July 10, 2008
Brothers,
During the
recently completed quadrennial meeting of the WRGCA at Sun Valley, the issue
of Carrier failing to provide lodging to our members in a reasonable time
was discussed. The issue was raised following the very recent receipt at
this office of information from BLET General Chairman Gil Gore with
attachment of various documents including Award No. 269 of PLB 6312 between
the UTU and Amtrak addressing an incident where a Conductor was held for 1
hour and 15 minutes after going off duty before receiving lodging. In the
award, Arbitrator Thomas Rinaldo sustained the Organization’s Claim for a
basic day for the Conductor on the basis that the Carrier failed to provide
lodging within a reasonable amount of time after the employee’s release from
duty.
The claim was
submitted on the basis of Rule 19(a) of the UTU Agreement with Amtrak which
provides:
“When a crew or individual
members thereof are released from duty at a location other than the designed
crew base of the assignment for more than four hours, each member of the
crew so released will be provided suitable lodging at the Corporation’s
expense and will receive a meal allowance of $5.00. A second allowance of
$5.00 will be provided after being held an additional 8 hours. Effective
November 1, 1994, such meal allowance shall increase to $6.00.”
The importance
of the foregoing language is that it nearly duplicates the language of our
Suitable Lodging Agreement which is found in Article II – Expenses Away From
Home: Section 1, of the June 25, 1964 National BLE Agreement, which
provides:
“When the carrier ties up
a road service crew (except short turnaround passenger crews), or individual
members thereof, at a terminal (including tie-up points named by assignment
bulletins, or presently listed in schedule agreements, or observed by
practice, as regular points for tying up crews) other than the designated
home terminal of the crew assignment for four (4) hours or more, each member
of the crew so tied up shall be provided lodging at the carrier’s expense or
an equitable allowance in lieu thereof. Suitable lodging or an equitable
allowance in lieu thereof shall be worked out on a local basis. The
equitable allowance shall be provided only if it is not reasonably possible
to provide lodging…”
This language
has been affirmed and improved in various interdivisional pool freight
service agreements in effect across the jurisdiction of this committee. In
addition, the requirement was expanded to cover extra service Engineers in
Article 7 of the May 13, 1971 National BLE Agreement.
The foregoing
provisions require a practical definition of the term “suitable”. On
December 30, 1990 the FRA issued a Memorandum addressing “suitable food and
lodging at designated terminals, hours of service act interpretation”, which
for the purposes of the Hours of Service Act, set a reasonable period of
time for lodging to be provided at 30 minutes. Again on February 3, 2004,
Edward W. Pritchard, Director, Office of Safety Assurance and Compliance of
the FRA issued a Memorandum addressing various elements regarding suitable
food and lodging for the purpose of administering the Hours of Service
Act. That Memorandum addressed a number of issues including the
requirement for food and availability of lodging for crews tied up at points
where suitable lodging is required. The Memorandum included the following
guidelines regarding what reasonable time is for crews at the away-from-home
terminal to deadhead to lodging or to wait for a room:
“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
presumable [sic] 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.)…
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
time they voluntarily left the away-from-home terminal for dinner, in lieu
of being transported to the lodging facility to rest…”
* (NOTE:
Only transport from lodging to on duty point in excess of 30 minutes
is considered on-duty time)
In those cases
where our membership is not provided a room at Carrier’s designated lodging
facility within 30 minutes of their off-duty time, in each case the member
should submit a penalty claim for a basic day for not being provided
suitable lodging within a reasonable period of time in accordance with
Article II Section 1 of the BLE 1964 National Agreement..
The claims
should reference Award 269 of Public Law Board 6312 and the FRA’s February
3, 2004 Memorandum with subject of “Suitable Food and Lodging at Designated
Terminals; Hours of Service Act Interpretation.”
In order for
the claims to be valid, after receiving a room, the employee must contact
CMS to adjust his/her legal rest period. Additionally, the claim must
include the following necessary information when submitted to the Carrier:
-
Time employee went off
duty.
-
Time employee departed
off duty point.
-
Time employee arrived at
lodging facility.
-
Time employee received
his/her room.
-
Printout of CMS record
showing original rest time.
-
Printout of CMS record
showing adjusted rest time.
-
Reason for delay in
getting a room (such as waiting for transportation to lodging facility,
waiting for clean room, etc.).
In addition it should be
noted that if the van stops en route to the lodging facility at the request
of a crewmember, no claim as described above should be submitted.
Please note
that I have attached a copy of the appropriate portion of the June 25, 1964,
National BLE Agreement, the February 3, 2004 FRA Memorandum, and the Award
No. 269 of PLB 6312 for your use in progressing the claims our members may
submit. You may also post this message and the attachments to assist our
members when submitting claims relative to this issue.
Fraternally,
J. L. Dayton
General Chairman
PDF
DOCUMENTATION REFERENCED ABOVE RELATING TO THIS ISSUE