(Reproduced with permission from Daily Labor Report, 120 DLR A-13 (June 25, 2009).)
Copyright 2009 by The Bureau of National Affairs, Inc., (800-372-1033)
WASHINGTON, D.C. — Railroads will be forbidden from interrupting legally mandated employee rest periods with phone calls or other communications to schedule work, in order to comply with a proposed interpretation of provisions of the Rail Safety Improvement Act scheduled to be published in the June 26 Federal Register.
The Transportation Department’s Federal Railroad Administration issued the interpretation in advance of the Rail Safety Improvement Act (Pub. L. No. 110-432) going into effect July 16. The RSIA, among other things, sets out a number of requirements surrounding employee hours. Train employees, or those “engaged in or connected with the movement of a train,” are limited to 276 hours of time on duty per month under the law, and may not work more than 12 consecutive hours at a time. In addition, employees must receive at least 48 consecutive hours off duty after working for six consecutive days, and the off-duty period must be spent at the employee’s home terminal, under the RSIA. Previously, FRA issued a final rule on hours of service recordkeeping and reporting requirements under the law (99 DLR A-11, 5/27/09).
Ten Consecutive Hours Off.
In addition, the RSIA specifies that except in emergencies, “a railroad carrier and its officers and agents may not require or allow a train employee to … remain or go on duty unless that employee has had at least 10 consecutive hours off duty during the prior 24 hours.” Under current law, to be replaced July 16 by the RSIA, the mandatory rest period is eight consecutive hours, or 10 hours if the employee worked 12 consecutive hours.
Under current interpretation of railroad hours of service laws, FRA said, “FRA looks back at the 24-hour period before the employee reported for duty to see that the employee had at least 8 consecutive hours off … following the prior duty assignment.” The employee then can work a maximum of 12 hours during the next 24 hours, and must get another eight hours off after that period, or at the end of the 24-hour period, whichever comes first.
Through previous interpretation of earlier hours of service laws, railroads have been permitted “to address one call to an employee during the rest period for the purpose of advising the employee concerning the place and time that the employee is to appear for the next assignment, without that call being considered an interruption of the required 8- or 10-hour statutory release.”
However, FRA said, “this interpretation is emphatically extinguished for train employees in freight service, beginning on July 16,” because of the new RSIA requirements.
“FRA is concerned that, as applied to the revised laws, the existing, ‘fresh start’ interpretation conflicts with the plain meaning of the laws by excluding the 10-hour period from the ‘prior 24 hours’ to which the revised statute refers,” the agency said in its proposed interpretation. “Although the ‘fresh start’ approach may have had some merit to simplify planning under the old hours of service laws, it does not appear to track the purpose or intent of the new, more stringent statute,” FRA said.
FRA to ‘Enforce Plain Meaning’ of Law.
For that reason, the agency is proposing to “enforce the plain meaning of the revised statute,” FRA said. In other words, “no train employee or signal employee may be required or permitted to go or remain on duty unless that employee has received at least 10 consecutive hours of rest within any of the 24 hours prior to any of the moments in question (i.e., any instant that the employee goes or remains on duty during the duty tour), rather than the one 24-hour period prior to the one moment that the employee commences the duty tour.”
FRA said this interpretation better serves workers “by ensuring that their best opportunity for rest, free from interruptions by the railroad, comes just prior to their going back on duty, so that they are well rested when they go back to work, and better able to remain reasonably so throughout the duty tour.”
The agency conceded that there would be “practical challenges” associated with the new interpretation, and cautioned that “railroads will need to do a better job of planning crew utilization.” For example, railroads may need to notify employees of their time to report for duty 10 or more hours before the time the worker is needed, so that these 10 hours would be uninterrupted, FRA said.
FRA also set forth what the agency views as positive and negative aspects of the proposed interpretation. Among other positive aspects, the agency said the interpretation “creates a strong incentive for employers to plan their operations in such a way that employees can effectively plan their rest,” and “prevents periods of aggregate service potentially extending for up to 24 hours without substantial rest.”
‘Significant Training’ May Be Needed.
Among negative aspects of the proposed interpretation, FRA acknowledged that “significant training and adjustment in expectations regarding the operation of the law” may be necessary. In addition, the agency said it was possible that the interpretation could potentially “limit availability of employees and the efficiency of operations” during certain periods.
In addition to the proposed interpretation of the rest period requirement of RSIA, FRA also issued interim interpretations of other aspects of the hours of service provisions of the law, including definitions of terms used in the statutory requirements that workers spend 48 hours off at their home terminal after working for six consecutive days, and that workers be limited to 276 hours of duty per month.
Representatives of the Association of American Railroads were not immediately available to comment on the proposed interpretation. However, John Tolman, the vice president and national legislative representative for the Brotherhood of Locomotive Engineers, said carriers had not negotiated terms of the new provisions.
Union representatives “have been attempting to negotiate with the rail carriers for the past several months over the implementation of the Hours of Service changes effective July 16, 2009, for our engineers and trainmen. However, most of the railroads have not sat down with our leadership for these good faith negotiations,” Tolman said. “The proposal for 10 hours of continuous rest between assignments for our freight railroads will be law on July 16, regardless of the lack of negotiations. It is our position that we would all be better served by serious negotiations, and only one of the top four class one railroads have sat down with some sincere commitment.”
Comments on the proposed interpretation of the RSIA provisions dealing with employee rest period calculation are due 120 days from the date of publication in the Federal Register, or Oct. 26. Comments on the interim interpretations of other provisions are due 30 days after publication, or July 26.
Comments must reference docket number FRA 2009-0057, and may be submitted electronically via http://www.regulations.gov; by fax to (202) 493-2251; or by mail to Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. S.E., W12-140, Washington, D.C., 20590.
By Michael Rose
Text of the proposed and interim interpretations is available at http://op.bna.com/dlrcases.nsf/r?Open=mroe-7tbu34.