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become payable to him. If such earnings of such individual are in excess of $1,200 in such year, his loss of annuity in the year shall be limited to one month's annuity for each $100 of the excess over $1,200, treating the last $50 or more of the excess as $100.

(b) If an individual in receipt of a disability annuity has earnings of over $100 in a calendar month of any calendar year after 1958 and fails to report such earnings before receiving the annuity payable to him for the second month following the month of such earnings, his penalties for failure to make timely report in such year shall be limited to an amount equal to not more than one month's annuity for each $100 of earnings in excess of $1,200 in such calendar year (exclusive of earnings from an employer and from the person by whom he was last employed), treating the last $50 or more of such excess as $100.

(c) Any annuities withheld in a calendar year after 1958 in excess of the amount provided by this section shall become payable at the end of the calendar year and shall be made first with respect to the month or months in such year for which the annuity is larger. [Board Order 60-2, 25 F.R. 594, Jan. 23, 1960]

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§ 220.1 Meaning of service.

Service shall consist of time devoted to active service as an employee for compensation or time with respect to which remuneration is paid for time lost as an employee. Such service shall be computed in accordance with § 220.2 and the creditability thereof shall be determined in accordance with § 220.3, and shall be verified in accordance with § 220.4. (See also § 203.3 of this chapter.)

[4 F.R. 1488, Apr. 7, 1939]

§ 220.2 What constitutes a month and a year of service.

Any calendar month in which an individual renders service for compensation or for which he receives remuneration for time lost as an employee constitutes a month of service, irrespective of the amount of such service or of the amount of time for which such remuneration is received. Twelve such months, consecutive or otherwise, shall be a year of service: Provided, however, That in totaling the service of an employee who has performed 126 months or more of creditable service, an ultimate fraction of 6 months or more shall constitute a year of service. In all other cases, ultimate fractions shall be taken at their actual value.

[Board Order 55-89, 20 F.R. 3708, May 27, 1955]

§ 220.3 Creditability of service.

(a) When a company is not an employer. Service rendered to any person or company other than an employer shall not be creditable except as follows: (1) Service rendered prior to August 29, 1935, for a person or company which was an employer on August 29, 1935, shall be creditable even though such person or company was not an employer at the time the service was rendered; (2) service rendered to any person or company which was at some time during its existence an express company, sleeping-car company or carrier by railroad and which was a predecessor of an express company, sleeping-car company or carrier by railroad subject to the act on August 29, 1935, shall be creditable even though such person or company was not an employer at the time such service was rendered and (3) service rendered prior to August 29, 1935, to any person or company in the performance of operations involving the use of standard railroad equipment provided such opera

tions were performed by an employer on August 29, 1935.

(b) Place of performance of service. Service performed for an employer shall be creditable whether rendered within or without the United States, if such employer conducts the principal part of its business within the United States; but if an employer other than a local lodge or division or a general committee of a railway labor organization, does not conduct the principal part of its business within the United States, service to such an employer shall be creditable only when performed by the employee within the United States. Service performed for a local lodge or division or for a general committee of a railway labor organization shall be creditable in accordance with § 203.5 (b) and (c) of this chapter. Service rendered outside the United States by an individual not a citizen or resident of 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 is not creditable.

(c) Service based on time lost. Any month during which an individual performs no active creditable service, but for all or part of which he received remuneration as an employee, which remuneration is creditable as compensation within the meaning of Part 222 of this chapter shall be creditable in the same manner as active service.

(d) Service prior to January 1, 1937. If an individual was not an employee on August 29, 1935, no service prior to January 1, 1937, shall be creditable.

(e) Service prior to January 1, 1937, where individual was employee on August 29, 1935. Service performed prior to January 1, 1937, by an individual who was an employee on August 29, 1935, shall be creditable in the manner and to the extent provided in paragraph (f) of this section but not so as to cause the total years of service to exceed 30: Provided, however, That with respect to any such individual who rendered service to any employer after January 1, 1937, and who on August 29, 1935, was not an employee of an employer conducting the principal part of its business in the United States no greater proportion of his service rendered prior to January 1, 1937, shall be included in his "years of service" than the proportion which his total compensation (without regard to any limitation on the amount of com

pensation otherwise provided in the act) for service after January 1, 1937, rendered anywhere to an employer conducting the principal part of its business in the United States or rendered in the United States to any other employer bears to his total compensation (without regard to any limitation on the amount of compensation otherwise provided in the act) for service rendered anywhere to an employer after January 1, 1937.

