EMPLOYER STATUS DETERMINATION

JOLIET JUNCTION RAILROAD, INC.

This is the decision of the Railroad Retirement Board regarding the

status of the Joliet Junction Railroad, Inc. (JJR), as an employer

under the Railroad Retirement and Railroad Unemployment Insurance

Acts .

Information about JJR was supplied by Mr. Donald L. Bachman,

President of JJR. JJR is a switching railway which provides

connecting service to the Elgin, Joliet and Eastern Railway Company

(EJ&E) through separate contracts with, A.P. Green Industries,

Alexander Lumber, Globe Lumber, and Menards. JJR does not

advertise its services to the public. JJR does not hold itself out

to the public as a common carrier. JJR operates as a contract

switching railroad over track abandoned by the EJ&E. It has not

obtained any authority from the ICC since it does not consider

itself to be a common carrier.

Section 1(a)(1) of the Railroad Retirement Act (45 U.S.C.

§ 231(1) (a) (1)), 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 and

facilities) in connection with the transportation of

passengers or property by railroad * * *.

There is no evidence that JJR is under common control with a

railroad carrier; accordingly, JJR may be determined to be a

covered employee only if its rail operation renders JJR a rail

carrier subject to the jurisdiction of the Surface Transportation

Board.

Section 10501(a) (1) (B) of Title 49 U.S.C. provides that the Surface

Transportation Board shall have jurisdiction over transportation by

rail carriers. Section 10501(a)(1)(B) provides that the Surface

Transportation Board has jurisdiction when " *** the transportation

is under common *** arrangement for a continuous carriage or

shipment."

JJR characterizes itself as a private carrier, in effect contending

that it is not a "common carrier" by rail and therefore not

conducting an activity regulated by the Surface Transportation

BCD 1996-48
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JOLIET JUNCTION RAILROAD, INC.

Board. In support of this contention, JJR states that "JJR does

not publish tariffs, collect demurrage or appear in the routing on

a bill of lading. JJR does not collect a division of revenue from

EJ&E or any other carrier, but is instead paid directly by the

shipper." The Interstate Commerce Commission, which prior to the

enactment of Public Law 104-88 was responsible for administering

the Interstate Commerce Act, provided guidance with respect to

determining cases such as JJR:

The Commission and the Courts have set forth standards to

determine whether * * * terminal-type companies that * *

* contract with railroads to perform services are rail

carriers themselves * * *: First-actual performance of

rail service, second-the service being performed is part

of the total rail service contracted for by a member of

the public, third-the entity is performing as part of a

system of interstate rail transportation * * * by

contractual relationship with a railroad, and hence such

entity is deemed to be holding itself out to the public,

and fourth, remuneration for the services performed is

received in some manner, such as a fixed charge from the

railroad or by a percent of the profits from a railroad.

Association of P&C Dock Longshoreman v. Pittsburgh and

Conneaut Dock Company. 8 ICC 2d 280, (1992) , at __ , 1992

ICC LEXIS 27, at 20-21.

In the instant case, JJR picks up and drops off freight cars at the

EJ&E interchange track, and delivers and removes cars from

industries along its line. EJ&E is a carrier engaged in interstate

commerce covered by the Railroad Retirement Act. However, applying

the criteria set out in Association of P&C Dock Longshoremen.

supra. we see that JJR contracts only with the shipper, not the

railroad and further that JJR is paid by the shipper not the

railroad. Accordingly, JJR does not fall within the criteria

applied by the ICC to determine whether a terminal type company

such as JJR, is engaged in interstate commerce.

These same facts distinguish JJR from Ellis and Eastern Company,

which was determined to be a covered employer in B.C.D. 93-33.
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JOLIET JUNCTION RAILROAD, INC.

Accordingly, based on the above discussion it is the determination

of the Board that JJR is a private carrier and, as such, is not a

rail carrier employer under the RRA and RUIA.