Despatch Shops v. Railroad Retirement Board, 149.
| Decision Date | 04 March 1946 |
| Docket Number | No. 149.,149. |
| Citation | 154 F.2d 417 |
| Parties | DESPATCH SHOPS, Inc., et al. v. RAILROAD RETIREMENT BOARD et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul Folger, of New York City (Frederick L. Wheeler, Crosby J. Beakes, Leo Manville, and Samuel H. Hellenbrand, all of New York City, on the brief), for plaintiffs-appellants.
Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, of Chicago, Ill. (David B. Schreiber, Asst. Gen. Counsel, and Paul M. Johnson, Louis Turner, and Alfred H. Myers, Attys., Railroad Retirement Board, all of Chicago, Ill., on the brief), for defendant-appellee Railroad Retirement Board.
Willard H. McEwen, of Toledo, Ohio (Frank L. Mulholland, Clarence M. Mulholland, and Mulholland, Robie & McEwen, all of Toledo, Ohio, and Samuel J. Cohen, of New York City, on the brief), for intervening defendants-appellees.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
In the course of its duties to settle claims for benefits under the Railroad Retirement Act of 1937, § 10, 45 U.S.C.A. § 228j, the Railroad Retirement Board found it necessary to determine whether or not Despatch Shops, Inc., was an employer within the meaning of the Act. The Board appointed an examiner who heard testimony from the parties and made his report concluding that Despatch was a covered employer. Thereafter, on considering the evidence, the exceptions to the examiner's report, and the arguments, the Board, one member dissenting, filed its decision with findings of fact, conclusions, and opinion holding that Despatch was a covered employer and that compensated service by its employees was creditable towards annuities under the Act. To review this decision Despatch and the New York Central Railroad Company brought this action to the District Court pursuant to the statutory provision for review, Railroad Retirement Act of 1937, § 11, 45 U.S. C.A. § 228k; and from the dismissal of their action, 60 F.Supp. 106, they now appeal.
Despatch is a wholly-owned subsidiary of the New York Central, and at the time involved all of its principal corporate officers and three of its seven directors were officers of Central. The issue arises under the definition of "employer," which includes not only any carrier, but any company owned by a carrier — conceded here — and which "performs any service * * * in connection with the transportation of passengers or property by railroad." § 1, 45 U.S.C.A. § 228a. Despatch, which repairs, reconverts, and manufactures freight cars, largely for Central, asserts that it is engaged in the manufacture of railroad equipment, an industrial process, not a transportation service.
Our task is made easier here, since, after our conference and decision to affirm the judgment below and while this opinion was in the course of preparation, the United States Court of Appeals for the District of Columbia has rendered an opinion on the same record which well states our view of the case. In the same decision which determined the issue before us, the Board also held Despatch to be an employer within the like definition of the Railroad Unemployment Insurance Act, § 1(a), 45 U.S. C.A. § 351(a); and this holding has now been sustained by the Court of Appeals, affirming the decision of the District Court for the District of Columbia. Despatch Shops v. Railroad Retirement Board, App. D.C., 153 F.2d 644. Obviously the results must be the same under the two Acts; and the Supreme Court has recently reconciled divergences between our courts in a decision persuasive on the present problem, holding a warehousing corporation an employer under the Acts. Railroad Retirement Board v. Duquesne Warehouse Co., 66 S. Ct. 238, affirming App.D.C., 149 F.2d 507, and reversing 2 Cir., 148 F.2d 473 (wherein Judge Frank had dissented). We agree with the Court of Appeals that "there are even more cogent reasons for upholding the Board's determination in the present litigation."
That court states the facts succinctly:
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