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FRA Hours of Service Interpretations CALL
AND RELEASE
CALL
AND RELEASE Because
of the many unforeseeable circumstances
which can affect railroad operations, a common occurrence involves the
so-called “call and
release”, in
which an
employee is ordered to
report for duty at
a specified time and place, and then
is subsequently released
from that call to duty, while being
ordered to be available
for a later call
to duty. If
an employee is ordered to report
for duty at a specified time and place, and then before he leaves his place of rest is advised
that the call has
been canceled, that employee has not
been on-duty under the Act. However, if an employee leaves his
place of rest before
being notified that
the original call to duty has been canceled, his off-duty period has been
substantially disrupted. Due to this interruption, we consider the time
between the departure from the place of rest and
the employee’s receipt of
notification that the call
was canceled to be “limbo”
time, i.e., neither on-duty nor off-duty time.
Like time spent
deadheading from duty, this time was
not spent
in providing
service for
the carrier, but was not truly available for rest. EXAMPLE
l: Facts:
An employee is
ordered to report for duty at 7:30 a.m. At 7:15 a.m., the employee is
notified (at home or lodging
provided by the railroad) that the call has been set back to 9:30 a.m. Determination:
The employee has not been
on-duty, and may go on-duty at 9:30
a.m., considered as having been
fully rested. In
the above example, if the employee
had traveled to the reporting point and was notified there at 7:15 a.m. that his
7:30 a.m. call had been canceled,
he would be considered as starting a new off-duty period at 7:15 a.m. The time
elapsed between his departure
from the
place of
rest and
the notification of release
from the duty call would be treated as limbo
time. Thus, the employee would either be given the minimum off-duty
period of 4 hours or would be considered as on-duty from the original reporting
time of 7:30 a.m. If the employee in Example
1 is given 4 or
more hours off-duty after
notification of release
from the duty call, he would not have
used up any of his 12 hours available to be worked in his next tour of
duty. It
should be noted
that, in the situation of interrupted rest, a carrier may want to consider the
employee as on-duty from the original
reporting time
in order
to avoid
a violation for
an inadequate off-duty
period. That
is, carriers often schedule
reporting times to coincide exactly with the
conclusion of an 8
or 10-hour
off-duty period (e.g., if
the employee in the example
had gone off-duty at 11:30 p.m.
needing 8
hours off).
In such
a case, interrupting this
period with limbo time would
result in a violation. Therefore, it
may be
in the carrier’s
best interest to consider the employee
as on-duty from the time of the original
call, even when released from that call, if the employee
had not had his full 8 or 10
hours off before leaving the place of rest. EXAMPLE
2: Facts:
An employee is
ordered to report for duty at 7:30 a.m. At 7:45 a.m., the employee is
notified the call has been set back until 9:30 a.m. Determination:
The employee
has been
on-duty for
15 minutes, and if the
employee goes on-duty at 9:30 a.m., the time on-duty shall be computed as
starting at 7:30 a.m. EXAMPLE
3: Facts:
The employee is ordered to
report for duty at 7:30 a.m. At 7:45 a.m., the employee is notified the call has
been set back to 11:45 a.m. Determination: The employee is considered as having 11 hours 45 minutes on-duty time available before the expiration of the maximum permissible time on-duty.
CANADIAN
SERVICE Questions
have been raised of the applicability of the Hours of Service
Act to service in
Canada or Mexico. The Act is offended at
any time a railroad
requires or
permits an employee “to
go, be, or remain on-duty” in violation of the stated requirements.
However, the
United States
has no jurisdiction to
control conduct on foreign soil,
as such. Thus, when
a train crosses the border
and enters Canada or Mexico, its crew
ceases to be
subject to limitations
on service imposed by United States law. However,
when a train
enters the United States from Canada or Mexico,
the train crew is immediately subject to the Act and all time spent
on-duty in Canada is counted in computing the appropriate periods of service and
release. For example, if, on entering
the United States, an
employee had
been on-duty for 14 hours,
the railroad would immediately become liable for
a civil penalty for
permitting the employee to remain on-duty
within the United States in contravention of the 12-hour limitation. It is within the power and discretion of the Canadian and Mexican government to provide for railroad safety within its countries, and it would be inappropriate for FRA to address this matter absent some demonstrated impact on railroad safety within the United States.
