THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY
THE CHICAGO, ROCK ISLAND AND GULF RAILWAY
STATEMENT OF CLAIM: "Claim of the General Committee of the Order of Railroad Telegraphers on the Chicago, Rock Island and Pacific Railway that employes occupying the position of agent-telegrapher at Waldron, Kansas during the period August 1, 1929 to October 15, 1936 shall be reimbursed in the amount of express commissions lost to them by reason of milk and cream shipments from Waldron via Atchison, Topeka and Santa Fe Railway being transported by baggage effective Aug. 1, 1929, instead of by express as were previously transported, which method remained in effect until the agency was abolished October 15, 1936."
EMPLOYES' STATEMENT OF FACTS: "It is the contention of the General Committee of the Order of Railroad Telegraphers on the Chicago, Rock Island and Pacific Railway that, there is in existence an agreement between this railway and the Order of Railroad Telegraphers, bearing date of January 1, 1928, covering wages and working conditions of those employes occupying positions listed in the wage scale and performing work of the classes enumerated in the Scope rule thereof, copies of which have been furnished to the Board.
"That, further, we contend the Chicago, Rock Island and Pacific Railway Company was the primary employer, and the Atchison, Topeka and Santa Fe Railway was merely a joint user of the Chicago, Rock Island and Pacific Company's depot facilities and services of the Agent-telegrapher at Waldron, Kansas with no managerial control over that employe other than a tenant or secondary employer, as they could neither hire or discharge such agenttelegrapher directly, nor have other control over him except as to the direction of handling their business only; and the occupant of this job drew his pay from the controlling and primary employer, the Chicago, Rock Island and Pacific Railway Company, as well as to earn and accumulate seniority under the telegraphers' agreement with the Chicago, Rock Island and Pacific Railway Company; when the position was discontinued October 15, 1936, the incumbent exercised all of his earned seniority on the Rock Island seniority district of that territory, and he could not have exercised even one day of this seniority on the Atchison, Topeka and Santa Fe Railway, because Waldron, Kansas is not a part of the telegraphers' agreement on the Santa Fe property.
"And, further, the Committee contends that, for many years prior to August 1, 1929, that segment of the A. T. & S. . Ry., property was known as the Kansas City, Mexico and Orient Railway Company, and had continuously paid 10% commissions on all milk and cream revenue shipped by express and none was shipped by baggage on that property, but when the K. C. M. & O. property was acquired by the Santa Fe, August 1, 1929, immediately they started to move milk and cream by baggage and just as immediately ceased allowing the agent-telegrapher at Waldron, Kansas, the
"Surely, there can be no proper claim now in view of the circumstances mentioned above and Article 6 (h) of the telegraphers' agreement of January 1, 1928, which reads:
"If the employes still feel they have a just and pending claim they should look to the Santa Fe for relief and not to the Rock Island. That is what the Telegraphers Adjustment Board-Rock Island Lines definitely decided. The Rock Island has no control over the A. T. & S. F. Ry. The claim should be declined."
OPINION OF BOARD: The position of agent, Waldron, Kansas, is listed in the prevailing Telegraphers' Agreement, bearing date of January 1, 1928, and governed by the provisions of that agreement, while acting as agent for the Chicago, Rock Island and Pacific and Kansas City, Mexico and Orient Railways. About August 1, 1929, the K. C. M. & O. was acquired by the Atchison, Topeka and Santa Fe Railway, the joint agency continuing under Rock Island control and subject to the provisions of the Rock Island Telegraphers' Agreement until the line operated by the Rock Island through Waldron, Kansas, was abandoned October 15, 1936, at which time the Rock Island station was abandoned. Prior to about August 1, 1929, when the Santa Fe acquired the K. C. M. & O., shipments of milk and cream over this railroad were handled by express and the agent at Waldron, received commissions for the handling of such business. Upon taking over the K. C. M. & O., the Santa Fe thereafter handled such shipments by baggage, and declined to continue the payment of such commissions. That such commissions constituted a substantial portion of the compensation of the agent at Waldron, Kansas, is evidenced by the record showing that while for the month of August, 1928, this agent received $16.28 in commissions for the handling of such business, that while he was required to continue the handling of such milk and cream shipments on and after August 1, 1929, he received no commissions on such business during August or any month thereafter. Effective February 1, 1926, the Rock Island Railroad engaged in the transportation of milk and cream by baggage and thereafter continued to pay to the agents the same commissions for the handling of this business as had been paid when such business was handled by express.
It is the contention of the committee that the Santa Fe acted unilaterally and without conference and agreement when it ceased to pay 10 per cent commissions on the revenues of milk and cream transported by baggage over its rails, without conference and agreement, either with the primary employer, the Rock Island Railroad, owner of the depot facilities at Waldron, or the representatives of the telegraphers on the Rock Island because their action was tantamount to decreasing the employe's monthly earnings, and appropriating such amounts to its own use without arranging for the Chicago, Rock Island and Pacific Railway Company, the primary employer, to adjust the rate of pay on this position in accordance with Article 2-(b) of Telegraphers' Agreement in force on this property and which reads:
It is contended that Article 2-(b) of the agreement does not govern in resolution of the claim under the facts and circumstances in the record, also, the carrier has several affirmative defenses which the Board will first discuss.
