This is the decision of the Railroad Retirement Board regarding the status of
NDD as an employee of a covered railroad employer under the Railroad Retirement
and Railroad Unemployment Insurance Acts (RRA and RUIA). For the reasons
discussed below, the Board grants service credit for a portion of the period
NDD claims service as an employee of the DeQueen & Eastern Railroad Company (DQ&E
RR) from May 1981 to the present day based on performing work as a certified
journeyman in the car repair shop with his time split between the DQ&E RR and
its corporate parent Weyerhaeuser Company.
The Court of Appeals for the Seventh Circuit, in the case of Weyerhaeuser v.
U.S. Railroad Retirement Board (Docket Nos. 06-3455 and 06-3763) affirmed the
Board's Decision in B.C.D. 06-26 to deny service credit for certain Weyerhaeuser
employees prior to 1995. That decision decided the rights of parties claiming
railroad service credit for work for these companies with respect to work
performed in years prior to 1995. (Hereinafter, these individuals will be
collectively referred to as “the Court Group”.) That decision was based upon a
report issued August 16, 1995 by Anacostia & Pacific Company, Inc. entitled
“Texas, Oklahoma & Eastern, DeQueen & Eastern, Benchmarking Study” for
Weyerhaeuser Company. The report stated:
The Railroad's practice of contracting with WeyCo for the entire mechanical
work force as well as certain accounting personnel is subject to challenge by
the Railroad Retirement Board (RRB). In essence the RRB's position is that
railroads cannot escape payment of Railroad Retirement and Unemployment
Insurance Taxes by contracting an integral railroad function to an affiliate
under common ownership.
The Board determined, and the Court of Appeals agreed, that this report did
put Weyerhaeuser on notice of the nature of the issue regarding the reporting of
service performed by its employees for the affiliated carriers and created
reasonable expectation that such service should be creditable under the Acts.
Thus, the question remaining for NDD is to determine service credit for work
years starting in 1995.
In this case, NDD is claiming retroactive service credit for work performed
from 1995 through the present day. Pursuant to section 9 of the Railroad
Retirement Act, the Board's records of reported compensation and service become
final unless the error in a report of compensation or the failure to report
compensation is called to the attention of the Board within four years after the
date on which the report of compensation was required to be made. Section 209.8
of the Board's regulations (20 CFR 209.8) requires that on or before the last
day of February, each railroad employer must report the compensation and service
of the employer's employees for the previous calendar year. Section 211.16 of
the Board's regulations (20 CFR 211.16) provides that as a general rule the
Board's record of compensation and service may not be corrected after four years
in the absence of fraud.
Despite this general rule, on April 22, 2008, in Board Order No. 08-36, the
members of the Board unanimously directed the Board's Chief of Compensation and
Employer Services to enter into the Board's records as railroad compensation for
members of the Court Group the amount of earnings previously reported for those
individuals by Weyerhaeuser Company to the Social Security Administration. The
order did not require that the DQ&E file any returns of compensation for the
years involved. The Board also directed that no contributions for these years
were to be assessed against the employer under section 8 of the RUIA.
The Board finds no reason to treat NDD any differently than the members of
the Court Group who participated in the Federal litigation which gave rise to
Board Order No. 08-36. The Board has searched the service record of MDD and
finds that he has been credited with railroad service since 2001. It is the
direction of this Board that his current claim, which is seeking credit between
1995 (the earliest date Weyerhaeuser was on notice to report service credit) and
2000 (the last year the claimant alleges he did not receive service credit)
should be granted. The Board further directs the Board's Chief of Compensation
and Employer Services to enter into the Board's records as railroad compensation
the amount of earnings previously reported for NDD by Weyerhaeuser Company to
the Social Security Administration. The Board further notes that this decision
will not impose any burden on DQ&E under the Acts to file any return or report
of compensation with the Board for these years or require DQ&E to make any
payment to the Board for these years under the RUIA.
||Original signed by:
||Michael S. Schwartz
||V.M. Speakman, Jr.
||Jerome F. Kever