COMMINGLED
SERVICE
Attendance at Rules Classes The
Federal Railroad Administration
(FRA) has not changed its
position since its published
interpretations of the Act in 1977, where we
said “It
should be
remembered that attendance
at required rules classes is duty time subject to the provisions
of commingling” (49 CFR Part 228, Appendix A (emphasis added)). When
attendance at a
rules class fulfills a condition
of employment, such attendance is “required.” This is true even where
employees have the
option to attend one
of several sessions, and it
is immaterial that specific scheduling of such service
is left, in part, to the
employee (42 Federal Register 27596 May
31, 1977).
For example,
consider a system that
permits an
employee to
attend any
of six sessions within
a given period
or to attend one
final session held for those who
missed an earlier one. Whether the
employee attends one
of the first six or the last one, his attendance
fulfills a condition of
employment, and his time spent in the class is therefore time on-duty. One could make a reasonable argument that insofar as safety is concerned, required rules class attendance should be treated differently depending on whether it occurs before or after covered service. However, Congress did not draw such a distinction. Commingled service is defined to include “all time on-duty in other service performed for the common carrier during the 24-hour period involved” (45 U.S.C. 62(b)). This flat statutory language precludes any such disparate treatment for enforcement purposes.
When
an employee is
required by the railroad to attend a hearing as a
principal under charge,
or as a witness
on behalf of the railroad, time so spent would be considered as time
on-duty under the commingled
service provisions of the Act. When an employee
and/or union
representative voluntarily attends a
hearing as a witness on behalf of
an employee, such service is
not required by the carrier, and therefore, not
considered time on-duty under the commingled service provisions. Under
these circumstances, if an employee
attends a hearing because he or she
is required to do so by the
railroad in the same 24-hour period
as having performed service subject to the limitations of the Act, the time
spent in the hearing is included when
computing the total time on-duty.
The Act does not distinguish
between commingled service performed before covered
service and that
performed after
covered service. If there is
less than a 4-hour
interval between such a hearing
and service performed
in the movement of a train, then the time is counted as continuous time. The Act generally prohibits service in excess of 12 hours, absent an unforeseen event beyond the railroad’s control. Required attendance at a disciplinary hearing is clearly foreseeable. Thus, the railroad will be in violation of the Act if it requires or permits such service beyond the time limits prescribed for total time on-duty.
Participation
in Railroad Safety Committees As long as participation in railroad safety committee activities is a voluntary act by an employee, and not a condition of continued employment, such service is not normally considered “covered” under the commingled provisions of the Act. Time occupied in such endeavors, if truly voluntary, is usually done during an employee’s discretionary time. As such, since an employee is presumably free to come and go, this activity may be included in “rest time.”
Administrative
Duties The
FRA has
traditionally viewed
limited, incidental
administrative activities, such as signing time returns or a register upon
arrival at an off-duty
location, completing wheel reports,
turning in waybills or
portable radios, or making a brief
call to sign off-duty with the caller once a crew has
reached lodging facilities and is
about to begin rest, not as covered service. The pretense being, of course, that
such activity is so minimal, it does not constitute any real threat
to safety so
long as
paperwork or
call-in demands do not become unreasonable, lasting more than a few minutes.
However, if such
administrative duties consume
a substantial amount of time
they would constitute
on-duty time as commingled
service. If,
after deadheading
and arriving at the point of final release, an employee performs
substantial duties, he is again on-duty. Moreover, since the deadheading time
would then have been
transportation to a duty assignment, it would also be time on-duty. This
same basic
rationale exists
in regards
to Crew Management Systems
and similar systems now in various stages of implementation on a number of
railroads. As
long as typing into the computer to effect a tie-up time is limited to a
few minutes, FRA feels no real safety is compromised.
However, should covered employees be required to do detailed entries, or
wait for a turn at accessing a machine, then FRA would consider this equal to
time on-duty under the Hours of Service Act. Specific instances
where excess
service resulted, would then be investigated.
Familiarization
Trips An
employee who rides
a train for
the sole
purpose of qualifying on
the physical characteristics of the railroad is subject
to the constraints of the
Act if such trips are required as part
of the qualification process and
are made in the same 24-hour period as covered service. Such time is
considered commingled
service and
must be
computed in determining
total time on-duty.
Physical
Examinations If an employee is required to report for a physical examination as a condition of continued employment, he would be subject to the commingled service provisions of the Act. The issue of payment for services rendered or contract requirements is not recognized or covered by the Act.
Providing
Information Concerning Railroad Accidents If a train crew is explicitly required by railroad officials to remain on railroad property to provide information regarding an accident, the time spent waiting to give, and giving, such information is “on-duty” time for purposes of the Hours of Service Act. This time would be added to the time spent by the crew member in train or engine service in computing total time on-duty by that employee.
