B.C.D. 01-75 SEP 2 6 2001

EMPLOYER DETERMINATION

Southern California Railroad Company

This is a determination of the Railroad Retirement Board 

concerning the status of Southern California Railroad Company 

(SCRC) as an employer under the Railroad Retirement Act (45

U.S.C. § 231 et seq.HRRA) and the Railroad Unemployment

Insurance Act (45 U.S.C. § 351 et seq.HRUIA).

Information regarding SCRC was provided by Mr. Richard C.

McClure, Chairman, President & Chief Executive Officer of SCRC.

According to Mr. McClure, he, Mr. Robert J. Geib and Mr. Michael 

H. Minton own SCRC.1 Mr. McClure stated that SCRC began

operations and first compensated its four employees beginning

November 1, 2000. Mr. McClure stated that SCRC is a switching

operation that operates on land and approximately 2 miles of

trackage owned by United States Gypsum (USG). More

specifically, SCRC provides switching services for USG and acts as 

a logistics liaison between USG and the Union Pacific Railroad

(UP). The UP interchanges with USG at Plaster City, California. 

Mr. McClure reported that SCRC’s main objective is to deal with

the logistics of breaking down “empties” (empty freight cars) and

spotting them in the proper tracks. In addition to blocking and

building trains per customer specifications, SCRC is present to

physically interchange with the UP crew, which comes onto USG

track to runaround the empties and leave the USG yard with their

loads to head back on the old branch line approximately 27 miles 

east to the UP main line at El Cenro. Mr. McClure reported that

SCRC had not sought Surface Transportation Board authority for

its operation because the owner of private property (USG) had

hired SCRC to handle all switching responsibilities on USG tracks.

1 Mr. McClure, Mr. Geib and Mr. Minton also serve as officers/directors ofTexas North

Orient Corporation (BA No. 3884) and of Gulf Colorado and San Saba Railway Corporation

(BA No. 3891).
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Southern California Railroad Company

Section 1(a)(1) of the RRA (45 U.S.C. §231(a)(l)), 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 of

Title 49, United States Code;

Section 1 of the RUIA contains essentially the same definition, as

does section 3231 of the Railroad Retirement Tax Act.

The term “railroad” under the Interstate Commerce Act includes a

switch, spur, track, terminal, or terminal facility as well as a

freight depot, yard, and ground used or necessary for

transportation (49 U.S.C. § 10102(6)(C)). It is well settled that a

terminal or switching company is a common carrier rather than a

private carrier if it holds itself out to be one, acts in that capacity,

and is dealt with in that capacity by railroads in general. U.S. v.

California, 297 U.S. 175 (1936). Consistent with this, the Board

has held terminal railroads to be covered employers under the

RRA and the RUIA where they act in the capacity of a common

carrier subject to the jurisdiction of the Surface Transportation

Board (formerly the Interstate Commerce Commission). See, e.g.,

Camp Chase Industrial Railroad, B.C.D. No. 95-41, and GWI

Switching Services, L.P., Decision on Reconsideration, B.C.D. No.

96-19. Conversely, where switching operations are conducted by

an operator that, without making it a vocation or holding itself out

to the public as ready to act for all who desire the service,

undertakes by special agreement in a particular instance only, to

transport property or persons from place to place, the Board has 

held that such operator is a private carrier and not an employer

under the RRA and the RUIA. See, e.g., Joliet Junction Railroad,

Inc., B.C.D. No. 96-48 and The Great Miami & Western Railway

Company, B.C.D. No. 94-105.2.
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Southern California Railroad Company

The evidence in this case indicates that SCRC currently provides 

its switching services to only one customer, United States Gypsum. 

There is no evidence that SCRC holds itself out to the public as

engaging in the business of transportation of persons or property

over the line in question. In fact, the rail line is on private

property that belongs to SCRC’s sole customer. Accordingly, the

Board finds that SCRC does not operate as a rail common carrier

and thus is not an employer under the RRA and the RUIA.

Jerome F. Kever