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Thoroughbred Technology & Telecommunications, Inc.

(ii) any company which is directly or indirectly owned or controlled by,

or under common control with, one or more employers as defined in

paragraph (i) of this subdivision, and which operates any equipment or

facility or performs any service (except trucking service, casual service, and

the casual operation of equipment or facilities) in connection with the

transportation of passengers or property by railroad ***.

Sections 1(a) and 1(b) of the Railroad Unemployment Insurance Act (45 U.S.C.

§§351(a) and (b)) contain substantially similar definitions, as does section 3231 of

the Railroad Retirement Tax Act (26 U.S.C. § 3231).

The evidence of record shows that T-Cubed is not a rail carrier employer under the

definition of employer in subparagraph (i) quoted above since it does not operate, 

and has never operated, as a common rail carrier in interstate commerce. This 

conclusion, however, leaves open the question as to whether T-Cubed is an employer

under the definition in subparagraph (ii), commonly referred to as the “affiliate 

definition.”

Under section l(a)(l)(ii), a company is an employer ifit meets both of two criteria:

ifit is owned by or under common control with a rail carrier employer and if it

provides “service in connection with” railroad transportation. Ifit fails to meet 

either condition, it is not a covered employer within section l(a)(l)(ii).

The evidence of record shows that T-Cubed is under common control with a rail

carrier employer. T-Cubed is a wholly owned subsidiary of Norfolk Southern

Corporation. T-Cubed is thus under common control with the railroad affiliates 

owned by the Norfolk Railroad Corporation.

Section 202.7 of the Board’s regulations (20 CFR 202.7) defines service in

connection with railroad transportation as follows:

The service rendered or the operation of equipment or facilities by

persons or companies owned or controlled by or under common control with a

carrier is in connection with the transportation of passengers or property by

railroad * * * if such service or operation is reasonably directly related,

functionally or economically, to the performance of obligations which a

company or person or companies or persons have undertaken as a common

carrier by railroad ....
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Thoroughbred Technology & Telecommunications, Inc.

According to Mr. Kesler, T-Cubed is engaged in the construction and management

of fiber optic conduits on the non-operational portions of the rights of way of the

various railroad affiliates of Norfolk Southern Corporation. A majority of the

Board, Labor Member dissenting in a separate opinion, finds that T-Cubed’s

activities currently do not involve railroad operations. Consequently, a majority of

the Board finds that T-Cubed is not performing service in connection with railroad

transportation for its affiliates within the meaning ofsection l(a)(l)(ii) of the RRA

and the corresponding provisions in the RUIA. If, in the future, T-Cubed does begin

to provide access to its fiber optic cables for use in railroad communications by its

affiliates, this determination will have to be reevaluated.

The information summarized above indicates that T-Cubed is under common

control with the railroad affiliates of Norfolk Southern Corporation. However, it is

not currently performing any service in connection with railroad transportation.

Accordingly, it is determined that T-Cubed is not an employer within the meaning 

ofsection l(a)(l)(ii) of the Railroad Retirement Act [(45 U.S.C. §231(a)(l)(ii)j and

the corresponding provision of the Railroad Unemployment Insurance Act.

V. M. Speakman, Jr. (Separate

dissenting opinion attached)
DISSENT IN PART

V. M. SPEARMAN, JR.

EMPLOYER STATUS DETERMINATION

THOROUGHBRED TECHNOLOGY AND

TELECOMMUNICATIONS, INC.

As stated in the Board’s decision, Thoroughbred Technology and Telecommunications,

Inc., (T-Cubed) provides management activities relating to the non-operational portion of

its railroad affiliates. Section 202.14 ofthe Board’s regulations (20 CFR 202.14) defines 

service in connection with or incidental to railroad transportation as the performance of

functions which would normally be performed by its constituent employees. It is my

position that T-Cubed’s activities constitute such services. Accordingly, I would find that 

these management’s services provided for the railroad affiliates to be covered services.

I respectfully dissent from the majority on this point.

V. M. Speakman, Jr.

3-/&-OI

Date