Deadheading
From a Duty Assignment in a Privately-Owned Vehicle In general, FRA’s position is that if a railroad requires an employee to deadhead to a home terminal in a privately-owned vehicle without the opportunity to obtain rest and without the opportunity to be transported (i.e., required the employee to drive his own vehicle), this activity could be considered commingled service. By offering to transport an employee or allow him the opportunity to obtain rest before deadheading back to the home terminal, the railroad would be in compliance even if the employee elected to drive his own vehicle.
On-board
Observations Conducted by Railroad Officials A common scenario is a railroad official that rides a train for the purpose of performing on-board observations of crew members and railroad operations. In general, FRA’s position is that the railroad official is acting in a supervisory capacity and therefore not subject to the commingled service provisions. However, if he takes over control of the train by operating the controls of the locomotives, the time spent operating the train would subject him to the 12-hour duty limitations. Likewise, if the railroad official replaces a train crew member and assumes the normal duties of that crew member, his role would no longer be considered that of a supervisor and he would become subject to the commingled service provisions of the Act.
DEADHEAD
TRANSPORTATION Deadheading
to a Point of Final Release A
railroad’s election to interrupt an employee’s rest period at one designated
terminal in order to place him in deadhead transportation
to another
designated terminal
for the purpose of obtaining his statutory
off-duty period, is not prohibited by the Hours of Service Act. The
hours of service
regulations state,
“Time spent
in deadhead transportation by
an employee returning from duty to
his point
of final
release may
not be
counted in computing time off-duty or time
on-duty.” The “point of
final release” is that point where the employee receives the required 8 or 10
hours off-duty period prior to the start of a
new 24-hour
period. The
time spent
in deadhead
transportation to that point is not computed as time on-duty or time off-duty. From
this, it is
apparent that the
nature of
deadhead transportation is determined
by the action of the employee after
arrival at the designated terminal. If the employee is required to go on-duty
without having had a required 8 or 10 hours off-duty
period, then the employee
was in deadhead
transportation to a duty
assignment, and the time so spent is considered
time on-duty. On
the other
hand, if
the employee has the
required 8 or 10
hours off-duty
after arrival at the designated terminal, then the employee was in
deadhead transportation to the
point of final release, and the time spent is neither time on-duty nor
time off-duty. In
instances where a
train crew is released from
duty on line of road, and is then
transported to the point of final release, the
time spent between the
release from duty and the arrival at the point of final release is
neither on- nor off-duty time. When
the crew is
transported directly from point of release
on line of
road to the lodging facility, off-duty time commences on arrival at the
lodging facility. When
the crew is released on line of road and is transported to the
point of final release, and
then transported to the lodging facility, time
off-duty commences when the employee arrives
at the
tie-up point,
unless time
spent in transportation from
the tie-up point to the lodging facility exceeds 30 minutes, in which
case off-duty time commences when
the employee arrives at the lodging facility. EXAMPLE
l: Facts:
An employee is
released at the final tie-up point at the away from home terminal at 9:30
p.m. The lodging facility is located 20 minutes travel time away.
Determination: The off-duty time is computed from 9:30 p.m. EXAMPLE
2: Facts:
An employee is
released at the final tie-up point at the away from home terminal at 9:30
p.m. The lodging facility is 45 minutes travel time away.
Determination: The off-duty time
is computed from
10:15 p.m. EXAMPLE
3: Facts:
The employee is released at
the final tie-up point at the away from terminal
at 9:30 p.m. The lodging facility is
located 45 minutes travel time away. On arrival at the lodging facility
none of the accommodations are readily available,
and the employee
is not
able to obtain lodging until
11:00 p.m. Determination: The
off-duty time is
computed from 11:00 p.m. EXAMPLE 4: Facts: A crew goes on-duty at the home terminal at 7:30 a.m., and is released on line of road at 7:20 p.m., and ordered to wait for transportation to the final tie up point. During the period waiting for transportation, the crew is relieved of all responsibility for the train. The crew arrives at the final tie-up point and finally goes off-duty at 9:00 p.m. Determination: The off-duty time is computed from 9:00 p.m., and the crew is available for service at 5:00 a.m.”
