[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FATIGUE IN THE RAIL INDUSTRY
=======================================================================
(110-8)
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 13, 2007
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia JOHN L. MICA, Florida
PETER A. DeFAZIO, Oregon DON YOUNG, Alaska
JERRY F. COSTELLO, Illinois THOMAS E. PETRI, Wisconsin
ELEANOR HOLMES NORTON, District of HOWARD COBLE, North Carolina
Columbia JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York WAYNE T. GILCHREST, Maryland
CORRINE BROWN, Florida VERNON J. EHLERS, Michigan
BOB FILNER, California STEVEN C. LaTOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas RICHARD H. BAKER, Louisiana
GENE TAYLOR, Mississippi FRANK A. LoBIONDO, New Jersey
JUANITA MILLENDER-McDONALD, JERRY MORAN, Kansas
California GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California HENRY E. BROWN, Jr., South
LEONARD L. BOSWELL, Iowa Carolina
TIM HOLDEN, Pennsylvania TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts BILL SHUSTER, Pennsylvania
JULIA CARSON, Indiana JOHN BOOZMAN, Arkansas
TIMOTHY H. BISHOP, New York SHELLEY MOORE CAPITO, West
MICHAEL H. MICHAUD, Maine Virginia
BRIAN HIGGINS, New York JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri MARIO DIAZ-BALART, Florida
JOHN T. SALAZAR, Colorado CHARLES W. DENT, Pennsylvania
GRACE F. NAPOLITANO, California TED POE, Texas
DANIEL LIPINSKI, Illinois DAVID G. REICHERT, Washington
DORIS O. MATSUI, California CONNIE MACK, Florida
NICK LAMPSON, Texas JOHN R. `RANDY' KUHL, Jr., New
ZACHARY T. SPACE, Ohio York
MAZIE K. HIRONO, Hawaii LYNN A WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa CHARLES W. BOUSTANY, Jr.,
JASON ALTMIRE, Pennsylvania Louisiana
TIMOTHY J. WALZ, Minnesota JEAN SCHMIDT, Ohio
HEATH SHULER, North Carolina CANDICE S. MILLER, Michigan
MICHAEL A. ACURI, New York THELMA D. DRAKE, Virginia
HARRY E. MITCHELL, Arizona MARY FALLIN, Oklahoma
CHRISTOPHER P. CARNEY, Pennsylvania VERN BUCHANAN, Florida
JOHN J. HALL, New York
STEVE KAGEN, Wisconsin
STEVE COHEN, Tennessee
JERRY McNERNEY, California
(ii)
SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS
CORRINE BROWN, Florida Chairwoman
JERROLD NADLER, New York BILL SHUSTER, Pennylvania
LEONARD L. BOSWELL, Iowa THOMAS E. PETRI, Wisconsin
JULIA CARSON, Indiana WAYNE T. GILCHREST, Maryland
GRACE F. NAPOLITANO, California STEVEN C. LaTOURETTE, Ohio
NICK LAMPSON, Texas JERRY MORAN, Kansas
ZACHARY T. SPACE, Ohio GARY G. MILLER, California
BRUCE L. BRALEY, Iowa HENRY E. BROWN, Jr., South
TIMOTHY J. WALZ, Minnesota Carolina
NICK J. RAHALL II, West Virginia TIMOTHY V. JOHNSON, Illinois
PETER A. DeFAZIO, Oregon TODD RUSSELL PLATTS, Pennsylvania
JERRY F. COSTELLO, Illinois SAM GRAVES, Missouri
EDDIE BERNICE JOHNSON, Texas JIM GERLACH, Pennsylvania
ELIJAH E. CUMMINGS, Maryland MARIO DIAZ-BALART, Florida
MICHAEL H. MICHAUD, Maine LYNN A. WESTMORELND, Georgia
DANIEL LIPINSKI, Illinois JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota (ex officio)
(ex officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vii
TESTIMONY
Boardman, Hon. Joseph H., Administrator, Federal Railroad
Administration, accompanied by Grady C. Cothen, Jr., Deputy
Associate Administrator for Safety Standards and Program
Development, Federal Railroad Administration;.................. 3
Brunkenhoefer, James, National Legislative Director, United
Transportation Union........................................... 26
Dealy, David, Vice President, Transportation, BNSF Railway...... 26
Hamberger, Edward R., President and Chief Executive Officer,
Association of American Railroads.............................. 26
Hursh, Steven R., President, Institutes for Behavior Resources.. 11
Parker, Leonard, Legislative Director, Brotherhood of Railroad
Signalmen...................................................... 26
Pontolillo, Thomas A., Director of Regulatory Affairs,
Brotherhood of Locomotive Engineers and Trainmen............... 26
Rosenker, Hon. Mark V., Chairman, National Transportation Safety
Board.......................................................... 3
Sherry, Patrick, Ph.D., Professor, University of Denver......... 11
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Brown, Hon. Corrine, of Florida.................................. 196
Costello, Hon. Jerry F., of Illinois............................. 230
Mica, Hon. John L., of Florida................................... 272
Oberstar, Hon. James L., of Minnesota............................ 275
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Boardman, Hon. Joseph H.......................................... 48
Brunkenhoefer, James............................................ 201
Dealy, David.................................................... 232
Hamberger, Edward R............................................. 243
Hursh, Steven R................................................. 261
Parker, Leonard................................................. 278
Pontolillo, Thomas A............................................ 287
Rosenker, Mark V................................................. 302
Sherry, Patrick.................................................. 311
SUBMISSIONS FOR THE RECORD
Boardman, Hon. Joseph H., Administrator, Federal Railroad
Administration:
Responses to questions......................................... 57
Responses to questions and attachments concerning fatigue...... 65
Report, Current Status of Fatigue Management in the Railroad
Industry, Patrick Sherry, Ph.D, Associate Professor,
Director, National Center for Intermodal Transportation,
Intermodal Transportation Institute, University of Denver,
July 25, 2006................................................ 69
Fax from BNSF Railway Company, description of computer-based
training courses offered by the National Academy of Railroad
Sciences, Overland Park, Kansas.............................. 176
Canadian National Railway, summary of fatigue training program
and three CN brochures....................................... 180
CSX Transportation, Inc., email................................ 187
Norfolk Southern Corp., email and attachment listing Norfolk
Southern initiatives on work/rest education and training..... 188
Union Pacific Railroad company, email and attachment listing
Union Pacific videos and brochures on various subjects,
including alertness.......................................... 190
Hamberger, Edward R., President and Chief Executive Officer,
Association of American Railroads, response on Norfolk
Southern's use of camp cars.................................... 46
Rosenker, Hon. Mark V., Chairman, National Transportation Safety
Board, responses to questions.................................. 307
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FATIGUE IN THE RAIL INDUSTRY
----------
Tuesday, February 13, 2007
House of Representatives,
Committee on Transportation and Infrastructure,
Subcommittee on Railroads, Pipelines and Hazardous
Materials,
Washington, DC.
The subcommittee met, pursuant to call, at 2:00 p.m., in
room 2167, Rayburn House Office Building, the Honorable Corrine
Brown [chairwoman of the subcommittee] presiding.
Ms. Brown. Will the Subcommittee come to order?
The Subcommittee is meeting today to hear testimony on
fatigue in the rail industry.
Let me just say from the onset because the Federal
Government is shutting down at 2:00, we are going to try to
conduct this hearing within an hour. There is going to be
restraint on my part, the Ranking Member's part and the
members, and also we are going to hold to the five minute rule.
According to the FRA, human factors are responsible for
nearly 40 percent of all train accidents, and a new study
confirms that fatigue plays a role in approximately one out of
four of these accidents. Research analysis of the 30 day work
schedule of locomotive crews represent 1.40 train accidents and
not surprisingly found a strong correlation between the crew
levels of alertness and the likelihood that they would be
involved in an accident. The NTSB investigators have reached
similar conclusions.
The Hours of Service Law which was originally enacted in
1907, amended in 1969, is outdated. It deals only with acute
fatigue, not cumulative fatigue. Since the rail industry is
remarkably different today compared to 40 or 100 years, there
are some significant shortcomings in the law.
For example, the law does not properly address limbo time
which is a time when crew workers' assignment is finished and
they are waiting for transportation back to their homes. During
limbo time, crew members are required to stay awake, alert and
able to respond to any situation which means the crew can be on
the job for as long as 15 to 20 hours at a time.
In the case of the Texas accident which the NTSB will
mention this afternoon, the engineer worked longer than 14
hours on 11 days prior to the accident. On one of those days,
he worked a total of 22 hours, 12 hours and 10 hours in limbo
time. The Texas accident raised some longstanding concerns with
the Hours of Service Law and railroad operation procedures.
Although the NTSB has repeatedly asked the FRA to make
improvements to Hours of Service and address fatigue, the FRA
singly does not have the regulatory authority to do so. So it
is up to Congress to take action. I understand the railroads
are busier than ever and need all of the manpower they can get,
and I understand that the railroad workers are happy to work
long and hard just to make ends meet, but these hearings are
about safety, and we have an opportunity to stop a large
percentage of accidents if we use sound science to determine a
safe and productive work schedule.
I want to welcome our distinguished panelists today, and I
am looking forward to working with you in the hearing and to
hearing your ideas on reducing fatigue in the railroad industry
and strengthening the overall safety environment.
Before I recognize Mr. Shuster for his opening remarks, I
ask unanimous consent to allow 30 days for all members to
revise and extend their remarks and to permit the submission of
additional statements and material by members and witnesses,
without objection.
Mr. Shuster?
Mr. Shuster. Thank you, Madam Chairwoman. I want to thank
you for putting together this hearing today on fatigue in the
railroad industry.
As we have heard over the last two weeks from several
people, fatigue has been identified as a contributing factor in
several serious accidents. If reducing worker fatigue equals
reducing accidents, then I am all for it.
