Board Coverage Decision

2004-58

LS, WHC, PFM

LS, WHC, and PFM service not creditable under the Acts.

The Board found that LS’s, WHC’s, and PFM’s service was selfemployment and not creditable under the Acts.

No Form G-215 Available
B.C.D. 04-58 NOV 24 2004

Employee Service Determination

LS

WHC

PFM

This is the decision of the Railroad Retirement Board regarding whether the

services performed by Messrs. LS, WHC, and PFM for CSX Transportation constituted

employee service under the Railroad Retirement Act (45 U.S.C. § 231 et sea.(RRA)

and the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et sea.KRUIA).

CSXT is a covered employer under those Acts.

WHC is currently receiving an annuity under the Railroad Retirement Act with an

annuity beginning date of January 1, 1995. He stated that he is a former CSXT

employee who “inspected new railroad cars [built] at car plants." The inspections

took place at the plants where the cars were being built. As a former CSXT

employee, WHC worked on and repaired freight cars and supervised work. As a

contractor, he had no set hours for work. He worked when he needed to inspect

cars. He was paid by the day upon submitting an invoice. He did not work

alongside CSXT employees. CSXT would call WHC and let him know where the

cars were being built. His work was not inspected or approved. The contract

involved covered a period from April 1, 1997, to December 31, 1997, and provided

compensation of $200.00 per day plus lodging, meals, and travel for days that he 

was at the car builder’s plant.

PFM is currently receiving an annuity under the Railroad Retirement Act with an

annuity beginning date of January 1, 1993. He stated that he is a former CSXT

employee who inspected new freight cars. He last worked in June 2000. The

inspections took place at the plants where the cars were being built. As a former

CSXT employee, WHC worked as a supervisor. As a contractor, he had no set

hours for work. He did not work alongside CSXT employees. His work was not

inspected or approved. The contract involved covered a period from January 1,

2000, to December 31, 2000, and provided compensation of $200.00 per day plus

lodging, meals, and travel for days that he was at the car builder's plant.

LS is currently receiving an annuity under the Railroad Retirement Act with an

annuity beginning date of January 1,2001. He stated that he is a former CSXT

employee who inspected new freight cars before CSXT took possession of them.
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The inspections took place at the plants where the cars were being built. LS had

no set hours for work. He stated that he set his own schedule, working usually two

to six hours per day. He was paid by the day upon submitting an invoice. He did

not work alongside CSXT employees. CSXT would call LS and let him know about

new cars to be inspected. The contract involved covered a period from January

1,2000, to December 31,2000, and provided compensation of $200.00 per day

plus lodging, meals, and travel for days that he was at the car builder's plant.

Section 1 (b) of the Railroad Retirement Act and section 1 (d)(i) of the Railroad

Unemployment Insurance Act both define a covered employee as an individual in

the service of an employer for compensation.

Section 1 (d) of the Railroad Retirement Act further defines an individual as "in the

service of an employer" when:

(i) (A) he is subject to the continuing authority of the employer

to supervise and direct the manner of rendition of his service, or (B) he 

is rendering professional or technical services and is integrated into

the staff of the employer, or (C) he is rendering, on the property used

in the employer's operations, personal services the rendition of which

is integrated into the employer’s operations; and

(ii) he renders such service for compensation * * *.

Section 1 (e) of the Railroad Unemployment Insurance Act contains a definition of

service substantially identical to the above, as do sections 3231 (b) and 3231 (d) of

the Railroad Retirement Tax Act (26 U.S.C. §§ 3231(b) and (d)). While the

regulations of the RRB generally merely restate this provision, it should be noted

that section 203.3(b) thereof (20 CFR 203.3(b)) provides that the foregoing criteria

apply irrespective of whether "the service is performed on a part-time basis * *

WHC, PFM, and LS were clearly not supervised in the performance of their

services. In addition, they were not integrated into the staff of CSXT, and they

were not providing services on the property of CSXT.
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Therefore, a majority of the Board' finds that service of WHC, PFM, and LS for

CSXT under the contracts described above constituted self-employment and

not employee service.

Original signed by:

1 The Labor Member abstained.