Time
Spent Traveling To and From Various Reporting Points This
is to address whether time spent
traveling to and from various reporting points
within a crew base area with
a 50-mile radius should be considered
deadheading time under the Hours of Service Act. FRA’s
position is that, regardless of any
agreement between a railroad and its employees,
time spent by an employee
traveling to a point of duty assignment
other than
his regular reporting point constitutes deadheading to duty and,
accordingly, time on-duty under the Act. That
conclusion applies even where the non-regular reporting point is within
an agreed-upon crew base with a
specified diameter (e.g., 100 miles in the Boston area, 60 miles in
Philadelphia). Under
the Act, time on-duty includes time
spent in deadhead transportation by an
employee to a
duty assignment, time
off-duty does
not include
time spent
in deadhead
transportation from a duty
assignment to a point of
final release. 45 U.S.C. { 61(b)(3)(c). Under the Federal Railroad
Administration’s interpretation of the statute, transit time
from the employee’s residence to his regular reporting point is not
considered deadhead time . If
an employee
utilizes personal
automobile transportation to a point of duty assignment other than
the regular
reporting point
in lieu
of deadhead on provided by
the carrier, such travel time is considered
as deadheading time. However, if
the actual travel
time from his home
to the point of duty
assignment exceeds
a reasonable travel time
from the regular point to the point of duty assignment,
then only the latter
period is counted. Of course,
actual travel time
must be reasonable and
must not include
diversions for personal
reasons. Title
49, CFR, Part 228, Appendix A
(emphasis added). Thus, as FRA construes
the statute, the
allowance we make for
commuting time in connection with
going on or off-duty at a home terminal applies only with respect to travel to
or from the employee’s regular reporting point, and the employee can have only
one regular reporting point. Our
rationale is that an employee’s travel time to or from a duty
assignment may
consume a
significant portion
of off-duty time; to consider such travel time as time off-duty comports
with the statute’s safety purpose
only with regard to travel to or
from a regular reporting point. An employee with a regular reporting point is
free to select a residence near to or
far from the reporting point and thereby control the amount
of off-duty time consumed by travel. Because the statute does
not authorize FRA to dictate where an employee must live
in relation to his regular
reporting point, time spent traveling to
and from that
point is
a matter
of employee choice and properly considered time off-duty. However,
where the
employee must
travel to
multiple reporting points, he loses the ability to control his travel
time by selecting a residence
in proximity to
a regular reporting point.
If travel to multiple reporting points were treated as
commuting time, there would
be no limit to the amount of off-duty
time that might be consumed in travel to and from
duty. We believe such a
wide-open system would be unsafe and contrary
to Congressional intent.
Accordingly, because this travel
to and
from points
other than
the regular reporting point is at the carrier’s behest, we treat it as
deadheading time. This interpretation has been upheld in a
directly analogous case concerning travel
to a non-regular reporting
point by an extra-board
employee. United States vs. Penn Central Transportation
Co., 616 F. 2d 951 (6th
Cir. 1980). Whether
a particular station
or one of
the other
home terminals within the
crew base area is to be considered the normal reporting point, each employee can
have only one such point. To comply
with the Act,
the carrier will have
to choose between (l)
assigning each employee
to one regular reporting point and
treating travel to and from assignments at other
points as deadheading, or (2) assigning no regular reporting point
to the employee, and treating travel to and from all duty assignments as
deadheading. With respect to
service under a particular
agreement, the regular reporting point for
a class of employees
can be
changed only
by changing the agreement.
Of course, depending
on the labor agreements on the
particular railroad, an employee
may be free to bid on
other service that has a different regular reporting point. A
regular reporting point
should not be confused
with a designated home
terminal. Under the Act, the designation of terminals is
relevant only for the
purpose of determining whether any portion
of a release
at a particular location can be considered time off-duty. Unless one of
the statutory exceptions applies, no
amount of
release time
at a non-designated terminal
can be considered
time off-duty.
Railroads and employees are free
to designate as many home and away-from-home terminals as they desire. The
concept of reporting points,
however, goes to the issue of how to account for
time spent traveling to and from the home terminal(s).
If travel time to and from
any and every home terminal were considered commuting time, there would be no
limit on how much of the employee’s off-duty period might be consumed
by travel. An employee
could be required
to commute 100 miles one
day, 50 miles the next, 200 miles the next, and
so on. The round-trip
travel time could eat up
most of the
off-duty period,
effectively depriving
the employee of a meaningful
opportunity for
rest. Congress certainly
intended no such
circumvention of the
minimum off-duty periods prescribed
in the Act.
Accordingly, in issuing its published interpretation of the Act in 1977,
FRA made clear that commuting (i.e., travel time considered time off-duty) is
limited to travel time
“from the employee’s
residence to his regular
reporting point.” 49 C.F.R.
