TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Pacific (Pacific Lines), that:
1. Carrier violated the terms of an agreement between the parties hereto when it failed and refused to properly compensate D. L. Rogers, Joint Railway-Express Agent, Inyokern, California, an amount equal to what he would have earned had he not been taken away from his regularly assigned duties to attend and serve as witness for the Carrier in a court action brought at Ogden, Utah, March 3 through 11, 1961.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an agreement by and between the parties hereto effective December 1, 1944 (reprinted March 1, 1951, including revisions) and as otherwise amended. Copies of said Agreements, under law, are assumed to be on file with your Board and are, by this reference, made a part hereof.
D. L. Rogers, hereinafter referred to as Claimant, was, on the dates involved in this claim, the regularly assigned occupant of a Joint RailwayExpress Agent-Telegrapher's position at Inyokern, California. Claimant is an employe of Southern Pacific, hereinafter referred to as Carrier. He is not an employe of the Express Company, but he performs service for the latter on a commission basis. These commissions are by express terms of the Agreement (see Rule 33 of the Agreement), a part of the Claimant's compensation for his service to the railroad, and the amount of his wages from the railroad are determined by taking into account the amount of commissions. This is evidenced by the fact that:
and other compensation provided in that rule. Such practice of paying only wages at the agreed-upon rate of pay lost by the employe due to having been absent from his position under Rule 34(a) has been of long standing on this property without protest provided for in Rule 33(c), since the first telegrapher agreement was signed September 1, 1899, or for more than 63 years.
Claim arose when in his letter dated March 25, 1961 (Carrier's Exhibit A) Petitioner's District Chairman appealed the claim in behalf of the Claimant to Carrier's Division Superintendent for logs of express commissiors in amount of $69.03 paid to employe performing relief upon the Claimant's positions of Agent-Telegrapher at Inyokern during the latter's absence from said position on dates in dispute.
By letter dated March 29, 1961 (Carrier's Exhibit B), Carrier's Division Superintendent denied the District Chairman's claim.
By letter dated April 13, 1961 (Carrier's Exhibit C), Petitioner's General Chairman appealed the claim to Carrier's Assistant Manager of Personnel and the latter denied the claim in his letter dated November 23, 1962 (Carrier's Exhibit D), stating that no prevision of the current agreement required that Claimant be paid express commissions earned by another employe and that Rule 34 was fully satisfied when Claimant was paid amount of his earnings for time involved and at the agreed-upon rate of pay prescribed by the current agreement, and that such payment conformed to long-standing practice on this property in similar circumstances under the current agreement and prior agreements for more than 63 years.
OPINION OF BOARD: Claimant was the regularly assigned agenttelegrapher at Inyokern, California under the employ of Carrier. In addition to his regular duties for which he was paid an hourly rate ($2.55), he also performed service for the Railway Express Company on a commission basis. It was stipulated that the rate of wages paid by Carrier was adjusted pursuant to Rule 33 (set forth below) to account for the express commissions received.
On March 6, 7, 8, 9 and 10, Claimant was required to appear as a witness on behalf of Carrier at a court trial held in Ogden, Utah, for which he was compensated for loss of actual wages at the then current rate of $2.55 an hour. Claimant was not reimbursed for the express commission ($69.03) lost as a result of his absence from the station.
This Board is called upon to determine whether or not Claimant is entitled to the express commission under the terms of the Agreement.
Claimant contends that, under the terms of the Agreement, the Carrier is obligated to pay him compensation equal to what he would have earned had the Carrier not required him to appear as a witness in court proceedings on behalf of the Carrier.
Carrier asserts: that the Express Company was not part of the Agreement between the parties; and that Carrier is not required to pay the express commission here involved because of the provisions of Rule 34 (a) as interpreted by a long-standing (63 years) practice on the property.
Carrier vigorously asserts that the court service rule has been interpreted by a 63 year practice; and since the Organization did not deny Carrier's allegations of practice on the property, the allegations must be accepted as true and the claim, therefore, should be denied.
Carrier contends that no denial was ever made by the Organization to a statement made by Mr. L. W. Sloan, Carrier's Assistant Manager of Personnel to Mr. H. D. Smith, Organization's General Chairman, in a letter dated November 23, 1962, as follows:
"As stated to you in conference, no provision of the current agreement requires that claimant be paid the express commission earned by another employe; not only was Rule 34 satisfied when Claimant was paid the amount of his earnings for time and at rate of pay pre-
Failure to deny the above statement relating to past practice would have in all probability constituted a procedural bar to this claim.
However, an examination of Mr. Smith's response to Mr. Sloan's letter of November 23, 1962 reveals the following:
While it may be conceded that the above language is inartful in its context, we find it is sufficient to constitute a rebuttal to the allegation by Carrier that Rule 34 (a) had been interpreted by a consistent and acquiesced to long-standing practice.
Having determined that the question of past practice is properly before this Board, we next examine the record for probative proof of the existence such practice as an indicator of what the parties intended the court service rule to mean.
While there is no evidence of any specific application of the rule, Carrier asks that we take judicial notice of the fact that over a 63 year period agents in the Claimant's category have been required to attend court and have not been paid express commissions under the rule; and further that Rule 34 (a) was readopted without material change manifesting the intention of the parties in conformity with Carrier's position as to past practice.
On the basis of the record before us, we find that Carrier's assertions as to past practice are insufficient to satisfy the required evidentiary requirements. We are restrained from taking judicial notice by reason of the Organization's contention that "a case of this kind has never come to your [Carrier's] attention before."
Our finding is supported by the holding in Award 7598 (Cluster) as follows:
We proceed next to the specific question of whether the term "compensation" as provided in Rule 34 (a) of the Agreement includes express commissions.
