NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Claim of the General Committee of The Order of Railroad Telegraphers on the Nashville, Chattanooga, and St. Louis Railway, that the monthly guarantee paid the joint agent at Stevenson, Alabama, for handling the business of the Railway Express Agency originating and destined his station and for handling the transfer of express business of the Railway Express Agency from the Nashville, Chattanooga, and St. Louis Railway to the Southern Railway at that point, which guarantee was arbitrarily reduced from $25.00 to $7.50 a mouth March 1st, 1983, be restored retroactively to that date and the incumbent, W. E. Barry, reimbursed for the monetary loss sustained by him through this reduction."
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier and the employee 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 parties to said dispute were given due notice of hearing thereon,As a result of a deadlock, Robert G. Corwin was appointed as Referee to ,,it with the Division as a member thereof.
\i'. E. Barry was appointed joint agent of the Nashville, Chattanooga & St. Louis and the Southern Railways at Stevenson, Alabama, July 15, 1930, displacing the former occupant of that position. The rate per hour paid him under the wage scale of the former carrier effective January 1, 1926, was 72 cents. In afidition to this compensation he was paid commissions of 10 percent for handling express shipments by the Southeastern Express Company and Railway Express Agency. His claim against the N. C. & St. L. Railway is for a difference between the commissions actually paid him after March 1, 1933, by the later Agency and a minimum guarantee of $25.00 a month, which he says existed at the time of his appointment.
In 1909 a ticket clerk named Potts was employed at Stevenson by the Southern Express Company to handle and transfer its express with a guarantee that the minimum commissions which he was to receive would not be less than $25 a month. In April 1917 the express company established a general minimum guaranteed commission of $7.50 a month where railroad agents also served as express agents. The transfer of the express was abolished in 1921, but Potts continued to receive his allowance until November 20, 1924, when the work was turned over to the Railway Station Agent. In the meantime Southern Express Company had been taken over and operated, for a time, by the United States Railroad Administration and had later become the American Railway Express Company. Successive agents, the claimant being the last, have continued to handle the express and there is no evidence that the tninintutn rate was ever changed. In the absence thereof we must assume that when the work was transferred from the clerk to the agent it carried with it all the terms and conditions upon which it bad been previously performed.
It is stated that after 1924, for some time at least, the monthly commissions exceeded $25. During four months in 1923 and 1930 the carrier claims that
the then agent doing it was paid and accepted less. This alone, of course, could not have the effect of changing the rate. When Barry was appointed it is not shown that he knew of a $25 minimum. In fact, he remitted his collections in August after his appointment in July without deducting such a minimum, the commissions amounting to less. The Railway Express Agency, which had then succeeded the former Express Company, sent him a credit memorandum and its check notifying him that he should observe a $25.00 minimum. In the absence of any evidence on the part of the carrier to the contrary, except failure of Dillingham to collect, we think that this fact is sufficient to show that no reduction bad been negotiated by the agents or their representatives and the Railway and the Agency. This conclusion is further strengthened by the conduct of the Agency- in 1933. After asking the railway if it had any objection to the Agency's securing a reduction, the latter sent a representative to Barry to see if he would agree to it. It only obtained his refusal and a request to take the matter up with the Ghairman of the Order of Railroad Telegraphers. This the officer of the Express Agency agreed to do, but nothing was heard from him or the Agency until Barry received a letter from the Superintendent of the Agency advising him that his "minimum allowance of $25 for handling express at Stevenson, Alabama, will be reduced to $7.50 per month."
The Agency now claims that there was as error in paying the allowance. Its acts certainly would not indicate it. If a reduction in the rate of pay had been lawfully negotiated the Agency arid the Railway would certainly have known of it and be able to tender some proof to support that position. While Barry was not advised of the extent of the guarantee he is entitled to whatever it was.
Under the former awards of this Division relied upon by the employees, the N. C. & St. L. Railway must protect Barry from any loss until the rate Is readjusted by agreement. If the Agency had kept its promise to settle the matter with Barry's representatives, the case would not now be before us. While some rearrangement should possibly have been made, it was up to the Agency to secure it in the proper way, and this it failed to do. We can only conclude that an established rate was changed in violation of the terms of the employees' contract and that the Railway must collect from the Agency and reimburse Barry for any loss he has suffered in not maintaining the established guarantee formerly observed.