Part 228, Appendix A. This
interpretation has been upheld
in United States v. Penn Central Transportation Co., 616 F. 2d 951 (6th
Cir. 1980). As
compared to the
Penn Central facts, the only
new twist posed by the crew base
concept is that it purports to place a geographical
limit—measured in terms of
a radius from a central reporting point—on
the points to which an employee can be required
to commute without being considered on-duty while traveling. Of course, there is
no upward limit on this distance. If Amtrak
can have a 30- or 50-mile radius,
then it or another railroad
could seek to negotiate a radius of 100, 200,
or 500 miles. However,
Congress evidenced
no intent to permit the
statutory off-duty
periods to,
in effect, be modified in
private negotiations. Accordingly,
FRA cannot accept an assertion that would render meaningless the very notion of
time off-duty. Of
course, one can
posit a crew base with a radius of one mile or less. There, the
argument goes, travel time to any reporting
point within
the crew
base would
be only marginally different
from travel time to
any other
such point. Under those circumstances, it could be argued, rigid enforcement of
the regular reporting point concept would not produce a safety benefit. We
would agree. If
faced with application of
the concept to such
a situation, FRA could avoid an unreasonable
result by exercising its
enforcement discretion so as to preclude wasteful enforcement
actions with no likely safety benefit. However,
such a de minimis situation is not the one that the “regular reporting
point” concept was
designed to combat, and not the
one before us here. A 50-mile radius (as Amtrak uses in
Boston) could result in round
trip travel of 200 miles for
a single tour of
duty (i.e., a trip
from the employee’s home
on one edge of the base to a duty assignment on the
opposite edge, and return). Such a trip would likely take at least four
hours out of a total rest period of eight or ten hours. The numbers are slightly less alarming in the context
of Amtrak’s 30-mile radius in Philadelphia, but even there the
daily potential for unacceptable erosion
of the off-duty period is very real. Thus,
a railroad is
free to designate all of the home and away-from-home terminals
it may be entitled to designate in or under
its collective bargaining
agreement. However, it must
designate one point as the regular
reporting point for a particular crew
assignment and treat travel time
for any employee required to report
to a point of duty
assignment other than his regular reporting point as deadheading time. In summary, as construed by this agency, the Hours of Service Act does not permit multiple regular reporting points regardless of any agreement purporting to establish them. Changing the reporting points on a daily basis without accounting for the differences in travel time would subject the employee to the substantial erosion of off-duty time that the “regular reporting point” concept is designed to prevent.
DESIGNATED
TERMINALS Suitable
Food and Lodging Interpretations The
Hours of Service
Act requires that, in order
for a period of
interim release to be
valid, it must be
for a period of 4 or more hours
at a designated terminal.
The intent of Congress in
enacting and amending the designated terminal provision
was to assure that railroad employees in train and
engine service should be
afforded an opportunity for meaningful rest.
This provision requires that
suitable facilities for food and
lodging be available in connection with a release at a designated
terminal. In
that connection the apparent basis
for references in the legislative history to “suitable facilities for food”
was to assure the
availability of
nutritionally adequate
and palatable food which could be
consumed with
appropriate utensils in a reasonably clean environment. Another
issue is whether it is necessary that facilities for food be
available continuously throughout
the rest period. The legislative history of the
Act nowhere implies such a burden;
indeed, it assumes that much of the rest period will be used for sleeping. As
long as suitable
facilities for food are available
when needed
for nutritional
purposes (i.e., normally at
the beginning and end of a rest period), an opportunity
for meaningful rest has
been provided
in keeping with the purposes of the Act. For
instance, if a crew reaches its
destination at 12 midnight and immediately obtains an
adequate meal, with the expectation of obtaining breakfast just before returning to
duty at 8 a.m. the next morning, the fact
that food is unavailable between l a.m.
and 7 a.m. would be irrelevant to the fitness of the crew. The
suitability of canned,
prepackaged, and frozen
fast-foods such
as canned
soup, cold
or microwave
sandwiches, and
frozen pizza
depends on
the overall circumstances involved,
including the length of the work or rest time during
which such
items are
the only
food available. Disputes about
the relative
desirability of various
types of meals, all of which have nutritional value, can best be handled through
collective bargaining. As
for transportation to eating
facilities, the legislative history suggests
that transportation must be
furnished if the restaurant is
“beyond a reasonable
walking distance,” and looks to
the collective
bargaining agreement
for a definition
of such
distance, which
should take
into consideration time, location,
weather, and safety. But that is not to say
that the
railroad must
pay for
the transportation - only
that it be
made available. If, for
instance, the railroad provides a taxi, it is a
matter of collective bargaining, not
railroad safety, as
to whether the railroad or the employee pays the fare. The
Act requires only that suitable
facilities for food and lodging be available. The Act does not indicate who must
pay for the accommodations.
