NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Claim of the Order of Railroad Telegraphers in The Alton Railroad that Mr. C. L. Benedict, Joint Railway-Express Agent at Slater, Mo., be paid the normal ten (10%) per cent commission on express shipment, Los Angeles, Calif., to Slater, Mo., in June 1935."
STATEMENT OF FACTS.-The following statement of facts was jointly certified by the parties:
"On June 12th, 1935, the Railway Express Agency, Inc., accepted at Los Angeles, and transported a shipment to John Scbaner, Slater, Mo. The shipment was transported from Los Angeles to Chicago by airship, and by rail movement from Chicago to Slater.
An agreement between the parties bearing effective date February 16, 1929, was placed In evidence, and the specific rules cited as bearing upon the disposition of the dispute were as set forth below in the positions of the parties.
POSITION OF EMPLOYE S.-The contentions of the employes were submitted as follows:
"Tile regular established commission rate paid station agents for the hurdling of the L. C. L. business of the Railway Express Agency, Inc., on the Alton Railroad is ten (10%) percent. This is amply supported by the evidence submitted to this Board by the Alton Railroad in Docket TE-45 in which the Carrier in its separate statement of facts stated:
'The regular established commission rate for the handling of the business of the Railway Express Agency, Inc., on the Alton Railroad is at present and has been for many years past 10% , except at Lemont, Illinois, and Lockport, Illinois. At those two stations the established rate has been S%a'
"The dispute involved in Docket TE-i5 concerned the claim of the Order of Railroad-Telegraphers that the rate of 10"/o be restored at Lemont. This dispute was adjusted by the Railway Express Agency, Inc., with The Order of Railroad Telegraphers subsequent to the hearing on the Docket by this Board, by restoring the 10%o rate at Lemont and also at Lockport, effective April 1st, 1935, which adjustment being satisfactory to the organi. 2ation permitted us, with the consent of the Alton Railroad, to withdraw the case from before this Board before an award was issued.
"The commission rate of 10%u on all L. C. L, express shipments, received and forwarded, applies on such shipments from the originating point to ultimate destination where handled by the Railway Express Agency.
"The L. C. L. shipment in question was accepted by the Railway Express Agency at Los Angeles, Calif., for transportation to John Sharer at Slater,
"We reiterate our position that the Railroad Company is not properly a party to this grievance. Further, we desire to protest at this time the fact that we were compelled to defend this ease."
OPINION OF BOARD.-The claimant in this case is a joint railway-express agent. His primary employment is with the railroad, but under the Express Operations Agreement between the Alton Railroad Company and the Railway Express Agency he performs express service oil a commission basis as well as railroad service under the rate of pay fixed in the Telegraphers' Agreement. The express commissions constitute a part of his total compensation, and the established basis for computing these express connnissions must be taken to have constituted a substantial factor in ill(, negoliation of the rate of pay for railroad service applicable to him. In the enrrent Telegraphers' Agreement on this property, in connection with the position at Slater for which a rate of 62 cents per hear is specified, the fact that the agent also receives express commissions is expressly noted. Under such circumstances changes in the express commissions, no less than changes in the railroad rates of pay, may constitute violations of the agreement. Itnle 12 of tile, agreement also provides that "should commissions he discontinued, c.tnshlg loss in compensation, adjustment of salaries affected will he made." This is but a further recognition of the intimate relationship which exists between express commissions and railroad compensation. While it provides for adjustment of railroad eompellsation only upon discontinuance of commissions, it does not authorize changes in these commissions short of their complete discontinuance. The claim here at issue, then. clearly arises under the terms of the prevailing agreement, and as established in a considerable number of decisions of this Division, including Awards I81, 218, and 297 cited by the claimant, there call be no question as to the authority of the Board to assume jurisdiction of the dispute.
It appears that 10 percent has been the long established express commission rate on L. C. L. shipments on this property, except where shipments are handled by two express companies. Ill this case a single express company handled the shipment tbronghout, but the carrier contends that tile cuslolnary 10 percent rate lc:ls designed to be applicable only to rail-hauls and does not comprehend air-e,uls. The evidence of record affords no support for this contention other than the aftenlpted exercise by the earrior of this right to ditkercutiate between rail-hands quit air-llattls. Prior to the antmnncelnent of policy with respect to air-hauls, the commission was always competed as a percentage of tile express charge without reference to the type of facilities utilized by the express company. It is doubtless true that transport by ftir tends to increase the express charge and thus to increase the actual compensation of the agent its far as the particular movement of express matter is concerned. It is significant, however, that there appears to be neither a tnhfiannln guarantee nor 11 maxitulun limitation with respect to actual compensation; furthermore, other factors-like the volume and character of the merchandise carried-may similarly affect the amount of actual compensation, and in a downward as well as in all upward direction. Whether changes in actual compensation result from the substitution of air-halls for rail-hauls or from tile operation of these other factors, negotiation between the parties rather tlntn ex parte action is the appropriate remedy if tile outcome is deemed to be without justification. When tile policy as to air-llanls was first announced protest was promptly entered by the employes; and as far as tile record discloses this is the first hlstance in which paytnelrt on the new basis was actunlly involved. In neither the merit of the controversy nor in the procedure followed, therefore, is there to be found an adequate basis for questioning lbe v;tlidity elf the cilia as submitted.
FINDINGS.-'Ibe Third Division of ill(, Adjustment Board, after giving the parties to this dispute (1110, notice of hearing thereon and upon the whole record and all the evidence, finds and holds:
That the carrier and the employe involved in this dispute are respectively carrier and employs within the meaning of the Railway Tabor Act, as approved June 21, 1934: