BCD 00-27

JUL 2 6 2000

EMPLOYER STATUS DETERMINATION

OmniTrax Switching Services, L.L.C.

This is the determination of the Railroad Retirement Board concerning the

status of OmniTrax Switching Services, L.L.C. (OSS), as an employer under the

Railroad Retirement Act (45 U.S.C. § 231 et sea.) and the Railroad

Unemployment Insurance Act (45 U.S.C. § 351 et seep).

Information regarding OSS was provided by Mr. Mike Ogbom, Manager, OSS.

OSS began operations on September 15, 1994, and is owned by MCS Properties,

L.L.C. MCS is a Colorado limited liability company that is owned by Neptune

Partners, Ltd (49%), Quality Holdings, Inc. (39%), and Pat Broe (12%). Pat Broe

is sole owner of OmniTrax, Inc., a company which was held by the Railroad

Retirement Board not to be an employer covered under the Acts (B.C.D. 97-5).

OmniTRAX provides management services to OSS under a contract.

OSS handles switching operations pursuant to individual contracts. It operates

entirely within the property of the party with which it contracts to provide

switching services, picking up and setting out cars to and from storage tracks

and moving loaded and empty cars within the facility of the contracting

customer. It provides switching services for International Paper Company and

Celanese, Ltd. It does not provide services to any rail carrier.

Section l(aXl) of the Railroad Retirement Act (45 U.S.C. § 231(l)(aXl)), 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 of subtitle IV of title

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) of this subdivision, and

which operates any equipment or facility or performs any service

(other than trucking service, casual service, and the casual

operation of equipment or facilities) in connection with the

transportation of passengers or property by railroad * * *.

Sections 1(a) and 1(b) of the Railroad Unemployment Insurance Act (45 U.S.C.

§ 351(a) and (b)) contain substantially similar definitions, as does section 3231

of the Railroad Retirement Tax Act (26 U.S.C. § 3231).
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OmniTrax Switching Services, L.L.C.

OSS is clearly not a carrier subject to the jurisdiction of the Surface

Transportation Board. It is also not owned or controlled by a rail carrier

employer or employers under the Acts. In addition, a majority of the Board

finds that OSS is not under common control with a rail carrier employer.

Accordingly, it is determined that OSS is not an employer under the Railroad

Retirement and Railroad Unemployment Insurance Acts.

Cherryl<T. Thomas

V. M. Speakman, Jr.fConcurring

opionion attached)

Jerome F. Kever
Concurring Opinion of the Labor Member

OmniTrax Switching Services, L.L.C.

I do not find Omnitrax Switching Services, LLC to be a covered employer

under the Acts. However, it is my position that it is under common control

with an employer under the Acts, namely Omnitrax, Inc. (see my dissent in

B.C.D. 97-5). Omnitrax Switching Services, LLC and Omnitrax, Inc. share a 

common manager, Michael Ogbom.

V. M. Speakman, Jr.