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This is the decision of the Railroad
Retirement Board regarding whether the services
performed by the above-listed retired police
officers formerly employed by the Metropolitan
Transportation Authority (MTA) constituted
employee service under the Railroad Retirement
and Railroad Unemployment Insurance Acts.
The MTA is not a covered employer under the
Railroad Retirement and Railroad Unemployment
Insurance Acts. It operates through a number of
subsidiary agencies, two of which are covered
employers under the Acts: Long Island Rail Road
Company (LIRR) (B.A. No. 1311) and Metro-North
Commuter Railroad (B.A. No. 3345). In 1997,
legislation was enacted providing for the
creation of a MTA police department and the
establishment of a traditional police pension
for the MTA police officers. Police employees of
Long Island Rail Road and Metro-North were hired
by the new MTA Police Department. On May 21,
1998, the Railroad Retirement Board ruled that
the police officers transferred to the MTA
Police Department were not covered under the
Acts.
The above-listed individuals have submitted
information to the effect that after they were
transferred from the railroad for which they
worked to the MTA, their duties and job location
generally did not change.
The individuals provided the following
information, however, which a majority of the
Board believes to be determinative of the
ultimate issue in this case.
DJH states that he was “Assigned by MTA Police
supervisors to patrol LIRR East New York
Station” and that he was “Supervised by MTA
Police supervisors and managers who in turn
serviced the police and security needs as
determined by LIRR officials.”
MH stated that “At Ronkonkoma Headquarters,
police officers were dispatched by MTA superiors
to various locations. When they arrive at that
location, LIRR managers would tell us what they
need * * *.”
TN stated that he “was assigned the same work
every day as an Operational Support Sergeant by
my MTA managers who coordinated with LIRR for
their police needs” and that after he “became a
MTA Police Office, [he] worked [only] at 341
Madison Avenue which was not a LIRR location.”
BR stated that “As a MTA police officer my work
was assigned by my supervisor. My work location
was determined by my seniority. The LIRR did not
assign or approve police officer work” and “As a
MTA police officer, I was supervised by a MTA
police supervisor while performing work on LIRR
property. I was not supervised/directed in any
[way] by an LIRR manager.”
LCS stated that his “work as an MTA Police
Officer was assigned by my superiors in the
department who made the assignments based on
LIRR needs” and that he “was directly supervised
in [his] daily work by a higher ranking [sic] of
my police department, whether it was LIRR Police
Department or MTA Police Department. * * *”
AGT stated that he was supervised by certain
named individuals who apparently were
transferred to MTA. He states that he received
his assignments from these individuals “who were
carrying out the LIRR Police needs as determined
at meetings between police brass and LIRR
managers.”
As mentioned above, the Board previously
determined that the employees who were
transferred from Metro-North Railroad and the
Long Island Rail Road to the MTA Police
Department were no longer employees under the
Railroad Retirement and Railroad Unemployment
Insurance Acts. Any individuals supervised by
MTA employees would themselves be employees of
the MTA and their service would not be
creditable under the Acts. The evidence quoted
above supports the conclusion that the
individuals whose service is at issue were
supervised by MTA personnel. Although that
evidence is not entirely unambiguous in all the
cases, it is clear that the MTA had the right in
all the cases to assign the individuals to the
duty stations.
Accordingly, a majority of the Board concludes
that the service and compensation of the
above-listed individuals is not creditable for
the period beginning January 1, 1998, when they
were transferred to the MTA.
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DISSENT OF
V. M. SPEAKMAN, JR.
EMPLOYEE SERVICE DETERMINATION
MTA POLICE DEPARTMENT
I must respectfully
dissent from the Majority’s decision in this case.
All employees involved in this determination were
former police officers with the Long Island
Railroad (LIRR), (BA Number 7311), part of the
Metropolitan Transportation Authority (MTA) (not
an employer under our statutes). After the
formation of the Metropolitan Transportation
Police Department (MTAPD) in 1997, police officers
of the LIRR and Metro North (BA Number 3345) were
transferred to that entity. In B.O. 98-92, MTAPD
was held not to be a covered employer.
