Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11985
SECOND DIVISION Docket No. 11813
91-2-89-2-105
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
1. Mechanic-in-Charge Terrence L. Young was unjustly furloughed by
the carrier on May 3, 1988 when the Chicago and North Western Transportation
Company violated his contractual rights.
2. That Mechanic-in-Charge Terrence L. Young be compensated for all
time lost at the Mechanic-in-Charge rate of pay plus overtime and all other
benefits that are a condition of employment and be restored to service. This
is a continuous claim effective May 4, 1988 until claimant is restored to his
position at Madison, Illinois.
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 employes 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.
There is no dispute in this record that on April 12, 1988, Mr. R.
Panice submitted a resignation form to the Carrier. Mr. Panice signed and
dated the form below a statement which read:
"In order to accept an annuity under the Railroad
Retirement Act, I, the undersigned, hereby voluntarily give up my rights I hold to return to the
service of the Chicago and North Western Transportation Company."
Mr. Panice was thereafter permitted to take his vacation pay, although there
is no evidence he ever accepted an annuity.
Form 1 Award No. 11985
Page 2 Docket No. 11813
91-2-89-2-105
The Organization alleges that Mr. Panice thereafter went to work as a -
city employee. Following Mr. Panice's resignation, M.I.C. Snyder from Madison
assumed and replaced M.I.C. Panice at Sterling, Illinois. Claimant assumed
Mr. Snyder's duties at Madison, Illinois. It is the position of the Organi
zation that Carrier violated the Agreement when it allowed Mr. Panice to
return to his M.I.C. position at Sterling and thereby caused the furlough of
Claimant, when Mr. Snyder returned to Madison, Illinois.
The Organization states that Mr. Panice's resignation was "final and
binding." As Mr. Panice had forfeited his seniority as a Carman and was no
longer an employee of the Carrier, his return to service violated numerous
Rules of the Agreement. The Organization asserts that Mr. Panice's resignation was clearly accepted by the Carrier, in that he was permitted his vacation pay, and permanent, in that he left for another job.
The Carrier argues that when Mr. Panice submitted his signed resignation to Mr. Patt, ADM-Mechanical, it was refused. Mr. Patt asked Mr. Panice
to reconsider while on vacation. Mr. Panice reconsidered and withdrew his
request to resign. The Carrier further argues that if Mr. Panice went to work
for another employer it would not have been relevant as he was on his vacation. The Carrier also argues that Claimant was called from furlough for the
"temporary" vacancy of Mr. Snyder which was terminated upon Mr. Snyder's
return. As the position was not permanent, Claimant had no contractual rights
to it.
The central issue in this dispute is the status of Mr. Panice's
resignation. We consider the act of a voluntary quit as a process comprising
of two elements. First, there must be facts and circumstances in evidence
that the resigner has initiated and presented a clear offer to permanently
vacate his position. Herein, we find an offer to resign was made by Mr.
Panice. Second, there must be probative evidence that the offer to resign has
been finalized by the resigner or accepted by the resignee. Here we find
neither. In this record, the ADM-Mechanical did not accept the resignation.
Here the evidence is insufficient to consider the process completed. The
vacation pay issue is not an aspect of this instant Claim and is insufficient,
in and of itself, to establish a final and binding act of resignation. Nor
does the Organization refute the right of Mr. Panice to work on his vacation.
We hold that Mr. Panice did not resign. The fact that Mr. Panice
tendered his resignation allowed the Carrier to accept or reject any future
retraction. However, the offer to resign can be timely retracted prior to
acceptance or left intact and permanent by the resigner. The Carrier did
accept the retraction which was timely made by Mr. Panice. Acceptance of the
request to withdraw the voluntary quit resulted in Mr. Panice's failure to
complete the process of resignation (Public Law Board 157, Award No. 15). The
Claim is denied.
A W A R D
Claim denied.
Form 1 Award No. 11985
Page 3 Docket No. 11813
91-2-89-2-105
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Na cy J. e - Executive Secretary
Dated at Chicago, Illinois, this 16th day of January 1991.