The N. C. & St. L. Railway shall recover the amount of the claim from Railway Express Agency for the benefit of claimant, or pay the same to him.
2. That the findings are in many respects erroneous and are principally devoted to an ex parte conviction of the Railway Express Agency, not a party to the ewe and not heard as to the accusations forming the bases for its castigation, by the Referee.
3. That the findings largely ignore the record in the case and in the last analysis the award is made to rest upon former awards of this division involving other railways under conditions and rules not present in the instant case.
4. The award is not responsive to the claim; It extends beyond the scope of the claim and seeks through the respondent railway to punish the Railway Express Agency, not a party to the case and not afforded an opportunity to be heard in its defense.
The findings do not support the award in that they fail to show any reason why the respondent railway should be called upon to act as a collecting agency for the claimant and, upon the failure of that effort, shall itself suffer penalty in the amount it fails to collect. No rule or rules are cited to show that such a requirement is justly imposed or that the railway had any duty to protect the agent against the reduction of a guarantee, if such a guarantee was in effect and if such a reduction was in fact made. On the contrary, the findings state that in April 1917 the Express Company established a monthly commission guarantee of $7.50 where railroad agor4e also served as empress agents. The claimant Barry was and is the railroad agent also serving as express agent. If the established guaranteed commission was $7.50 under such circumstances, Barry had no right reasonably to expect any different or greater guarantee.
petitioners cited the following articles of the Agreement existing between the parties and charged that the respondent carrier violated the same:
"ARTTCTE NIX. All positions held by enployes specified in Article 1 of this agreement sball be listed, showing locations, classifications, and rate of pay, which shall be part of this agreement. (See wage scale, pages 15 to 25, inclusive.)
"ARTICLE III. (a) The entering of employes in the positions occupied in the service or changing their classification or work shall not, except by mutual agreement between the committee and the management, operate to establish a less favorable rate of pay or conditions of employment than is herein provided.
The findings ignore completely the allegation of a violation of these Articles of the agreement, upon which petitioners relied to support their claim, and I submit that unless we find, where a violation of agreement is specifically charged, that such violation did occur there is no sound basis upon which an award may rest sustaining the petitioners.
We may be indignant at the actions of the respondent or, as would appear in this case, at the actions of a third party, but a mere expression of indignation, however justly aroused, is not sufficient grounds upon which to rest a judicial determination of the issues.
The findings are erroneous in that they ignore completely the statement of (be claim which is for retroactive restoration of a $25 monthly guarantee alleged to have been in effect "for handling the business of the Railway Express Agency originating ;and destined his station, and for handling the transfer of the express business of the Railway Express Agency from the N. C. & St. L. Railway to the Southern Railway at that point," Stevenson, Ala. The monthly guarantee was established in 1909. The transfer, as stated in the findings, was discontinued in 1921. But it is stated in the record that Clerk pouts, the individual with whom the arrangement was originally made, continued to receive the $25 until the express company relieved him as its agent in 1924. But in 1917 the express company (predecessor in the business to the Railway Express Agency) established a monthly commission guarantee of $7.50 whore railroad agents acted in the same capardty for it. There is nothing in the record to suggest that any agent of the Railway Company acting in the dual capacity of railroad and express agent at this station ever expected or sought to retain a monthly guarantee of $25 prior to the instructions issued to Agent Barry by the Auditor of the Railway Express Agency.
