Page images
PDF
EPUB

(ii) any street, interurban, or suburban electric railway, unless such railuray is operating as a part of a general diesel-railroad system of transportation, but shall not exclude any part of the general diesel-railroad system of transportation now or hereafter operated by any other motire power. The Interstate Commerce Commission is hereby authorized and directed upon request of the Board, or upon complaint of any party interested, to determine after hearing whether any line operated by electric power falls

urithin the terms of this paragraph. (0) (1) The term "employee" means (i) any individual in the service of one or more employers for compensation, (ii) any individual trho is in the employment relation to one or more employers, and (iii) an employee re presentative: Provided, however, that the term "employee" shall include an employee of a local lodge or division defined as an employer in subsection (a) only if he was in the service of or in the employment relation to an employer as defined in paragraph (i) of subsection (a) (1) on or after August 29, 1935.

(2) The term "employee" shall not include any individual while such indiridual 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.

(c) The term "employee representative" means any official representatire of a railway labor organization other than a labor organization included in the term "employer" as defined in subsection (a) who before or after August 29, 1935, was in the service of an employer as defined in subsection (a) and who is duly authorized and designated to re present employees in accordance with the Railway Labor Act, 18 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.

(d)(1) An individual is in the service of an employer whether his serrice is rendered within or without the United States if

(i)(A) he is subject to the continuing authority of the employer to supervise and direct the manner of rendition of his service. or (B) he is rendering professional or technical services and is integrated into the staff of the employer, or (C) he is rendering, on the property used in the employer's operations, personal servires the rendition of which is integrated into the employer's operations; and

(i) he renders such service for compensation, or a method of computing the monthly compensation for such service is provided

in section 3(i). (?) Notirithstanding the provisions of subdivision (1) of this subsection

(i) 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 rail ray-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;

40-239 (Pt. 2) O - 74 - 10

(ii) an individual shall be deemed to be in the service of a local lodge or division of a railway-labor-organization employer not conducting the principal part of its business in the United States only if (A) 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 (B) the headquarters of such local lodge or division is located in the United States; and

(iii) an individual shall be deemed to be in the service of a general committee of a railway-labor-organization employer not conducting the principal part of its business in the United States only if (Ă) he is representing a local lodge or division described in clause (A) or (B) of paragraph (ii); or (B) all, or substantially all, the individuals represented by such general committee are employees of an employer conducting the principal part of its business in the United States; or (C) 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 individwals 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 compensa

tion 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. (3) Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, 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. For purposes of this subdivision, 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.

(e) (1) An individual shall be deemed to have been in the employment relation to an employer on August 29, 1935, 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;

(ii) he was in the service of an employer after August 29, 1935, and before January 1946 in each of six calendar months, whether or not consecutive;

(ii) before August 29, 1935, 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 August 29, 1935, to be in the service of such employer and therefore 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 August 29, 1935, or an employer who is its successor did not on or after August 29, 1935, 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 siw calendar months as provided in paragraph (ii); or

(iv) he was on August 29, 1935, 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. (2) Notwithstanding the provisions of subdivision (1) of this subsection, an individual shall not be deemed to have been in the employment relation to an employer on August 29, 1935, if before that date he tras granted a pension or gratuity on the basis of which a pension was awarded to him pursuant to section 6 of the Railroad Retirement Act of 1937, or if during the last payroll period before August 29, 1935, in which he rendered service to an employer he was not in the service of an employer, in accordance with subsection (d), with respect to any service in such payroll 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 August 29, 1935, in the service of a local lodge or dirision defined as an employer in subsection (a).

(1) (1) The term "years of service" shall mean the number of years an individual as an emplovee shall have rendered service to one or more em plovers for compensation or received renumeration for time lost, and shall be computed in accordance with the provisions of section 3(i). Twelve calendar months, consecutive or otherwise, in each of arhich an emplovee has rendered such service or received such wages for time lost, shall constitute a vear of service. Ultimate fractions shall be taken at their actual rahue, except that if the individual will have had not than one hundred twenty-six months of service, an ultimate fraction of six months or more shall be taken as one year.

