EMPLOYER STATUS DETERMINATION

Sault Ste. Marie Bridge Company

This is the determination of the Railroad Retirement Board 

regarding the status of Sault Ste. Marie Bridge Company (SSMBC) 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). SSMBC has not previously been determined to

be an employer under the RRA and the RUIA.

Information about SSMBC was furnished by Mr. A. Dwight Johnson, 

Director, Corporate Taxes and Costs, of SSMBC. In a letter dated 

August 3, 1994, Mr. Johnson stated that SSMBC is owned by the

Wisconsin Central Corporation, the parent of the Wisconsin Central 

Limited, a covered employer. SSMBC owns the multi-span, railroad

bridge, tracks and appurtenances which cross the St. Mary River 

between Sault Ste. Marie, Michigan and Sault Ste. Marie, Ontario,

Canada. The property is' used for the interchange of traffic

between the CP on the Ontario side and the Wisconsin Central

Limited on the Michigan side. Mr. Johnson also stated that the

SSMBC has no employees and conducts no transportation operations on

its own. All administrative and engineering services for SSMBC,

including Mr. Johnson's services, are provided by employees of the

Wisconsin Central Ltd., an employer under the Acts. Those 

employees are covered under the Acts through their service for the

Wisconsin Central.

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 * * *.

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

the same definition.

SSMBC is subject to the jurisdiction of the ICC because it owns a

track and appurtenances which are used in interstate commerce. See

Finance Docket No. 32036 (9 I.C.C. 2d 233, 1992 Lexis 284) .

However, SSMBC has no residual authority to operate a railroad nor

does it purport to engage a railroad operations. Rather it is

BCD 1995-73 BA # 4271
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merely a passive owner of a railroad bridge. In Board Order 89-74 

the Board held that a company which held title to a rail line but

which did not have the capability or the intent to conduct railroad

operations is not an employer under the Acts. See Appeal of Board

of Trustees of the Galveston Wharves, B.O. 89-74, April 24,1989.

SSMBC is in much the same situation as was the Board of Trustees of

Galveston Wharves. The evidence establishes that SSMBC does not

have the capability of operating as a carrier and has no intention

of doing so.

We must turn next to section l(a)(l)(ii) of the Act to determine

whether the SSMBC is a covered employer under that section. SSMBC

is owned by the Wisconsin Central Corporation which is also the

parent company of the Wisconsin Central Ltd., an employer under the

Acts. Therefore, SSMBC is under common control with a rail 

carrier. Thus, if SSMBC performs service in connection with rail

transportation, it would be a covered employer. Section 202.7 of

the Board's regulations (20 CFR 202.7) explains that service or

operation of a facility is in connection with railroad

transportation if:

* * * such service * * * 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,

or to the receipt, delivery, elevation, transfer in

transit, refrigeration or icing, storage, or handling of

property transported by railroad.

SSMBC owns and operates a railroad bridge, track, and appurtenances

which are clearly integral to the operation of its affiliate

railroad. In accordance with section 202.7 of the regulations, a

majority of the Board finds that SSMBC is operating a facility in

connection with railroad transportation and is a covered employer

under the Acts.

Glen L. Bower

V. M. Speakman, Jr/^

V

rome F. Kever (Dissenting Opinion

Attached)

Attachment
Dissent of Jerome F. Kever

Management Member

Coverage Determination

Sault Ste. Marie Bridge Company

I hereby dissent from that portion of the Board's decision on the Sault Ste. Marie

Bridge Company (SSMBC) that finds ownership of the railroad bridge amounts to "service

in connection with transportation", j The decision further finds that SSMBC has no

employees and that all administrative and engineering services are performed by

employees of Wisconsin Central Ltd., a covered employer. I reject the notion that mere 

holding of title is sufficient to find service in connection with transportation.

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