However, when examining this issue, we must also keep in
mind that our existing rail safety laws have been a remarkable
success. The Bureau of Labor Statistics reports that the rail
industry is rated safer than manufacturing, aviation and
trucking and from the figures I have seen, statistically,
working on the rails is safer than working in a grocery store.
According to testimony delivered at our last hearing, there
have been a 71 percent decline in train accidents since 1978.
Total rail-related fatalities declined 46 percent while total
employee deaths have dropped 80 percent.
Worker fatigue is certainly an important issue, and we need
to ensure that railroad workers receive adequate rest. When
addressing these issues, we must also remember that even well
rested humans sometimes make mistakes. One of the best ways to
combat human error is through advanced technology. Positive
train control can stop a train if an engineer mistakenly runs a
red light, new tank car designs can prevent the accidental
hazmat releases, and advanced track inspection cars can detect
track flaws invisible to the human eye. We must continue to
look forward and explore new technologies to keep our railroads
safe.
In closing, Madam Chairwoman, I would like to thank you
again for holding these hearings on fatigue and thank all of
the witnesses that are here today to testify before us. I am
looking forward to a most informative hearing today.
Thank you and I yield back.
Ms. Brown. Thank you.
The other members will have an opportunity to submit their
opening remarks and questions.
Now I want to welcome the Honorable Joseph Boardman who is
the Administrator for the Federal Railroad Administration. Mr.
Cothen, who is the Deputy Assistant Administrator of Safety
Standards and Program Development at the FRA, is joining him
today.
TESTIMONY OF THE HONORABLE JOSEPH H. BOARDMAN, ADMINISTRATOR,
FEDERAL RAILROAD ADMINISTRATION, ACCOMPANIED BY GRADY C.
COTHEN, JR., DEPUTY ASSOCIATE ADMINISTRATOR FOR SAFETY
STANDARDS AND PROGRAM DEVELOPMENT, FEDERAL RAILROAD
ADMINISTRATION; THE HONORABLE MARK V. ROSENKER, CHAIRMAN,
NATIONAL TRANSPORTATION SAFETY BOARD
Mr. Boardman. Thank you, Madam Chairwoman and Mr. Shuster.
In an effort to get underway quickly, I am very pleased to
be here today for Secretary Peters to testify regarding the
issue of fatigue and its relationship to the safety of railroad
operations.
In any given year, approximately 35 to 40 percent of train
accidents, and very likely the majority of railroad employee
fatalities and personal injuries, involve what the safety
community refers to as human factors. As I testified before
this Subcommittee last July, we are here to maximize safety. We
need to make sure that we have good rules and procedures,
effective training, system accountability, and positive safety
culture.
I also called attention to the need for employees to be fit
for duty, well rested, free of alcohol and other impairing
drugs, and free of medical conditions that could compromise
performance. In the 1980's, the FRA led the way in targeting
alcohol and drug use, and the Railroad Safety Advisory
Committee is currently exploring the establishment of medical
standards for safety-critical railroad employees. This effort
includes a sharp focus on sleep disorders which can contribute
to fatigue.
My written testimony addresses the broad range of fatigue
initiatives we have underway; but, in the few minutes that I
have here today, I would like to focus particularly on the
providing of employees with the opportunity to get needed rest.
As you stated, we are approaching the 100th anniversary of
the Hours of Service Act on March 4th of this year, and its
substance as applied to train crews has not been amended for
over 37 years. For the last 25 years the National
Transportation Safety Board has been calling attention to the
apparent role of fatigue in major train accidents. For much of
that time, FRA, labor, and management have worked together to
get a better understanding of this problem and to develop
effective responses.
This past November, I had the pleasure of releasing a study
that reported the largest body of fatigue-related data from the
railroad industry ever made public. The study documented
successful validation and calibration of a fatigue model that
may be used to evaluate the scheduling of railroad operating
personnel. The underlying data also confirmed what we inferred
in other studies, that is, that a significant number of the
most serious accidents involve employees whose performance is
adversely affected by fatigue.
Today I am here asking for your support for legislation
that will permit us to put into action what we have learned. We
propose to sunset the hours of service laws but retain its
protections as interim regulations. Then we would convene the
Railroad Safety Advisory Committee to develop new science-based
requirements that can help to reduce human factor accidents and
casualties.
We will need revised benchmark limits on work hours and
requirements for rest periods to provide simple guidance for
fixed schedules where that will suffice, but with the tools now
available, we will be also able to recognize fatigue management
approaches that include careful evaluation of a wide variety of
more flexible work schedules by validated techniques.
Madam Chairwoman, some will tell you that statutory hours
of service should live on because, although that Boardman
fellow can be trusted for now, who knows who will follow him? I
understand the concern that hard-won gains might be lost, but
one thing I have learned at the FRA is that we are subject to
an incredible amount of oversight and public scrutiny, and we
wouldn't and couldn't go far wrong even if we wanted. We are a
part of the U.S. Department of Transportation, and FRA as an
institution can be trusted to take this on just like the FAA or
the FMCSA, and we have prepared ourselves to do it.
Others will tell you that the days of excessively long
hours are over. They will say that a variety of improved
practices are in place. The situation is under control. In
fact, we are gratified that many employees are better off from
the point of view of adequate rest than they were in 2004 and
2005. But history teaches us that unexpected forces can sweep
rapidly through this industry and that when the spotlight is
not on, safety can suffer.
As I pointed out in my prepared remarks, the solution to
this problem should not break the bank. Even during the worst
of times, employees have received adequate opportunity for rest
most of the time, and most employees take advantage of those
opportunities. Let us close this remaining gap, and let us
ensure the solution holds. I believe that is done by giving the
FRA the ability to apply scientifically-based fatigue
management through RSAC, advised by RSAC, and with regulation-
based hours of service.
Madam Chairwoman, thanks for the opportunity to talk about
the problem of fatigue, which affects all of us in every walk
of life but which looms largest when life is itself at stake.
FRA looks forward to working with this Subcommittee as you move
forward with rail safety reauthorization, and our bill will be
delivered to Congress tonight.
Ms. Brown. I ask unanimous consent to permit the gentleman
from New York, Mr. Kuhl, to sit with the Subcommittee and ask
questions throughout the course of the hearing. Without
objection, so ordered.
I welcome the Honorable Mark Rosenker who is Chairman of
the National Transportation Safety Board.
Let me remind the witnesses to try to limit their oral
statements to five minutes. Your entire statement will appear
in the record.
Mr. Rosenker. Thank you, Chairwoman Brown, Ranking Member
Shuster and distinguished members of the Subcommittee. I have
submitted my written testimony for the record, and I wish to
thank you for the opportunity to testify on this important
safety issue: fatigue in the rail industry.
I plan to discuss three areas of concern today: first, the
decades long history of fatigue-caused railroad accidents that
the Safety Board has investigated; secondly, the equally long
history of safety recommendations that we have made to address
the problem; and finally, the frustration we share with the
Federal Railroad Administration regarding its lack of
legislative authority to address the root causes of fatigue
through scientifically-based principles of work load and
fatigue management.
Since 1984, fatigue-related train accidents have continued
until the most recent collision between two freight trains at
Macdona, Texas in June of 2004. Both crew members failed to
obtain sufficient restorative rest before reporting for duty
because of their ineffective use of off duty time and the
railroad's train crew scheduling practices. Work as a train
crew member often entails an unpredictable work schedule. That
unpredictability may have encouraged this crew to delay
obtaining rest.
The work schedules of rail crew members permit repetitive
12 hour duty days that we know lead to cumulative fatigue. When
the workers commute, limbo time and family responsibilities are
added to those 12 hour daily schedules. The conditions for
exceedingly long delays that lead to acute fatigue are quite
evident. Further, the relatively short mandatory periods of
time off may not afford the opportunity for fully restorative
sleep.
In the past two decades, the Safety Board has issued 33
recommendations specific to railroad employee fatigue. The FRA
received eight, and others have gone to rail carriers and
operating unions. Just as our accident history traces the
problem of fatigue in railroad accidents, the Safety Board's
recommendation history defines the actions that we think could
address the problem including enhanced nighttime supervision,
crew alerters, actions to reduce the irregularity and
unpredictability of crew members' work-rest schedules,
education and counseling to help crew members avoid sleep
deprivation and finally the establishment of rail carrier
policies that would allow an employee to report off duty when
they are impaired by lack of sleep.
Recommendations to address the issue of operator fatigue
were placed on the Board's most wanted list in 1990. One
recommendation in 1999 asked the FRA to establish
scientifically based Hours of Service regulations that set
limits on hours of service, provide predictable work and rest
schedules and consider circadian rhythms in human sleep and
rest requirements. The FRA acknowledged the seriousness of the
effects of fatigue on safety, but it stated it did not possess
the authority to change Federal Hours of Service. The FRA also
stated that the DOT had attempted to seek Congressional
authority in 1991 to bring about modernization of Federal Hours
of Service laws in a bill submitted to Congress. However,
according to the FRA, the bill was not supported by rail labor
and rail management, and unfortunately it was not enacted in
the 102nd Congress. Therefore, our 1999 safety recommendation
was classified "closed, reconsidered" in recognition of the
FRA's lack of authority to be responsive to the recommendation.
However, after more railroad accidents were attributed to
fatigue including the accident in Macdona, Texas, the Safety
Board last year recommended that the FRA require railroads to
use scientifically based principles when assigning work
schedules and establish requirements that limit train crew
members' limbo time. The FRA in October, 2006 again responded
by saying that the FRA lacked rulemaking authority over duty
hours which the FRA says precludes it from making use of almost
a century of scientific learning on the issue of sleep-wake
cycles and fatigue-induced performance failures.
We believe the FRA needs the authority to regulate crew
member work schedule practices and work limits and continue to
support changes that would provide the FRA that authority.
Madam Chairwoman, that completes my statement, and I will
be happy to respond to your questions.
