sea Award No. 18476

Docket No. CL-19017

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

J. Thomas Rimer, Jr., Referee

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS, EXPRESS AND

STATION EMPLOYES

UNION PACIFIC RAILROAD COMPANY

(South-Central District)

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6880) that:

1. The Carrier violated the currently effective controlling agreement between the parties to this dispute when on December 12, 1969, the Superintendent refused to afford Mr. B. J. Petty the right to a formal investigation and hearing following a request from Mr. Petty's representative, the Brotherhood of Railway, Airline and Steamship Clerks.

2. Carrier shall now be required to return Mr. B. J. Petty to the service of the Carrier, make payments of premiums due under Travelers Group Policy GA-23000 and dues to the Union Pacific Railroad Employes Hospital Association, and beginning December 8, 1969, compensate Claimant for one day's pay for each day of employment denied to him by the action of the Carrier on a continuing basis.

OPINION OF BOARD: The Claimant, B. J. Petty, Cashier at Provo, Utah, on December 8, 1969, signed a letter resigning from the service of the Carrier "in order for me to apply for my annuity due to years of service and age."

By letter from Paul J. Meier, Vice General Chairman, dated December 10, 1969 the Organization made timely request for an investigation and hearing under Rule 45 (d) alleging that "Mr. Petty was improperly coerced into resigning his position."

The Carrier responded by stating that the resignation was signed of his own free will and accord; that as an ex-employe he had no standing or rights under the contract to avail himself of the provisions of Rule 45 (d).

A series of letters exchanged by the parties maintained these initial positions in processing the dispute to this Board. No corroborative evidence is in the record in support of either parties position. The Organization states

that the Claimant was coerced because of a pre-prepared letter of resignation offered to him on December 8, 1969. The Carrier states that he signed the resignation letter as an alternative, freely offered, to a charge of insubordination, placing him out of service until an investigation and hearing could be completed, as provided by Rule 45.

The Board is here confronted with a meager record from which to determine whether the Claimant was denied "due process" in its simplest terms and meaning by the refusal of the Carrier to avail him of the investigative and hearing mechanism provided in Rule 45 (d). The Organization simply has alleged the treatment of the Claimant at the time of, and following his execution of the letter of resignation, to be unjust and coercive. The Carrier simply states that the Claimant had no entitlement to the use of the pro cedures of Rule 45.

Under normal and usual circumstances, it cannot be said that the making of a threat of discipline to an employe is of itself coercive and thus, places him under duress which could or did r^sult in his resignation, relinquishment of seniority rights, or any other act on his part taken for the purpose of avoiding possible discipline. One muse know the circumstances, supported by probative evidence, under which the employe tools such action do justicc to the claims of the parties. In the case before us there were no witnesses present and there is available to the Board only the Carrier's version of the events of December 8, 1969 and those occurrences which preceded beginning December 4 or 5. On the other side, it is simply not enough for the Organization to infer coercion and duress by reason of the alternate choices offered the Claimant.

Here, an investigation and bearing were denied the Claimant on the single premise that he was no longer an employe after December 8, 1969. In the Awards on which the Organization places great emphasis and from which it quotes at length, the fact situations were not parallel to the instant case. In each instances, investigation and hearings we!e initiated and scheduled while the Claimant retained employe status. Thus, at least one of the pivotal facts in the instant case was not at issue in the cases cited.

It is the opinion of this Board that the burden of proof rests with the Organization to show beyond a reasonable doubt that the Claimant was coerced into signing a letter of resignation and that he did so under duress on Decemb-^.r 8, 1969. This cannot be established by inference (the pre-prepared letter offered to the Claimant) or by the confrontation of threatened disciplinary action as an alternative to his resignation.

This is not a discharge case where the burden lies with the Carrier to show just cause. The Claimant terminated his employe status by letter signed by him. The Organization has not persuasively shown that such termination was effected through fraud, deceit, or misunderstanding of the consequences, nor that it was effected through coercion and duress.

In the light of the record before the Board and having given due consideration to the position of each party as therein contained, the claim must be denied.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Agreement was not violated.

AWARD