(f) Service subsequent to December 31, 1936. All service rendered as an employee after December 31, 1936, including service performed after age 65 is attained, shall be creditable even in excess of 30 years: Provided, however, That in any case in which both service prior to January 1, 1937, and service subsequent to December 31, 1936, are to be credited, all service subsequent to December 31, 1936, shall first be credited, and if it be less than 30 years, then service prior to January 1, 1937, shall be included, but only to an extent sufficient to bring the total of all years of service to 30: Provided further, That whenever service prior to January 1, 1937, is to be included it shall be taken in reverse order.

(g) Service performed subsequent to the beginning date of an annuity. Service rendered as an employee after the beginning date of an annuity shall be creditable toward any annuity under Part 208 of this chapter, and such annuity may be recomputed because of such additional service: Provided, That an application for recomputation is filed as prescribed in § 225.11 (a) of this chapter: Provided further, That such recomputation will not result in a decrease in such annuity. If such annuity was granted upon the basis of disability and the disability annuity ceased before the annuitant attained age 65, an application for recomputation shall not be required.

(h) Service as employee representative. Service rendered as an employee representative, as defined in § 205.2 of this chapter, shall be creditable in the same manner and to the same extent as though the organization by which he was employed were an employer.

(1) Service after December 31, 1936, to a local lodge or division. Service rendered in any month after December 31, 1936, to a local lodge or division of a railway-labor-organization employer with respect to which service an individual would be an employee within the

meaning of § 203.7 of this chapter shall not be creditable unless rendered for compensation which is creditable within the provisions of Part 222 of this chapter, and particularly § 222.3 (d) of this chapter.

(j) Service after December 31, 1936, to a local lodge or division. Service rendered in a month after December 31, 1936, to a local lodge or division of a railway-labor-organization employer with respect to which service an individual would be an employee within the meaning of § 203.7 of this chapter shall not be creditable unless rendered for compensation which is creditable within the provisions of Part 222, and particularly $222.3 (f) of this chapter.

(Sec. 3, 50 Stat. 310, as amended; 45 U.S.C.. 228c) [4 F.R. 1488, Apr. 7, 1939, as amended by Board Order 40-742, 6 F.R. 298, Jan. 14, 1941; Board Order 47-1, 12 F.R. 466, Jan. 23. 1947; Board Order 55-89, 20 F.R. 3708, May 27, 1955]

§ 220.4 Verification of service claimed.

Service claimed, to be credited, shall be verified to the satisfaction of the Board, in the following manner:

(a) Service claimed shall be verified from the pay roll or other detailed records of the employer.

(b) In the event the pay roll or other detailed records are incomplete or missing, the service claimed and not established by such records shall be verified from the personnel records of the employer.

(c) If the pay roll, personnel, and detailed records are incomplete or missing, the service claimed and not established by such records shall be verified from any other books and records of the employer.

(d) If employer records do not establish service claimed, the individual may submit affidavits and other evidence in support thereof in either of the following instances: (1) when there are no employer records available to show whether or not the service claimed was rendered; or (2) when there are employer records available which do not verify the service claimed and do not establish that the service claimed was not rendered.

(e) When service is verified as to over-all dates, but is not supported in detail by employer records, and when there are no employer records showing in detail absences from service, a deduction shall be made to cover an average

amount of such absences. The deduction shall be the absences shown by the applicant or 5 percent of the total period in question, whichever is greater: Provided, however, That should an individual submit detailed records of service, properly identified and established as having been made contemporaneously with the rendition of the service for which detailed records of the employer are not available, full credit may be allowed for such service as may be verified from such detailed records of service: And provided, further, That the individual may be permitted to establish in any other manner satisfactory to the Board the actual amount of his absences.

(f) For the purpose of verifying service prior to 1937, employers shall preserve in accessible form original records of such service (and compensation therefor) for a number of years which when added to the years elapsed after 1936 total at least 50.

