| This is the decision of
the Railroad Retirement Board with regard
to the coverage of Genesee & Wyoming,
Inc. (GWI) under the Railroad Retirement
Act (45 U.S.C. §231 et seq.) (RRA)
and the Railroad Unemployment Insurance
Act (45 U.S.C. §351 et seq.) (RUIA).
According to information supplied by Shayne
L. Magdoff, Senior Vice-President –Administration
and Human Resources, GWI was incorporated
in 1977. GWI is a publicly held company
that is a holding company that owns or controls
several railroad carriers. GWI states that
it has no employees and performs no services
for its subsidiary railroads. According
to the record before the Board, subsidiary
railroad carriers include the Illinois &
Midland Railroad, Inc. (BA 2366), the Buffalo
& Pittsburgh Railroad, Inc. (BA 2249),
the Rochester & Southern Railroad, Inc.
(BA 2247), and the Portland & Western
Railroad, Inc. (BA 2776).
Section 1(a)(1) of the Railroad Retirement
Act (RRA) (45 U.S.C. 231(a)(1)), insofar
as relevant here, defines a covered employer
as:
(i) any carrier by railroad subject to
the jurisdiction of the Surface Transportation
Board under part A of subtitle IV of title
49, United States Code;
(ii) any company which is directly or
indirectly owned or controlled by, or under
common control with, one or more employers
as defined in paragraph (i) of this subdivision,
and which operates any equipment or facility
or performs any service (except trucking
service, casual service, and the casual
operation of equipment or facilities) in
connection with the transportation of passengers
or property by railroad * * *.
Sections 1(a) and 1(b) of the Railroad
Unemployment Insurance Act (RUIA), 45 U.S.C.
351(a) and (b), contain substantially similar
definitions, as does section 3231 of the
Railroad Retirement Tax Act (RRTA), 26 U.S.C.
3231.
GWI is clearly not a carrier by rail. Whether
GWI is covered as a rail carrier affiliate
depends in the first instance on whether
it is under common control with a rail carrier.
A decision of the United States Court of
Appeals for the Federal Circuit regarding
a claim for refund of taxes under the Railroad
Retirement Tax Act held that a parent corporation
which owns a rail carrier subsidiary is
not under common control with the subsidiary
within the meaning of section 3231 of that
Act. Union Pacific Corporation v. United
States, 5 F.3d 523 (Fed Cir. 1993). A majority
of the Board finds that as defined by the
Union Pacific case, GWI as the corporate
parent of its rail carrier subsidiaries
is not under common control with those subsidiaries.
Therefore, regardless of whether or not
it performs any service for those railroad
subsidiaries, a majority of the Board finds
that it could not be found to be a covered
employer under the Acts.
GWI is not an employer subject to the Acts
administered by the Board.
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