Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 41187
 Docket No. MS-38477
 11-3-NRAB-00003-040446

The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.


(Phoebe M. Hudspeth PARTIES TO DISPUTE:

"1. The timely rescinded misrepresented `Resignation and Release' agreement

 2. The ineffective, invalid, defective, and coerced `Resignation and Release' agreement

 3. The document be rescinded, totally made whole, and seniority reinstated"

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


The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.




The Petitioner's September 1, 2004 Notice of Intent set forth the official Statement of Claim before the Board as noted hereinabove. Nevertheless, the Board notes that the Petitioner's Ex Parte Submission contains the following:

Form 1 Award No. 41187
 Page 2 Docket No. MS-38477
 11-3-NRAB-00003-040446










According to the Submissions, the Petitioner was employed by the Carrier in 1996 in the clerical craft. Shortly thereafter, she transferred to a partially exempt position. This was followed in 1998 with a temporary exempt position as well as a permanent exempt position as Human Resources Generalist. Differences between the Petitioner and the Carrier arose thereafter and culminated in the Carrier's notice to her dated August 18, 2000 that announced her immediate termination for unsatisfactory performance but went on to offer two options to that termination: (1) she could accept the terms of a Resignation and Release Agreement that was attached, or (2) she could exercise her seniority back to the union ranks. The Petitioner's employment was terminated as of August 18, 2000, but she and the Carrier continued communication.


On March 8, 2001, the Petitioner signed a revised Resignation and Release Agreement and it was mailed to the Carrier. The Resignation and Release Agreement reads, in pertinent part, as follows:




