the form of tips. (For the effect of compensation of less than $3.00 per month earned after December 31, 1936, for service to a local lodge or division of a railway-labor-organization employer, see Part 222 of this chapter.)

(Sec. 3, 50 Stat. 310, as amended; 45 U.S.C. 228c)

§ 203.5 Service outside the United States.

(a) An individual shall not be an employee by reason of rendition of service to an employer other than a local lodge or division, or a general committee of a railway-labor-organization employer, not conducting the principal part of of its business in the United States except while engaged in performing service for it in the United States.

(b) An individual shall not be an employee by reason of rendition of service to a local lodge or division, unless:

(1) All, or substantially all the individuals constituting the membership of such local lodge or division are employees of an employer conducting the principal part of its business in the United States; or

(2) The headquarters of such local lodge or division is located in the United States.

(c) An individual shall not be an employee by reason of rendition of service to a general committee of a railway-labor-organization employer,

unless:

(1) Such individual is representing a local lodge or division, all or substantially all of whose members are employees of an employer conducting the principal part of its business in the United States, or the headquarters of such local lodge or division is located in the United States; or

(2) All or substantially all the individuals represented by such a general committee are employees of an employer conducting the principal part of its business in the United States; or

(3) Such an individual acts in the capacity of a general chairman or an assistant general chairman of a general committee which represents individuals rendering service in the United States to an employer; Provided, however, That if the office or headquarters of such general chairman or as

sistant general chairman is not located within the United States he will not be an employee unless 10 percent or more of his remuneration for service as general chairman or assistant general chairman is creditable as compensation, the creditable compensation to be computed according to the proportion which the mileage in the United States under the jurisdiction of such general committee bears to the total mileage under its jurisdiction, or according to a formula to be prescribed by the Board if the mileage formula is inapplicable.

§ 203.6 Age, citizenship, and other factors.

The age, citizenship, or residence of an individual, or his designation as other than an "employee" shall not be controlling in determining whether or not such individual is an employee within the meaning of the act, except that an individual not a citizen or resident of the United States shall not be deemed to be in the service of an employer when rendering service outside the United States to an employer who is required by the laws of the place where the service is performed to employ, in whole or in part, citizens or residents thereof and the laws in force therein on August 29, 1935, shall be deemed to have been in force at all times prior to that date.

[Board Order 55-89, 20 FR 3706, May 27, 1955]

§ 203.7 Local lodge employee.

An individual who, prior to January 1, 1937, shall have rendered service to a local lodge or division of a railway labor organization included as an employer under section 1(a) of the act, shall be an employee with respect to such service to such local lodge or division only if he was on August 29, 1935, in the service of or in an employment relation to an employer which was a carrier. An individual who, subsequent to December 31, 1936, shall have rendered service to a local lodge or division of a railway labor organization included as an employer under section 1(a) of the act, shall be an employee with respect to such service to such local lodge or division only with respect to such service as was preceded by service, or an employment relation,

on or after August 29, 1935, to an employer which was a carrier. (For the effect of compensation less than $3.00 per month earned after December 31, 1936, for service to a local lodge or division of a railway-labor-organization employer, see Part 222 of this chapter.)

PART 204-EMPLOYMENT RELATION

Sec.

204.1 Statutory provisions.

204.2 Employment relation; determination by the Board.

204.3 Conditions which preclude an employment relation.

204.4 An employment relation by rendition of service.

204.5 An employment relation by grant of leave of absence.

204.6 Circumstances under which employee status is terminated.

204.7 Employment relation because of continuous disability.

204.8 Failure to be called because of disability.

204.9 Failure to work for a period of 6 months because of disability.

204.10 Reinstatement.

204.11 Evidence of disability.

AUTHORITY: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228e, 228j.

SOURCE: Board Order 46-424, 11 FR 13866, Nov. 27, 1946, unless otherwise noted.

§ 204.1 Statutory provisions.

An individual shall be deemed to have been in the employment relation to an employer on the enactment date if (i) he was on that date on leave of absence from his employment, expressly granted to him by the employer by whom he was employed, or by a duly authorized representative of such employer, and the grant of such leave of absence will have been established to the satisfaction of the Board before July 1947; or (ii) he was in the service of an employer after the enactment date and before January 1946 in each of six calendar months, whether or not consecutive; or (iii) before the enactment date he did not retire and was not retired or discharged from the service of the last employer by whom he was employed or its corporate or operating successor, but (A) solely by reason of his physical or mental disability he ceased before the enactment date to be in the service of such employer and thereafter remained continuously disabled until he attained age sixty-five or until August 1945 or (B) solely for such last stated reason an employer by whom he was

