EMPLOYER STATUS DETERMINATION

Three Rivers Railway Company

This is the determination of the Railroad Retirement Board 

concerning the status of Three Rivers Railway Company (TRRC) (BA

No. 3291) as an employer under the Railroad Retirement Act (45

U.S.C. §231 et. sea.) (RRA) and the Railroad Unemployment Insurance

Act (45 U.S.C. §351 et sea.) (RUIA).

Information regarding TRRC was provided by various sources. In a

letter dated October 13, 1993, from attorney Ronald M. Johnson to

the National Mediation Board, Mr. Johnson explained that TRRC and

CSX Transportation Company (CSXT) had entered into an agreement

under which CSXT would operate the rail properties of TRRC. This

agreement required, and received, the prior authorization of the

Interstate Commerce Commission (ICC) . See. Interstate Commerce 

Commission Finance Docket No. 32326, service date October 5, 1993 .

Under the ICC's notice of exemption procedures, the agreement was

considered approved as of September 17, 1993 . That is the time at

which the operating agreement between CSXT and TRRC took effect.

According to Mr. Johnson, effective September 17, 1993, when the

operating agreement between CSXT and TRRC was put into effect, TRRC

ceased to operate as a separate rail carrier. This was confirmed 

in a letter dated March 17, 1994, from Mr. Maurice J. Robinson,

Senior Manager, Payroll Analysis for CSXT, to the Board. According

to Mr. Robinson, the last TRRC payroll was paid September 10, 1993.

Former TRRC employees were transferred to CSXT.

TRRC retains authority to operate as a railroad and accordingly

would still nominally fall within the definition of employer in the

RRA and RUIA. However, it does not now operate the line and has no

intention of doing so.

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 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.

BCD 1996-16

BA # 3291
-2-

Three Rivers Railway Company

TRRC 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 operate

TRRC's rail line to the Board. Consistent with above-described 

analysis of cases such as this, a majority of the Board finds that

Three Rivers Railway Company is, effective September 10, 1993, no

longer an employer subject to the Railroad Retirement and Railroad 

Unemployment Insurance Acts.

V. M/Speakman, Jr. (Dissenting

— attached)
DISSENT OF

V. M. SPEAKMAN, JR.

ON EMPLOYER STATUS DETERMINATION OF

THREE RIVERS RAIL WA Y COMPANY

I take exception to the majority ofthe Board’s decision to terminate coverage ofThree 

Rivers Railway Company (TRRC) as an employer under the Railroad Retirement Act and

the Railroad Unemployment Insurance Act (the Acts). As a rail carrier under the

jurisdiction ofthe ICC, the Acts direct the Board to find TRRC covered. The fact that 

TRRC may have no employees but, rather has entered into an agreement under which

another rail carrier would operate the rail properties ofTRRC, is not relevant to this

determination. Its status as a carrier subject to ICC jurisdiction is the determining factor

which renders it a covered employer. See Board Coverage Decision 94-112. To decide

otherwise, as the majority has done, sets a bad precedent and conflicts with current law.

For the reasons stated, I dissent.

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