14 F.R. 1488, Apr. 7, 1939, as amended by Board Order 40-29, 5 F.R. 297; Board Order 59-190, 24 F.R. 9083, Nov. 7, 1959]

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The term "compensation" means any form of money remuneration paid to an individual for services rendered as an employee to one or more employers, or as an employee representative, including remuneration paid for time lost as an employee, but remuneration paid for time lost shall be deemed earned in the month in which such time is lost. Such term does not include tips, or the voluntary payment by an employer, without deduction from the remuneration of the employee, of any tax now or hereafter imposed with respect to the compensation of such employee. For the purposes of determining monthly compensation and years of service and for the purposes of subsections (a), (c), and (d) of section 2 and subsection (a) of section 5 of this Act, compensation earned in the service of a local lodge or division of a railway-labor-organization em

ployer shall be disregarded with respect to any calendar month if the amount thereof is less than $3 and (1) such compensation is earned between December 31, 1936, and April 1, 1940, and taxes thereon pursuant to section 2(a) and 3(a) of the Carriers Taxing Act of 1937 or sections 1500 and 1520 of the Internal Revenue Code are not paid prior to July 1, 1940; or (2) such compensation is earned after March 31, 1940. A payment made by an employer to an individual through the employer's pay roll shall be presumed, in the absence of evidence to the contrary, to be compensation for service rendered by such individual as an employee of the employer in the period with respect to which the payment is made. An employee shall be deemed to be paid, "for time lost" the amount he is paid by an employer with respect to an identifiable period of absence from the active service of the employer, including absence on account of personal injury, and the amount he is paid by the employer for loss of earnings resulting from his displacement to a less remunerative position or occupation. If a payment is made by an employer with respect to a personal injury and includes pay for time lost, the total payment shall be deemed to be paid for time lost unless, at the time of payment, a part of such payment is specifically apportioned to factors other than time lost, in which event only such part of the payment as is not so apportioned shall be deemed to be paid for time lost. Compensation earned in any calendar month before 1947 shall be deemed paid in such month regardless of whether or when payment will have been in fact made, and compensation earned in any calendar year after 1946 but paid after the end of such calendar year shall be deemed to be compensation paid in the calendar year in which it will have been earned if it is so reported by the employer before February 1 of the next succeeding calendar year or, if the employee establishes, subject to the provisions of section 8, the period during which such compensation will have been earned. In determining the monthly compensation, the average monthly remuneration, and quarters of coverage of any employee, there shall be attributable as compensation paid to him in each calendar month in which he is in military service creditable under section 4 the amount of $160 in addition to the compensation, if any, paid to him with respect to such month. Compensation for service as a delegate to a national or international convention of a railway labor organization defined as an "employer" in subsection (a) of this section shall be disregarded for purposes of determining eligibility for and the amount of benefits pursuant to this Act if the individual rendering such service has not previously rendered service, other than as such a delegate, which may be included In his "years of service." (Section 1(h) of the act.)

In computing the monthly compensation, no part of any month's compensation

in excess of $300 for any month before July 1, 1954, or in excess of $350 for any month after June 30, 1954, and before the calendar month [June 1959] next following the month in which this Act was amended in 1959 May 1959], or in excess of $400 for any month after the month in which this Act was so amended and before the calendar month [November 1963] next following the month in which this Act was amended in 1963 [October 1963], or in excess of $450 for any month after the month in which this Act was so amended, shall be recognized. If the employee earned compensation in service after June 30, 1937, and after the last day of the calendar year in which he attained age sixty-five, such compensation and service shall be disregarded in computing the monthly compensation if the result of taking such compensation into account in such computation would be to diminish his annuity. If the "monthly compensation" computed under this subsection is not a multiple of $1, it shall be rounded to the next lower multiple of $1. (Section 3 (c) of the act) [Board Order 60-2, 25 F.R. 594, Jan. 23, 1960; 25 F.R. 1074, Feb. 6, 1960, as amended by Board Order 64-105, 29 F.R. 11916, Aug. 20, 1964]

§ 222.2 Definition of compensation.

