer, he handed claimant paper on which he wrote out his resignation.


          Since it is well nigh impossible to ascertain claimant's subjective state

ct mind at the moment he wrote out his resignation, we must make a determination of
 the issue at hand from facts existing at that time. The fact that Mr. Becker
 suggested resignation does not amount to coercion, nor does the alternative of either
 j facing a hearing or resigning. The Organization must come forward with sufficient
 evidence from which we could conclude that an individual of normal sensibilities
 would feel compelled to resign due to coercion or intimidation by a Carrier officer.
 Tie do not feel the Organization has sustained this burden imposed upon it. Claimant
 himself stated that he "assumed" he could have been fired; that Mr. Becker "implied"
 that he would be fired; and that he wrote out his resignation feeling he had no
 alternative. Such does not constitute coercion, duress, or intimidation on the part
 of a Carrier officer. Rather, it constitutes misaprehension of the facts on
 claimant's behalf for which he must bear the consequences.

    Nor did Carrier violate Rule 39 (Discipline) in not holding a hearing relative to this issue. That Rule guarantees that an employee will not be disciplined or discharged without first being given a hearing. It is inapplicable herein as we are not faced with a discipline or discharge but with a resignation.


          Based on the foregoing we are compelled to deny the claim.


                            A W A R D


          Claim denied.


NATIONAL RAILROAD ADJO24ENT BQARD

By Order of Second Division