in accordance with the provisions of the Railway Labor Act, as amended. Only after such presumption has thus been rebutted will further evidence as to whether the organization is an employer be considered. (The establishment or nonestablishment of such a right of participation will not raise any presumption as to whether an organization is, or is not, a "railway" organization. The existence of this qualification shall be determined in accordance with paragraph (b) of this section.) An organization will have established such a right of participation if: (1) It has in fact participated in the selection of labor members of the National Railroad Adjustment Board and has continued to participate in such selection; or

(2) It has been found, under section 3 "First" (f) of the Railway Labor Act, as amended (48 Stat. 1190; 45 U.S.C. 153 "First" (f)), to be qualified to participate in the selection of labor members of the National Railroad Adjustment Board; or

(3) It is recognized by all organizations, qualified under paragraphs (a) (1) or (2) of this section, as having the right to participate in the selection of labor members of the National Railroad Adjustment Board.

(b) The question as to whether a labor organization, national in scope, and organized in accordance with the provisions of the Railway Labor Act, as amended, is, as such a national labor organization, a "railway" labor organization, will be determined by the Board on the basis of considerations such as the following:

(1) The extent to which it is, and has been recognized as, representative of crafts or classes of employees in the railroad industry.

(2) The extent to which its purposes and business are and have been to promote the interests of employees in the railroad industry.

(c) A labor organization which ceased doing business before June 21, 1934, will have been an employer if its characteristics were substantially the same as those of labor organizations, doing business on or after June 21, 1934, which are established as employers in accordance with paragraphs (a) and (b) of this section.

§ 203.1 Statutory provisions.

The term "employee" means (1) any individual in the service of one or more employers for compensation, (2) any individual who is in the employment relation to one or more employers, and (3) an employee representative. The term "employee" shall include an employee of a local lodge or division defined as an employer in sub-section (a) only if he was in the service of or in the employment relation to a carrier on or after the enactment date. 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 regularly assigned to or regularly employed by such officer or official representative in connection with the duties of his office.

30-041 0 - 78-8

The term "employee" shall not include any individual while such individual is engaged in the physical operations consisting of the mining of coal, the preparation of coal, the handling (other than movement by rail with standard railroad locomotives) of coal not beyond the mine tipple, or the loading of coal at the tipple.

An individual is in the service of an employer whether his service is rendered within or without the United States if (i) he is subject to the continuing authority of the employer to supervise and direct the manner of rendition of his service, or he is rendering professional or technical services and is integrated into the staff of the employer, or he is rendering, on the property used in the employer's operations, other personal services the rendition of which is integrated into the employer's operations, and (ii) he renders such service for compensation, or a method of computing the monthly compensation for such service is provided in section 3(c): Provided, however, That an individual shall be deemed to be in the service of 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 its business in the United States only when he is rendering service to it in the United States; and an individual shall be deemed to be in the service of such a local lodge or division only if (1) all, or substantially all, the individuals constituting its membership 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; and an individual shall be deemed to be in the service of such a general committee only if (1) he is representing a local lodge or division described in clauses (1) or (2) immediately above; or (2) all, or substantially all, the individuals represented by it are employees of an employer conducting the principal part of its business in the United States; or (3) he 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, but in such case if his office or headquarters is not located in the United States and the individuals represented by such general committee are employees of an employer not conducting the principal part of its business in the United States, only such proportion of the remuneration for such service shall be regarded as compensation as the proportion which the mileage in the United States under the jurisdiction of such general committee bears to the total mileage under its jurisdiction, unless such mileage formula is inapplicable in which case the Board may prescribe such other formula as it finds to

be equitable, and if the application of such mileage formula, or such other formula as the Board may prescribe, would result in the compensation of the individual being less than 10 per centum of his remuneration for such service no part of such remuneration shall be regarded as compensation: Provided further, 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 under the laws applicable in the place where the service is rendered to employ therein, in whole or in part, citizens or residents thereof; and the laws applicable on August 29, 1935, in the place where the service is rendered shall be deemed to have been applicable there at all times prior to that date.

§ 203.2 General definition of employee.

An individual shall be an employee whenever (a) he is engaged in performing compensated service for an employer or (b) he is in an employment relation to an employer, or (c) he is an employee representative, or (d) he is an officer of an employer.

§ 203.3 When an individual is performing service for an employer.

(a) The legal relationship of employer and employee is defined by the act. Thus, an individual is performing service for an employer if:

(1) He is subject to the right of an employer, directly or through another, to supervise and direct the manner in which his services are rendered; or

(2) In rendering professional or technical services he is integrated into the staff of the employer; or

(3) He is rendering personal services on the property used in the operations of the employer and the services are integrated into those operations.

(b) The provisions in paragraph (a) of this section are controlling irrespective of whether the service is performed on a part-time basis, and, with respect to paragraph (a)(1) of this section, irrespective of whether the right to supervise and direct is exercised.

§ 203.4 When service is compensated.

Service shall be "compensated" if it is performed for compensation, as that term is defined in Part 222 of this chapter: Provided, however, That service prior to September 1941 of a sta

tion employee whose duties consisted of or included the carrying of passengers' hand baggage and otherwise assisting passengers at passenger stations shall be considered compensated service although the individual's remuneration was, in whole or in part, in 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 assistant 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).'

§ 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

'Railroad Retirement Act of 1937.

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.

§ 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 indi

vidual 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