Railroad labor and
management may negotiate an agreement
for the payment of lodging or meals through the collective
bargaining process. Section
2 of
the Act
requires that
railroad-provided sleeping quarters,
including crew quarters,
camp or bunk cars,
and trailers must afford train and
engine service employees an
opportunity for rest, free
from interruptions caused by noise under the control of the railroad, in clean,
safe, and sanitary quarters. FRA is responsible
for the administration of
that provision, as well. Questions
have arisen with regard to categorizing time spent deadheading at
away-from-home terminals. If, as we construe the Act,
Congress did not intend
that commuting time be
considered time on-duty at
home terminals,
Congress had similar intent at away-from-home terminals.
However, since travel time at
away-from-home terminals is usually
outside employee control, Congress
presumably did not
intend such commuting would
exceed a
reasonable period. Given
Congressional silence on what a
“reasonable time” might be, FRA was forced
to define one.
FRA solicited comments from representatives of
rail management and
labor, and
after analysis established 30
minutes as a
reasonable “rule of
thumb” commute
period for
away-from-home terminal
situations. Therefore, at away-from-home terminals: ·
If 30 minutes or
less, time spent traveling to lodging
after final release or time spent traveling from lodging
to duty
at the
conclusion of
rest is
considered time
off-duty. ·
When travel time to
lodging from point of final
release exceeds 30 minutes, the
entire travel time is considered
as limbo
time (neither time on-duty
nor time off-duty). In addition, a travel
period from lodging to a duty point
that exceeds
30 minutes
is considered time on-duty. Another
aspect of the problem deals with time spent awaiting the preparation
of accommodations at a lodging facility or time spent awaiting transportation
to lodging after final
release. Both such situations must be included in “travel to lodging” time
computations. The rationale is the same: such time is
really not time on-duty, but it is also
not time available for rest
(except, of course,
for the 30-minute commuting
allowance discussed above). The
total disappearance of the
allowance for commuting time at away-from-home terminals in
instances where
travel exceeds 30 minutes
provides an incentive to
minimize such travel which helps
ease the effects
of cumulative fatigue individuals
working irregular
schedules frequently encounter. Should
a crew decide
to have dinner across the street from their final
release point (away-from-home
terminal) before being transported
to the lodging facility,
absent any special
circumstances, FRA would typically
consider this as a discretionary action by the employees. As such, their rest
time would commence at
the point they voluntarily left the away-from home
terminal for
dinner, in
lieu of
being transported to the lodging facility to rest. It should be noted that transporting employees to facilities at some distance from the designated terminal does not violate the Hours of Service Act. A violation occurs in this situation only if the employees are given an inadequate number of consecutive hours off-duty when released at a designated terminal.
RELIEVED
BUT NOT RELEASED When employees are instructed to go off-duty on line of road, and to wait at a specified point for transportation to their point of final release or lodging facility, the time spent for such waiting is neither on- nor off-duty time, provided the employees are not required to perform some other service, such as providing flag protection for the train.
Remaining
On a Train After Expiration of Twelve Hours On-Duty Questions
have arisen concerning
how the Act
applies to employees who are
required by railroads to remain on a train after having been on-duty for 12
continuous hours. Under the Act, the time
of an employee
engaged in train and engine
service falls within one
of three categories: (l)
on-duty time is time between
reporting for duty and final
release from duty (except time spent deadheading from
duty) and includes time
spent actually
performing service
to the railroad,
whether in
covered service
or in
commingled service, and time
spent deadheading to
duty; (2) off-duty time is time
actually available for rest, i.e., time coming after the final release from
duty, including
time spent commuting to
and from
the employee’s
regular reporting point; and
(3) time spent deadheading from duty to the point of final
release (“limbo
time”), which
as provided
in section l (b) (3) of the
Act, is neither time on-duty nor time off-duty. Generally,
an employee required
to remain on a train while awaiting deadhead transportation to a point of
final release is neither on nor off-duty, he or she is in a situation that most
closely resembles,
and is
part and
parcel of, deadheading from
duty. However, if an
employee is required to perform service of any kind during that period, he or
she is on-duty until all
such service is completed.
Thus, the question in each case
is whether the employee was required or permitted
to provide any actual
service to the railroad during the time spent awaiting deadhead transportation. We
are aware of
case law suggesting
that employees
are on-duty while awaiting
the arrival of a relief crew even if they perform
no duties for the railroad during that period. E.g., Missouri, K. and T. Ry. v. United States, 231 U.S. 112
(1913) and United States v.
Pennsylvania R.R., 275 F. Supp. 345
(W.D. Pa.