Form 1 Award No. 41187
 Page 3 Docket No. MS-38477
 11-3-NRAB-00003-040446
 WHEREAS, Employee desires to settle fully and finally any differences
 that may have arisen or might arise out of her employment and
 resignation of service with The Burlington Northern and Santa Fe
 Railway Company, its predecessors, or any of its affiliated companies
 (hereinafter collectively referred to as `Company') and her separation
 therefrom, including her entitlement to severance benefits.
 NOW, THEREFORE, in consideration for the mutual benefits
 described below, the Company and Employee agree as follows:
 1. Employee resigns from active employment with the Company
 effective August 18, 2000. This resignation is irrevocable.
 Furthermore, after August 18, 2000, Employee shall not be entitled to
 any compensation from the Company or benefits under any benefit
 plans except as expressly provided in paragraph 2 herein. As further
 consideration, Employee specifically waives and releases any eligibility
 under any Company sponsored disability plan, and Employee promises
 that following execution of this agreement she shall not make any such
 claim or application for benefits under any Company sponsored
 disability plan.
 2. The Company and Employee agree that Employee shall be
 entitled to the following benefits:
 (a) Employee will receive a severance payment of $60,000.00,
 less applicable legal deductions.
 (b) Employee is eligible to participate in the BNSF Incentive
 Compensation Program for active employment in 2000 for
 the period January 1, 2000, through August 18, 2000, to the
 extent such a payment is earned by company performance.
 (c) Employee understands that execution of this Agreement
 will not deprive her of any existing vested benefits under
 the Company's Investment and Retirement Plan (401(k))
 and the Burlington Northern Santa Fe Retirement Plan
 (Pension Plan), where applicable.
 Form 1 Award No. 41187
 Page 4 Docket No. MS-38477
 11-3-NRAB-00003-040446
 (d) Employee understands that all Incentive Stock Options
 granted to her in 2000 under the Burlington Northern
 Santa Fe 1999 Stock Incentive Plan will vest pro-rata on her
 termination date of August 18, 2000. Employee
 understands that she will not receive a Stock Option grant
 in 2001 or any year thereafter.
 (e) Upon execution of this Agreement, Employee will have
 three (3) months from August 18, 2000, to exercise all
 vested Incentive Stock Options in accordance with the
 applicable plans. Any options not exercised by the end of
 this three (3) month period shall be forfeited.
 (f) Employee will receive payment for all earned unused
 vacation.
 3. Except as specifically provided in Section 2 above, Employee
 hereby expressly releases and relinquishes unto the Company, all her
 rights as an employee, effective close of business on August 18, 2000.
 This relinquishment of all employment rights includes, but is not
 limited to, seniority in any scheduled employee craft or class, and,
 except as explicitly provided herein, coverage under any and all
 employee benefit plans which Employee was eligible to participate in
 heretofore. Employee hereby releases and discharges the Company, its
 affiliated corporations, their successors and assigns, and these
 companies' directors, officers, agents, servants, and their successors
 and assigns, from any and all liability, causes of action, claims or
 rights, known or unknown, arising from her employment or her
 separation from employment with the Company, which Employee, her
 heirs or assigns, might otherwise claim or assert. Claims which
 Employee relinquishes under this Resignation and Release Agreement,
 include but are not limited to personal injury claims, contract claims,
 employment claims, labor and labor protection claims, claims arising
 under federal, state or local common law or statute, including without
 limitation Title VII of the Civil Rights Act of 1964, as amended, 42
 U.S.C. §2000e et seg., the Age Discrimination in Employment Act of
 1967, as amended, 29 U.S.C. §621 et se&, the Worker Adjustment and
 Retraining Notification Act or any collective bargaining agreement, the
 Form 1 Award No. 41187
 Page 5 Docket No. MS-38477
 11-3-NRAB-00003-040446
 Americans with Disabilities Act, 42 U.S.C. §12101 et seg., the Family
 and Medical Leave Act, 29 U.S.C. §2601 et sea., The Employee
 Retirement Income Security Act of 1974, 29 U.S.C. §1001 et se ., and
 claims arising out of any legal restrictions on the Company's right to
 terminate its employees. Employee expressly releases any and all rights
 or claims under the Northern Lines Merger Decision, 331 ICC 228
 (1967) or any other conditions imposed for the benefit of employees by
 the Interstate Commerce Commission or its successors.
 4. Employee understands and agrees that her employment with the
 Company is terminated under this Agreement and she will not apply
 for or otherwise seek re-employment with the Company, its affiliates,
 subsidiaries or its successors, at any time. The Company shall have the
 absolute right, without incurring liability of any kind, to refuse
 Employee consideration for employment and she agrees that she shall
 not pursue or authorize any person or agency to pursue any claim for
 such refusal of employment.
 8. Employee also promises neither to contest the validity of this
 Resignation and Release Agreement, nor sue BNSF concerning any
 claim she may have relating to her employment with BNSF or the
 termination of that employment. Nonetheless, if she should pursue
 litigation against BNSF regarding the validity of this Resignation and
 Release Agreement or any other matter covered herein, she agrees that
 she will, before filing any suit, return to BNSF the full value of all
 consideration she has received under this Resignation and Release
 Agreement, including any taxes withheld on her behalf, with interest at
 the post-judgment rate of interest for the state in which her suit was
 filed. Employee further agrees that she shall pay all BNSF's costs and
 reasonable attorney's fees incurred in defending against her legal
 action.
 9. EMPLOYEE ACKNOWLEDGES THAT SHE IS BEING
 ADVISED BY THE COMPANY, HEREBY, TO CONSULT WITH AN
 ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT.
 EMPLOYEE ALSO ACKNOWLEDGES THAT SHE HAS BEEN
 Form 1 Award No. 41187
 Page 6 Docket No. MS-38477
 11-3-NRAB-00003-040446
 GIVEN AT LEAST TWENTY-ONE (21) DAYS, TO REVIEW THIS
 RESIGNATION AND RELEASE AGREEMENT OR EMPLOYEE
 HAS KNOWINGLY AND VOLUNTARILY AGREED TO WAIVE
 HER RIGHT TO THE FULL TWENTY-ONE (21) DAYS.
 EMPLOYEE HAS CAREFULLY READ AND FULLY
 UNDERSTANDS ALL THE PROVISIONS OF THIS RELEASE
 INCLUDING THE RELEASE OF ALL CLAIMS AND HAS HAD
 SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH
 HER PERSONAL FINANCIAL, TAX, AND LEGAL ADVISORS
 PRIOR TO EXECUTING THIS AGREEMENT. EMPLOYEE
 UNDERSTANDS THAT SHE MAY REVOKE THIS RELEASE
 AGREEMENT WITHIN SEVEN (7) DAYS OF EXECUTION AND
 THAT SUCH REVOCATION MUST BE IN WRITING AND
 ACCOMPANIED BY ALL SUMS RECEIVED HEREUNDER AND
 RECEIVED BY THE VICE PRESIDENT-HUMAN RESOURCES BY
 THE END OF THE SEVEN (7) DAY PERIOD. IF NOT REVOKED
 IN THE ABOVE MANNER, THIS AGREEMENT SHALL BE
 BINDING ON EMPLOYEE, HER HEIRS, SUCCESSORS AND
 ASSIGNS.
 10. If any portion or aspect of any promise, covenant or
 understanding contained in this Resignation and Release Agreement, is
 or shall become invalid or unenforceable by operation of law, such
 enforceability shall not in any way limit or otherwise affect the validity
 and enforceability of any promise, covenant, understanding, or any
 aspect thereof, in this Resignation and Release Agreement which would
 otherwise be valid and enforceable by itself.
 12. Employee has read and understands all of the foregoing, and
 agrees to all the provisions contained herein. Employee agrees that this
 Resignation and Release Agreement reflects a fair, equitable and fully
 satisfactory resolution of her employment with the Company."
 Form 1 Award No. 41187
 Page 7 Docket No. MS-38477
 11-3-X00003-040446