Agent Barry succeeded to the Agency at Stevenson on July 15, 1930. In making his remittances of express funds for the month of August 1930, the first full month that he occupied the position and when his actions should have reflected his understanding with respect to the express commission. be deducted ten percent amounting to $21.2.5. Thereupon, flip auditor for the express agency sent Agent Barry a credit memorandum for $3.75, directing him thereafter to observe a $25 minimum. The respondent in this case states that the auditor's letter wits written in error and that no proper basis existed for giving such directions to the agent, and that tile action of the superintendent of the Express Company in March 1933 directing the agent thereafter to observe a $7.50 minhmrm instead of .'5,25 was a correction of the error. That the action
of the auditor was in error is plainly borne out by the petitioners' statement of his claim. They ask that claimant Barry be paid $25 per month as a miniinuan when his ten percent commissions do not amount to that sum for handling express originating at and destined to his station, and for handling the Iransper of empress business of the Railway 1'79Press Agency front N. C. & St. L. to Southern Railway, recognizing that the payment of $25 was to cover the handling of transfer as well as commissions; whereas, there is no transfer of express business at Stevenson, Ala., and bas not been since play 1921,
The Referee finds in one place that "when Barry was appointed it is not shown that he knew of a $25 minimum." In another place that "while Barry was not advised of the extent of the guarantee, lie is entitled to whatever it was." lie also finds that the express company in April 1917 established a general minimum commission of $7.59 per month where railroad agents also served as express agents. The fact that the express company in 1909 entered into all arrangement with an individual to pay him a certain minimum .slim each month for handling the express business at his station and for handling the transfer between the trains of the two carriers using the same, and that it continued to pay that individual the amount that it had promised to pay him its tong as he performed the duties of agent for it, certainly does not vitiate the established minimum monthly guarantee for another class of, employees for performing a part of the service embraced within that formerly rendered for a higher compeisation. As the Referee has found, the Claimant Barry, when be acnutred the position of Agent at Stevenson through displacement on July 15, 1:130, did not have any expectation of receiving compensation from the Railway b:xprcss Agency in excess Of commissions of ten pereent with a monthly guarantee of $7.50. Therefore, he has suffered no injury.
The Referee states that the carrier clahns Barry's predecessor accepted less than $2<i :monthly (hiring four months in 1923 and 19.30 when the commissions at ten percent did not equal that amount, which may imply that the figures supplied by the carrier are of doubtful value without other corroboration. On this point it may be significant that the petitioners in their reply to the carrier's submission quoted the figures from the carrier's submission for the months referred to and took no exception to them. On the other hand, there is left no loom for inference of dmibt of the probative value attached by the refereq; to the statement over the signature of the general chairman of what transpired between the route agent of the Railway Express Agency and Agent Barry, when tbo former visited him (Barry), allegedly, for the purpose of securing his consent to a reduction in the $25 minimum. And the Referee says that this. officer (route agent) promised Agent Barry that the matter would be taken
up with the ebairinan of the Order of Railroad Telegraphers.The Railway Express Agency was not made a party to this case and was not called to appear lafore the Board. It was not afforded an opportunity to deny the nllelations or to explain its handling of this matter, and ,vet the Referee makes the ex parte findhog that its action would not indicate that there was any error in paying Agent Barry a minimum of $25 for a period of thirty-one months. Failing to find that there was, as charged by the petitioners, a violation of,
"When Express or Western Union Commissions are discontinued or created at any office, thereby reducing or increasing the average monthly compensation paid to any position, prompt adjustment of the salary affected will be made conforming to rates for similar positions."
In award 181 Docket TH-141 a rule of the same import and similar if not identical in language appeared in the agreement between the parties as Article XIV (1). It is quoted in the award by Referee Spencer and relied upon in sustaining the claim. In Award 218 Docket TEr226 a similar rule appeared as Article 11 (b) and it is quoted in the award by Referee Garrison and relied upon by him as one basis for sustaining the claim. In Award 297 Docket TEr271 the Referee does not quote the rule, but he refers to the agreement existing between the parties, and that he relates his award to the rule is evidenced by the following language appearing oil page three of the award:
"It would appear to be a highly technical argument that abolition of commissions which is the equivalent of a reduction of 100 percent would require a revision of the wage rates; whereas, a reduction of ninety percent, seventy-five percent, fifty percent, or any other material amount would not require such revision."
In the instant case petitioners not only do not rely on Article XXIII of the agreement between the parties, but, at the hearing before this Division, in response to a question addressed to the General Chairman by the writer, "Is Article XXIlI of the agreement involved hl any way in this case?" he answered, "PO, sir; it isn't"
I therefore submit that by the findings in this ease the record is cast aside and the only basis shown for the award as rendered is former awards of the division which presented different circumstances in which the petitioners relied upon a rule not here involved.
The aw;lrd exceeds the claim in that it goes beyond the scope of the claim. The claim requests that a minimum _uarautee, alleged to have existed, of $25
mouth for handling the business oi' the express agency originating at and destined to this station and for handling the tra!Isfer of express between the trains of the two carriers rising the station be restored retroactively, whereas the award does not direct the restoration of the minimum alleged to have existed, as payment for services for which it is claimed (a part of which service it is admitted the claimant does not now and never has performed), but directs the respondent carrier to collect from a third party, not a party to the case, the amount involved in the claim and pay the same to the claimant, or, failing in that effort, to make good itself.
