.. .

- . ~·~,t~ti'vI; DIV! S ICt;N ho~r ·,et ?`a,: r;6L~z






                          ( Burlington Northern, Inc.


      Dispute: Clam of rMnloyes:


          Clairm of the I.A.ri.A.4d. that:


              I. Machinist A . A . E!a nd sakGr was in-,properly removod from service on June 22, 1972,


              2. Machinist A. A. Handsalcer he co.-,:rer;sated at the 1:arhin:ists' rata far all tire lost since June 22, 197`?, to tae date he is restored to service.


              3. Machinist A. A. F_arldr=aker be rairj: bnrsed far cost of prc~^:.c;n for Health and 6Jc7.i=are and Life Insurance.


              4. Machinist A. A. fandsalcar be allowed interest on money due hire at the rate of b% per annum cr~encir..; wit=h J,mL 22, 1972, and continuing until restored to service.


              5. ibchi.nist A. A. Handsa'scer be restored to his regular seniority and vacation rights, sick have and rarer protective status and his record be cleared and any other rights, privileges or benefits allowable under rule: or agree~:¢nts.


      Findin,gs:


      The Second Division of the Adjustment Board, upon the whole record arid all the evidence, finds that:


      The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employs 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 haaring ttleroon.

      FU~'r:~ ~ AE·,t·'(; N©. 6714

      . Page 2 6614

                                                DockC'4 tI

                                                      0.

                                                  2-BN-rS=: =` 7·:


          On June 22, 1972, C?a:srant who had be~:n in Carrier's cmplay appx-o:i2m,1t`3Z.y -L',;0 and oCl2i:lLf years, was CTi11.C'Cj into the of~icc of the Assistant 1-';aster i'lef_-b.'lT!3_C Pt Carrier's, Lincoln, ~seb1.'aaR:_1 t':C'CZhnl.Cal DapartGl:?nt, h°Riergs (:~_, :'ini; II-21d the C11sSit 1C:1 tit3il ('fi.iCili.l1i84e According t0 t:hV .T'cv'Cr`?'·u,. a ('.OI117e).'sc'3`iOn C'n:'·Cl^.d batween the supervisor and employe Y<3l?'i.Itli''. t0 :'n incident which has caused some nfi¢T;1'IWy far the Cl:zi--Tnt. A t some point during th:: one half hour C1ayT~zn?- w~iG in the office, he siI,Med and datLd a ty;m,,'ritton letter, which %~-t3rcrit:Ly eras handed to hin b,? the Assistant Piaste.r HccslaniC, addressed to Cziric,c's Master Mechanic, which reads:


                "Effective this date, I wish to resin from the services of Burlington Northern, Inc."


          About one and one half hour after departing the office= Clai.r:=tent returned and advised the Assistant l':3 Ster 'i· Ci uniC that he decidcd to retract the resigratzen and that th:~ letter he had signed earlier

                                                        lbe

retained to him. This request was denied and Claimant 11ws been, from
 that day forward, kept out of Carrier's service.
 /,1thf1't!Y?l Petitioner =i^e43 a number af 2l1''~',-,ed CC.':'.;sitiOnS h?:i^% Lt
 3 contends are necessary for a resignation to be valid and bindin-a on all
 emplof'o, essentially it recogniZ3 that an employe u:ho voluntarily
 terminates his relationship with his es.^.nlof~-r, ceases to have any riht
 to invoke any contrcttLaI entitle-pants or procedures. The basis her this
 z
 claim is vault Clair~i~L wr s coerced a~ a r-;~prasentative o~ i:ar,.aro;.;:~;it
 into sihnin;; the shove quoted latter. It is loll established in iluards
 of the Divisions of this Board teat resi_onZtions induced by use of
 duress, fraud, or thraa;;s of dire consequences, will bo considered
 involuntary acts of employes so treated and gill be set aside and
 considered void. Awards of this Division 5763, 5744 and 5374 and `i''tlird
 Division Awards 6399, 3710, 10439, 11340 and 13225.
 Carrier vigorously denies that the resignation was secured by
 use of coercion, duress, intimidation or any other means which would lead
 us to construe Claimant's act as involuntary. Thus the issue is drawn.
 This Board has in its Awards endeavored to delineate the criteria
 for determination whether a resilgravion c-rtes voluntary or involuntary.
 Influence oz' gx'rsuasion standing along dogs not ataou^.t to coercion,
 17tird Division Ai3'~ird 4.".8J. Ph? threat that t:1e C'i°?r.I0y' will be st_.`.~3°Ct
 t0 inVCSt'.y3twCrn and dtSCl~.'lii=?ry action, has consistently b.°-en to
 be insufficient to warrant rcversinan el::,>3_o5·er's ace; pr-:anC".s.' Of c? wr3.ttC.'7
 resignation F£S s'I voluntary tvY'-n 3W'3tiOI1. SCOCid Division r;i-:ard 6'-~2Third Division Award 1&476. Unli~;e ,:otters in which th·-· employer ilMposed
 disciplinary penalties upon an c:v;.plc;ye and is raziuired to Lrar t~w bz~r;i~n
 or proving just cause th?rF?'far, Wh?'?n f_.°tIt?c3i.'.i charges 1;:y53'Q~c-F' conduct
 On the part of the Carrier, it 7.S iT:Ct.~ ;?n'11~ f:?=x~ ~=lT-."_:` t3°' SiltS;;_):¢:i-F~ L'·
          probative evidence. :iv`,Cf3tld DJt7_sifin :~1tauY'f;~i ~af.3e fiO~'~'j l1:il"d

