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; deter. mination 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.

§ 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.

1 Railroad Retirement Act of 1937.

(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.

(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 is 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, 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 or more months, if he remained disabled during

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 apropriate 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 reinstatement, 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 F.R. 8706, May 27, 1955]

205.2

205.3 205.4

Definition of employee representative. Reports of employee representatives. Service of employee representatives. AUTHORITY: The provisions of this Part 205 issued under secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228a, 2281.

SOURCE: The provisions of this Part 205 appear at 4 F.R. 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 regularly assigned to or regularly employed by such officer or official representative in connection with the duties of his office.

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).

§ 205.3 Reports of employee representatives.

Sec.

PART 208-ELIGIBILITY FOR AN ANNUITY

208.1 Statutory provisions.

208.2

208.5

208.7 208.9

Employee status.

Current connection with the railroad industry.

Annuities for employees. Regular occupation defined. 208.10 Permanent physical or mental condition defined.

208.11 Establishment of permanent disability for work in the applicant's "regular occupation”.

208.17 Establishment of permanent disability for any regular employment. 208.25 Proof of continuance of disability. 208.27 Disability annuitant to notify of recovery from disability and of employment or self-employment. 208.29 Cessation of disability annuities. 208.31 Cessation of disability annuity not

prejudicial to further eligibility.

AUTHORITY: The provisions of this Part 208 issued under secs. 2, 10, 50 Stat. 309, as amended, 314, as amended; 45 U.S.C. 228b, 2281, unless otherwise noted.

§ 208.1 Statutory provisions.

(a) The following-described individuals, if they shall have been employees on or after the enactment date, and shall have completed ten years of service, shall, subject to the conditions set forth in subsections (b), (c), and (d), be eligible for annuities after they shall have ceased to render compensated service to any person, whether or not an employer as defined in section 1 (a) (but with the right to engage in other employment to the extent not prohibited by subsection (d)):

(1) Individuals who on or after the enactment date shall be sixty-five years of age or

over.

(2) Women who will have attained the age of sixty and will have completed thirty years of service.

(8) Men who will have attained the age of sixty and will have completed thirty years of service, or individuals who will have attained the age of sixty-two and will have completed less than thirty years of service, but the annuity of such men or such individuals shall be reduced by 180 for each calendar month that he or she is under age sixty-five when the annuity begins to accrue.

(4) Individuals having a current connection with the railroad industry, and whose permanent physical or mental condition is such as to be disabling for work in their regular occupation, and who (1) will have completed twenty years of service or (ii) will have attained the age of sixty. The Board, with the cooperation of employers and employees, shall secure the establishment of standards determining the physical and

mental conditions which permanently disqualify employees for work in the several occupations in the railroad industry, and the Board, employers, and employees shall cooperate in the promotion of the greatest practicable degree of uniformity in the standards applied by the several employers. An individual's condition shall be deemed to be disabling for work in his regular occupation if he will have been disqualified by his employer because of disability for service in his regular occupation in accordance with the applicable standards so established; if the employee will not have been so disqualified by his employer, the Board shall determine whether his condition is disabling for work in his regular occupation in accordance with the standards generally established; and, if the employee's regular occupation is not one with respect to which standards will have been established, the standards relating to a reasonably comparable occupation shall be used. If there is no such comparable occupation, the Board shall determine whether the employee's condition is disabling for work in his regular occupation by determining whether under the practices generally prevailing in industries in which such occupation exists such condition is a permanent disqualification for work in such occupation. For the purposes of this section, an employee's "regular occupation" shall be deemed to be the occupation in which he will have been engaged in more calendar months than the calendar months in which he will have been engaged in any other occupation during the last preceding five calendar years, whether or not consecutive, in each of which years he will have earned wages or salary, except that, if an employee establishes that during the last fifteen consecutive calendar years he will have been engaged in another occupation in one-half or more of all the months in which he will have earned wages or salary, he may claim such other occupation as his regular occupation; or

(5) Individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment.