Ms. Brown. Thank you.
Mr. Boardman, my questions mainly go to you. You are
working on a bill, and you mentioned a need for legislation to
address fatigue. Why not leave this up to labor and management
to negotiate this?
Mr. Boardman. Yes, Madam Chairwoman, you will have the bill
this evening.
Basically, because the public is really not represented in
labor and management negotiations and at the collective
bargaining table, yet the public is the one that is at risk
along the tracks when the workers are not rested and an
accident occurs. Companies and labor organizations have their
own agendas to deal with, and to place this additional agenda
on them at the collective bargaining table, we don't think is
the right approach.
Ms. Brown. Can you give us the five main points of the bill
that you all are going to be bringing forth?
Mr. Boardman. Certainly, one of them is the hours of
service regulation, in and of itself. In addressing limbo time,
for example, we may be asking for a performance-based approach
that will take into consideration any prior sleep deficit, the
ability to plan rest, the duration of the covered service
period, time spent awaiting transportation, time, in
transportation, of the day with the circadian rhythms, as the
Chairman talked about, and any other factors that may be
important.
In terms of saving you time on this particular Committee, I
can list each of the elements and get back to you on the major
parts of the safety bill itself, but it includes grade
crossings, and it includes some clarifications, several areas
that I would rather not go into now to save you time.
Ms. Brown. Thank you.
Did you want to respond?
Mr. Rosenker. I am in support of what the Administrator is
trying to do. We are quite supportive of the action of trying
to get the Congress to change the way the legislation is
written. It is the only mode of transportation that the Hours
of Service are dictated by statute rather than regulatory
action.
Ms. Brown. Mr. Shuster?
Mr. Shuster. Thank you.
Mr. Boardman, I think you just mentioned you did not have
management or labor consulting when you were drafting what you
are going to propose here, is that correct?
Ms. Brown. In terms of the bill itself. For the
regulations, though, the way that will be handled is we will go
into the RSAC Committee which is the Rail Safety Advisory
Committee where both labor and management are represented.
Mr. Shuster. But on the legislation, though, you have put
something forward. Did you consult with management and labor?
Mr. Boardman. We have consulted on a regular basis and
understand what labor and management believe or think about
many of these things, but in the clearance process of the
Federal Government, they are not in that clearance process.
Mr. Shuster. But you feel confident of their views because
obviously if we start to draft legislation, before we put
something through, management and labor are certainly going to
want to weight in and make sure that they are heard.
Mr. Boardman. We believe it is absolutely critical that
management and labor are heard in whatever it is that we
develop in terms of a performance approach on the regulations,
yes.
Mr. Shuster. You testified about FRA's development of a new
mathematical model that is going to be helpful in putting forth
guidelines in rail's future fatigue management. Have you put
that out into the scientific community? Have they reviewed it
and what were their findings on that new mathematical model?
Mr. Boardman. I think one of the reasons I brought Mr.
Cothen with me today is the history and the amount of detail
that have been involved in this whole scientific analysis. So,
if it is OK with you, I would ask him to answer that.
Mr. Shuster. Sure, absolutely.
Mr. Cothen. The underlying model, the scientific model----
--
Mr. Shuster. Can you pull the microphone closer?
Mr. Cothen. Yes, sir.
Mr. Shuster. Thank you.
Mr. Cothen. The scientific model which is embodied in the
tool which we are using at the Federal Railroad Administration
has been developed by the U.S. Department of Defense and has
been peer-reviewed in a major conference in which sleep models
were reviewed by established experts in the field. In that
review, it was concluded to be the most nearly accurate model
available currently.
What we have then done is we have taken the model, and we
have applied it to real life railroad data, 400 human-factor
train accidents and 1,000 non-human-factor accidents, and we
have looked for correspondence to see if what one would think
it would predict is in fact predicted. It satisfied that test
with a high degree of statistical significance. I am sure that
there will be additional peer review of the model as time goes
forward.
Mr. Shuster. Thank you.
As we move forward on this issue, I know Mr. Boardman has
already said that he doesn't have the statutory ability to
change the law, but from what I have seen and what I have read
is that the average worker in the rail industry is working
about 250 hours as opposed to a trucker who works about 240
hours and then down from there, an airline pilot, around 100
hours a month. As we start to look at this and if we are going
to pass laws and enforce the time standards onto railroad
companies and into labor, how are we going to enforce that with
the individual?
I know myself, I go home with good intentions of going home
and having eight hours of sleep, but then my son has homework,
a project and I stay up later than I want to. How are we going
to make certain that the worker, that the engineer, that the
conductor is going to abide by those laws when those things
come up in life? That is of great concern, and I would
certainly be opposed to forcing an engineer or anybody to say
you have to have eight hours of sleep, and in fact how do we
enforce that?
What are your thoughts on those types of situations?
Mr. Boardman. I think, first of all, 250 hours, when you
think about it, is 3,000 hours a year. That is 60 hours a week.
So that is six ten-hour days a week on average, and that really
is only an average. It is not clear, when that is talked about,
as to whether or not that includes or doesn't include limbo
time, and limbo time is neither time worked nor time off, and
you are going to hear more about that as we go forward. So it
could be a lot more than the 250 hours, or perhaps it is less.
We are not actually saying that, and we know in the
industry they want rested workers, and certainly workers want
to be rested.
I think one of the things that the model really shows and
the scientific work shows is that if you have more time to
rest, you will rest more. In some cases, because of the push
that is out there today or has been out there in the past,
there has been an inability to provide that kind of rest.
But, again, our intent is to have a fatigue management mode
or model, or part of what it is that we want to do in terms of
regulation, doing something very different than FMCSA or FAA or
others have done in the past. With the history that we have
here, with over 100 years, with the scientific knowledge that
we have today, and with the ability for us hopefully to come to
an agreement where we know many progressive issues with
railroads and unions have looked at how they might solve this,
we can come together with a performance-based fatigue
management plan.
Mr. Shuster. I know if my time has expired, but I wonder if
Mr. Rosenker could just respond to that.
Mr. Rosenker. There has to be a bit of personal
accountability in this too. No one is in your home, making sure
that if you have the appropriate 10 hours or 8 hours of rest
that has been guaranteed to you by the Hours of Service rules
and that you are going to take advantage of that. But for the
most part what you must be able to do is create at least that
environment. The way the rules are right now in the railroad
industry, that may not be accomplished. That may not be
possible with this use of the limbo time.
But I would like, if you will give me the opportunity, to
compliment you, Mr. Shuster, and also my colleague at the FRA,
the Administrator, on the recognition of the importance of a
tool that we believe is the beginning of prevention of
accidents in the railroad industry, and that is positive train
control. We have seen some tremendous progress being made by
the FRA and by the industry itself which will be a device
ultimately in the event an engineer does, by accident, miss a
signal or perhaps does something that may well be wrong in his
locomotive. This device will help bring that locomotive to a
stop and prevent a collision or an accident. So we are very,
very pleased that we have seen this recognition and seen the
progress by the Administrator.
Mr. Shuster. Thank you.
I have a number of questions. I will submit them for the
record because I know the time constraints. Thank you.
Ms. Brown. Thank you.
I just have one follow-up question. Mr. Boardman, how will
the Administration be able to deal with limbo time? I guess the
follow-up question is: Is limbo time paid for by all of the
railroads or how is it handled?
Mr. Boardman. Limbo time is right now handled in that
anybody who has limbo time is paid, but the interesting part of
it is it is neither on-duty time nor is it off-duty time. It
comes at the end of the hours of work schedule for the train
crew, and it exists until their final relief point.
What we are really looking for is really to have a
performance-based approach, as I said, that can take into
consideration any prior sleep deficit, the ability to plan
rest, and the duration of the covered service period itself,
and try to really work limbo time into an integral part of that
analysis.
Ms. Brown. Thank you.
Mrs. Napolitano?
Mrs. Napolitano. Thank you. I will submit something for the
record, but I will keep mine to a minimum.
One of the things that, Mr. Rosenker, you indicated that
the FRA does not have the authority to do certain things. If
they don't, who does?
Mr. Rosenker. In Hours of Service, Congress. In the 1907
legislation, it was created at 16 hours in the Hours of Service
and changed later to 12 hours back in 1969. Although the FRA is
in agreement with us philosophically, they don't have the
statutory responsibility or capability to make those
amendments. That is what I believe they are asking for in their
reauthorization.
Mrs. Napolitano. Can you tell me if any of those long
hours, what portion of that might be attributed to the lack of
trained personnel to be able to step in and take over some of
those jobs?
Mr. Rosenker. As far as the Hours of Service, I think both
the operators and the companies wish to take advantage of as
much operating time as they possibly can. I think that is the
issue rather than lack of trained personnel at this time.
Mrs. Napolitano. Then there is another one, that there have
been fatigue training programs. Mr. Boardman, you have written
in your testimony that railroads and labor organizations make
significant efforts to deliver fatigue training programs and
ensure ongoing awareness. Could you elaborate how effective
these have been to reduce fatigue and improve safety?
Mr. Boardman. Congresswoman, education and training of the
railroad employees themselves is really an important factor in
fatigue countermeasures that the FRA would continue to
evaluate. Fatigue is a complex issue, as you well know.
Mrs. Napolitano. Sir, may I interrupt?
Mr. Boardman. Certainly.
Mrs. Napolitano. There is an issue here that is not
answered and that is under the training programs, somebody gets
a slide presentation and that is it or a pamphlet to read and
that is supposed to be training. Am I correct?
Mr. Boardman. No. Actually, I think the industry has some
Web sites now that people can go to, to talk about sleep
hygiene. There has been a lot of study and work done to try to
educate and train employees on what fatigue means.
Mrs. Napolitano. Well, yes, true, but if they don't have a
computer, then whose time is it on that they have to go on a
computer, say, in a board room?
Mr. Boardman. I don't know the answer to that.
