STATEMENT OF CLAIM: Claim of the District Committee of the Brotherhood that
EMPLOYES' STATEMENT OF FACTS: Prior to October 1, 1954, all Railway Express Agency services at Worland, Wyoming were performed by C. A. Baston, an employe and Agent of the Chicago, Burlington and Quincy Railroad, on a commission basis. Effective October 1, 1954, the joint agency arrangement was discontinued and Carrier instead of bringing work involving the handling of express traffic under the Agreement established a so-called commission agency and entered into an agreement with Carroll Daugherty, an individual who held no seniority rights under the Agreement, whereby the latter agreed to perform all duties incident to the handling of Express traffic at Worland, Wyoming, on a commission basis. The duties required of Daugherty are the same as those normally and usually performed by occupants of positions titled Agent at one-man agencies, which comes under the scope and operation of the Agreement between the parties hereto.
OPINION OF BOARD: This claim arose as a result of the Agency's change in the handling of express business at Worland, Wyoming. Prior to October 1, 1954, the express business at this location was handled by a railroad employe and Agent under a joint railroad-express agency arrangement. Effective October 1, 1954, the joint arrangement was discontinued and the Agency contracted with a local merchant, the proprietor of Gene Wimer's Glass Shop, to handle the express business under a merchant agent arrangement whereby the merchant agent conducted the business on a commission basis and assumed all items of expense in connection with such business. Effective March 1, 1957, the proprietor of the Ray Ramsey Furniture Company, succeeded Wimer as such merchant agent.
Petitioner contends that upon discontinuance of the joint railroad arrangement for the handling of the express business, the work came within the scope of the agreement by reason of Rule 1(b) of the applicable agreement because the commission paid the commission agent exceeded $125.00 per month and that the failure of the Agency to establish a properly rated, bulletined and assigned position violated the agreement rules.
The Agency maintains that the work at Worland has never been under the agreement, that merchant agent arrangements are as old as the express business, that merchant agents are independent contractors not covered by the agreement, and that the merchant agent handles the express business only part-time, devoting the remainder of his time to his other business. 10436-18 798
Petitioner relies on the phrase in Rule 1(b) which excepts from the agreement "commission agents receiving a net monthly income of $125.00 or less." Petitioner interprets the term "commission agents" as applicable to the merchants who handled the express business. Petitioner argues that since their commissions or net monthly income from the business, concededly, exceeded $125.00, the work they performed came under the agreement and could not be contracted out to them as outside contractors.
In accordance with well settled principles of contract construction, Rule 1(b) must be considered in its entirety, and its terms construed consistently. The exception covering "commission agents receiving a net monthly income of $125.00 or less", relied on by the Petitioner, must be construed consistently with the exception for "Individuals performing a particular service requiring only a part of their time from other occupation or business" which is established by the first sentence of Rule 1(b) without limitation as to net monthly income or commission received for such service. If the exception for "commission agents receiving a net monthly income of $125.00 or less" is applied to the unqualified exception for individuals performing service only part-time with their other business, the latter exception becomes meaningless. As a result, the part-time exception must be regarded as separate from the commission agents exception, and the fact that the net monthly income stipulated in the commission agents exception was exceeded does not preclude the applicability of the part-time exception.
The record establishes factually that the individuals who performed the disputed work did so on a basis requiring only a part of their time from their other business within the meaning of the exception from the agreement established by the first sentence of Rule 1(b). Express Board of Adjustment No. 1 Decisions E-1432, E-1439 and E-1405, cited by Petitioner, are not apposite here. Decisions E-1432 and E-1439 concerned exclusive commission agents and Decision E-1405 does not refer to the part-time exception. 10436-19 799