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stock company, corporation, or institu Sec. tion.

202.5 Company or person under common (h) United States. The term "United

control. States" where used in a geographical

202.6 Casual service and the casual opsense means the States and the District

eration of equipment or facilities

202.7 Service or operation in connection of Columbia.

with railroad transportation. (1) Carrier. The term “carrier" means

202.8 Controlled company or person prisan express company, sleeping-car com

cipally engaged in service or operspany, or carrier by railroad, subject to

tion in connection with ratiroad Part I of the Interstate Commerce Act

transportation. (24 Stat. 379; 49 U.S. C. Chapter 1). 202.9 Controlled company or person est (1) Person. The term “person" in

principally engaged in service a cludes an individual, trust, estate, part

operation in connection with rs. nership, association, joint stock company,

road transportation.

202.10 Commencement of employer status company, corporation, and institution.

of receiver or trustee, etc. (k) General Committee. The term

202.11 Termination of employer status. "General Committee" as used in section 1 of the Railroad Retirement Act of 1937

202.12 Evidence of termination of employer

status. (50 Stat. 307; 45 U.S.C., Sup., 228a) is 202.18 Electric railways. construed to include any subordinate unit

202.14 Service incidental to railroad trans. of a national railway labor organization,

portation. defined as an employer in the 1937 act, 202.15 Railway labor organizations. regardless of the title or designation of

AUTHORITY: The provisions of this part 202 such unit, which, under the constitution

Issued under secs. 1, 10, 50 Stat. 807. sa and bylaws of the organization of which

amended, 314, as amended; 45 US.C. 228a, It is a unit, is properly authorized to and

228). does represent that organization on all of a particular railroad or on a substan

SOURCE: The provisions of this part 202 tial portion thereof (such as on that por

appear at 4 F.R. 1478, Apr. 7, 1939, unless

otherwise noted. tion of a railroad under the jurisdiction of the general manager) in negotiating 8 202.1 Statutory provisions. with the management of that rallroad The term "employer" means any carrier with respect to the wages and working (as defined in subsection 1 (m) of this conditions of the employees represented section), and any company which is directly Ly such organization.

or indirectly owned or controlled by one (1) Local lodges and divisions; local

or more such carriers or under common conlodge or division. The term "local lodges

trol therewith, and which operates any equip

ment or facility or performs any service and divisions" and the term “local lodge

(except trucking service, casual service, and or division" as used in section 1 (a) and

the casual operation of equipment or facili1 (b), respectively, of the 1937 act, shall ties) in connection with the transportation be construed to include any subordinate of passengers or property by rallroad, or the unit of a national railway labor organi receipt, delivery, elevation, transfer zation defined as an "employer" under

transit, refrigeration or icing, storage, or the 1937 act, which unit functions in the

handling of property transported by railroad.

and any receiver, trustee, or other individual same manner as, or similar to "local

or body, judicial or otherwise, when in the lodges" as that term is ordinarily used, possession of the property or operating all Irrespective of the designation of such or any part of the business of any such unit by its national organization.

employer: Provided, however, That the terın (Secs. 1, 10, 50 Stat. 307, as amended, 814, as

"employer” shall not include any street, Amended; 45 U.S.C. 228a, 2283) (4 P.R. 1477,

interurban, or suburban electric railway, as amended by Board Order 40-367, 5 FR.

unless such railway is operating as a part 2717; Board Order 59-190, 24 FR. 9083. Nov. 7,

of a general steam-rallroad system of trans1959)

portation, but shall not exclude any part of the general steam-railroad system now or

hereafter operated by any other motive PART 202—EMPLOYERS UNDER THE power. The Interstate Commerce CommisACT

sion is hereby authorized and directed upon Sec.

request of the Board, or upon complaint of 202.1 Statutory provisions.

any party interested, to determine after 2022 Company or person principally en. hearing whether any line operated by elecgaged in carrier business.

tric power falls within the terms of this 202.3 Company or person principally en proviso. The term "employer" shall also in

gaged in non-carrier business. clude railroad associations, traffic associs. 202.4 Control.

tions, tarif bureaus, demurrage bureaus,

weighing and Inspection bureaus, collection legal entities or less than the whole of a agencies and other associations, bureaus,

legal entity or a person operating in only agencies, or organizations controlled and

one of several capacities, then the unit or maintained wholly or principally by two or

units competent to assume legal obligamore employers as herein before defined and engaged in the performance of services in

tions shall be responsible for the disconnection with or incidental to railroad

charge of the duties of the employer. transportation; and railway labor organiza

8 202.4 Control. tions, national in scope, which have been or may be organized in accordance with the pro A company or person is controlled by visions of the Railway Labor Act, as amended, one or more carriers, whenever there and their State and National legislative com

exists in one or more such carriers the mittees and their general committees and

right or power by any means, method or their insurance departments and their local

circumstance, irrespective of stock ownlodges and divisions, established pursuant to the constitution and by-laws of such organi

ership, to direct, either directly or indizations. (Sec. 1 (a), 50 Stat. 307; 45 U. 8. O. rectly, the policies and business of such a 228a (a))

company or person and in any case in The term "employer" shall not include which a carrier is in fact exercising diany company by reason of its being engaged

rection of the policies and business of in the mining of coal, the supplying of coal

such a company or person. to an employer where dellvery is not beyond the mine tipple, and the operation of equip 8 202.5 Company or person under comment or facilities therefor, or in any of such

mon control. activities. (54 Stat. 785; 45 U.S.C. 228a (a))

