STATEMENT OF CLAIM: Claim of the General Committee of the Order of Railroad Telegraphers on the Atlantic Coast Line Railroad Company, that H. F. Hennessy was unjustly dismissed from the service on July 20, 1947, and
OPINION OF BOARD: The evidence of record in this case does not support the charges Claimant should be restored to service with seniority rights unimpaired and compensated in accordance with paragraph (g) of Article 18 of the Agreement.
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 respectively 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 herein, and
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION NO. 1 TO AWARD NO. 3937
DOCKET TE-4109
Upon application of the representatives of the Employes involved in the above award, that this Division interpret the same in the light of the dispute between the parties as to its meaning, as provided for in Section 3, First (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The record shows that the Organization appealed to thus Board from a dismissal of the Claimant, H. F. Hennessy, from the service of the Carrier. After a hearing before the Third Division, a sustaining award was entered "in accordance with the Opinion." The applicable portion of the opinion states:
The evidence shows that Claimant was regularly assigned to the* agency at Pinellas Park, Florida, at the time of his wrongful dismissal. This was an agency handling express and the compensation paid included express commissions in addition to a fixed salary. The question for decision is whether the Carrier, in complying with the Award, is required to pay salary and express commissions lost during the period of his wrongful dismissal, or whether the fixed salary only is owing.
We think the foregoing provision clearly indicates that the compensation of an agent having express agency duties to perform includes both the fixed salary and the express commissions. The fact that a loss of the express work requires a larger fixed salary under the agreement is indicative of this assertion. Express commissions are not earnings in excess of a fixed salary, but they are a part of the compensation paid. When express commissions
disappear, the agreement provides for a larger fixed salary for the same service performed for the Carrier. They definitely influenced the amount of compensation Claimant was to receive. The fixed salary and express commissions were not wholly separate and distinct payments for two separate and distinct services. Whether or not express commissions were applied determined which of two contractual rates of pay constituted the compensation of the position. There was one rate of pay when express commissions were included and another rate when they were not, but in either event there was but one position and one rate of pay. We think it is clear that the fixed salary and express commissions together determine a single compensation for the agent when express work is included and that the words "compensated in accordance with paragraph (g) of Article 18 of the Agreement", contained in the Board's opinion, contemplate that Claimant shall be reimbursed for fixed salary and express commissions accruing during the period of his dismissal from service as payment "for all the time lost" within the meaning of Section 18 (g) of the current agreement.
Referee Edward F. Carter participated with the Division in making this interpretation.