1967). However,
those cases
are distinguishable on their
facts and/or no longer good law in light of
the 1969 amendments to the Act. In Missouri, the Supreme Court rejected the railroad’s
argument that
the train crew was not
on-duty during a period in
which the “engine was sent off for
water and repairs.” 231 U.S. at 119. The Court
concluded that the employees were
“none the less on-duty when
inactive. Their duty
was to stand
and wait.” Id. Thus, the
case involved a crew’s waiting for an engine to
be ready after reporting
for duty, a situation that
FRA would clearly consider to be time on-duty. Although its language
is broad, Missouri simply does not address the status of
a crew that
is not
performing service
while awaiting deadhead transportation.
In fact, the year
after Missouri was decided, an
appellate court distinguished crew members “released from any and every duty
in connection with the movement of
the [train], and retired to rest upon the train,” from a fireman called
upon to serve
as an engine watchman; only the
fireman was considered to
have been on-duty. Great
Northern Ry. v. United States, 211 F. 309, 311 (9th Cir. 1914). In
Pennsylvania, a district
court relied on
Missouri in holding that
crew members awaiting deadhead transportation were on-duty despite
the facts
that the
railroad had expressly
relieved them of responsibility at
the expiration of their maximum legal duty period and they had performed no
subsequent duties. In addition
to being an
overly broad extension of Missouri, this case
is simply no longer on point
in light of
the 1969 amendments to
the Act. Those amendments
added, inter alia,
a definition (at section
l (b)(3)) of
“time on-duty”
that includes
time spent deadheading to
duty but excludes, from both time on-duty and time
off-duty, time
spent by
an employee in
deadhead transportation “from duty
to his point
of final release.” Thus, for the
first time, the Act itself recognized that an employee’s time
may fall between the
on-duty and off-duty categories and
that not all time between reporting for duty and the
final release is time
on-duty. It is important to note that,
as originally introduced,
both bills from which these amendments arose
(H.R. 8449) and S. 1938) would have
counted all deadhead time (to or from duty) as time on-duty.
However, Congress recognized that, provided the employee is given the
required 8 or
10 hours off-duty
after final release, there
is no safety detriment caused by treating
deadheading time as neither
on nor off-duty.
Accordingly, because the premise of
Pennsylvania, i.e., that all
time between reporting for
duty and
final release
is time on-duty, was
removed by the 1969
amendments, that case no longer provides
useful guidance
as to
the current
requirements of the Act. There is every reason to believe that Congress intended to include time spent awaiting deadhead transportation to the point of final release as part of the deadheading itself. Identical logic supports considering the two periods (awaiting deadhead and deadheading itself) as limbo time. Neither period is truly available for rest, so it cannot be considered time off-duty. Nor is either period one in which actual service (covered or commingled) is performed, so there is no safety rationale for considering it time on-duty. Moreover, if either period were considered time on-duty, the railroads would have no incentive to cease the performance of all duties at the conclusion of the maximum on-duty period. That is, if the railroad would be subject to the same penalty for tying up the crew as it would be if it required the crew to continue in service, one might expect some railroads to simply keep the train moving to the point of final release under the control of employees who had already worked for 12 hours. We believe it is far safer, and more consistent with the intent of Congress, to give the railroads the incentive to relieve the employees of all duties by considering both time awaiting deadhead transportation and time spent deadheading to the final release point as limbo time. That way, the railroad has not committed a safety violation, safety itself is not impaired, and the statutory off-duty period is not encroached upon by periods that are not available for rest.
Performing
Service While Awaiting Deadhead Transportation
The
situation we have discussed above
concerns employees in a status that some railroads described as “relieved, but
not released.” There, employees are required
to stay on their train to await
transportation to the point of final-release, but are expressly relieved of
any duties. However, in some situations the
railroad tells
the crew
to tie
up but subsequently
requires one
or more members
to perform service. Any
employee required or permitted to perform such duties would, of course, by
on-duty until all such duties were
completed. The
analysis is easy
where the railroad’s
representative expressly states, when
ordering the
crew to
tie up or
thereafter, that certain duties must be performed.