(2) Where service prior to August 29, 1935, may be included in the com pitation of wears of servire as provided in subdivision (3) of section 3(i), it may be included as to

(i) verrice rendered to a person which was an employer on August 29. 1935, irrespective of whether such person was an emplover at the time such service was rendered;

(ii) service rendered to any express company, sleeping-car company, or carrier bu railroad which was a predecessor of a company which. on August 29, 1935, was an employer as defined in paragraph (i) of subsection (a) (1), irrespectire of whether such predecessor was an employer at the time such service was rendered ; and

(iii) service rendered to a person not an employer in the performance of operations involving the use of standard railroad equipment if such operations were performed by an employer on

August 29, 1935. (g)(i) For purposes of section 3(i) (2) of this Act, an individual shall be deemed to have been in "military servicewhen commissioned or enrolled in the active service of the land or naval forces of the United States and until resignation or discharge there from; and the service of any individual in any reserve component of the land or naval forces of the United States, while serving in the land or naval forces of the United States for any period, even though less than thirty days, shall be deemed to have been active service in such force during such period.

(2) For purposes of section 3(i) (2) of this Act, a war service periodshall mean (A) any war period, or (B) with respect to any particular individual, any period during which such individual (3) having been in military service at the end of a war period, was required to continue in military service, or (ii) was required by call of the President, or by any Act of Congress or regulation, order, or proclamation pursuant thereto, to enter and continue in military service, or (C) any period after September 7, 1939, with respect to which a state of national emergency was duly declared to exist which requires a strengthening of the national defense.

(3) For purposes of section 3(i) (2) of this Act, a "war period" shall be deemed to have begun on whichever of the following dates is the earliest: (A) the date on which the Congress of the United States declared war; or (B) the date as of which the Congress of the United States declared that a state of war has existed; or (C) the date on which war was declared by one or more foreign states against the United States; or (D) the date on which any part of the United States or any territory under its jurisdiction was invaded or attacked by any armed force of one or more foreign states; or (E) the date on which the l'nited States engaged in armed hostilities for the purpose of preserving the Union or of maintaining in any State of the Union a republican form of government.

(4) For purposes of section 3(;) (2) of this Art, a "rar periodshall be deemed to have ended on the date on which hostilities ceased.

(h) (1) 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. A payment made by an employer to an individual through the employer's payroll shall be presumed, in the absence of evidence to the contrary, to be compensation for service rendered by such indiridual as an employee of the employer in the period with respect to which the payment is made. C'ompensation earned in any calendar month before 1947 shall be deemed paid in such month regardless of whether or inhen payment will hare been in fact made, and compensation earned in any calendar year after 1946 but paid after the end of

Employer ayment madeemed carnen

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 9, the period during which such compensation will have been earned.

(2) An employee shall be deemed to be paid "for time lostthe 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 lexx 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.

(3) Solely for purposes of determining amounts to be included in the compensation of an employee, the term "compensation" shall also include cash tips receired by an employee in any calendar month in the course of his employment by an employer unless the amount of such cash tips is less than $20.

(4) Tips included as compensation by reason of the provisions of subdivision (3) shall be deemed to be paid at the time a written statement including such tips is furnished to the employer pursuant to section 6053(a) of the Internal Revenue Code of 1954 or, if no statement including such tips is 80 furnished, at the time received. Tips 80 deemed to be paid in any month shall be deemed paid for services rendered in such month.

(5) In determining compensation, there shall be attributable as compensation paid to an employee in calendar months in which he is in military service creditable under section 3(i)(2), in addition to any other compensation paid to him with respect to such months.

(i) for each such calendar month prior to 1968, $160;

(ü) for each such calendar month after 1967 and prior to 1975, $260; and

(ii) for each such calendar month after 1974, the amount which is creditable as such individual's "wages" under the third para

graph of section 209 of the Social Security Act. (6) Votuithstanding the provisions of the preceding subdivisions of this subsection, the term compensation" shall not include

(i) tips, except as is prorided under subdivision (3) of this subsection;

(ii) 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;

(iii) remuneration for service which is performed by a nonresident alien individual for the period he is temporarily present in the United States as a nonimmigrant under sub paragraph (F) or (J) of section 101 (a) (15) of the Immigration and Nationality Act, as amended, and which is performed to carry out the purpose specified in subparagraph (F) or (J), as the case may be;

« PreviousContinue »