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of such decision, together with the out requiring such power of attorney the Board's findings of fact and conclusions Board may recognize as the duly auof law in connection therewith, shall, thorized representative of the claimant within 15 days from the date on which the person designated by the claimant's the decision is made, be mailed to the railway labor organization to act in beparties at the latest addresses furnished half of members of that organization on by them. Subject only to judicial review such matters whenever such representain accordance with § 320.45, the decision tive acts or appears for such claimant. of the Board shall be final and conclu

§ 320.50 Adjudicating office. sive for all purposes: (a) With respect to the initial de

As used in this part the term "adjuditermination involved, and

cating office" means any subordinate unit

of the Board which may be authorized (b) With respect to other initial de

to make initial determinations with reterminations, irrespective of whether

gard to applications and claims for benethey have been appealed, which (1) de

fits under the Act. nied in whole or in part claims made by the same claimant in the same benefit

(Board Order 66–84, 31 F.R. 10181, July 28,

1966) year and (2) were based on the same issue or issues determined in the decision of the Board. In a case in which there

PART 322—REMUNERATION has been a referee's report, in an appeal

Sec. involving employee status or the credit

322.1 Statutory provisions.

322.2 General definition of "remuneration". ability of compensation, the decision of

322.3 Determining the days with respect to the Board upon all issues determined in

which remuneration is payable or such decision shall be final and conclusive

accrues. for all purposes and shall conclusively 322.4 Consideration of evidence. establish all rights and obligations, 322.5 Payments under vacation agreements. arising under the Act, of every party

322.6 Pay for time lost. notified as hereinabove provided of his 322.7 Allowances resulting from abandonright to participate in the proceedings.

ment or coordination of employer

facilities. (Board Order 66–84, 31 F.R. 10181, July 28,

322.8 Miscellaneous income. 1966)

AUTHORITY: The provisions of this part & 320.45 Judicial review.

322 issued under sec. 12, 52 Stat. 1107, as Upon being notified of a decision of amended; 45 U.S.C. 362. the Board made (a) upon review, on the SOURCE: The provisions of this Part 322 Board's own motion, of a decision of a contained in Board Order 69–73, 24 F.R. referee, or (b) upon an appeal to the 2487, Mar. 31, 1959, unless otherwise noted. Board, the party may obtain judicial re

$ 322.1 Statutory provisions. view of such final decision, by filing a etition for review within ninety days

Subject to the provisions of section 4 of after the date on which notice of such

this act, (1) a day of unemployment, with decision was mailed to him, or within

respect to any employee, means a calendar

day * * with respect to which * such further time as the Board may al- remuneration is payable or accrues to low, in the United States court of appeals him * * *; and (2) a “day of sickness”, with for the circuit in which the party resides respect to any employee, means a calendar or will have had his principal place of

* * with respect to which * * no business or principal executive office, or

remuneration is payable or accrues to in the United States Court of Appeals

him * * * Provided, however, That “subsidfor the Seventh Circuit or in the Court

iary remuneration", as hereinafter defined

in this subsection, shall not be considered reof Appeals for the District of Columbia.

muneration for the purpose of this subsec$ 320.48 Representatives of parties.

tion except with respect to an employee

whose base-year compensation, exclusive of In the event a party to any proceeding earnings from the position or occupation in within the Board, under the preceding which he earned such subsidiary remuneraregulations in this part, desires to be tion, is less than $1,000 * represented by another person, he shall For the purpose of this subsection, the file with the Board prior to the time of

term "subsidiary remuneration" means, with such representation a power of attorney

respect to any employee, remuneration not

in excess of an average of three dollars a day signed by him and naming such other

for the period with respect to which such person as the person authorized to repre- remuneration is payable or accrues, if the sent him: Provided, however, That with- work from which the remuneration is derived

*

# no

day .

(1) requires substantially less than full time as determined by generally prevailing standards, and (ii) is susceptible of performance at such times and under such circumstances as not to be inconsistent with the holding of normal full-time employment in another occupation. (Section 1(k), Railroad Unemployment Insurance Act.)

The term “compensation" means any form of money remuneration, including pay for time lost but excluding tips, paid for services rendered as an employee to one or more employers, or as an employee representative ... 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 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. I a payment 1s 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. • (Section 1(1), Railroad Unemployment Insurance Act.)

