U n it e d States G o v e r n m e n t

M em o r a n d u m

FORM G-11S(1-?2)

Ra il r o a d R e t ir e m e n t Bo a r d

March 8, 2004

L-2004-03

TO : Thomas W. Sadler

Assistant to the Labor Member

FROM : Steven A. Bartholow 

General Counsel

SUBJECT : Regular Railroad Occupation

This is in response to your inquiry as to whether a railway labor organization job 

would be considered to be no longer available to a railway labor organization 

official who is removed from his/her labor office for cause prior to the end of 

his/her term of office. The issue of availability of a job must be addressed in 

identifying the employee’s regular railroad occupation in connection with 

determining entitlement to an occupational disability annuity.

Legal Opinion L-92-29 discussed the conditions under which an employee’s last 

employment in a railway labor organization is considered to be no longer 

available for the purpose of determining the last railroad occupation in 

accordance with 20 CFR (former) section 220.11 (b). Section 220.11 was 

amended in 1998 (63 F.R. 7538, 7541, February 13,1998), but continues to 

include the following provision which is identical to that quoted in L-92-29:

If an employee last worked as an officer or employee of a 

railway labor organization and if continuance in such 

employment is no longer available to him or her, the 

"regular occupation" shall be the position to which the 

employee holds seniority rights or the position which he or 

she left to work for a railway labor organization.
Legal Opinion L-92-29 found that the railway labor organization position would 

be considered to be no longer available where (1) the employee is not 

reappointed to the position; (2) the employee does not run for reelection; (3) 

the employee loses the election; or (4) the position is abolished. It found that 

the railway labor organization position remains available if the employee quits 

during his/her term.

A subsequent legal opinion issued that same year, Legal Opinion L-92-29.1 held 

that if a railway labor organization employee is medically disqualified from 

his/her union work and is told by the union that he/she may no longer perform 

that job, then the job is no longer available to the employee within the meaning 

of the Board's regulations. L-92-29.1 also found, however, that if the employee is 

medically disqualified from the railway labor organization job, but is not told by 

the union that he/she must give up that job, then the job remains “available" to 

the employee within the meaning of section 220.11.

With the possible exception of the situation in which an employee does not run 

for reelection,'the key factor to the determinations m ade in both 1992 legal 

opinions cited above is whether or not the employee has any option to remain 

in the railway labor organization position. In each case where the employee 

has no option to remain in the job, the labor position was found to be 

unavailable for purposes of determining the employee's regular railroad 

occupation.

In response to the question that you now raise, it is my opinion that if the 

employee is removed for cause from his/her railway labor organization job, the 

employee has no option to remain in that job and it therefore is unavailable to 

the employee under the Board's regulations. The employee's regular railroad 

occupation would then be the position to which the employee holds seniority 

rights or the position that the employee left to work for a railway labor 

organization.

MRDadabo:mpd:cmw

l:\wp7data\OPINIONS\OPINIONS\L-2004-3.doc

1 Legal Opinion L-92-29 noted that its conclusion that section 220.11 was intended 

to cover the situation in which an employee does not run for reelection was based on a 

review of the history of the quoted regulation.