Mrs. Napolitano. Well, that would go to the core of my
question which is: How do you get these individuals educated on
the programs that you have and could we have possibly a copy so
that we can see what programs you have in effect?
Mr. Boardman. I think that with some of the work that Grady
has done on the RSAC Committee, he can probably give you some
real facts on that.
Mr. Cothen. Congresswoman, the National Rail Alertness
Partnership and the Work-Rest Taskforce, which is a labor-
management group, have talked about this and worked on this
issue for a considerable amount of time, and I think that you
will find that, in union publications which come to the homes
of most of the employees and in railroad training programs,
there is significant emphasis on the issue of fatigue and the
importance of taking advantage of rest.
Mrs. Napolitano. We are talking about training programs,
sir, not the significance of getting rest. I am talking about
training programs themselves, the actual training of the
signalmen, of the locomotive engineers, of all the people that
are involved. What training? To what extent do they have access
to it? How many hours are required? When are they given the
training?
I have heard from a couple, and they say they do a slide
presentation, and that is it. That is your training, kids.
Mr. Cothen. I think awareness and education in this area
are something we need to continue to work on.
Mrs. Napolitano. You are not answering my question, sir.
What programs are there?
Mr. Boardman. Congresswoman, if you would like, I think it
is best if what we did was give you a written response to your
question.
Mrs. Napolitano. If you would please with a copy of those
programs for the record.
Mr. Boardman. Certainly, I will do that.
Mrs. Napolitano. Thank you, Madam Chair. I yield back.
[The information received may be found on page :]
Ms. Brown. Mr. Space?
Mr. Space. Thank you, Madam Chair. I have no questions at
this time.
Ms. Brown. Mr. Lipinski?
Mr. Lipinski. Thank you for your testimony. Right now, I
just want to say I look forward to seeing tonight your
recommendations, and I am sure that in the future we will have
more to talk about on this issue.
Thank you.
Ms. Brown. Mr. Walz?
Mr. Walz. No questions.
Ms. Brown. No questions, OK.
I guess the last question. Do you have additional
questions?
Mr. Boardman, you mentioned that signal maintenance could
be adversely affected by unscheduled trouble calls on top of
the normal eight hour day. What does that mean and how would
the Administration bill address this issue?
Mr. Boardman. Congresswoman, Madam Chairwoman, the signal
employees can work up to 12 hours, but that can be increased by
an additional 4 hours in case of an emergency. It was generally
understood at the time the statute was passed that this could
include one or more trouble calls due to a signal stuck on a
red or a grade crossing warning system that either is
continuously operating or failed to operate. This happens
somewhat often, and if it is not followed by adequate rest,
that can become a problem for the signal maintainer.
Our bill would permit us to look at the whole picture and
give them an opportunity for rest, give them an opportunity for
rest prior to their tour of duty and the duration of their
regular tour. We don't want to set up restrictions that keep
signal employees from responding to emergencies, but we do want
to make sure that they are rested and able to handle them well.
Ms. Brown. Thank you.
I want to thank the witnesses for their valuable testimony
and members for their questions.
The members of this Subcommittee may have some additional
questions for the witnesses, and we will ask you to respond to
them in writing. The hearing record will be held open for
additional response.
Thank you very much.
Mr. Boardman. Thank you, Madam Chair.
Ms. Brown. The second panel, please.
The second panel is Dr. Hursh and Dr. Sherry. Is that
correct?
I want to welcome the second panel of witnesses, and I want
to thank Dr. Hursh who serves as President of the Institutes
for Behavior Resources in Baltimore, Maryland. He also serves
as a professor at the Johns Hopkins University School of
Medicine.
Next we have with us, Dr. Sherry who is a professor at the
University of Denver's Intermodal Transportation Institute.
We are please to have you here with us this afternoon. Your
full statement will be placed in the record. We would ask you
to limit your testimony to five oral minutes and summarize it
and then we will have some questions. I want to thank you and
welcome you for coming out today.
TESTIMONY OF STEVEN R. HURSH, Ph.D., PRESIDENT, INSTITUTES FOR
BEHAVIOR RESOURCES; PATRICK SHERRY, PH.D., PROFESSOR,
UNIVERSITY OF DENVER
Dr. Hursh. Good afternoon, Madam Chairwoman and Ranking
Member Shuster and other members of the Subcommittee. Thank you
for inviting me to testify before you on the important subject
of fatigue in the rail industry.
The work I support was supported by the Federal Railroad
Administration, but the remarks are my own perspective.
By way of background, I am the former Director of Neuro
Psychiatry of the Walter Reed Army Institute of Research, home
of the largest DOD sleep laboratory and the technology I report
is the result of over 12 years of research to develop a fatigue
model for the Defense Department and six years of investment by
the FRA to adapt it for use by the railroads. The model has
been independently reviewed by the scientific community and has
been adopted as the Defense Department war fighter fatigue
model.
Today I report that this model has now been validated as a
measure of fatigue in the rail industry that can predict
accident risk in rail operations. The development opens the way
for the rail industry to use fatigue models as part of
effective fatigue risk management programs. I will suggest some
actions that can be taken now as a result of this new
development.
Fatigue is a complex physiological state characterized by
lack of alertness and reduced mental performance often
accompanied by drowsiness. Fatigue is clearly more than falling
asleep at the switch. Fatigue causes a range of performance
changes, often without self-awareness. The factors that cause
fatigue, inadequate sleep and the body clock, have been
extensively studied and are well understood, but there is no
biological marker like a breathalyzer for alcohol. In the
absence of a biological marker, a predictive mathematical model
of fatigue based on work schedule information can give the
organization an objective fatigue risk measure.
To test the validity of this technology, an FRA-sponsored
study was just completed, conducted with the cooperation of
five railroads and the labor unions which examined 1,400
accidents over 2 and a half years. The results I report today
show the ability of a fatigue model to predict accidents caused
by fatigue-induced human error.
Chart 1 indicates that as predicted performance
effectiveness scores decreased and fatigue increased, the risk
of having a human factors accident increased, the blue dots.
The results indicated a maximum increase risk of 65 percent at
the highest level of fatigue and lowest effectiveness and a
meaningful increase in risk when effectiveness scores were
below 70. The fatigue model study that fatigue as measured by a
fatigue model increases the risk of rail accidents.
The question is how to respond to this information, and I
shall offer several concepts for your consideration. First,
fatigue cannot be totally eliminated. Approximately 22 percent
of over the road rail operations occur between midnight and
6:00 a.m. when people are naturally less alert and risk is
elevated by 10 to 20 percent. So the goal of fatigue management
cannot be to eliminate risk but rather to minimize unnecessary
fatigue and manage the consequences of fatigue.
Within the necessary boundaries of Hours of Service rules,
whatever they may be, effective evidence-based or performance-
based fatigue risk management can effectively limit fatigue.
Evidence of excessive fatigue shapes operating practices and
individual lifestyle decisions towards reduced fatigue and
better performance.
The approach is based on four Ms: measurement, modeling,
modification of practices and monitoring of results. At the
center of the process, all the constituents--labor management,
government--supported by the scientific community are at the
table to formulate solutions. The process is driven by evidence
of success and provides for continuous performance improvement.
I would encourage the adoption of such programs as a
complement to Hours of Service regulations. There are a number
of enabling practices that can facilitate the processes
assessed in my testimony.
Beyond the current initiatives, the FRA could play a key
role in advancing the development of fatigue risk management
programs under Hours of Service regulatory authority comparable
to the other modes of transportation. The FRA could set
standards for acceptable programs and, more importantly,
exercise regulatory function to examine the objective evidence
of program effectiveness. As a scientist, I endorse that
approach as the best prospect to minimize fatigue and improve
rail safety.
I would be glad to accept any questions. Thank you very
much.
Ms. Brown. How much additional time did you need, a couple
more minutes?
Dr. Hursh. No. I am fine, ma'am.
Ms. Brown. OK.
All right, Dr. Sherry?
Mr. Sherry. Good afternoon, Chairwoman Brown and Ranking
Member Shuster and other distinguished guests. It is my
pleasure to testify before the Committee on this very important
topic.
Ensuring the safe and efficient movement of goods is key to
our Nation's economic security and continued economic
viability.
Today I hope to make three main points. First, simply
changing the Hours of Service laws such as decreasing hours on
duty or lengthening time off will not necessarily reduce
fatigue. Second, railroads should be required to establish
fatigue countermeasure plans, evaluated by independent
scientific panels and then be held accountable for those plans.
Third, providing funding to a consortium of research
universities for the continued study of fatigue countermeasures
and measurement tools would expedite the identification of
successful fatigue management programs.
Over the past 12 years at the Intermodal Transportation
Institute and the National Center for Intermodal
Transportation, we have in over a dozen studies of over 3,500
railroad employees who have completed fatigue surveys or worn
actigraphs or other research measures. Their support has helped
us to determine that there is no one single approach that is
going to solve the problem and eliminate the risk of fatigue. I
should point out that if it was that simple, labor and
management would have agreed on it by now and we wouldn't be
here.
Fatigue is caused both by a lack of sleep and by the
circadian rhythms of the human body. The longer one is awake,
the less alert one becomes, thereby decreasing cognitive
effectiveness. So if the Hours of Service law were changed to
give people 10 hours off between shifts, this would be helpful,
but individuals would still experience lowered levels of
alertness when working between 4:00 and 5:00 in the morning.
Plus, fatigue would still need to be managed with additional
with additional countermeasures suggesting the need then for a
more comprehensive plan. Let us see here.
Sleep length varies according to the time of day. Looking
at this graph, we see that if an employee works a midnight
shift and tries to go to sleep at 7:00 a.m. or 8:00 a.m., there
is a strong likelihood that this individual will obtain only
four and a half hours of sleep. Fatigue is a function of the
combination of hours asleep, hours awake and time of day
relative to the circadian rhythms, and this needs to be taken
into consideration when managing fatigue.
