Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7330
SECOND DIVISION Docket No.
7211-I
2-SOU-I-t77
The Second Division consisted of the regular members and in
addition Referee James C. McBrearty when award was rendered.
( Abe Russell, Cayman
Parties to Dispute:
( Southern Railway Company
Dispute: Claim of Empioyes:
In order to receive compensation for an injury sustained at
Norris Yard, Birmingham, Alabama, on September
17, 1974,
it is of
e
my opinion I was unjustly coerced into submitting my resignation on
March
lg, 1976,
from the Dept. of Mechanical as a Cayman.
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 aye respectively carrier and employe within the meaning of the
Railway Labor Act as approved June
21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant entered Carrier's service as a Cayman in the Mechanical
Department at Morris Yard, Birmingham, Alabama, on June
4, 1871.
On Septembers
17, 1974
Claimant stated that he injured his back wren he slipped on some
oil and grease while carrying a knuckle from a freight car. Because of his
back injury, Claimant did not work from September
17, 1974
until August
7,
1875.
He worked only a few days until August
16, 1975,
when he again
reported off due to his bad back, and never returned.
In
1875,
Claimant filed a personal injury suit against Carrier, because
of the alleged personal injury sustained on September
14, 197+.
In March
1976,
Carrier offered through Claimant's attorney, a one
Mr. Frank Burge, the option of: (1) settlement of the personal injury suit
for
$30,000,
or
(2)
settlement with resignation for
$35,000.
On March
17, 1976,
Claimant sent a letter to Carrier stating that he
was severing his employment relationship, and on March
22, 1876,
accepted
the
$35,000
settlement.
Form 1 Award No.
7330,~'
Page
2
Docket No.
7211-I
2-SOU-I-'77
Thereafter, on April
16, 1976,
Claimant filed an ex paxte submission
with the Second Division of the National Railroad Adjustment Board.
Claimant states that Carrier "coerced" him into accepting settlement
with resignation, since Carrier waited until he had exhausted his Railroad
Unemployment Compensation, and was in a financial crisis.
Moreover, Claimant argues that Carrier only made one offer to his attorney,
and that was for settlement with resignation. Since he was "down, and out"
Claimant feels Carrier took "unfair advantage" of him by offering
$35,000
for settlement with resignation on a job which is now paying approximately
$17,
000 annually.
Claimant states that he is still under a doctor's care for his bad
back, cannot get work, and is in "dire financial straits."
Carrier argues that two
(2)
offers were made to Claimant's attorney,
one for
$30,000
in settlement of the suit, and a higher one of
$35,000
fox
settlement with resignation. This latter offer of
$35,000
was made by
Carrier "in view of Claimant's poor work record, excessive absenteeism and
disabilities both prior and subsequent to September
17, 197+."
Carrier emphatically states that no "coercion" was applied to Claimant
to take the
$35,000
for settlement with resignation.
Aside from the merits, however, Carrier argues that the claim was never
handled on the property, and if entertained now by this Board, would encourage
all claimants to come directly to the Board, bypassing Carrier and Union
appeal procedures. I
i
While the Board can sympathize with the anguish felt by Claimant,
nevertheless, the record is clear that the dispute Claimant is asserting
before this Board, was not handled on the property in accordance with Rule
35
of the applicable Agreement, Section
3,
First (i) of the Railway Labor
Act, nor in accordance with Circular No. 1 of the National Railroad
Adjustment Board. Therefore, the claim is barred from consideration by
the Board, and must be dismissed. (See Second Division Awards
6992, 6953,
691, 687+, 6829, 6810, 6555, 6520, 6505, 6.96,
and
6+81+) .
Moreover, even if this claim were properly before the Board, it would
still have to be denied, since there is no evidence of probative value that
Claimant was "coerced" into submitting his resignation on March
16, 1976.
Mere allegations and conjecture axe not proof. .
A W A R D
Claim dismissed.
Foam 1
Page
3
Award No. 7330
Docket No. 7211-I
2-SOU-I-'77
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 12th day of July,
1977.
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