Such satisfactory proof shall be made from time to time as prescribed by the Board, of the disability provided for in paragraph 4 or 5 and of the continuance of such disability (according to the standards applied in the establishment of such disability) until the employee attains the age of sixty-five. If the individual fails to comply with the requirements prescribed by the Board as to proof of the continuance of the disability until he attains the age of sixty-five years, his right to an annuity by reason of such disability shall, except for good cause shown to the Board, cease, but without prejudice to his rights to any subsequent annuity to which he may be entitled. If before attaining the age of sixty-five an employee in

receipt of an annuity under paragraph 4 or 5 is found by the Board to be no longer disabled as provided in said paragraphs his annuity shall cease upon the last day of the month in which he ceases to be so disabled. If after cessation of his disability annuity the employee will have acquired additional years of service, such additional years of service may be credited to him with the same effect as if no annuity had previously been awarded to him.

(b) An annuity shall be paid only if the applicant shall have relinquished such rights as he may have to return to the service of an employer and of the person by whom he was last employed; but this requirement shall not apply to the individuals mentioned in subdivision 4 and subdivision 5 of subsection (a) prior to attaining age sixty-five.

(c) An annuity shall begin to accrue as of a date to be specified in a written application (to be made in such manner and form as may be prescribed by the Board and to be signed by the individual entitled thereto), but:

(1) not before the date following the last day of compensated service of the applicant, and

(2) Not more than twelve months before the filing of the application. (Sec. 2, 50 Stat. 309, 310, as amended; 45 U. S. C. 228b.) [12 F.R. 859, Feb. 6, 1947, as amended by Board Order 55-89, 20 F.R. 3706, May 27, 1955; Board Order 60-8. 25 F.R. 720, Jan. 28, 1960; Board Order 62-33, 27 F.R. 3321, Apr. 7, 1962]

§ 208.2 Employee status.

To be eligible for an annuity an individual, in addition to other qualifications, must have been an employee on August 29, 1935, or, if not an employee on that date, he must have rendered service subsequent to December 31, 1936, as an employee.

(Sec. 1, 50 Stat. 307, as amended; 45 U.S.C. 228a) [12 FR. 861, Feb. 6, 1947] § 208.5

Current connection with the railroad industry.

(a) An individual will have had a current connection with the railroad industry at the time an annuity begins to accrue to him if he will have had a period of 30 consecutive calendar months which meets the following requirements: First, that period must have ended before an annuity begins to accure to him in accordance with Part 214 of this chapter. Second, during that period he must have been in service as an employee in at least 12 calendar months. Third, if there was any interval between the end of the 30-month period and the month in which

an annuity begins to accrue to him, he must not, in that interval, have been engaged in any regular employment other than service for an employer. (For statutory provisions, see § 237.101 of this chapter.)

(b) For the purposes of this part and 225.5 of this chapter, "regular employment" shall mean full- or part-time employment for remuneration by an individual for a person (as defined in § 201.1 (j) of this chapter) on a continuing or recurring basis. Self-employment shall not be considered "regular employment." An individual performing employment for remuneration, whether or not under a contract, shall be deemed to be in the employ of a person unless such employment is performed as a part of his independently established trade, business or occupation. An individual shall be deemed to have been engaged in "regular employment" in the interval between the end of the last 30-month period in which he had been in service as an employee in 12 calendar months and the month in which an annuity begins to accrue to him if he worked for one or more persons in any three consecutive calendar quarters wholly or partially within such interval and earned wages of at least $300 for work in each of any two consecutive calendar quarters wholly or partially within such interval even though such two quarters do not fall within a three-consecutive-calendar-quarter pe

riod of work.

(c) A determination as to whether or not an individual will have had a current connection with the railroad industry made on or after June 8, 1960, shall be made under the provisions of this section. In any case in which a disability annuity under § 208.7(a) (3), a minimum annuity under § 225.5 of this chapter, or a spouse's annuity under § 232.202(c) of this chapter has previously been denied because the individual did not have a current connection with the railroad industry under the provisions of this section as in effect prior to June 8, 1960, the decision denying the claim in whole or in part may be reopened and reconsidered under the provisions of this section: Provided, however, That any annuity or increase in annuity for which an individual may be found entitled shall not be retroactive more than 12 months before the date of such reopening.

[Board Order 60-99, 25 FR. 5764, June 23, 1960]