A company or person is under common [4 FR. 1478, Apr. 7, 1939 as amended by Board Order 41-526, 7 FR. 96, Jan. 6, 1942)

control with a carrier, whenever the con

trol (as that term is used in § 202.4) of & 202.2 Company or person principally such company or person is in the same engaged in carrier business.

person, persons, or company as that by Any company or person principally which such carrier is controlled. engaged in carrier business is an em

§ 202.6 Casual service and the casual ployer.

operation of equipment or facilities. $ 202.3 Company or person principally The service rendered or the operation

engaged in non-carrier business. of equipment or facilities by a controlled (a) With respect to any company or

company or person in connection with

the transportation of passengers or propperson principally engaged in business

erty by railroad is "casual” whenever other than carrier business, but which, in

such service or operation is so irregular addition to such principal business, en

or infrequent as to afford no substantial gages in some carrier business, the Board

basis for an inference that such service will require submission of information

or operation will be repeated, or whenpertaining to the history and all opera

ever such service or operation is intions of such company or person with a

substantial. view to determining whether some identifiable and separable enterprise con

§ 202.7 Service or operation in connecducted by the person or company is to be

tion with railroad transportation. considered to be the employer. The de The service rendered or the operation termination will be made in the light of of equipment or facilities by persons or considerations such as the following: companies owned or controlled by or

(1) The primary purpose of the com under common control with a carrier is pany or person on and since the date it in connection with the transportation of was established;

passengers or property by railroad, or (2) The functional dominance or sub the receipt, delivery, elevation, transfer servience of its carrier business in rela in transit, refrigeration or icing, stortion to its non-carrier business;

age, or handling of property transported (3) The amount of its carrier busi by railroad, if such service or operation ness and the ratio of such business to its is reasonably directly related, functionentire business;

ally or economically, to the performance (4) Whether its carrier business is of obligations which a company or pera separate and distinct enterprise. son or companies or persons have under

(b) In the event that the employer is taken as a common carrier by railroad, found to be an aggregate of persons or or to the receipt, delivery, elevation,

transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad. $ 202.8 Controlled company or person

principally engaged in service or operation in connection with railroad

transportation. Any company or person owned or controlled by one or more carriers or under common control therewith, whose principal business is the operation of equipment or facilities or the performance of service (other than trucking service) in connection with the transportation of passengers or property by railroad, shall be an employer. § 202.9 Controlled company or person

not principally engaged in service or operation in connection with rail.

road transportation. (a) With respect to any company or person owned or controlled by one or more carriers or under common control therewith, performing a service or operating equipment 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, but which is principally engaged in some other business, the Board will require the submission of information pertaining to the history and all operations of such company or person with a view to determining whether it is an employer or whether some identifiable and separable enterprise conducted by the person or company is to be considered to be the employer, and will make a determination in the light of considerations such as the following:

(1) The primary purpose of the company or person on and since the date it was established;

(2) The functional dominance or subservience of its business which constitutes a service or operation of equipment or facilities in connection with the transportation of passengers or property by railroad in relation to its other business;

(3) The amount of its business which constitutes a service or operation of equipment or facilities in connection with the transportation of passengers or

property by railroad and the ratio of such business to its entire business;

(4) Whether such service or operation is a separate and distinct enterprise;

(5) Whether such service or operation is more than casual, as that term is defined in $ 202.6.

(b) In the event that the employer is found to be an aggregate of persons or legal entities or less than the whole of a legal entity or a person operating in only one of several capacities, then the unit o units competent to assume legal obligations shall be responsible for the discharge of the duties of the employer. 8 202.10 Commencement of employer

status of receiver or trustee, etc. A receiver, trustee, or other individual or body, judicial or otherwise, in the possession of the property or operating all or any part of the business of a carrier, or of a company or person owned or controlled by or under common control with such a carrier, which operates any equipment or facility or performs any service in connection with the transportation of passengers or property by railroad, shall be deemed to be an employer beginning as of whichever of the following three dates is the earliest:

(a) The date that it takes possession of such property; or

(b) The first date on which it has authority to operate all or any part of the business of such a carrier, company or person; or

(c) The date that it begins operating without appointment or authorization all or any part of the business of such a carrier, company or person; Provided, however, That the receiver, trustee, or other individual or body, judicial or otherwise, shall be an employer only with respect to such individuals as would be employees if the preceding employer had continued in the possession of the property or the operation of the business. § 202.11 Termination employer

status. The employer status of any company or person shall terminate whenever such company or person loses any of the char. acteristics essential to the existence of an employer status. (Board Order 41-85, 6 FR. 1210, Mar, 1, 1941]

of

8 202.12 Evidence of termination of

employer status. (a) In determining whether a cessation of an essential characteristic, such as control or service in connection with railroad transportation, has occurred, consideration will be given only to those events or actions which evidence a final or complete cessation. Mere temporary periods of inactivity or failure to exercise functions or to operate equipment or facilities will not necessarily result in a loss of employer status.