(a) Compensation paid for services performed. Compensation shall mean the amount an individual is paid for service performed as an employee and shall include amounts paid in the form of a commodity, services, or privilege, only if the employer and employee, before the performance of the service for which it is payment have agreed (1) upon the value of such commodity, service, or privilege, and (2) that such part of the amount agreed upon to be paid may be paid in the form of such commodity, service, or privilege. Compensation shall also include allowances in lieu of vacation.

(b) Remuneration paid for time lost. Compensation shall also include amounts paid by an employer to an individual for time lost during which time the individual was absent from the active service of the employer. An employee shall be deemed to be paid "for time lost" whenever any such amount is paid to him by an employer (1) with respect to an identifiable period of absence from the active service of the employer, including absence on account of personal injury, or (2) for loss of earnings with respect to an identifiable period, resulting from his displacement to a less remunerative position or occupation. The entire amount of a payment made with respect to a personal injury shall be deemed to be remuneration paid for time lost pro

vided such an amount includes pay for time lost and is not, at the time of payment, specifically apportioned to factors other than time lost. In any case where an amount paid with respect to personal injury is, at the time of payment, apportioned to factors other than time lost, only that part of the amount not so apportioned shall be deemed to be remuneration paid for time lost.

(c) Waiver or refund of organization dues. A waiver or refund of organization dues, in ail cases in which the amount waived or refunded does not include elements in addition to the consideration for membership in the organization (such as, for example, insurance payments), even though motivated by the rendition of valuable services on the part of the individual to the organization, does not constitute compensation unless it appears by affirmative evidence that such waiver or refund was intended to be and was accepted as a discharge of an obligation of the organization to compensate the individual for service rendered.

[Board Order 47-1, 12 F.R. 466, Jan. 28, 1947, as amended by Board Order 51-130, 16 F.R. 4827, May 24, 1951]

§ 222.3

Creditability of compensation.

(a) Maximum creditable compensation for one month. In no case shall compensation in excess of $300 for any month of service before July 1, 1954, or in excess of $350 for any month of service after June 30, 1954, and before June 1, 1959, or in excess of $400 for any month of service after May 31, 1959, and before November 1, 1963, or in excess of $450 for any month of service after October 31, 1963, be recognized.

(b) Compensation dependent upon creditability of service. All compensation paid to an individual for service creditable in accordance with § 220.3 of this chapter, including compensation received for service performed after age 65, or after the beginning date of an annuity, shall be credited: Provided, however, That the crediting of such compensation shall be limited as prescribed in paragraph (a) of this section: Provided further, That if the individual earned compensation in service after June 30, 1937, and after the calendar year in which he attained age 65, such compensation shall be disregarded in computing the monthly compensation if the result of taking such compensation into account in such computation would be to

diminish his annuity: And provided further, That if the monthly compensation based on compensation creditable under this section and as determined on or after September 6, 1958, under § 225.3 of this chapter is not a multiple of $1, it shall be rounded to the next lower multiple of $1.

(c) Employee representative compensation. (1) If an individual occupies the position or office of employee representative as defined in section 1 (b) of the 1937 act and is paid remuneration in that position or office, all such remuneration is paid for services rendered as an employee representative within the meaning of section 1 (h) of the act, even though the individual performs either in connection with or outside of that position or office some services which are not related to the representation of employees in negotiations with employers regarding wages, hours, working conditions, etc. However, any other remuneration which the individual receives is not paid for service rendered as an employee representative within the meaning of section 1 (h).

(2) If an individual does not occupy the position or office of employee representative and is paid remuneration in another position or office, none of such remuneration is paid for services rendered as an employee representative within the meaning of section 1 (h) of the 1937 act, even though the individual performs either in connection with or outside of the non-employee representative position some services which are related to the representation of employees in negotiations with employers regarding wages, hours, working conditions, etc. Likewise, if the individual does occupy the position or office of employee representative in addition to his other position or office, but is paid remuneration only in the non-employee representative position or office or for services not related to the representation of employees in negotiations with employers, none of such remuneration is paid for service rendered as an employee representative within the meaning of section 1 (h).

(d) Compensation earned after December 31, 1936, for service rendered to a local lodge or division. Compensation earned in any month after December 31, 1936, for service rendered to a local lodge or division of a railway-labororganization employer shall be disre

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