In a recent study, 30 railroad employees wore actigraphs
for one month. The average amount of sleep for the total group
was six and a half hours of sleep for each 24 hour period which
is equivalent to the National average for shift workers as
reported by the National Sleep Foundation.
Inspecting the individual data, we found that a typical
pool engineer had a schedule that demonstrated an acceptable
overall average of sleep but masked the fact that individual
sleep episodes were very low on particular days as evidenced by
this graph, the little short bars.
Notice the spikes in the profile where the individual slept
long periods following shorter sleep periods. This is likely
the result of an accumulated sleep debt which occurs when an
individual obtains less than seven or eight hours of sleep per
night over consecutive nights.
The best research available suggest that a person's
reaction time decreases as cumulative sleep debt builds.
Reaction times are thought to be related to unsafe acts. Thus,
persons in this study appear to have developed sleep debt. In
our sample, we found that people were working after having
obtained less than five hours or more of sleep almost 50
percent of the time.
This leads to my second point which is that due to the
great variability in conditions and circumstances involved, it
is recommended that railroads be required to develop and be
held accountable for comprehensive fatigue management plans.
This non-prescriptive approach is currently being used in
Canada and Australia and would provide for the most
comprehensive and most flexible application of scientific
principles to the management of fatigue in the railroad
industry. U.S.-based railroads with Canadian operations have
already complied with this approach and have filed FMPs,
fatigue management plans, with Transport Canada.
The Union Pacific has begun to use this approach. A short
time ago, I served as a member of an independent scientific
panel commissioned to review the UP fatigue management plan.
The independent panel, without the involvement of the
regulators, was able to review the plan and make
recommendations to improve it.
Given that it is nearly impossible to come up with a rule
that covers all possible scenarios, FMPs should be implemented
that utilize the principles that I have outlined in my
submitted written testimony along with the supporting documents
to address fatigue problems.
My final point is to call for the allocation of more
research funding. Just as we rely on more than one research
university to search for the cure for cancer, this process
could be faster and more expeditious if more scientists and
researchers were involved. Currently, the FRA is funding the
research and regulating as well. Collaboration and cooperation
from railroad and labor would increase if the fear of
regulation or punitive fines as a result of participation in
research were removed. While the one study that the FRA had
cited is significant and Dr. Hursh should be congratulated for
his efforts, additional work is needed to prepare the model for
utilization in the operational environment.
In summary, in my opinion, the development of the FMP is
the most viable way to ensure that the complex problem of
fatigue is addressed, using the best scientific available
knowledge. While changes or alterations to the existing Hours
of Service would make some specific improvements, a mechanism
for addressing the overall risk of working fatigue would not
have been addressed.
I would like to thank the Committee for inviting me to
testify on this topic. I look forward to hearing and answering
your questions. Thank you very much.
Ms. Brown. Thank you.
I am pleased that our distinguished full Committee Chair
has joined us today, and I recognize him for any remarks he may
care to make.
Mr. Chairman?
Mr. Oberstar. Thank you, Madam Chair. I thank you for
holding this hearing and Mr. Shuster for his participation. He
has a very keen interest in railroading with a major rail
facility in his district. I know of your very keen attention to
these issues, and I thank you, Madam Chair, for the splendid
work you have put in over a period of several years.
I have a statement of general observation about safety and
fatigue that I will include in the record.
I do want to ask, though, the panelists. You are measuring
sleep. You are not measuring quality time between shifts. Could
you address the broader question?
I have done shift work when I was in high school and
college, high school during summer months, working in college
during the summer months. I watched my father in the
underground mine, work 7:00 to 3:00, 3:00 to 11:00, 11:00 to 7
and on the changeover shift which was always so difficult.
It is not just how much time you are spending in bed, but
it is how much quality time off that the worker has between
shift. Rehabilitation is not just one aspect, not sleep alone.
It is the entire rest time. You also have to have good quality
of sleep.
I have read much of the literature in the field on sleep,
adequate rest. I understand that the issue is not only in
railroading but for air traffic controllers, for pilots with
whom I was just meeting--incidently, Madam Chair and Mr.
Shuster, on Age 60 Rule which is something we will be visiting
in another subcommittee--pilots on tugboats, on maritime
vessels, and the Great lakes fleet.
The commonality, as you described it well, the circadian
rhythm, interrupted, does not recover quickly. So could you
address the total cycle of time between shifts and the effect
on the body and responsiveness and clarity of action and
reaction time?
Dr. Hursh. Mr. Chairman, I would be glad to try and address
your question. You are right on the mark.
Fatigue models, as they have been developed, take into
consideration a number of factors other than the total amount
of time available to sleep. Ten hours of rest time or available
time to sleep during the day time hours is not equivalent to
ten hours opportunity to sleep at night, and the model takes
that into consideration. It is not given the same amount of
weight because your sleep during the day simply isn't as
restorative.
The model also considers disruptions in your circadian
rhythm as you switch from working days to working nights and
back and forth, your circadian clock becomes out of sync with
your work demands, and the model takes that into account as
well.
There are issues that no model can take into account--the
quality of the time that you have and some of the activities
that you engage in, your quality of your health and so forth--
but to the extent possible, the models that we have take into
account most of the documented factors that determine the
ability of sleep to restore your functioning. I think it is a
great step ahead to be able to use those to evaluate
opportunity to sleep and determine how well they contribute to
restoring performance.
Dr. Sherry. Let me just add a couple of points. I think you
are absolutely right. The issue of time in bed is one of the
many factors, and I understand that Dr. Hursh's model does take
that into account.
I think the overriding concern is making sure that people
have adequate time so that they are not put in the position of
making choices between spending time with their family, going
to the doctor, engaging in leisure activities that would
contribute to quality of life. I think what happens if you
address just the hours on duty or off duty is that that narrows
the options that people have. So in terms of improving quality
of life and reducing job stress and most likely the other
associated health concerns related to shift work, I think a
more comprehensive approach needs to take place. That is why I
recommend that the use of fatigue management plans be developed
as opposed to a simple number of hours type of solution that
might be thought of.
Thank you.
Mr. Oberstar. Thank you both for your response. Thank you
very much.
Does better scheduling or a different kind of scheduling
make a difference in the responsiveness of workers?
I have in mind testimony or at least conversations that we
had with over the road bus drivers. Some of the Greyhound Fleet
have drivers who work only, as I call it, we call it in the
mines, the graveyard shift, 11:00 to 7:00. They do it every
day, though, every week. They have their time off, but that is
their shift. They know it. Their body, they say, drivers say,
adapts to it. Others will work just 7:00 to 3:00. Others will
work just the 3:00 to 11:00 shift.
There is a railroad that described for me a process where
their outbound train, for want of a better term, the locomotive
engineer operates for half of the shift, stops, gets on an
inbound train and works the other half of the shift going home
and is able to be at home for the rest period that he needs. Do
those changes in shifts and more predictability in shift work
make a difference?
Dr. Sherry. Yes, I think you are describing the Illinois
Central CN approach. They call it the mid-trip switching where
the crews operate the equipment halfway and then turn around,
switch trains and come back to their home terminal. That is a
very desirable scheduling plan, and many people are very
satisfied with it. I think it does improve a person's
restiveness, their feelings of restiveness, and in addition it
also improves their overall feeling of positive control over
their life that they are able to return to their home terminal,
sleep in their bed and become better rested.
I think the other piece of that, however, is that you
shouldn't lose sight of the fact in this that it is still
important to have an adequate numbers of hours of sleep and
that a schedule that is devised in that way could in fact
provide that.
Having said that, that might not work in some other
locations. The Illinois Central CN region, as I understand it,
is nicely suited to that kind of an operation, whereas for
example in Northern Canada, for example, the Northern Manitoba
line, it is difficult to get more than one train over a certain
segment of territory in under 13 hours.
So there needs to be flexibility. There needs to be the
opportunity to create many different types of solutions. No one
schedule is going to solve the problem.
Mr. Oberstar. Dr. Hursh?
Dr. Hursh. Mr. Chairman, I agree with Dr. Sherry's analysis
that it would be dangerous to think that there is one single
solution that is going to fit every railroad's operating
demands, and that is why I think the consensus is that a
flexible fatigue risk management program is the best approach,
taking advantage of opportunities to apply wisdom from
different railroads that might work in one particular
situation.
But the most important thing is that we build into that
kind of a system, the ability to monitor the outcome and make
sure that what happens, that the result of that process,
whatever it is, creates an improvement in performance and a
reduction in fatigue. Without that kind of monitoring to ensure
success, this kind of a program will lack accountability. I
think that if given the appropriate authority, the FRA can
invest in having these sorts of programs and exercise authority
to ensure that performance is measured that evidences success.
Mr. Oberstar. Thank you very much for your contribution,
very substantial.
Thank you, Madam Chair.
Ms. Brown. Thank you, Mr. Chairman.
Mr. Shuster?
Mr. Shuster. Thank you.
I am having technical difficulties.
Ms. Brown. OK.
Mr. Shuster. Sorry about that.
The question that I have is, first of all, I believe it was
Professor Sherry, you mentioned that it was the Canadian and
Australian rail companies already have instituted a fatigue
management plan?
Dr. Sherry. That is my understanding, yes. In fact, I was
invited to review the Canadian program.
Mr. Shuster. Do you have any statistics since it has been
in place? Have the accident rates gone up, gone down, stayed
the same, injury rates?
Dr. Sherry. I am sorry. I don't have that information.
Mr. Shuster. You don't have that. Do you have any idea how
long it has been in place?
Dr. Sherry. It has been in place a couple of years.
Mr. Shuster. A couple of years, OK.
Dr. Sherry. I have it somewhere, but I don't have it right
with me.
