FATIGUE/HOURS OF SERVICE
Fatigue continues to be a major issue for railroad operating crews. The provisions to address this issue in the Rail Safety Improvement Act of 2008 (RSIA) did little to mitigate the problem, and created numerous headaches for operating employees and the union officials who represent them. Although it was the intent of Congress to provide a predictable and defined work-rest period for rail crews, the resulting law, as interpreted by the carriers, created some serious hardships and dangerous situations for these workers. The legislation limits railroad operating crews to a maximum of 276 hours per month, including 30 hours of limbo time. The BLET has maintained that limbo time cannot be included in hours of service limits because it cannot be considered on-duty time for one purpose and neither on-duty nor off-duty time for another. The bill also provided for a 10-hour call pilot project and a scheduled call pilot project. The BLET and UTU have worked together on this issue for the last few years and have jointly petitioned the Federal Railroad Administration (FRA) to reconsider portions of the interim statement of agency policy and interpretation that they issued in the summer of 2009.
In October 2009, the BLET and UTU asked the FRA to revisit its interpretation of how to determine whether an employee has received the statutorily required amount of off-duty time as prescribed by the RSIA. The legislation amended the statutory off-duty period by eliminating the option of eight consecutive off-duty hours, and required that the minimum statutory off-duty period be 10 consecutive hours in all cases except for intercity passenger and commuter service.
In early 2011, the BLET successfully secured an important clarification from the FRA concerning an interpretation of a key provision of an amendment to the Hours of Service laws. The provision, contained in 49 U.S.C. Section 21103(e), states that “a railroad carrier, and its officers and agents, shall not communicate with [a] train employee by telephone, by pager, or in any other manner that could reasonably be expected to disrupt the employee’s rest” during statutory off-duty periods of 10 or more consecutive hours and interim periods of release of 4 or more but less than 10 consecutive hours.
In its interim interpretations, the FRA stated that communications initiated by an employee do not constitute disruptions, and that interpretation was communicated to the BLET membership by numerous means. However, after receiving conflicting advice from a now-retired official in the FRA’s national office, one region of the FRA advised a BLET general committee officer in the summer of 2010 that calls made by employees during their statutory off-duty period for the purpose of ascertaining when their next duty tour would begin constituted an “interruption” of the off-duty period, necessitating that it be restarted. The involved railroad then posted a notice to this effect and began refusing such calls.
In November 2010, after being unable to resolve this dispute informally, the BLET’s Director of Regulatory Affairs wrote the FRA to formally request that the agency affirm its prior interpretation. He pointed out that the statutory language clearly did not include such a call from an employee as a disruption, reminded the FRA that the BLET’s understanding of the law was uniformly shared by the Railroad Safety Advisory Committee Working Group that had revised the 49 C.F.R. Part 228 HOS recordkeeping requirements, and noted that someone’s “ability to manage rest is enhanced considerably by the predictability of knowing when they are scheduled to report for duty or when they should expect the assignment phone call.”
On January 12, 2011, FRA Associate Administrator for Railroad Safety and Chief Safety Officer Jo Strang acknowledged that the “interim interpretations are silent on whether there are any limits to the matters that may be discussed [during an employee-initiated communication], and do not specifically address whether … an employee is permitted to contact the railroad carrier to establish a report-for-duty time [during a statutory off-duty period or period of interim release].” FRA also stated that further clarification of this subject is being considered as the FRA moves toward adopting final interpretations, and that no enforcement action would be taken against railroads that accept and respond to such inquiries from their operating employees.
President Pierce and Vice President and Interim Director of Regulatory Affairs Steve Bruno both presented testimony in March and April of 2011 before the House Subcommittee on Railroads, Pipelines, and Hazardous Materials urging the Subcommittee to consider taking up the BLET’s technical corrections to the hours of service portion of the Rail Safety Improvement Act of 2008, which are based on sound scientific evidence and simple common sense. In his testimony, Vice President Bruno explained to the Committee that the BLET believes that the best regulations are crafted with the input of stakeholders in the regulatory process and should not unilaterally be changed by Congress at the behest of the railroads. He stated: “The BLET believes although Congress has a place in broadly defining areas of safety that must be addressed as a matter of public policy, regulation is best written in a fashion that allows for those with a stake in the rules to have a hand in their creation and amendment.”
Bottom line, the provisions passed by Congress in 2008 are not working to reduce fatigue. A 10-hour call provides predictability which is the best solution to allow crews to know when they need to be rested.