B.C.D. 03-40

EMPLOYER STATUS DETERMINATION MAY 0 8 2003

Weyerhaeuser Car Shop

This is the decision ofthe Railroad Retirement Board with regard to the coverage 

Weyerhaeuser Car Shop (WCS) under the Railroad Retirement Act (45 U.S.C.

§231 et seq.) (RRA) and the Railroad Unemployment Insurance Act (45 U.S.C.

§351 et seq.) (RUIA).

According to information supplied by Mr. Kennedy Kettennan, Tax Audit

Manager for Weyerhaeuser, WCS is a division ofWeyerhaeuser Company, a large

publicly traded (NYSE symbol WY) forest products company. Weyerhaeuser

owns several railroad subsidiaries, the Columbia & Cowlitz (C&C) (BA 3602), the

DeQueen & Eastern (DQE) (BA 2805), the Golden Triangle (GT) (BA 3592), and

the Mississippi & Skuna Valley Railway (M&SV) (BA 3549). In addition, WCS

operates a rail car facility in DeQueen, Arkansas. A substantial portion ofthe

repair work performed by WCS is on equipment owned or leased by DQE, an

affiliate of Weyerhaeuser. Car repair services performed on DQE cars represents

approximately 53% ofthe total revenue of WCS derived from car repair services. 

WCS also performs wheel repair services that represent approximately 31% ofthe

total revenue ofWCS. Less than 12% ofthe wheel repair work is done for DQE.

Section 1(a)(1) of the Railroad Retirement Act (RRA) (45 U.S.C. 231(a)(1)), 

insofar as relevant here, defines a covered employer as:

(i) any carrier by railroad subject to the jurisdiction of the

Surface Transportation Board under part A ofsubtitle IV oftitle

49, United States Code;

(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) ofthis 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 * * *.
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Weyerhaeuser Car Shop

Sections 1(a) and 1(b) of the Railroad Unemployment Insurance Act (RUIA), 45

U.S.C. 351(a) and (b) contain substantially similar definitions, as does section

3231 ofthe Railroad Retirement Tax Act (RRTA), 26 U.S.C. 3231.

WCS is clearly not a carrier by rail. However, there is no doubt that the service

being performed by WCS for its affiliates is a service in connection with railroad 

transportation. See Livingston Rebuild Center, v. Railroad Retirement Board. 970

F. 2d 295 (7th Cir. 1992). The determination of whether WCS is covered as a rail

carrier affiliate thus depends on whether it is under common control with a rail

carrier. A decision of the United States Court of Appeals for the Federal Circuit

regarding a claim for a refund oftaxes under the Railroad Retirement Tax Act held

that a parent corporation which owns a rail carrier subsidiary is not under common

control with the subsidiary within the meaning ofsection 3231 ofthat Act. Union

Pacific Corporation v. United States. 5 F.3d 523 (Fed Cir. 1993). In this case WCS

is a division of Weyerhauser Company, the corporate parent of the rail carrier

subsidiaries. Under the Union Pacific decision, WCS is not under common control

with those rail carrier subsidiaries. Therefore, despite its clearly performing a

service in connection with railroad transportation, WCS could not be found to be a

covered employer under the Acts.

For the reasons explained above, a majority of the Board finds that WCS is not an

employer subject to the Acts administered by the Board.

V. M. Speakman, Jr.

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