(b) The actual date of cessation of employer status shall be the date upon which final or complete cessation of an essential employer characteristic OCcurs. The following indicate but do not delimit the type of evidence that will be considered in determining the actual date of cessation of an employer status: stoppage of business or operations; the cancellation of tariffs, concurrences, or powers of attorney filed with the Interstate Commerce Commission; the effective date of a certificate permitting abandonment; the effective date of a pertinent judicial action such as the discharge of a receiver, trustee, or other Judicial officer, or an order approving sale of equipment or machinery; the sale, transfer, or lease of property, equipment, or machinery essential to the continuance of an employer function or to control by a carrier employer; public or private notices of contemplated or scheduled abandonment or cessation of operations; termination of contract; discharge of last employee; date upon which the right of a railway labor organization to participate in the selection of labor members of the National Railroad Adjustment Board ceases or is denied; and date on which an employer, if a labor organization, ceases to represent or is denied the right to represent crafts or classes of employees in the railroad industry, or to promote the interests of employees in the railroad industry.

(c) In the absence of evidence to the contrary the employer status of an existing company or person shall be presumed to continue, and in accordance with § 250.1 (b) of this chapter it is the duty of each employer promptly to notify the Board of any change in operations affecting such company's status as an employer. (Board Order 41-85, 6 F.R. 1210, Mar. 1, 1941]

8 202.13 Electric railways.

(a) The General Counsel will require the submission of information pertaining to the history and operations of an electric railway with a view to determining whether it is an employer and will inquire into and make his recommendations upon the following considerations:

(1) Whether the electric railway is more than a street, suburban or interurban electric rallway; or

(2) Whether it is operating as a part of a general steam-railroad system of transportation; or

(3) Whether it is part of the national transportation system.

(b) If in the opinion of the General Counsel an electric railway has the characteristic set forth in either (1), (2), or (3), he will conclude that it is an employer under the act and if the operator concurs in such opinion, the decision will be made final by the Board. I the operator does not concur in the conclusion reached the question will be submitted to the Interstate Commerce Commission for determination. § 202.14 Service incidental to railroad

transportation. An organization, association, bureau or agency is performing a service in connection with or incidental to rail. road transportation whenever it is engaged in the performance of functions which would normally be performed by the constituent employers in the absence of such organization, association, bureau, or agency. § 202.15 Railway labor organizations.

Railway labor organizations, national in scope, which have been or may be organized in accordance with the provisions of the Railway Labor Act, as amended, and their State and National legislative committees and their general committees and their insurance departments and their local lodges and divisions, established pursuant to the constitution and bylaws of such organizations, shall be employers within the meaning of the act.

(a) An organization doing business on or after June 21, 1934, which establishes, in accordance with (1), (2), or (3) of this paragraph, a right, under section 3 "First” (a) of the Railway Labor Act, as

IBE UNIVERSUL UE MICHIGAN DIARIES

amended (48 Stat. 1189; 45 U. S. C. 153 "First” (a)), to participate in the selection of labor members of the National Railroad Adjustment Board, will be presumed, in the absence of clear and convincing evidence to the contrary, to be, from and after the date on which such right is thus established, a labor organization, national in scope and organized in accordance with the provisions of the Railway Labor Act, as amended. Such an organization can establish that it is an employer by establishing, in accordance with paragraph (b) of this section, that, as a labor organization, national in scope and organized in accordance with the provisions of the Railway Labor Act, as amended, it is a “railway” organization. An organization, doing business on or after June 21, 1934, which has not established such a right of participation, will be presumed not to be a labor organization, national in scope and organized in accordance with the provisions of the Railway Labor Act, as amended, and such presumption can be rebutted only by clear and convincing evidence satisfactory to the Board showing that the reasons for the organization's failure to establish such a right have no relation to its being a labor organization, national in scope and organized 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 or 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 Toard; or

(3) It is recognized by all organizations, qualified under subparagraphs (1) or (2) of this paragraph, 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.

(d) An organization which establishes, to the satisfaction of the Board, that it is a labor organization, as defined in paragraph (e) of this section, and that is composed of labor organizations which are established as employers in accordance with paragraphs (a), (b), and (c) of this section, is thereby established as being an employer.

(e) For the purposes of the regulations in this chapter, a labor organization is an organization whose business is to promote the interests of employees in their capacity as employees, either directly or through their organizations.

PART 203—EMPLOYEES UNDER THE

ACT Sec. 203.1 Statutory provisions. 203.2 General definition of employee. 203.3 When an individual is performing

service for an employer. 208.4 When service is compensated.

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