The employees involved in this determination
contend that after their merger with the MTAPD
they continued to perform the same work, often the
exact same job, as they did for LIRR, and in most
cases on LIRR property. Although they reported to
an MTAPD superior, day-to-day duties were
determined by the needs of the LIRR.
Section 1(d) of the Railroad Retirement Act and
its companion Section 1(e) of the Railroad
Unemployment Insurance Act provide:
(d)(1) An individual is in the service of an
employer whether his service 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 services the
rendition of which is integrated into the
employer’s operations.
Thus, the authority to direct the manner of
rendition of services is not the only indicia of
employee service; the performance of services on
the property of an employer or integration into
the staff or operations of an employer also are
elements of employee service. The Majority opinion
does not sufficiently analyze the facts in the
context of Section 1(d).
Affidavits filed by the employees in question, and
information gathered by our division of audit and
compliance, indicate that, for the most part,
after the merger there was little change, if any,
in the employees relationship with the LIRR.
Specifically:
DJH
At the time of the merger, Officer DJH had 220
months of service with the LIRR police department.
He worked as a patrolman in LIRR’s East New York
Station. After the merger he worked 21 more months
before retiring. He continued to work out of the
East New York Station with his duties unchanged.
MH
At the time of the transfer to MTAPD, Officer MH
worked in the LIRR motor pool in Hillside NY; he
continued in this function under the MTAPD moniker
after the merger. From January 1999 to February
2000, he worked at MTAPD offices doing operational
support for LIRR and Metro-North, another covered
employer. After a short period of being off work
he returned to LIRR police support from September
2000 until June 21, 2001, when he was injured. He
retired in November 2002.
TN
At the time of the merger, TN was a detective with
the LIRR. After the merger he was transferred from
LIRR property to MTAPD’s 341 Madison facility. His
duties included administrative work exclusively
for the LIRR and the Metro-North. Although he
reported to an MTAPD employee after the merger,
his work continued to involve assigning police
officers to LIRR and Metro-North. He retired March
2, 2005.
BR
At the time of the merger, BR was a patrol officer
for the LIRR at Penn Station. After the merger his
duties remained the same until he was promoted to
Captain, and, thus, the commanding officer at Penn
Station. His whole career, until his retirement in
June 2001, was on property controlled by the LIRR.
His duties required constant interaction with LIRR
personnel. His schedule and priorities were set by
LIRR needs.
LCS
At the time of the merger, Captain LCS was a
Captain in the LIRR police. He retained that rank
after the merger. After the merger he continued to
work out of the LIRR Hillside maintenance facility
and Jamaica Station through 2000. He then worked
out of LIRR’s facilities in Hicksville and Penn
station until he was injured in December 2001. He
retired effective July 16, 2004.
AGT
At the time of the merger, Officer AGT was a
patrolman for the LIRR. After the merger his
duties remained unchanged and he continued to
patrol LIRR property until his retirement in April
2002.
MTAPD has always maintained that upon its
formation former railroad police officers would
now report to MTAPD superiors. This is undoubtedly
true but, as pointed out
above, that in addition to supervision, there are
two other tests for employee service under our
statutes. Secondly, MTAPD has maintained that
after the merger railroad police officers were
assigned non-railroad duties. Although this may
have been true for many former railroad police
officers, in the case before us we must focus
solely on the situations of the officers who have
made claims for service.
Finally, the case of Greene v. Long Island
Railroad Company, 280 F.3d (2nd Cir.2002) is
informative. In that case, an MTAPD police officer
brought a claim under the Federal Employer’s
Liability Act (FELA) against the LIRR. In
determining that the officer’s claim was FELA
covered, the court stressed how railroad related
the officer’s work was. Although not dispositive,
since our statutes were not considered by the
court, the case does demonstrate that an MTAPD
police officer’s job can be so railroad dominated
as to be indistinguishable from that of a former
LIRR police officer’s position.
In conclusion, I would find the police officers'
work in question to be employee service under our
statutes, and that service under our statutes be
credited consistent with Section 9 of the RRA.
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V.
M. Speakman, Jr
Labor Member
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