The Resignation and Release Agreement excerpted above was signed by the Petitioner on March 8, 2001, and witnessed that same date by the attorney who was advising her. Although she had private email communications with the attorney thereafter that reflect second thoughts on her part, the signed and witnessed Resignation and Release Agreement was sent to the Carrier. By letter dated March 29, 2001, the Carrier sent the Petitioner's attorney a copy of the signed Resignation and Release Agreement along with the Carrier's check, which included the settlement amount plus 80 hours of vacation pay.


By email to her attorney on March 31, 2001, the Petitioner stated her desire to revoke the Resignation and Release Agreement. By letter dated April 3, 2001, the Petitioner's attorney notified the Carrier that the Petitioner was ". . . exercising her option to revoke . . ." the Resignation and Release Agreement. The attorney's letter also enclosed the Carrier's check.


Further correspondence was exchanged over the next several weeks. The Carrier's letter dated April 25, 2001 appears to be the last piece of correspondence included in the Petitioner's Submission. That letter to the Petitioner stated that the Carrier ". . . considers the Agreement fully valid, binding and enforceable, and not validly revoked."


Our examination of the remainder of the record does not reveal any further exchange of documents prior to the Petitioner filing her Notice of Intent to file an Ex Parte Submission in September 2004, which was more than three years after the Carrier's April 25, 2001 letter. The record does not reflect that any claim was ever filed pursuant to a Collective Bargaining Agreement or handled on the property in the usual manner up to a decision by the Carrier's highest designated officer for handling such claims. No Rule of any Collective Bar2ainin2 Agreement was cited as havine been violated by the Carrier.


Given the procedural history outlined herein, the Carrier contends that the matter must be dismissed by the Board for lack of jurisdiction. The record compels the Board to agree.


Section 3, First, (i) of the Railway Labor Act, as amended, requires that claims and grievances must be handled in accordance with the usual manner on the property before they may be properly referred to the Board for disposition on their merits. The

Form 1 Award No. 41187
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 11-3-NRAB-00003-040446

 record before the Board does not establish that the jurisdictional conditions have been satisfied. Therefore, the Board must dismiss the matter.





This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
                    By Order of Third Division


Dated at Chicago, Illinois, this 21st day of December 2011.