As indicated earlier, both parties stipulated that the hourly rate paid to Claimant was adjusted, pursuant to Rule 33, by reason of the fact that he also received express commissions. Absent the opportunity to earn express commissions, Claimant's hourly rate would have been increased.
Thus, Rule 33 (a) explicitly recognizes the relationship between the Railway Express Agency and the Carrier (which is a part owner of the Railway Express Agency) insofar as an employe in Claimant's status is concerned. Thus, when Claimant does work for the express company he benefits the Carrier, even though he is an employe of the latter and not the former.
This is consistent with prior awards of this Board holding that express commissions paid by the express company are part of the compensation for services performed while under the employ of the Carrier.
. . . The disputes involving express compensation uniformly arise in connection with employes who are serving as joint railway-express agents. Primary employment is with the railroad, but under agreement between the railroad company and the express company, express service is also performed by these employes. Express compensation constitutes a part of the total compensation received by the employes, and this is true whether the express compensation takes the form of percentage commissions or of periodic payments for transfer of other service.
Because of the intimate relationship existing between railroad compensation and express compensation, coupled with the fact that the extent and character of the express service to be performed is necessarily within the general control of the railroad, it has been repeatedly recognized that a sound and realistic adjustment of the relations between the three parties justifies procedure against the railroad company in connection with grievances against the express company. In the instant case not only are all of these grounds for assuming jurisdiction present, as well as the fact that the Southern Pacific Company is part owner of the Railway Express Agency, but in addition the Telegraphers' Agreement to which the Carrier is a party expressly provides, in Rule 33 (c), that `telegraphers required to serve express or commercial telegraph companies will have the right to complain of unsatisfactory treatment at the hands of said companies and will receive due consideration from the railroad company.' Under these circumstances there can be no doubt whatever that jurisdiction may properly be assumed by this Board ....
We hold that the plain meaning of the term "compensation" as provided in Rule 34 (a) includes express commissions as well as actual wages.
In Award 1123 (Sharfman), the Board, in construing a rule almost identical to Rule 34 (a), held:
FINDINGS: The Third Division of the Adjustment Board, 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
CARRIER MEMBERS' DISSENT TO AWARD 14373,
DOCKET TE-14249 (Referee Zumas)
The record in this case establishes that Carrier compensated Claimant in strict conformity with a practice that had prevailed on the Carrier's lines for at least 63 years. The Employes made no showing of a material change in the pertinent rules during that period of time. The award recognizes that under
the applicable rules, such practice should be regarded as controlling, but avoids recognizing the practice in this case by finding that Carrier failed to prove such a practice has existed.
The record conclusively shows that the practice was not denied by the Employes during handling of this claim on the property, and this fact was directed to the attention of the Referee and the Labor Member. The following is quoted from the memorandum which the Carrier Member submitted in this case:
"Both on the property and in their initial submission to the Board the employes did not deny that Carrier's interpretation of the Rules and payment of claimant in this case are `in keeping with long-standing practice under current and prior agreements for more than 63 years,' hence that practice must be accepted as controlling and the claim denied.
On the record before us we have a conclusive showing of a 63-year practice whereby the Agreement has been given the same construction Carrier gave it in the instant case.
At page 22 of the record the Employes have quoted the letter to the General Chairman in which Carrier's highest officer denied this claim on the specific basis that:
On the same page the Employes quote response which the General Chairman made to this letter of Carrier's highest officer, and the significant fact is that the General Chairman did not deny, nor question in any way the truth of the assertion regarding these 63 years of past practice. It thus appears that this material allegation of Carrier on the property went undenied by the Employes.
Attention is now directed to page 11 of the record where the Employes outline the position taken by Carrier on the property. Paragraph 2 of the Employes' statement of Carrier's position on the property is an exact quote of the paragraph from the letter of Carrier's highest officer which we have cited above and which expressly bases the defense of Carrier on Rule 34 and a past practice of more than 63 years.
Significantly, the Employes do not, at any point in their initial submission, deny this allegation of practice.
In addition to Rule 34 (a), the Employes rely heavily on an early award of this Board involving another Carrier, namely Award 1123 wherein it was held that on said Carrier under a rule somewhat similar to Rule 34 express commissions should be included in pay for attending an investigation.
The foregoing decision not only represents sound contract law, but it correctly states the rule that has been consistently followed by this Board. For other recent cases applying the rule as stated above, see Awards 12827 (McGovern), 11647 (Dolnick), 10949 (Ray), 10937 (McMahon), 10785 (Mitchell), 10683 (Moore), 10585 (Russell), 8538 (Coburn), among many others.
In view of the clear past practice of 63-years' duration, which went undenied by the Employes both on the property and in their initial submission and which indicates that the procedure followed by Carrier in compensating Claimant in the instant case is proper, the claim must be denied."
In view of the wording of the rule, plus the additional fact that even without the express commissions Claimant and other agents in his position receive more for attending court than many other employes of the same craft, the practice was a permissible, reasonable interpretation of. the Agreement.
The finding in this award that Carrier's statement of past practice was inferentially denied by the General Chairman's statement to a Carrier that "a case of this kind has never come to your attention before" is manifestly erroneous. At no place in the record did the Employes assert that this statement of the General Chairman could be regarded as a denial of Carrier's assertion concerning past practice. The Employes had a full opportunity to defend themselves on that ground and from their silence we must assume they could not see in this statement of the General Chairman any denial. Instead of denying Carrier's assertion regarding practice and making a concrete statement on that subject, the Employes resorted to the indefensible technique of requesting the Board to ignore the past practice issue on the obviously and admittedly false premise that Carrier had not raised such an issue during handling on the property. We see no justification for resorting to tenuous logic and strained interpretations in order to give the Employes a defense which they themselves did not assert in the record.