UTU, BLET challenge HOS interpretations

The Rail Safety Improvement Act of 2008 made the first significant amendments to hours-of-service laws in nearly 40 years.

In response, the FRA issued an interim statement of agency policy and interpretation, which poses significant problems for train- and engine-service employees with regard to employee safety and earnings.

The UTU and the BLET now have jointly asked the FRA to reconsider portions of their interim statement of agency policy and interpretation. The new rules would impact more than 85,000 train- and engine-service employees who are members of the UTU and BLET.

Significantly, the UTU and BLET are asking 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 Rail Service Improvement Act (RSIA).

The RSIA 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 in intercity passenger and commuter service).

The UTU and BLET assert that, “on its face, this change did nothing to force FRA to change its longstanding interpretation of how sufficient off-duty time is determined.”

Under the existing FRA method, a railroad is required to look back 24 hours at the employee’s on-duty time and determine if the employee had 10 hours of undisturbed rest in that window. If the answer is ‘yes,’ then the employee can work a full 12 hours. That approach is called the “fresh start look back” analysis.

But the FRA, in its interim statement of agency policy and interpretation, proposes to scrap the “fresh start look back” analysis and substitute what is called a “continuous look back” analysis.

A “continuous look back” analysis would require the railroads to look back at every moment during a duty tour to determine if the employee has had 10 consecutive hours of undisturbed rest in the 24 hours prior to that particular moment.

This new “continuous look back” approach would prohibit an employee from working the full 12 hours that are permitted by the law if they were to have more than a two-hour call.

The FRA’s proposed “continuous look back” approach not only adversely impacts an employee’s earnings, but interferes with a railroad’s need to maximize employee productivity.

In fact, the “continuous look back” approach also could result in more employees being forced to remain at away-terminal locations rather than returning home, which adversely impacts family life and imposes greater costs on a railroad.

For example, if an employee has a three-hour call — and this is generally of necessity in large metropolitan areas where commute times are long — the employee could only work 11 hours, because when the first minute of the 12th hour arrives, the railroad could not look back 24 hours and find 10 consecutive hours undisturbed hours off duty. (11 work + 3 hour call + 10 hours rest = 24 hours) Thus, the longer the call time, the less work the employee can legally perform.

For assignments with an interim period of rest, the most an employee could ever work is 10 hours. For an unassigned (extra board) employee who is working on call, the call time further reduces the amount of work time proportionally. If they get the typical two-hour call, the interim period of release is rendered moot.

10-hour call is best

The better solution would be to require a 10-hour call, which would permit 12-hour on-duty shifts, the UTU and BLET told the FRA. “It is obvious that an employee who is aware that they will be required to report for work in 10 hours is best able to schedule their rest so that they arrive at work in the most alert condition possible.

“The best medical evidence available establishes what the labor organizations have known for years: that employees will be most alert just after they wake up,” the UTU and BLET told the FRA. “We contend that an employee who sleeps or naps as close to their reporting time as possible, within reason, is the best rested employee and therefore the safest.”

In the joint statement signed by UTU International President Mike Futhey and BLET Acting National President Paul Sorrow, the FRA is asked to “reaffirm the long-standing ‘look back fresh start’ interpretation, which has served both safety and the industry well, and decline to adopt the proposed ‘continuous look back.'”

Click here to read the joint UTU/BLET submission to the FRA.