The term "remuneration" means pay for services for hire, including pay for time lost, and tips, but pay for time lost shall be deemed earned on the day on which such time is lost. The term "remuneration" in. cludes also earned income other than for services for hire if the accrual thereof in whole or in part is ascertainable with respect to a particular day or particular days. The term "remuneration” does not include (1) the voluntary payment by another, without deduction from the pay of an employee, of any tax or contribution now or hereafter imposed with respect to the remuneration of such employee, or (11) any money payments received pursuant to any nongovernmental plan for unemployment insurance, maternity insurance, or sickness insurance. (Section 1(1), Railroad Unemployment Insurance Act.) {Board Order 69–73, 24 F.R. 2487, Mar. 31, 1959, as amended by Board Order 59–199, 24 F.R. 9478, Nov. 25, 1959; Board Order 68–72, 33 F.R. 11114, Aug. 6, 1968] 8 322.2 General definition of "remuner

ation”. "Remuneration" includes all pay for services for hire and all other earned income payable or accruing with respect to any day. Income shall be deemed

earned if it is payable or accrues in consideration of services and if such services were in turn rendered in consideration of the income payable or accruing. “Remuneration" shall include income in the form of a commodity, service, or privilege if, before the performance of the service for which it is payment, the parties have agreed (a) upon the value of such commodity, service, or privilege, and (b) that such part of the amount agreed upon to be paid may be paid in the form of such commodity, service, or privilege. § 322.3 Determining the days with re

spect to which remuneration is pay.

able or accrues. (a) Payable or accrues. In determining whether remuneration is "payable" or "accrues” to an employee with respect to a claimed day or days, consideration shall be given to such factors as (1) the intention of the parties with respect to the remuneration as indicated in employment contracts, in any expressed or implied agreements between the parties, and by the actions of the parties; (2) any evidence, such as vouchers or agreement of the parties, relating the remuneration to a particular period of time or indicating that the remuneration accrued or became payable without reference to any particular period of time; (3) the measure by which the amount of remuneration was determined; (4) whether the amount of the remuneration is proportionate to the length of time needed to render the service for which it is payment; (5) whether the service for which the remuneration accrues is required to be rendered on any particular day or particular days; and (6) whether a specified amount of the remuneration is contingent upon a result accomplished on a particular day or particular days.

(b) Layover days. Remuneration shall not be regarded as payable or accruing with respect to "layover" days, solely because they are termed "layover" days.

(c) Guaranteed earnings. A payment under a plan which guarantees an amount of earnings or mileage in a specified period is remuneration with respect to each day in the specified period. § 322.4 Consideration of evidence.

(a) Initial proof. A claimant's certification or statement on a claim form provided by the Board to the effect that

re

he did not work on any day claimed and death, or after he ceased service for the did not receive income such as vacation purpose of receiving an annuity, and the pay or pay for time lost for any day payment is credited to the employee's claimed on such form shall constitute last day of service in accordance with sufficient evidence that no remuneration $ 222.3(h) of this chapter; or (3) it is is payable or has accrued to him with re- otherwise established that the parties spect to such day, unless there is con- intended the payment to be in lieu of vaflicting evidence.

cation, without reference to any par(b) Investigation. When there is a ticular period. question as to whether or not remunera

322.6 Pay for time lost. tion is payable or has accrued to a claim

(a) Payments included. A payment ant with respect to a claimed day or days, investigation shall be made with a view

shall be regarded as “pay for time lost" to obtaining information suficient for a

if it is made with respect to an identifi

able period of absence from the active finding.

service of the person or company making § 322.5 Payments under vacation agree- such payment, including absence on acments.

count of personal injury. The entire (a) General. In ascertaining the ac

amount of a payment made by an emcrual of remuneration under a vacation

ployer with respect to a personal injury agreement, consideration shall be given

shall be deemed to be pay for time lost to the applicable agreements and prac

if such amount includes pay for time

lost and is not, at the time of payment, tices, the interpretations of such agreements and practices developed by the

specifically apportioned to factors other parties, and the actions of the parties

than time lost. If an amount paid with pursuant thereto. When there is infor

respect to personal injury is, at the time mation that an employee has received or

of payment, apportioned to factors other is to receive payment under a vacation

than time lost, only that part of the agreement, such payment shall, in the

amount not so apportioned shall be absence of evidence to the contrary, be

deemed to be pay for time lost. considered to be remuneration with re

(b) Employment relationship spect to the days to which the payment

quired. Pay for time lost shall not be is assigned

deemed to have been earned on any day (b) Vacation pay. If an employee

after the day of the employee's resignatakes a vacation in accordance with a

tion or other termination of his employvacation agreement, the payment for

ment relationship. such vacation shall constitute remunera

(c) Initial evidence. A report that an

employee has received or is to receive tion with respect to the days in the vacation period for which the payment is