There also exists iii-the mind of the writer a question n= to whether the procedure in the appointment of the honorable referee in thl~ and fourteen other cases fulfilled the requirements of the Act under which this Board functions. It would seem to follow that if it did not, then this award and all other awards by such Referee are null and void. Section Three First (1) of the Railway
°bor Act as amended June 21, 1934, provides:"Upon failure of a division to agree upon an award because of a deadlock or inability to secure a majority vote of the division members, as provided in paragraph (n) of this Section, then such division shall forthwith agree upon and select a neutral person, to be known as 'referee,' to sit with the division as a member thereof and make an award. Sbould the division fail to agree upon and select a referee within ten days of the date of the deadlock or inability to secure a majority vote, then the division, or any member thereof, or the parties or either party to the dispute may certify that fact to the Mediation Board, which Board shall, within ten days from the date of receiving such certificate, select and name the referee to sit with the division as a member thereof and make an award. The Mediation Board shall be bound by the same provisions in the appointment of these neutral referees as are provided elsewhere in this Act for tile appointment of arbitrators and shall fix alul pay the compensation of such referees."
The question that causes the writer concern is whether, in the absence of any effort by a division to select a neutral person, the requirements of this portion of the Act may be said to be complied with.
Tile Mediation Board, in whom the appointing power rests, if the division shall fail in its effort to select a referee, has taken the position in an official communication to the Board that the law does require that the division make ail effort to select a neutral person to act as referee in the event of a deadlock.
The circumstances attending the appointment of the honorable referee in the instant case are these: The Third Division was unable to reach an award in fifteen cases before it. These eases were deadlocked by action of the Division on August 13, 1936
Oil Aognst 14, without making any effort to select a referee, the Division, by notion previously taken, recessed for a period extending through September 4. The Third Division was therefore in recess during nine da\a of tile tenday period following the deadlocking of the group (if cases referred to.
On August 24, 1936, five members of the Third Division addressed a letter to the Secretary of the National Mediation Board in which they said in part:
"The undersigned Members of the Third Division, National Railroad Adjustment Board, hereby officially certify to tile National Mediation Board that the Third Division l:n.s failed to agree oil the selection of a Referee within the tell days provided for in Section 3, First (L) of the Railway Labor Act. to sit with the Division as a Member thereof and render awards on depittes represented by fifteen dockets which were deadlocked August hi, 1936. because of the inability of the Division Members to secure a majority vote thereon.
"This certification, as stated above, is made under the provision of paragr;il,h (L1, Section 3, First, and request is hereby made that the National Modiataoil Boarcl select a Referee for, tile purposes indicated.
"For tile infoimatiou of your Board, wo bee to advise that the Third Division is in recess through September 4111. We tract, however, that the Referee will be appelnted so that we cqii commeiee work on the above disnntes on September Pith, fir promptly ihcreafter, at which time the Third Division will have reconvened."
It (lops not appear from the records (it the Third Division that the Mediation Board was informed that an effort had been made by the Division to agree upon and select a neutral person, or that it inquired whether such effort had been made, :rod cortahlly there was no formal advice by the Third Division to tile mediation Board that the members had attempted to agree upon the selection of a neutral and had failed. Indeed, .such formal advice could not have been given hocause no such effort leas made, the Division being in recess for a period of twenty-one days beginning the day after that on which the cases were dendlockod.
In the opinion of the writer, the above quoted provisions of the Act cannot be eafisfied by a inerfunctory Pretense. In this opinion the said official communication from tile National Mediation Board in this respect upholds the above conclusion. And if this communication of the National Mediation Board is correct under the law, then he submits there is Properly a question whether order the circumstances the appointment of the Referee in the instant case satisfied the requirements of the Act.
I concur with that portion of the same dissenting opinion by Member Ihngan which relates to the legality of the appointment of Referee Robert G. Corwin In this ease and fourteen other cases before the Third Division. Also, I bore indicate Purpose to register extended protest, as due time and cirenmstances may require, addressed to the end of effecting discontinuance of the methods leading to the selection of a Referee according to the procedure indicated by the dissent in this particular dispute.