employed before the enactment date or an employer who is its successor did not on or after the enactment date and before August 1945 call him to return to service, or (C) if he was so called he was solely for such reason unable to render service in six calendar months as provided in clause (ii); or (iv) he was on the enactment date absent from the service of an employer by reason of a discharge which, within one year after the effective date thereof, was protested, to an appropriate labor representative or to the employer, as wrongful, and which was followed within ten years of the effective date thereof by his reinstatement in good faith to his former service with all his seniority rights: Provided, That an individual shall not be deemed to have been on the enactment date in the employment relation to an employer if before that date he was granted a pension or gratuity on the basis of which a pension was awarded to him pursuant to section 6, or if during the last pay-roll period before the enactment date in which he rendered service to an employer he was not in the service of an employer, in accordance with subsection (C), with respect to any service in such pay-roll period, or if he could have been in the employment relation to an employer only by reason of his having been, either before or after the enactment date in the service of a local lodge or division defined as an employer in section 1(a).1 § 204.2 Employment relation; determination by the Board.

The existence or nonexistence of an employment relation as defined in section 1(d) of the Railroad Retirement Act of 1937 is a conclusion which must be reached by the Board or its authorized representatives upon the basis of the evidence before it; the burden of formulating the conclusion may not be delegated to the employer or to the individual or to any representative of either; the employer or the individual or their representatives are the principal sources of evidence with respect to the facts constituting the conditions under which the individual was not in active service, but the Board will not make a determination on the basis of a conclusion of the employer or of the individual or of a representative of either to the effect that the individual had or had not an employment relation.

'Railroad Retirement Act of 1937.

§ 204.3 Conditions which preclude an employment relation.

(a) An individual shall not be deemed to have an employment relation to an employer on the enactment date if before that date he was awarded a pension or gratuity by an employer which was the basis of a pension under section 6 of the act.

(b) An individual shall not have been on August 29, 1935, an employee by reason of an employment relation if, during the last pay-roll period in which he rendered service to an employer prior to that date, such service was rendered outside of the United States to an employer not conducting the principal part of its business in the United States.

(c) An individual may not acquire an employment relation solely by virtue of service to a local lodge or division.

§ 204.4 An employment relation by rendition of service.

Subject to the conditions set forth in § 204.3 an individual shall be deemed to have had an employment relation on the enactment date if he was in the compensated service of an employer, other than a local lodge or division, in six or more calendar months, after August 29, 1935, and before January 1946. The months of service need not be consecutive and may be either before or after attainment of age 65.

§ 204.5 An employment relation by grant of leave of absence.

(a) An individual shall be deemed to have been in an employment relation to an employer on the enactment date if on that date he was on a leave of absence expressly granted to him by the employer by whom he was employed and such leave of absence is established to the satisfaction of the Board before July 1947.

(b) A leave of absence may have been granted either orally or in writing but it must have been in consideration of the circumstances in the individual case and must not have come into being automatically through the operation of a rule or practice applicable to a whole class or group of individuals.

is

(c) A leave of absence is action of the employer permitting or requiring the employee to remain away from active service and relieving the employee from the obligations or conditions attached to active service. It ceases to exist whenever the individual reached in a reduction in force or when he retires or is retired under the conditions set forth in § 204.6. In order for a leave of absence to exist there must be a position to which the employee has a right to return.

§ 204.6 Circumstances under which employee status is terminated.

An individual shall be deemed to have retired or to have been retired or discharged if there was a rule or practice in effect on the employer in accordance with which the individual's rights as an employee were terminated, or if he was discharged, was granted a continuing pension or gratuity, was superannuated, or if his record was closed out, or if the employee resigned or relinquished his rights or otherwise separated himself from employer service. Discharge, resignation superannuation or retirement must be determined according to the substance of the transaction, even though the transaction may have been otherwise denominated.

§ 204.7 Employment relation because of continuous disability.

Subject to the conditions set forth in § 204.3 an individual shall be deemed to have an employment relation on the enactment date if before that date his service was not terminated in accordance with § 204.6 and (a) he ceased to render service to an employer prior to the enactment date solely because of a physical or mental disability which rendered him unable to perform the duties of the position or positions in which he was employed or to which he had rights, and (b) he thereafter remained so disabled until he attained age 65 or until August 1945, whichever occurred first. If an employee ceased service because of a physical or mental disability and attained age 65 prior to the enactment date, he will have been in an employment relation provided his disability continued until age 65 and his employment status was not

terminated prior to the enactment date. It is immaterial that had an individual recovered from a disability, after attaining age 65, or after July 1945, he could not have returned to service for some other reason. It likewise is immaterial whether an individual retained rights to return to service after the enactment date and thereafter until he attained age 65, or until August 1945, provided he remained disabled until the earlier of these two events.