pay for time lost shall, in the absence made. An employee shall be regarded as

of evidence to the contrary, be consid

ered sufficient for a finaing that remutaking a vacation when, in accordance with the applicable agreements and prac

neration is payable with respect to each tices (1) he is absent from work during

day in the period to which the pay is a scheduled or assigned vacation period;

assigned. (2) he is required to take his vacation § 322.7 Allowances resulting from abanwith pay while he is on furlough; or (3)

donment or coordination of emhe chooses to take his vacation with pay ployer facilities. while he is unemployed or absent from (a) Coordination or dismissal allowwork due to illness or other personal cir- ance. A coordination or dismissal allowcumstances.

ance, payable to an employee who is un(c) Pay in lieu of vacation. If a pay- employed as a result of an abandonment ment in lieu of vacation is made to an or coordination, but who does not sever employee under a vacation agreement his employment relationship and who such payment shall not constitute remu- remains subject to call, is remuneration neration with respect to any particular with respect to each day in the period day or days. A payment under a vaca- for which the allowance is paid. tion agreement shall be regarded as in (b) Separation allowance.

A sepalieu of vacation if (1) the payment is ration allowance, payable to an employee made at the end of the vacation year to who, in accordance with the applicable an employee who did not take his vaca- agreement, elects to sever his employtion during such year; or (2) the ment relationship and receive a lumppayment is made after the employee's sum settlement in lieu of a coordination allowance is not remuneration with re- be inconsistent with the holding of spect to any day after the employment normal full-time employment in another relationship is severed.

occupation.

(f) Public relief payments. Public § 322.8 Miscellaneous income.

relief payments made in consideration (a) Income from self-employment. of need shall not be regarded as remuIn determining whether income from neration. self-employment is remuneration with respect to a particular day or particular

PART 325_REGISTRATION AND days, consideration shall be given to

CLAIMS FOR BENEFITS whether, and to what extent, (1) such

Sec. income can be related to services per

325.1 Statutory provisions. formed on the day or days and (2) the

325.5 Claim and withdrawal of claim. expenses of the self-employment can be

325.11 Designation of unemployment claims attributed to the day or days. Income

agents and free employment offices. from services performed by an individual 325.12 Registration. on a farm which he owns or rents, or in

325.13 Applications for unemployment benhis own mercantile establishment, ordi

efits and employment service.

325.15 Signature of claims agent. narily is not remuneration with respect

325.18 Registration in Alaska. to any day.

325.25 Registration period. (b) Income from investment. Income 325.50 Lost or destroyed forms. in the form of interest, dividends, and

AUTHORITY: The provisions of this part other returns on invested capital which

325 issued under sec. 12, 52 Stat. 1107, as is not coupled with the rendition of per

amended; 45 U.S.C. 362. sonal services shall not be regarded as remuneration.

§ 325.1 Statutory provisions. (c) Commissions on sales. Commis- Section 12(1) of the Railroad Unemsions on sales shall be regarded as re- ployment Insurance Act (as amended) muneration with respect to the day or provides that: days on which sales are made.

The Board shall prescribe a proce(d) Payments for service as a public dure for registration of unemployed emofficial. In determining whether income ployees at employment offices.

Such profor service as a public official is remuner

cedure for registration shall be prescribed ation and, if so, the particular day or

with a view to such registration affording days with respect to which such remu

substantial evidence of the days of unem

ployment of the employees who register. The neration is payable or accrues, consider

Board may, when such registration is made ation shall be given to such factors as (1)

personally by an employee, accept such regthe amount of the income; (2) the terms istration as initial proof of unemployment and conditions of payment; (3) the sufficient to certify for payment a claim for character and extent of the services benefits. rendered; (4) the importance, prestige,

Section 1(k) of the Railroad Unemand responsibilities attached to the posi

ployment Insurance Act (as amended) tion; (5) the day or days on which

provides that: services, or readiness to perform services, are required; and (6) the provisions of

a day of unemployment, with re

spect to any employee, means a calendar the applicable statutes.