It is also easy to analyze the
opposite situation, i.e., where the railroad representative expressly relieves the
crew of all duties and merely
requires them to
stay with their train until
deadhead transportation arrives. But
difficult questions arise where the
dispatcher or other railroad official in
charge is not
so explicit. If,
for example, a dispatcher merely tells
the crew members to put their train in
a siding and does not tell
them they are relieved from
duty, and
the railroad’s
operating rules impose
general duties such
as observing passing trains or protecting the
train from vandalism~, the employees may not be relieved from duty. These
difficult cases will require an examination of the particular railroad’s
practice concerning how crews are
relieved from duty. On
one railroad
the practice may be to
simply tell the crew
to tie up, which carries the
message that
the employees
are --
unless specifically ordered
to perform
a particular
duty -- completely
relieved from
duty and
must merely
await transportation. In fact,
a railroad may
have a
standing policy that employees
must relieve themselves from
duty prior to exceeding their limit
of duty hours,
so that no specific order to
that effect is necessary. On a
different railroad, the practice
may be
that employees
are not relieved from
general duties
such as
observing passing trains
unless an explicit order relieving
them from duty is received. Thus,
sorting out these cases requires knowledge of specific facts from
which FRA can determine whether the employees
have been relieved of duties or not. If the order or message they receive
is not
explicit and
the railroad
has no standing instructions
on how to construe an order to tie up the train,
FRA may have to consult the
railroad’s rules to find out what
duties the employees
might reasonably have been expected to perform, in the absence of specific
orders, while awaiting transportation. Aside
from the question of whether the
railroad required or permitted certain service,
there is the question
of what constitutes service.
The following was a list of
possible duties provided in a letter with a request for clarification from the
FRA: ·
protecting the train against vandalism ·
observing passing trains for
any defects or unsafe condition ·
flagging ·
shutting down locomotives or
checking fluid levels ·
communicating train consist
information via radio ·
being “responsible for
handling any
issue which might arise
while the
train is
not moving” ·
doing paperwork ·
monitoring engine radios The
first five of these items clearly
constitutes duty if required or permitted
by the railroad,
but the last three beg the question
of whether they
actually and under
all circumstances constitute duty. First, “being responsible for
handling any issue which
might arise” is vague.
If the railroad had issued
an order to that effect, that fact would probably be inconsistent with a
conclusion that the railroad intended that the
employee be relieved
of all duties. If, however, the railroad
had clearly relieved the employee but noted that he or she may be put back
on-duty should the need arise while
awaiting the
deadhead transportation, the employee would not be on-duty again unless subsequently
told to handle an issue that had arisen. Second,
“doing paperwork” when
required or permitted to do so by the
railroad is time
on-duty in commingled service. However,
merely signing time returns, which ordinarily takes no more
than a minute and occurs when the crew has reached its lodging
and is about to
begin its rest, is so minimal that it
should not
be considered
as time
spent doing paperwork. Third,
“monitoring engine,
radios” when
required or permitted
by the railroad to
do so is time on-duty for an
employee given that responsibility, but does not include use of the radio initiated by
the train crew to attend to such incidental matters as calling a van
driver to
give the train’s location
or ascertain how long a wait the crew will have before being picked up.
Nor would an employee who chose to listen to
radio transmissions after having been relieved of any responsibility to do so be
considered as on-duty. I
might also note
that, in addition to having to determine whether an
activity constituted service and was required or permitted by the railroad, FRA
must also weigh the likely
compliance impact and litigation risks in deciding whether to assess penalties. One
letter pointed out
that there have
been unspecified situations in which
time spent
awaiting deadbeat
transportation has been counted toward the required off-duty period. Time
off-duty begins at the point of final release, not while
the employees are sitting on their train. FRA has permitted one
very limited exception as a practical matter: if the
time between being relieved of duty and arriving at an away-from-home
lodging is 30 minutes or less, such period can be
included in time off-duty.
Our rationale is that, just as time
off-duty at a home terminal includes commuting time, so
time off-duty at an away-from-home
terminal may include a
reasonable allowance (30
minutes) for commuting. However, if
the crew is not at the lodging within 30 minutes of being
relieved from duty, the
allowance is lost and the whole period (awaiting
deadhead and being
deadheaded) is limbo time.
This policy gives the railroads the incentive to get the
employees off the train and to the lodging quickly, which seems to be a
purpose you share. Claims
have been made that crews have been
required to stay on their trains as long as 9 hours awaiting transportation. As long
as no duties are performed and the full off-duty period is
given once the crew arrives at the lodging, these situations are
not violations of the
Act. Nevertheless, except in
the most extreme that,
if FRA had
substantive regulatory authority
in the hours of
service area,
a regulation could be
written to
address that issue. For example, a
rational rule might extend the required off-duty period by an hour
for any
hour spent
awaiting
transportation. Such a rule
would discourage the
practice that concerns you and possibly increase safety. However, the rigidity
of the Act
precludes our even
considering such a rule. E.
R. English for
Phil Olekszyk,
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