§ 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] § 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 railway; 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. If 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 railroad 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 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 Board; 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. Sec. AUTHORITY: The provisions of this Part 203 issued under secs. 1, 10, 50 Stat. 307, as amended, 314 as amended; 45 U.S.C. 228a, 2281, unless otherwise noted. SOURCE: The provisions of this Part 203 appear at 12 F.R. 1133, Feb. 19, 1947, unless otherwise noted. § 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. 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 (1) 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 (1) 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-labororganization 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. 78 § 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 station 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 railwaylabor-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 F. R. 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.) AUTHORITY: The provisions of this Part 204 issued under secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228e, 2281. SOURCE: The provisions of this Part 204 contained in Board Order 46-424, 11 F.R. 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 (1) 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 (11) 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 6,1 or if 1 Railroad Retirement Act of 1937. |