day on which he is able to work and is avail(e) Payments to local lodge officials. able for work and with respect to which (1) A payment by a local lodge of a labor no remuneration is payable or accrues to organization to an employee for services him, and (11) he has, in accordance with as a local lodge official shall be re

such regulations as the Board may prescribe,

registered at an employment ofice * garded as subsidiary remuneration if

Provided, however, That "subsidiary remusuch payment does not exceed an aver- neration" as * . * defined .. shall not age of three dollars a day for the period be considered remuneration for the purpose with respect to which it is payable or

of this subsection except with respect to an

employee whose base-year compensation, exaccrues, unless there is information that

clusive of earnings from the position or octhe work from which the payment is cupation in which he earned such subsidiary derived does not require substantially remuneration, is less than $1,000: Provided, less than full time as determined by

further, That remuneration for a working

day which includes a part of each of 2 generally prevailing standards, or is not

consecutive calendar days shall be deemed susceptible of performance at such times to have been earned on the first of such 2 and under such circumstances as not to days, and any individual who takes work for

such working day shall not by reason thereof be deemed not available for work on the second of such calendar days: Provided, further, That any calendar day on which no remuneration is payble to or accrues to an employee solely because of the application to him of mileage or work restrictions agreed upon in schedule agreements between employers and employees or solely because he is standing by for or laying over between regularly assigned trips or tours of duty shall not be considered * * * a day of unemployment *

Section 1 (h) of the Railroad Unemployment Insurance Act, as amended, provides that:

(h) The term “registration period" means, with respect to any employee, the period which begins with the first day for which such employee registers at an employment office in accordance with such regulations as the Board may prescribe, and ends with whichever is the earlier of (1) the thirteenth day thereafter, or (11) the day immediately preceding the day for which he next registers at a different employment office; and thereafter each period which begins with the first day for which he next registers at an employment office after the end of his last preceding registration period which began with a day for which he registered at an employment ofice and ends with whichever is the earlier of (1) the thirteenth day thereafter, or (ii) the day immediately preceding the day for which he next registers at a different employment office.

Section 2(c) of the Railroad Unemployment Insurance Act, as amended, provides that:

* with respect to an employee who has 10 or more years of service as defined in section 1(f) of the Railroad Retirement Act of 1937, who did not voluntarily retire and (in a case involving exhaustion of rights to benefits for days of unemployment) did not voluntarily leave work without good cause, and who had current rights to normal benefits for days of unemployment or days of sickness in a benefit year but has exhausted such rights, the benefit year in which such rights are exhausted shall be deemed not to be ended until the last day of the extended benefit period determined under the following schedule, and the maximum number of days of, and amount of payment for, unemployment or sickness (depending on the type of benefit rights exhausted) within such benefit year for which benefits may be paid to the employee shall be enlarged to include all compensable days of unemployment or days of sickness, as the case may be, within such extended benefit period: but no such extended benefit period shall extend beyond the beginning of the first registration period in a benefit year in which the employee is again qualified for benefits in accordance with section 3 of this Act on the basis of compensation earned after the first of such successive 14-day periods has

begun. *

The extended benefit period shall begin on the first

day of unemployment or sickness, as the case may be, following the day on which the employee exhausted his then current rights to normal benefits for days of unemployment or days of sickness and shall continue for successive 14-day periods (each of which periods shall constitute a registration period) until the number of such 14-day periods totals 7 (but not more than 65 days). 13.

If the employee's "years of service"

total10 and less than 15. 15 and over.

Section 303(b) of Public Law 86–28,

ment benefits under the Railroad Unemploy73 Stat. 31, provides that:

ment Insurance Act . An employee who has less than ten years

Section 2 of the Temporary Extended of service as defined in section 1(f) of the

Railroad Unemployment Insurance BenRailroad Retirement Act of 1937, and who

efits Act of 1961 provides that: has after ne 30, 1957, and before April 1, An employee as defined in the Railroad 1959, exhausted (within the meaning pre- Unemployment Insurance Act who has, after scribed by the Railroad Retirement Board June 30, 1960, and before April 1, 1962, exby regulation) his rights to unemployment

hausted (within the meaning prescribed by benefits, shall be paid unemployment bene

the Railroad Retirement Board by regulafits for days of unemployment, not exceeding

tion) his right to unemployment benefits

under the Railroad Unemployment Insursixty-five, which occur in registration periods

ance Act, shall be paid unemployment benebeginning on or after June 19, 1958, and

fits in accordance otherwise with the probefore July 1, 1959, and which would not visions of such Act for days of unemploybe days with respect to which he would be ment, not exceeding sixty-five, and not exheld entitled otherwise to receive unemploy- ceeding in the aggregate, an amount equal

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