EMPLOYER STATUS DETERMINATION

SEMO Port Railroad, Inc.

Respondek Railroad Corporation

This is the determination of the Railroad Retirement Board

regarding the status of the SEMO Port Railroad, Inc. (SEMO) 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). SEMO has not previously been determined to

be an employer under the RRA and the RUIA.

Information about SEMO was furnished by Mr. Dan Overbey, Executive 

Director of the Southeast Missouri Regional Port Authority, the

parent of SEMO. In a letter dated November 18, 1994, Mr. Overbey 

stated that SEMO is a subsidiary of the Port Authority and that it

acquired the Missouri Pacific Railroad's Cape Girardeau Branch on

October 28, 1994. ICC Finance Docket No. 32543 (59 Fed. Reg.

43358) states that SEMO has no employees and all rail service on

the line is provided by Respondek Railroad Corporation (Respondek).

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.

In cases such as this where an entity has authority to operate a

rail line, but does not actually operate the line in question, a

majority of the Board looks to the identity of the entity operating 

the line and the nature of the relationship of that entity to the

ICC certified carrier to determine the status of the certified 

carrier under the RRA and RUIA. If the operating entity is itself

a carrier employer covered under the Acts administered by the

Board, or if that entity has been recognized by the ICC as the

operator of the line in question, which will result in that entity 

being found to be a covered employer with respect to the operation 

of the line it has undertaken, and if the certified entity has no

involvement in the actual operation of the rail line, a majority of

BCD 1996-13 BA # 2870
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the Board will find the certified entity not to be a covered 

employer under the RRA and the RUIA. If, however, the operating

entity is neither a covered employer nor an entity that has been 

recognized by the ICC as the operator of the line, the Board will

find the certified entity to be a covered employer and persons 

operating that line to be employees of the covered employer.

The evidence of record shows that Respondek is not an employer

under the Acts, since it is neither a carrier subject to subchapter

I of chapter 105 of Title 49 of the United States Code nor is it

under the control of or under common control with any such carrier.

Moreover, Respondek is not recognized in the ICC Finance Docket

authorizing operation of the line in question as the operator

thereof.

Based on the above, the Board, Labor Member Speakman concurring in

the result, determines that Semo is an employer covered under the

RRA and the RUIA.

The individuals provided to SEMO by Respondek are responsible for

all aspects of the movement of freight over the rail line owned by

SEMO. SEMO must operate this line in satisfaction of its rail

carrier obligation. SEMO must retain ultimate control of the

performance of its service as a common carrier. Accordingly, it is

the determination of the Board that service performed by employees 

of Respondek under contract with SEMO is creditable as service as

employees of SEMO under the Railroad Retirement and Railroad

Unemployment Insurance Acts.

(Glen L. Bower

(Concurring opinion attached)
CONCURRING OPINION OF

V. M. SPEAKMAN, JR.

ON EMPLOYER STATUS DETERMINATION OF

SEMO PORT RAILROAD, INC.

RESPONDEK RAILROAD CORPORATION

I agree with the determination that SEMO Port Railroad, Inc., (SEMO) is an employer

covered under the Railroad Retirement Act and Railroad Unemployment Insurance Act

(the Acts) and that service performed by employees ofRespondek under contract with

SEMO is creditable as service as employees of SEMO. I do take exception to the 

majority’s rationale in arriving at this decision, however. Specifically, we should not look 

to the identity ofthe entity operating the line in question nor the nature ofthe relationship

ofthat entity to the ICC certified carrier to determine the status ofthe certified carrier 

under the Acts. As a company possessing ICC authority to operate over a rail line,

Section l(a)(l)(i) ofthe Railroad Retirement Act and Section 1(a) ofthe Railroad 

Unemployment Insurance Act directs the Board to find SEMO covered on that basis. In

B C D. 94-112, (Texas and Oklahoma Railroad Company) the Board faced similar facts

and found that a company possessing this ICC authority to be covered, despite the fact

that like the current case, Texas and Oklahoma Railroad Company had no employees.

V. M. Speakman, Jr.

Date