Mr. Shuster. I will come back to a question that I asked
the first panel, and I am going to continue to ask this, and I
am not advocating forcing people who work on the rail to have
eight hours of sleep because I don't think that is possible for
us to enforce. I think it was Mr. Rosenker who mentioned that
when people have more time off, they tend to have more rest. Is
that your feeling?
My concern is--I don't know if you were in the room when I
asked the question before--if we mandate that people can only
work certain hours and have to have a certain amount of time
off, there is no guarantee that you are going to go home and go
to sleep for eight hours. You are going to go home, more than
likely like most Americans, and it is snowing out today, I am
going to shovel the walk. The first thing in the morning I am
going to get up to help my child with homework. Can you comment
on that, especially the comment that was made that the more
time off people have, generally the more rest they get?
Dr. Hursh. I think you are quite right. There is no way we
can legislate responsibility on the part of the employee. All
we can do is provide an opportunity for them to get the
adequate sleep that they need. Training is certainly an
important element of this to inform them of the importance of
getting rest, so that they can be competent and fit for duty
when their time is called.
What is important here is that we recognize that when they
have that opportunity to sleep, they also have predictability
of the schedule so that they can use that opportunity
effectively to get naps prior to work so that they are well
rested when they are called. I think the only responsibility,
the only power that we have here is to ensure that those
opportunities are available.
But I do think it is a shared responsibility. This is not
just a problem of the railroads providing opportunities. It is
also a responsibility of the employees to take that opportunity
and use it effectively to get adequate sleep. I don't think
anyone is suggested that this responsibility falls on the
shoulders of any one constituent.
Dr. Sherry. January, 2005, that is when I think the
Canadian law went into effect.
Mr. Shuster. Thank you.
Dr. Sherry. You are welcome.
My comment about that is I think there is some truth to the
idea that more time off, the more likely you are to get rest.
But the other side of the problem is that, as I mentioned
in my remarks just a couple of moments ago, that doesn't
prevent a person who has been ``well rested,'' showing up and
having to go to work at 3:00 in the morning, and if they have
been sleeping at that time normally, they are still going to be
tired. Now they can learn to kind of cope with it. As one of
the Congress persons earlier mentioned, they can learn to deal
with that and to learn to apply specific countermeasures, but
that is why a more comprehensive, holistic approach needs to be
applied.
Mr. Shuster. Then the next question I have to follow that
up is I understand that fatigue-related accidents are more
common after an employee comes back after vacation. So how does
that square up if you have taken a week off?
I know when I come back to work, I am generally more
rested. How does that square with if you are given a week off
or you are taking a week off or a couple days off?
Dr. Hursh. Obviously, the conditions that would occur would
have to be looked at on an individual basis. One of the
conditions that often occurs that can conspire against you,
even after you have been on a vacation, is that you come back.
You are available for duty at 8:00 in the morning. You have
gotten up at 7:00 and you are ready to go. You are well rested.
But you don't know when you are going to be called. Then what
happens is 10:00 that night, you get called to come work, and
you may have been up all day because you have been on the
rhythm of sleeping all night and being up all day. That is what
you do when you are on vacation.
You report to work at 10:00 at night, and you have been
awake since 7:00 that morning. So you go to work fatigued, and
that kind of a pattern can conspire against you even under the
best of circumstances.
Mr. Shuster. So, disrupting sleep patterns?
Dr. Hursh. Well, you are disrupting sleep patterns and
having lack of forewarning that you are going to have to take
an afternoon nap to be prepared to go to work.
Dr. Sherry. May I comment on that?
Mr. Shuster. Sure.
Dr. Sherry. The other piece of that, and this is I think
why the railroads, a lot of them, went to what is called the
8:00 a.m. markup. It used to be you would mark up at 12:01
after vacation, so you would be eligible to be called
immediately after midnight.
You have been off for a week, and you have been going to
bed at, let us say, 11:00 at night and getting up at 7:00 in
the morning. If you are called at 2:00 in the morning or if you
are called at 1:00 in the morning and you need to go to work at
3:00 in the morning, once again you are going to be working
against your circadian rhythm. The having a week of rest is no
guarantee that you are going to show up and be absolutely
rested if you are called for an early start time, for example.
Mr. Shuster. Thank you.
Ms. Brown. There have been significant changes in the rail
industry since the Hours of Service Act was enacted in 1907
which was 99 years ago. I know that because that is the year my
grandmother was born.
Do you believe that an increased growth in the rail
industry and the decreased number of train crews have an impact
on fatigue and fatigue-related accidents? That is to both of
you.
Dr. Hursh. Madam Chairwoman, shortages of personnel are
certainly one of the drivers of fatigue in the rail industry as
in any industry. If the industry does not begin to manage
fatigue more proactively, the problem promises to get worse.
Over the next five years, the industry will experience the
exodus of the baby boomers, and I am included in that group.
They will be retiring. The railroading industry is going to
have to make jobs on the railroads more palatable for the
current generation if they are going to fill those openings. If
they don't adopt fatigue management plans to manage the
stresses that create fatigue, it is going to be hard to fill
all those vacancies, and that is simply going to put additional
stress and increased fatigue on those that remain.
So I believe that the adoption of fatigue risk management
plans will ultimately help to improve the retention of
employees, improve their morale, improve the recruiting of new
employees and, in short, will serve to pay back dividends for
the investment in those plans.
Dr. Sherry. That is a very complex question that you have
asked, Madam Chairwoman, about the relationship between the
number of employees and changes in the work practices.
Certainly, we have seen a number of improvements in technology
which have contributed to the overall productivity of the
railroads. In my work with other countries, I know that the
U.S. railroad industry, the freight industry in particular, is
the envy of the rest of the world.
I am not sure if this particular change that you have
identified is statistically related to an increase in fatigue-
related accidents. I think it is important to recognize that
fatigue-related accidents are the result of individual actions
and the capacity of the individual to safely perform the act is
related to the amount of sleep and the amount of time off. So I
am not sure what the exact statistics are in terms of the
changes. The other thing is it is only recently that we began
to consider looking at the contribution of fatigue as a factor.
It is a complex question. I think there may be some
additional research that needs to look into that, but it is
certainly something that can be significantly addressed by
fatigue management plans.
Ms. Brown. Mrs. Napolitano, do you have a question?
Mrs. Napolitano. Thank you, Madam Chair.
To that same question, Professor, one of the questions I
had asked previously in regard to the lack of trained employees
because right after 9/11 my area was suffering from lack of
personnel to carry some of the freight increase in the two
ports of Los Angeles and Long Beach, very well documented. To
me, that would have caused fatigue because you are calling in
employees to come in and fill in or work longer hours which
then leads me to the question of overtime.
If you ask an employee, can you work overtime, they are
going to jump on it if they are the kind of employee who I
would assume would want to work the overtime. Did you take into
consideration any of those factors?
Dr. Hursh. Well, the study that I reported on today really
was an investigation of five railroads and samples of work
histories from those five railroads, and we didn't drill down
to see specifically what kind of manpower decisions resulted in
the schedules that we analyzed. I am not an expert on the
manpower decisions that have been made that might have created
the schedules that I evaluated nor am I an expert on the
training programs that are utilized by the railroad industry.
I do know that one of the factors that can be used to
manipulate fatigue in any industry, but in particular in the
railroad industry, is how many people you put on the system to
drive the trains. The fewer the individuals available, the more
work is going to have to be performed by the ones that are
available. Obviously, they need to be well trained if they are
going to fulfill their function. A fatigued employee that is,
in addition, poorly trained is not a very safe employee.
Mrs. Napolitano. Thank you, sir. That is one of the things
that was a question in the derailments in my area. There were
five derailments in less than a year that were questionable.
Thankfully, none of them resulted in personal injury. We were
never able to get information specific to the causes other than
failure of a rail tie, a joint bar, if you will.
It is very, very critical because there is going to be
increased traffic in our area specifically and I am sure in
other parts of the Nation, that if we don't work and continue
to provide the training, be able to have the work hours, the
rest in between to be able to ensure that they are not as
fatigued because they will be fatigued, working. Everybody gets
fatigued. We will be putting people at jeopardy, and that is
something I think that people don't want us to go over lightly,
if you will, but address it to the greatest extent that we can.
Professor, the findings in the 3,500 employee survey, have
you reported on those?
Dr. Sherry. Those are described in my book entitled
Managing Fatigue in the Transportation Industry. I have a copy
that I can make available. Many of the studies involving
training and with the over 3,500 employees are summarized in
that. There is also a summary report of those in the monograph
that I provided to the Committee as well.
Mrs. Napolitano. Dr. Hursh, I am very interested in the
fact that you are a psychologist because I have a very great
interest in mental health issues. When you do fatigue research,
and I know you stated something to the effect that you have
other issues, drug and alcohol use as regards the impact it
might have on the ability to react or be able to carry forth.
Fourteen hundred accidents, was that the quote, the figure
you gave?
Dr. Hursh. Yes, ma'am, 1,400 accidents were submitted for
analysis in that study.
Mrs. Napolitano. What were the minor accidents? In other
words, what were the major accidents and the minor accidents
actually reported on? Were they the kinds where somebody forgot
to put a lock on and their locomotive went on its own because
some of those are not reportable? In other words, the railroad
does not report them to the FRA.
Dr. Hursh. Congresswoman, these were 1,400 reportable
accidents, so they were the kinds of accidents which would have
reached the threshold of sufficient damage or loss of life or
injury that would have required it to be reported to the FRA.
Mrs. Napolitano. Do we or does the FRA or does anybody
record any of the accidents that do not result in major damage
but again are accidents that could contribute to serious
accidents?
Dr. Hursh. I don't know. Neither of us know the answer to
that, ma'am. The one initiative that I know the FRA has
undertaken is a close call study to look at changes in
performance or close calls that would be short of a serious
accident. This is a confidential non-punitive way to collect
information on close calls. I think it is an extraordinarily
important study or initiative. I am not intimately involved
with it, but it certainly would contribute information that
could help us understand better some of the factors that
contribute to close calls that are forewarnings of the
potential for an accident if the factors aren't addressed.
