EMPLOYER STATUS DETERMINATION

Union County Industrial Railroad Company

This is the determination of the Railroad Retirement Board

regarding the status of Union County Industrial Railroad Company

(UCIR) as an employer under the Railroad Retirement Act (45 U.S.C.

§ 231 et sea.) (RRA) and Railroad Unemployment Insurance Act (45

U.S.C. § 351 et sea. ) (RUIA) . UCIR has not previously been

determined to be an employer under the RRA and the RUIA.

Information about UCIR was furnished by Mr. Richard D. Robey,

President of UCIR. UCIR is a line haul class III carrier handling

approximately 900 carloads per year. It operates over

approximately 4.6 miles of track in Pennsylvania. It interchanges

with Conrail. See Interstate Commerce Commission (ICC) Finance

Docket No. 32686, decided April 14, 1995. According to

information provided by Mr. Robey, UICR began operations on April

4, 1994. UICR has no employees of its own; employees are provided

by North Shore Railroad Company (BA 3264), an employer under the

Acts.

Section 1(a)(1) of the RRA defines the term "employer" to include:

(i) any express company, sleeping car

company, and carrier by railroad, subject to

subchapter I of chapter 105 of Title 49;

(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, or the

receipt, delivery, elevation, transfer in

transit, refrigeration or icing, storage, or

handling of property transported by railroad

* * *. [45 U.S.C. §231 (a) (1) (i) and (ii)].

Section 1(a) of the RUIA (45 U.S.C. § 351(a)) contains essentially

the same definition.

The evidence establishes that UCIR is a class III rail carrier.

Accordingly, it is determined that Union County Industrial Railroad

Company at least nominally comes within the definition of employer

stated above. In cases such as this where an entity has authority

to operate a rail line, but does not actually operate the line in

question, the Board looks to the identity of the entity operating

BCD 1996-3 BA # 5224
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Union County Industrial Railroad Company

the line and the nature of the relationship of that entity to the

ICC certified carrier to determine the status of the certified

carrier under the RRA and RUIA. If the operating entity is itself

a carrier employer covered under the Acts administered by the

Board, or if that entity has been recognized by the ICC as the

operator of the line in question, which will result in that entity

being found to be a covered employer with respect to the operation

of the line it has undertaken, and if the certified entity has no

involvement in the actual operation of the rail line, the Board

will find the certified entity not to be a covered employer under

the RRA and the RUIA. If, however, the operating entity is neither

a covered employer nor an entity that has been recognized by the

ICC as the operator of the line, the Board will find the certified

entity to be a covered employer and persons operating that line to

be employees of the covered employer.

UCIR has no employees and operations are conducted by the employees

of another railroad carrier, which is an employer under the Acts.

That employer reports the employee service rendered to UICR to the

Board. Consistent with above-described analysis of cases such as

this, a majority of the Board finds that Union County Industrial

Railroad Company is not an employer subject to the Railroad

Retirement and Railroad Unemployment Insurance Acts.

The Union County Industrial Railroad Company is reminded to inform

the Board of any change in the operation of the rail line in this

case .

Glen L. Bower

opinion attached)
DISSENT OF

V. M. SPEAKMAN, JR.

ON EMPLOYER STATUS DETERMINATION OF

UNION COUNTY INDUSTRIAL RAILROAD

The fact that Union County Industrial Railroad Company (UCIR) has no employees, and

that the employees are provided by North Shore Railroad Company does not mean that 

UCIR is not an employer under the Acts. Its status as a line hall class III carrier subject to

ICC jurisdiction should compel a determination that it is a covered employer. See B C D

94-112 (In re Texas and Oklahoma Railroad Co.). See also Chenev Railroad Company,

Inc, v. Railroad Retirement Board, in the United States Court ofAppeals for the District 

ofColumbia, No. 93-1621, March 24, 1995. UCIR is clearly a rail carrier subject to ICC

jurisdiction with the authority to operate a rail line.

The decision ofthe majority ofthe Board in this case sets a bad precedent and conflicts

with current law. For the reasons stated, I dissent.

Date