B.C.D. 03-31

APR 0 3 2003

EMPLOYER STATUS DETERMINATION

British Plasterboard Gypsum Company

This is the decision of the Railroad Retirement Board regarding the

status of the British Plasterboard Gypsum Company (BPG), as an

employer under the Railroad Retirement and Railroad Unemployment

Insurance Acts.

BPG manufactures gypsum wallboard and related plaster products for 

the building materials industry. It mines gypsum for its manufacturing

process. It operates a railway which transports its product to the

DeQueen and Eastern Railroad Company, a covered employer under the

Acts (B.A. No. 2805). Accordingly, BPG’s rail operation provides rail

services to only one customer, itself. BPG has two employees who 

perform the rail-related work.

Section 1(a)(1) of the Railroad Retirement Act (45 U.S.C. § 23l(l)(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 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 (except trucking service, casual service, and the

casual operation of equipment or facilities) in connection

with the transportation of passengers or property by railroad
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British Plasterboard Gypsum Company

Sections l(a) and 1(b) of the Railroad Unemployment Insurance Act (45

U.S.C. § 351(a) and (b)) contain substantially similar definitions.

The Surface Transportation Board has jurisdiction over common

carriers engaged in the interstate transportation of passengers or

property by railroad pursuant to section 10501 of title 49 of the United

States Code. A common carrier may be defined in general as one which

holds itself out to the public as engaging in the business of transporting

people or property from place to place for compensation. It is the right

of the public to demand service that is the real criterion determinative

of an entity's character as a common carrier. In contrast, a private

carrier is one which, 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. Private carriers thus

undertake not to carry for all persons indiscriminately, but rather to

transport only for those with whom they see fit to contract individually.

The Railroad Retirement Board has followed the distinction made by

the Surface Transportation Board, which is judicially supported in The 

Tap Line Cases. 234 U.S. 1 (1913); also International Detective Service.

Inc, v. Interstate Commerce Commission. 595 F.2d 862, 865 (D.C. Cir.

1979).

In this case, BPG does not hold itself out to the public as engaging in

the business of transportation of persons or property over the line in

question. Rather it performs services over that line only for itself.

Accordingly, the Board determines that BPG is not a carrier under the

Acts.
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British Plasterboard Gypsum Company

Finally, BPG is not under common control with a carrier and is not an

employer under section 1(a)(1)(h) of the Railroad Retirement Act.

CherryFT. Thomas

V. M. Speakman, Jr.

Jerome F. Kever