          i?I'1.'z:>~s'.·il

          Awards 184i6, 10565. 'Tilis cannot be established by inf'erc-nco, 'Iaia'd

          Form 1 1°ih'itr4 i't'_3e 6714

          Pa go 3 Dock-nC. No. C>61·t

          2-Ii.a

                                                    P -' 7Y


          Division Award !·*;u; nor will the sllbsetlut5:~lt attcapt to retract to written resignation Si:rVE.' to overcome t'(i~ fact that it was Ut'levr=_'d into voluntarily a t vhe til~a of its ext-a;sticn. 'Third Division Award 4583.


          Ira each of ta:a f=St;.-~t·ds clod by Petitioner the re.oorci con Uir-~o the accessory factors to satisf finding that the resignation Fps procured by S?rCFlgftlt micans. In At,.,Z~rds of this Division, 57~`~3, 5744 arid 6374, the claimants were sucj^ctcd to lengthy interrogation by recur ity for ces of their empl cy`r s. !`I~y were

                                                  r

          told that failure to resign would result in the pressing or criT.ti.r?al

          chaIrges 'cibc;In.^-.^-t. t:tf_'::t. They were denied tile Tr request 4-Lo cansi-iIC e: 'Ch.- .2Y'

          representatives prior to signing the graferred documents in Whiol; t.ey

          agreed t0 Separatl.;)ll 7:?"O'"..1 their Crtlplf3y:`::3ni:. Comparable facets 67:'.."t?


          involved in ti:il'd D.,.s. ~a f .2"f' ~S`99 ' 'T ~, 'n ::`' "` ~,1

                        ':P.a`l~iial IV,., rd 7 ti;. i:lJi'J. .71~;9iF.11Csi ,:ly ~ ii. ~$£:il

          of the Awards relied upon by Petitioner the records sp~cifically contain

          statements by the claimants concerning i-3'iat transpired durit:g the,

          L~ ~.~y_4 ~ · .y· ~,.~ (·.. "~:~," Z~:~,:f`.si:'nc..,:s.if::a ,:°tliCa l.~ .:.l.i :fl tlu£:. vo -. :'C:°u3i...~

                                                            :.~'r~.,~...=-~C . L .Y.~.'~ a t..''~ k w.,ai .

          1 dOCU~Cnt which was considered by their C;^t3l0y.°.r as a Vali'_T:i.:?r`j1 termination. Although tae `nave n,) reason to question the veracity of the General Chairman of Peti.ti.or.er that his alle=ticns in the

          GrrY.3niaatiol:'s

          . b . 1 r 9 , .OteLviliiu·tVij tiiiU 6t1~.: _~.fl:tiC.C~iS .l.ei`:~ ~ 7si tV1t~ kJ.1~iJiA ~:J.'v.~ Ji.~i.·:W 1 l.ii:~i 3lll_4JL :.it L~Lt


