February 14, 2012
CHICAGO (Feb. 14)—Acting on a Complaint by the UTU Illinois Legislative Board, the Federal Railroad Administration (FRA) has ruled that BNSF Railway violated the federal Hours of Service Law (HOSL) when it assigned an employee who had just completed six starts on six consecutive calendar days to return to work before completion of a mandatory 48 hours off-duty period.
UTU Illinois Legislative Director Robert W. Guy filed his complaint with the federal agency January 5 after Local #445 officials asked him to look into the December incident.
“According to documents, [the employee] initiated a tour of duty on 6 consecutive calendar days and was not afforded the mandatory 48-hour off-duty period after completing his sixth day of consecutive service,” Guy wrote to FRA Region IV Administrator Mike Long.
Guy noted that the employee worked his regular assignment at BNSF Logistics Park for five consecutive days in December and then on the sixth day performed a similar assignment at the carrier’s Willow Springs facility.
After one day of rest he was told he had been bumped from his assignment, so he bid on and was awarded a different one but was called to start that job before the expiration of the entire 48 hours of rest to which he was entitled.
Administrator Long replied to Guy February 8 in a letter that sustained the Complaint.
“BNSF was in violation of §21103(a)(4) when they allowed [the employee] to work as a locomotive engineer on Job LPC206 on duty at 1500 on December 21. 2011,” Long wrote.
The administrator noted, in citing the carrier with a defect, that the agency did not plan to ask for civil penalties against the carrier because the violation fell into what the carrier may have construed as a gray area that FRA had not defined in its regulations: The job to which the employee was assigned after being bumped from his regular position was under waiver from the 6 consecutive starts and 48 hours off provision.
Had the employee worked that new job for six consecutive days he would have been eligible for only 24 hours of rest. But because his six continuous days had involved a separate assignment not covered by the waiver he actually was entitled to a full 48-hour rest period. The transfer to a different assignment should have had no effect on the rest requirements associated with the earlier assignment.
“The employee acted properly in that he did not disobey the carrier’s instructions or otherwise act insubordinate, “Guy said. “He reported for work as ordered but later took the incident to the union, which wrote it up and passed it on to the FRA for a ruling that supported the employee. This is exactly the way the system is supposed to work.
“Even though the FRA chose to cite the carrier only with a defect,” Guy said, “the agency made it clear how this situation or scenario is to be handled in the future. Now that the carrier has been put on notice, I would expect a harsher decision should this error be repeated.”