§ 204.8 Failure to be called because of disability.

Subject to the conditions set forth in § 204.3 and provided that retirement, within the provisions of § 204.6, did not occur prior to August 29, 1935, an individual shall be deemed to have an employment relation on the enactment date if on or subsequent thereto, and prior to August 1945, the employer by whom he was employed before the enactment date, or its successor, I did not call him to return to service solely because he was physically or mentally disabled to perform the duties of the position or positions to which he otherwise would have been called. If the employee next junior to the individual was called to service from a seniority roster maintained by rule or practice during a period in which the individual was mentally or physically disabled, it will be considered prima facie evidence that the individual would have been called had he not been so disabled: Provided, There is nothing otherwise to show that the individual would not have been called and the employer affirmatively states that he would have been called. If an employer is unable to make such a statement because of lack of adequate records concerning the transaction other facts and circumstances will be determinative.

§ 204.9 Failure to work for a period of 6 months because of disability.

Subject to the conditions set forth in § 204.3 an individual shall be deemed to have an employment relation on the enactment date if on or subsequent to August 29, 1935, and prior to August 1945, he was called to return to the service of an employer by whom

he was employed prior to the enactment date but solely because of his physical or mental disability he was unable to render service in six calendar months. In order to establish that an individual did not perform employer service in six calendar months solely because of physical or mental disability, it must be determined that no other circumstances existed which would have prevented the rendition of service for such period. It must be shown that the position to which he was called was of not less than 6 months' duration and that he did not cease service prior to the sixth month because of retirement under any of the conditions specified in § 204.6 or because of leave of absence or for any personal reasons, not attributed to disability, or because of a suspension or furlough. If an individual was called for a job of 6 months' duration and was unable to respond solely because of a disability, it is immaterial that he was not disabled either before or after that period. Likewise, it is immaterial whether an individual was disabled before or after each of two or more periods of service aggregating six more months, if he remained disabled during the time that the positions were in evidence and while he was subject to call.

§ 204.10 Reinstatement.

or

An individual shall be deemed to be in an employment relation to an employer on the enactment date if he was absent from the service of an employer on that date by reason of a discharge which was protested as being wrongful to an appropriate labor representative, or to the employer, within one year of the effective date of the discharge, and within 10 years of such effective date he was reinstated in good faith to his former service with restoration of all his seniority rights. If the reinstatement was in good faith it is immaterial whether he received pay for time lost or whether he reentered the active service of the employer following the reinstatement. It is immaterial whether the discharge was wrongful; it is sufficient that it was protested as being wrongful. If the employee did not reenter the active service of an employer following his rein

statement, it must be shown that the reinstatement was made in contemplation of a return to active service. If an individual is required to pass a physical test as a condition of the reinstatement and does not do so, the reinstatement will not have occurred. However, if the individual is first reinstated and then fails to pass the required mental or physical examination as a prerequisite to return to active service his failure in this respect is not construed as evidencing any lack of good faith on the part of either the employee or the employer.

§ 204.11 Evidence of disability.

The term "physical or mental disability" as used in this part relates to the ability of the individual to perform the duties of his regular occupation in accordance with the standards customarily recognized within the industry. Determinations of disability will be made on the basis of medical evidence furnished by the employer and by the employee as well as by other circumstances which are indicative of the individual's ability to render service in his usual occupation. [Board Order 55-89, 20 FR 3706, May 27, 1955]

Sec.

PART 205-EMPLOYEE REPRESENTATIVE

205.1 Statutory provisions.

205.2 Definition of employee representative.

205.3 Reports of employee representatives. 205.4 Service of employee representatives.

AUTHORITY: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228a, 228j.

SOURCE: 4 FR 1482, Apr. 7, 1939, unless otherwise noted.

§ 205.1 Statutory provisions.

The term "employee representative" means any officer or official representative of a railway labor organization other than a labor organization included in the term "employer" as defined in section 1(a) who before or after the enactment date was in the service of an employer as defined in section 1(a) and who is duly authorized and designated to represent employees in accordance with the Railway Labor Act, as amended, and any individual who is regular

ly assigned to or regularly employed by such officer or official representative in connection with the duties of his office.

§ 205.2 Definition of employee representative.

An individual shall be an employee representative within the meaning of the act (a) if he is an officer or official representative of a railway labor organization not an employer, as defined in the act, and is duly authorized and designated to represent employees in accordance with the Railway Labor Act, as amended: Provided, however, That before or after August 29, 1935, and before the time in question he must have been in the service of an employer; or (b) if he is regularly assigned to or regularly employed by an employee representative as described in (a) above in connection with the duties of the office of such employee representative, irrespective of whether he possesses the qualifications described in (a).