DISSENTING OPINION OF
V. M. SPEAKMAN, JR.
Claims for Retroactive Employee Service Credit

For the reasons stated in my dissent in BCD 05-21, (Employee Service Determination on Reconsideration of L.P.), I must also dissent in this case. It is clear from that decision, from BCD 05-17 (Employee Service Determination of G.S. et. al.), and now from this case, that the DeQueen and Eastern Railway (DQE) and its parent corporation, Weyerhaeuser Company, had a policy of carrying employees of DQE on -Weyerhaeuser’s payroll. Whether this was done intentionally to avoid railroad retirement costs, or was simply an innocent mistake, is not clear since Weyerhaeuser/DQE has never been required to answer the affected employees’ allegations. If the employees can establish that Weyerhaeuser/DQE willfully failed to file reports of compensation under the Railroad Retirement Act, they can receive credit for service under that Act, beyond the 4-year limitation set forth in the Majority’s decision.

In 2003, BB and KN protested their BA-6’s (Certificates of Service and Compensation) and alleged that service from 1973 to 1983 with the DQE was still not reflected after their repeated attempts to get their employer, the DQE, to make the necessary corrections. Their protest was denied and was dismissed by a hearings officer without a hearing.

With respect to BB, in his submission to the Bureau of Hearings and Appeals (BHA), he indicated that in 1973 he accepted a position as “a car accountant” for Weyerhaeuser’s wholly owned subsidiary, DQE. He was initially put on railroad retirement but after 2 days on the job was told that HR was “doing me a favor” and that he was to be removed from the railroad payroll and put back on the payroll of Weyerhaeuser while remaining an employee of DQE. This situation continued until 1984 when he was moved to DeQueen, Arkansas, and placed on DQE’s payroll and thus under railroad retirement.

With respect to KN, the allegations are similar. In the information she submitted to BHA, she indicated that commencing February 1975 she was hired by Weyerhaeuser to do cost accounting for the DQE. However, she was carried on the Weyerhaeuser payroll until 1984 when, like BB, she was transferred to the DQE payroll. She, like BB, alleges that at that time she requested that Weyerhaeuser correct her employment records to reflect railroad retirement coverage from 1975. Weyerhaeuser and DQE have more or less put her off.

These allegations in and of themselves do not establish fraud under Section 211.16 (b)(1) of our regulations, but they do beg for some explanation from Weyerhaeuser/DQE as to why they switched these individuals to railroad retirement in 1984 when they allegedly had been doing the same job since 1973.

As I stated in my dissent in BCD 05-21, an examiner should be appointed under part 258 of our regulations to make recommended findings in these appeals. Such an examiner would have subpoena power and the ability to take testimony from the employees, Weyerhaeuser and DQE and weigh the credibility of the witnesses. The power to take testimony and cross-examine witnesses would lead to a more complete record upon which the Board could make a determination.

The closest precedent we can look to is In re Chandler, Appeal Docket No. C1-AP-0025, decided July 27, 2001, in which the Board, Management Member dissenting, held that under the facts presented, inaction by the employee in protesting his Certificate of Service and Compensation, did not necessarily bar correcting his record of compensation beyond the 4-year period, if fraud under Section 211.16(b)(1) is shown. In that case, the Board reached its decision based upon a record developed by a hearings officer.

Just as Chandler, these employees should also be given an opportunity to make their case before a hearings officer.

V. M. Speakman, Jr