July 3, 2014

Federal Railroad Administration investigators have concluded that Union Pacific Railroad management violated the federal Hours of Service (HOS) laws six times in March and April when it ordered train crews to work back to their home terminal when they should have been deadheaded home after six starts in six days.

Five of the six violations occurred on UP’s main line between Dupo, Ill., and Dexter, Mo. The sixth violation occurred on a route between Dupo and Paducah, Ky.

SMART-TD Illinois Legislative Director Robert W. Guy said UP’s action was very similar to conduct for which the FRA penalized the Canadian National Railway in the same part of the state on February 1 (see “Hot Topics,” May 6). The CN crew was working that railroad’s territory between Benton, Ill., and Fulton, Ky.

“But the UP’s violations were much more egregious than the single violation for which CN was penalized,” Guy said. “UP racked up six HOS violations in the same crew territory between March 18 and April 2—a virtual epidemic. While the single CN episode might be dismissed as a fluke caused by a manager who didn’t understand the HOS law, UP’s multiple violations suggest a deliberate attempt to ‘push the envelope’ in order to keep the railroad fluid.”

The first recorded violation was typical of those that followed. According to the SMART-TD complaint, a UP conductor was called to work at his home terminal, Dupo, at 4 p.m. March 18 to work train CWEMS to Dexter.

“This was his 6th consecutive start, having previously worked March 12th, 14th, 15th, 16th, and 17th without a minimum of 24 hours off between tours of duty,” wrote Region VI FRA Administrator Steven J. Fender in a June 20 letter to Guy.

The conductor tied up at Dexter at 3:03 p.m. April 3. Under Hours of Service Law Section 21103(a)(4)(a), he should have been deadheaded back to his home terminal, Dupo. Instead, UP ordered him back to work at 5:30 p.m. March 19 to work his way back to Dupo aboard train No. MNLAS 18.

“The law says this employee should have been deadheaded back to his home terminal,” Guy said. “He can be worked back to his home terminal, but if so he is then entitled to 72 consecutive hours of rest, which he was not given.”

The other five violations between Dupo and Dexter involved the same sort of “quick-turnaround” mentality on the part of railroad managers, as did the case of the employee assigned to work from Dupo to Paducah.

In the latter case, the employee was called to report at Dupo at 3:30 a.m. April 2 to work train 2CNAIM9 31 to Paducah. This employee already had reported for work March 27, 28, 29, 30, 31 and April 1—all with less than 24 hours off between any two consecutive tours of duty. The employee went off duty at Paducah at 4:05 p.m. April 2, but instead of being deadheaded back to Dupo he was assigned to work his way back aboard train CBRTS 30 after 24 hours and 25 minutes at the away terminal.

Fender said his office had recommended that the FRA administrator assess civil penalties—fines—against the UP for all six violations.

“Admittedly, Section 21103(1)(4)(a) is a somewhat complicated piece of language,” Guy said. “It’s understandable that a rookie railroad manager might make a bad call and order an employee with six consecutive tours under his belt to work his way home when he should be deadheaded home.

“But six violations in two weeks on the same piece of railroad? That’s more than a misunderstanding,” Guy said. “UP has a whole floor full of lawyers in their headquarters in Omaha, and they know perfectly well what the law says.”

Guy advised employees who believe they have been ordered to work in violation of the HOS laws to comply with instructions and carry out the assignment without protest.

“Never be insubordinate or try to be a ‘jailhouse lawyer,’” he said. “Take the assignment and perform it professionally, but be sure to alert your local chairman or legislative representative as soon as you are able. Keep accurate records of your time and be sure to record the proper name and title of the manager who ordered you to work.

“The outcome of this latest case demonstrates once again that employee activism exerted through the union is the most effective remedy against managerial excess,” Guy said. “The process works.”