Mrs. Napolitano. But you have no access to those?
Dr. Hursh. Well, that whole process is confidential, and I
have no access to it.
Mrs. Napolitano. Madam Chair, may I request that this
Committee specifically ask for some kind of report on that
because that should be part of the investigation that we should
be looking at to determine whether or not, as he states, it
could contribute to a major accident in the future.
Ms. Brown. Without objection.
Mr. Lipinski?
Mr. Lipinski. Thank you, Madam Chairman.
As a trained engineer although not a train engineer and as
a social scientist, I appreciate the research you have done. It
certainly will be helpful as we work on legislation on this
issue on fatigue, certainly a very critical issue when we are
dealing with safety on the rails. I just hope maybe also you
could do some research on fatigue among public officials and
figure out any tricks that we can use so we can suffer from
less fatigue.
Thank you very much for your testimony and for your work.
That is all, Madam Chairwoman.
Ms. Brown. Thank you.
Dr. Sherry, in an article entitled Hours of Service
Regulation in the U.S. Railroad Industry: Time for a Change,
you made a number of suggested improvements for hours on duty.
Can you talk about those suggestions a little more, and in your
answers, can you tell us whether you believe something should
be done to address limbo time? It seems to be a significant
contributor to fatigue.
Dr. Sherry. Yes, I would be happy to discuss that. In the
article, I made a number of, I discussed a number of different
scenarios that might be considered and talked about the
importance of the need for anchor sleep especially after long
duty periods. I talked about the needs for the use of napping
as an appropriate countermeasure. I talked about the importance
of understanding that the cumulative effects of sleep debt can
in fact be related to the occurrence of delayed reaction time.
All of those factors are detailed in the article, and I would
urge the Committee to look at those more carefully.
However, I wanted to be cautious in simply coming up with a
list of do this, do this, do this because I don't think that is
the way to go. I think it is important to create a mechanism,
to create a process that everyone is able to utilize these
particular principles.
Having said that, the comment about a limbo time is a
significant one. I read over the testimony of the gentleman
from the BLET, and I share people's concern about the length of
limbo time and the away time that a person spend on duty in
that way. However, I think the important thing to keep in mind
is the cumulative number of hours is the factor, is one side of
the equation. The other side of it is the amount of recovery
time that a person has after that lengthy work period.
I am not sure I would create a rule--I will leave that to
you, where to draw the line, but I would put both together. If
there is going to be long work hours, there needs to be
sufficient recovery time.
Thank you.
Ms. Brown. Mr. Shuster?
Mr. Shuster. Nothing further.
Ms. Brown. Mr. Oberstar?
Mr. Oberstar. I would like to have the panel's view about
backward rotating shifts. It is a matter that was of some
extensive discussion in the course of our consideration of the
Hours of Service rule about six years ago or so when we went
through that process in the Committee and became quite a point
of dispute in the trucking sector of power companies who have
their crews working out on outages due to storms. We had quite
an extensive discussion about backward rotating shifts and the
effect on alertness and response readiness of crews. Give me
your thoughts about those matters.
Dr. Hursh. Mr. Chairman, the scientific consensus, I
believe, on this process is that you really need to look at the
details of how the backward rotating shift is implemented and
how much time for recovery sleep there is between shifts and so
forth. If you analyze backward rotating shifts with a fatigue
model, sometimes they can be detrimental to performance,
sometimes they can be fine. It depends on how they are
implemented, how many off duty days there are between on duty
days and so forth.
The reason that it is controversial, I think is there is no
single rule of thumb that can determine whether a particular
backward rotating shift is good or bad. You need to submit it
to analysis by a fatigue model or some other kind of
sophisticated approach.
Dr. Sherry. I agree. I have run backward rotating shifts
through Steve's model, and they come out looking very, very
good, some of them. It is really a very popular solution,
though, I think from a quality of life standpoint, and so I
think that needs to be taken into consideration.
Going back to the Congresswoman's point about training, how
people use appropriate fatigue countermeasures, how people
prepare themselves for those types of work and duty periods. I
have looked at very compressed and extended schedules and
people, if they are prepared, can work them very effectively,
but they have to kind of really focus. They have to give up a
lot of social activities and focus primarily on that kind of an
operation. I think it is a controversial topic because people
like it, but it may or may not be the most advantageous.
Mr. Oberstar. Dr. Hursh?
Dr. Hursh. Mr. Chairman, at the risk of sounding like a
broken record, I think that this speaks, though, to the need
for a flexible approach where we submit the practices of any
particular railroad or practices of any particular location to
a fatigue risk analysis that would include understanding the
particular schedules that are in force, modeling the effects of
those schedules and modeling the impact on fatigue. Only in
that way where we have a performance-based, evidence-based
approach are we going to be able to get to solutions which are
truly effective.
Trying to make rule of thumbs judgments about whether this
is a golden schedule or that is a terrible schedule is probably
not the way to solve the problem.
Mr. Oberstar. There is a practice in railroading called
limbo time, the time when trains' hours of service are expired
but they are not yet at their final destination, final relief
point. The crew is expected to be awake and alert and able to
respond to situations, follow the operating rules. What
experience do you have with limbo time?
Dr. Hursh. The current Hours of Service rules, as you know,
at minimum require eight hours of rest between shifts, but we
know that eight hours rest does not really afford the employee
eight hours of sleep opportunity when you factor in things like
commute time, limbo time which doesn't count as on duty time
and call time, the time between when they are called and when
they report for work. So as a practice, the eight hour rest
rule does not really provide an eight hour sleep opportunity.
But before we jump to some single solution, I really would
still prefer to see any change in the regulations, whatever
they might be, to be enacted as part of an overall regulatory
authority conferred on the FRA similar to all the other modes
of transportation and that those rules, whatever they may be,
be designed within that kind of framework. Ultimately, though,
I think new rules, whether they be to compensate for limbo time
or to give defined days off or whatever the solution might be,
that they be tried and enacted at the grassroots level within
evidence-based programs similar to the 4 Ms that I was
describing earlier. It is only in that kind of a framework that
we can assure that the solution will fit the problem and will
be compatible with the work demands and the operating demands
that are placed both on the employee and on the operator.
Mr. Oberstar. Not all modes are comparable. You can't just
say compare practice in one mode of transportation to another.
In aviation, there is duty time and flight time, and they are
two different items. When I chaired the Aviation Subcommittee,
it took a very long time and many hours of hearings and
meetings in camera--as we say in Latin in my office when we
hammer out a few items--to get a definition of what is flight
time, and it finally came down to when the brake is released at
the gate and the aircraft backs away. When does it end? When
the brake is applied at the gate of the destination flight.
Then you have duty. You may be on duty for a much longer
time than you are actually flying. All of that factors into
fatigue, and the same with flight attendants. The 14 hour rule,
it took the FAA 15 years with a lot of prodding from the
Committee and finally legislation to implement a rule.
Now you say you want flexibility but the Hours of Service
rules were first established in 1907. There are a couple of
amendments to it, and yet we still have problems serious enough
for the NTSB to have repeatedly chided this industry and the
FRA and asked them to take more vigorous action on Hours of
Service for railroad employees.
Dr. Sherry. If I might respond to this point here about
limbo time, I think it is complicated. You are talking about
when you say the gate. We have done a study with flight
attendants, the amount of time that they are working versus
when they are not working. Frankly, the bottom line is if you
are awake and you are not sleeping, in terms of fatigue, that
is what we should be talking about. That is why I keep saying
it is about the amount of time you are awake and the amount of
recovery time available.
My understanding of the FRA rules is that when people are
``in limbo time'' they are not technically responsible for any
operating or safe practices. So that is great in terms of
protecting the public and the operation of the equipment, but
from the point of the individual, they are still awake and not
in their bed. So the question is: How do you take that into
account? What do you do with it?
I would argue that you need to look at it from a recovery
time point of view to make sure that you have protected the
individual and in their next duty period in order to be able to
operate safely.
Mr. Oberstar. Dr. Hursh, we need to get on to the next
panel, but please I want your contribution.
Dr. Hursh. I simply wanted to add, though, that I don't
want this comment about flexible fatigue management plans to be
interpreted as there would be a total elimination of Hours of
Service rules. I am not sure that that is the approach that we
are suggesting.
What we are saying is that within the boundaries of Hours
of Service rules, there needs to be additional barriers to
fatigue, and it is only with those additional barriers that
themselves would be flexible, that we are going to reach a
solution.
Mr. Oberstar. Thank you very much for your very valuable
contribution and for your writings on the subject matter. You
make a great contribution to safety.
Dr. Sherry. Thank you.
Dr. Hursh. Thank you, sir.
Ms. Brown. I personally want to thank you all for your
valuable testimony and the members for their questions. I want
to thank you again. We will be submitting additional questions
in writing.
Thank you.
Dr. Hursh. Thank you, Madam Chairwoman.
Dr. Sherry. Thank you.
Ms. Brown. And for the last panel, I know that we have
expedited this afternoon, and I want to thank you all for that
also.
I want to welcome the final panel of witnesses. I know this
is a very difficult afternoon, but we have already scheduled
this meeting, and this is such an important issue. I want to
say right up front that I appreciate you all for being here
today.
Mr. Hamberger who serves as the President of the
Association of American Railroads, welcome.
Next, Mr. Dealy who is Vice President of Transportation for
the BNSF Railroad, thank you for being here, sir.
Mr. Pontolillo, who is the Director of the Regulatory
Affairs for the Brotherhood of Locomotive Engineers and
Trainsmen, he is representing the entire Rail Conference
Division of the International Brotherhood of Teamsters, thank
you, sir, for being here.
Mr. Brunkenhoefer, who is the National Legislative Director
for the United Transportation Union and Mr. Mann who is joining
him today and Mr. Parker who is the Legislative Director of the
Brotherhood of Railroad Signalmen, we are please to have all of
you here with us this afternoon.