The carrier contends: "This dispute and claim was definitely and finally decided insofar as this Respondent and Petitioner are concerned, by Decision 1249-13 830
No. 15 of Telegraphers' Adjustment Board-Rock Island Lines; That Board was created under the provisions of the Railway Labor Act of May 20, 1926, and its decisions were final and binding upon both parties."
This claim was first presented by Petitioner's General Chairman to Respondent's Superintendent at E1 Reno, Oklahoma, February 24, 1930, and was denied September 22, 1930. It was then appealed to the Adjustment Board-Rock Island Lines, and on August 14, 1931, that Board made the following decision: "The board feels it is without jurisdiction in the case, but is of the opinion that any handling of this matter should be between the O. R. T. and the A. T. & S. F. Railway Officials." As the Board did not have jurisdiction, it could not make any decision on the merits of the claim. Its decision was, in effect, a dismissal of the claim because it was without jurisdiction and in legal effect a dismissal without prejudice. Garrison v. Lyle, 38 Mo. App. 558.
This claim has passed through all the processes provided by the 1926 Act but the case still was not decided. With the exception of some correspondence which terminated February 17, 1932, nothing further appeared in reference to this claim until the letter of Petitioner's General Chairman June 29, 1939.
The Board holds that the decision of the Telegraphers' Adjustment Board -Rock Island Lines is no bar to this claim.
It is next contended that "the instant claim was not a pending and unadjusted claim as of June 21, 1934, the effective date of the present Railway Labor Act, under which this Adjustment Board now functions."
Jurisdiction of this Board under this Act is limited to: °* * * disputes between an employe or group of employes and a carrier or carriers, growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, * * *."
This question has been before this Board on numerous occasions and under various facts, as the following awards will show: Numbers 53, 119, 120, 292, 293, 294, 295, 296, 322, 388 444, 445 507, 537, 539 601, 716, 999, and 1023. See also Awards 3510 and 3511 of Division One of this Board and Award 52 of Division Four.
This Referee is of the opinion that no useful purpose will be accomplished by analyzing these various awards so that this opinion can state general rules as to when this Board will or will not have jurisdiction, but shoula confine his remarks to the facts involved in this claim. However, he will state that it is his personal view that the above quoted section was correctly interpreted by Referee Millard in Award 444.
If the Petitioners' contention is correct that the Carrier violated Article 2-(b) of the agreement, then the violation first took place about August 1, 1929, and continued afer June 21, 1934, in fact until October 15, 1936. It was, therefore, a continuing claim at the time this Board came into existence. Under these circumstances, this Board holds that it has jurisdiction.
In enacting the National Railroad Adjustment Act, Congress refused to include a statute of limitation. This Board is of the opinion that when the Telegraphers' Adjustment Board-Rock Island Lines made its decision in Award 15, the claim "thus stood in 'mid-air,' so to speak, and undecided. It was not only unadjusted, it was stalled." (See Award Number 53.) It stood dormant until the Petitioner's General Chairman's letter of June 29, 1939, when the original claim was then pushed for final determination. This is not a new claim, but a continuation of the original claim. Therefore, this claim is not a moot one as contended by the Respondent. 1249-14 831
Since the Board is of the opinion that this is not a new claim, but only a continuance of the dispute starting in February 24, 1930, then Article 6-(h) of the current agreement does not apply.
The Board is of the opinion that Article 2-(b) calls for an adjustment of the agent's pay when the A T. & S. F. ceased sending the milk and cream by express and sent it by baggage instead.
The commissions which the agent at Waldron, Kansas, received for the handling of milk and cream shipments on the former K. C. M. & O. Railway, constituted a substantial part of his regular established compensation, and the action of the carrier in this case resulted in his suffering a very substantial reduction in his earnings. The carrier was obligated to maintain the rate of commissions intact, or to adjust the wage scale to compensate for loss of commissions until such time as wage rates or commissions or both are changed in accordance with the schedule agreement, and/or Section 6 of the Amended Railway Labor Act. (See Award Number 297.)
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respec tively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved hereinfand
That the evidence of record discloses a misapplication of the terms of the prevailing agreement.
Chronologically, as recognized by the Opinion, the record discloses: (1) from February 17 1932 to the enactment of the Railway Labor Actamended June 21, 1934-more than two years-no action was taken to progress the original claim; (2) from June 21 1934 to abolishment of the involved agency October 15, 1936-additionally more than two years-no effort was made to bring the claim before this Board; and (3) from October 15, 1936, when cause for complaint ceased to exist, to June 29, 1939-additionally about three years-the claim remained dormant. Thus historically 1249-15 832
the claim is conspicuous in: (1), (2) remaining inexplicably dormant; and (3) being belatedly resurrected (expanded as well) long after cause for complaint ceased-in the aggregate a period of about seven and one-half years of inaction.
When re-presented to the Carrier June 29, 1939 the claim differed from the original complaint by the inclusion of additional claimants.
Hence conclusions leading to a sustaining award must have foundation on erroneous basic views, here seated on Award 444, to the exclusion of other cited awards, notably Award 53, which is adopted, however, to such limited extent as lends aid to the strained resuscitation of the claim.
We perforce reaffirm our dissent to Award 444, and here dissent from the disregard of the sufficiency of the factors: dormancy, delay after cause for complaint had ceased, and belated resurrection, so markedly present in this record.