3 GL y s; ~ _ n~ ·_ i_l, · _ p _ ~ ·_ .,
          e°F i Of'L'. :] to a.'ii:. Lj ... .,: 1.i%:.zi.~. >,.: ~ u : i`'u~ ~c~, ....1S t .. .'W u... :j:. m...~ ...: ~ =v: ~a,'~.°y

          L'1C^"c.'ntS t0 'uatISfJ the standards which this Board s',':S E?iub.E.ISilCU to

          pertait a holding tl:t coercion or duress v:«s applied by Carrier's

          representative in :ic discussion on the r~,oxnzn;g of June 22, 1972, which.

          resulted in Cla iu-nnt sihnirta ,and dating the notice of r,-~sign,?-Lion.

          Clai.l::ant is neither a young, ir.e::pLrierc,.r3 or illiterate .:::.n, not: is ho

          an old and tired person, urlvilling to stared up and fi,-;i-it for Itic r-inhes.

          HC was tit the time Ch;1r,iF.'d with C1fFi?nSIVC conduct by civil authorit-i_-R.

          ituS, the Assistant Master M$Cti`niC 'had no occasion to t'ist1:l?'_'.SC'CUtiJi.

          He made no de-.,-and, during the half hour he met with the supervisor tlniat

          he be enabled to seek advice-of his -wLgrascntativP. We have P-,othirg

          before us except Claimant's signed resignation, which tans accepted Vyhc-n

          executed by an appropriate Carrier official.


          Petitioner has failed to rlpet the burden of proof that Clair-ant's resignation was secured through coercion or duress, them is no basis upon which to find a violation of any of the Pules of the cantrolli.r: agreement. Acceding to Claie°.ant's desire to retract his wri.ttL:a resigaation was entirely a ...after of Carrier's discretion and this Board roy not substitute its views for that of the Carrier, in such cirour>ts.!:wnces.


                                A W A R D


              Claim denied.

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( , _ ,, n ~r 1, 'J 1 `.

 G. M· YQUH4,ABOR MEMBERS' DISSENT TO AWARD NO. 6714,
 DOCKET NO. 6614
    This Award is in contradiction to many sound correct awards of this Board concerning the difference between a valid or a coerced resignation. The award dictum on this issue states in pertinent part:


              "* * * It is well established in Awards of the Divisions of this Board that resignations induced by use of duress, fraud, or threats of dire consequences, will be considered involuntary acts of employes so treated and will be set aside and considered void. Awards of this Division 5743, . 5744 and 6374 and Third Division Awards 6399, 8710, 10439, 11340 and 13225."

    Immediately after quoting these sound precedents the neutral, for reasons known only to himself and inexplicable to the Labor Members, embarks on a fishing expedition in searching for reasons and excuses as to why these sound precedents should not be applicable in this instant case.

    The record irrefutably shows that the Carrier official "set the stage" for coercion in securing this resignation in that:


              (1) This official acted in the early hours when he knew the committee was not on duty.


              (2) This official called the claimant into his office.


              (3) This official had a typed resignation al ready prepared.

          (4) This official refused to return the resignation even before the claimant. had missed one minute of his work assignment.

All of these facts portray premeditated coercion to any unbiased person seeking out the truth to render justice.

 The official saw to it that there could be no witnesses and therefore who except the two participants and God himself could prove or disprove what occurred in that closed office. Therefore, the circumstances in the above listed "stage setting" should have convinced even the most dubious of the mischief afoot by this Company official. In such an erroneous award it causes wonder that perhaps even a deposition from the only witness, listed above, would have been acceptable to a majority so obviously intent upon seeking out excuses to ignore so

 many sound prior precedents on this issue.

 The evidence of record before this Board proves beyond a. doubt that a travesty of justice has been committed by the majority. The same evidence of record irrefutably portrays that the findings and conclusions in this award are palpably erroneous, and to which we vigorously dissent.

      .

dJ6 L

, , e A6

!Z:, AX. -DeH-agu&-, Member

 D. S. Anderson, Labor member
    G


r,
 J. F3a saert, Labor ember

 W. O. Hearn, Lab Member
    -<~ A&/~ --

E. J. McDermott, Labor Member

 LABOR MEMBERS' DISSENT TO
 AWARD NO. 6714, DOCKET NO. 66