I appreciate your patience in waiting to hear the other
panel, but I think it is very important that you hear what the
other panel had to say and their conclusions. Your full
statements will be placed in the record. We ask that all
witnesses try to limit their testimony to five minutes or a
summary of their written statement as a courtesy to the other
witnesses and, of course, what is going on in the community.
We will begin with Mr. Hamberger. Please proceed.
TESTIMONY OF EDWARD R. HAMBERGER, PRESIDENT, ASSOCIATION OF
AMERICAN RAILROADS; DAVID DEALY, VICE PRESIDENT,
TRANSPORTATION, BNSF RAILWAY; THOMAS A. PONTOLILLO, DIRECTOR OF
REGULATORY AFFAIRS, BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND
TRAINMEN; JAMES BRUNKENHOEFER, NATIONAL LEGISLATIVE DIRECTOR,
UNITED TRANSPORTATION UNION; LEONARD PARKER, LEGISLATIVE
DIRECTOR, BROTHERHOOD OF RAILROAD SIGNALMEN
Mr. Hamberger. Thank you, Madam Chairwoman. I appreciate
the opportunity to be here on behalf of the Association of
American Railroads to discuss issues surrounding the Hours of
Service Act and fatigue management. I share your view that this
is an incredibly important topic.
Before I begin, I would like to, on the record,
congratulate Mr. Oberstar for his ascendancy to the
chairmanship of the full Committee. He was not here when I
testified last week. Congratulations and I look forward to
working with you, Mr. Chairman.
I would also like to take this opportunity to pay my
respects to former FRA Administrator Jolene Molitoris who is
with us in the audience here today of her own volition. She
began the Rail Safety Advisory Committee which is a cooperative
effort of management, labor and the FRA which has made some
major contributions to improving safety in the industry, and I
want to thank her for that and all the other efforts that she
initiatedd.
Railroads want properly rested crews. It is not in a
railroad's best interest to have employees who are too tired to
perform their duties properly. That is why railroads have long
been working diligently to gain a better understanding of
fatigue-related issues and finding innovative, effective
solutions to fatigue-related problems. Properly rested crews
are critical to safe, efficient operations.
I want to reiterate my testimony from last week. Overall,
our industry safety record is excellent. Between 1980 and 2005,
the overall train accident rate dropped by 64 percent, and the
employee casualty rate fell 79 percent. What is more, data
through the end of November indicates that 2006 will be the
safest year on record in terms of the train accident rate, the
employee casualty rate and the grade crossing incident rate.
When using the 2006 data, the 1994 to 2006 timeframe will
actually reflect a 9.2 percent reduction in the accident rate.
Having said that, fatigue issues concern us, and we
continually search for methods to reduce fatigue in the
industry. In the interest of managing fatigue-related issues,
the industry has adopted a set of principles to guide such
efforts. Now let me briefly numerate those.
Principle number one, railroads want fully rested crews.
Number two, after 12 hours of service, crews in limbo time
should receive additional rest after that limbo time, and that
is consistent with what you heard from Dr. Sherry on the
previous panels that it is the combination of the time on duty
and the time in limbo time and then the opportunity to rest
afterward.
To the extent practical, fatigue management policy should
be based upon scientific research.
Four, railroads are willing to provide more than the
statutorily required rest time at both home and away terminals
to assure that crews are fully rested.
Five, railroads are willing to require employees to take
time off for rest opportunities.
Six, fatigue management issues are a joint responsibility
of the railroad and the individual employees.
We have already made substantial progress in addressing
fatigue issues. As my testimony illustrates, 83 percent of
employees work less than 200 hours a month, and 95 percent work
less than 250 hours a month.
A variety of fatigue countermeasures have been employed.
They include increasing the minimum number of hours of rest at
both home and away terminals, implementing a return to work in
the morning if time off work is 72 hours or more, evaluation
and adoption of a sophisticated fatigue modeling computer
program, permitting napping by train crew members under limited
circumstances, sleep disorder screening and improved standards
for lodging in away from home facilities that provide blackout
curtains, white noise and increased soundproofing.
The importance of education in combating fatigue cannot be
overstated. Since the value of fatigue-related initiatives is
highly dependent upon the actions of employees while off duty,
employees must make the proper choices regarding how they
utilize their off duty time as Mr. Shuster has indicated.
Consequently, an educational web site designed solely for
railroads and rail employees is under development by the
railroads and the American Public Transit Association to
provide general information to employees about alertness and to
identify possible sleep disorders. The site will include a
self-assessment tool and an explanatory letter about sleep
disorders that employees can take to their physicians.
Railroads' commitment to safety is absolute. Combating
fatigue, however, is a shared responsibility. Railroads
recognize that they must ensure employees have sufficient
opportunity to rest, and they are open to reasonable changes to
the Hours of Service Act to help assure this outcome. For their
part, employees are responsible for using a sufficient amount
of the time made available for them to actually rest.
The railroad industry looks forward to working with the
Committee, the FRA and our employees in developing further
approaches to fatigue-related issues.
Thank you for the opportunity to be here today.
Mr. Dealy. Good afternoon, Chairwoman Brown, Ranking Member
Shuster and members of the Subcommittee.
In my position as Vice President of Transportation for BNSF
Railway, I am responsible for the overall transportation
operation of BNSF's 34,000 mile rail network and just over
20,000 rail employees. I oversee field operations, train
dispatching, crew management and locomotive distribution.
I am responsible for the safety of these 20,000 plus
employees which is a responsibility that we at BNSF take very
seriously, and we believe our track record shows this. Since
the year 2000, we have reduced our injury rate by 48 percent,
meaning 182 fewer injuries in 2006 than in the year 2000. On
top of the fact that we have had 24 percent more employees.
Derailments over that same period are down 21 percent on an
incident per train mile basis.
We believe that fatigue can be a serious issue and have
addressed it in a combination of improved policies and
processes as well as changes in labor agreements. In my
testimony this afternoon, I would like to outline for you the
scope of the problem which is knowable and well understood by
the railroad industry, detail for you some of the steps that
BNSF has taken in partnership with our employees and unions to
manage the fatigue issue down to a very narrow set of employees
and suggest to you some solutions that are achievable.
I will point to page number one in my handout. Thirty years
ago, railroads were largely made up of traditional box car type
trains moving in balanced train flows over relatively short
crew distances. The normal distance a train crew would operate
was between 100 and 125 miles, and most of our employees would
have to work every day. A high density corridor at that time
would be about 20 trains each way a day.
Our business today, however, is driven by a large network
of long distance trains loaded with double stacked
international shipping containers, unit coal and grain trains
all moving distance of over 2,000 miles. It is considerably
more varied and complex. A great majority of our through
freight crews now operate over assigned crew districts greater
than 260 miles with some over 300 miles. We pay our train crews
by the mile, so compared with the shorter runs 30 years ago,
many of our employees can make the equivalent of six days pay
in one round trip, allowing them to be at home two to three
days between trips. Yes, two to three days between trips. On
these territories, we now run 100 trains a day, quite a change
from 30 years ago.
On slide four, on our railroad, there are two distinct
types of work assignments for train service employees, and you
can see it on the slide in the room. Over 20 percent of our
active employees work in yards, terminals or perform pick-up
and delivery services in our industries. They have set on duty
times and set days off, and many of these employees work a 40
hour work week.
The other 80 percent of our employees work in over the road
train service where two person train crews, a conductor and
engineer, perform round trip service from their home terminal,
traveling to an away from home terminal, getting rest and
returning home. Because of the long distances our train crews
operate, the vast majority or 60 percent of these crews, spend
over 24 hours off at their home terminal. A third of these
employees actually get more than 48 hours off at their home
terminal.
Employees in this service regularly make between $80,000
and $100,000 a year, and for obvious reasons regarding earnings
potential and quality of life, these long runs are preferred
jobs that attract employees with the highest seniority. You may
hear these employees referred to as mileage hogs, but just
remember that they are still getting a lot of time at home. As
FRA Administrator Boardman said earlier this afternoon, if you
have more time off, you will get more rest.
The remainder of our through freight employees work in
assignments where they do not get at least 24 hours off at
their home terminal, and we have, for all but a small
percentage of these employees, implemented through innovative
work agreements with the UTU and BLET work schedules that
prescribe working seven days and then having three days off.
These off days are not mandatory for the employee to take, but
they are mandatory and irrevocable on behalf of management to
allow them.
Taking all this into account, it is important for the
Committee to understand that only fewer than 500 of our
employees out of our entire population of over 17,000 work
these short crew districts with no scheduled days off. While
they have all been offered these same scheduled rest days as
the other crews, they have opted not to accept them.
Since our merger in 1995, BNSF in working with the UTU and
BLET, has had a proven track record of innovative and
aggressive labor agreements to address these work-rest issues
and fatigue countermeasures, and you can see these on page six
of our deck.
We also tried some things that didn't work, and one of them
was to actually schedule our train crews 30 in advance with set
days they would work and set starting times. Some of these
pilot projects actually allowed employees to schedule their
trips 90 days in advance. However, none of these pilot programs
were ever ratified because they were actually not popular with
the employees. They liked the predictability, but they still
wanted the flexibility that the status quo offered.
In summary, our operations are complex and to meet customer
expectations, we have to be able to handle the variability for
some of which we have no control. What works well in some areas
doesn't work in others. We look forward to continued success of
working with UTU and BLET.
Thank you.
Mr. Pontolillo. Good afternoon, Chairwoman Brown, Ranking
Member Shuster and members of the Subcommittee. On behalf of
the more than 70,000 men and women that comprise the Teamsters
Rail Conference, I want to thank you for holding today's
hearing and for the opportunity to present you with our views
concerning fatigue in the industry.
A couple of preliminary things, I also want to thank
Brother Broken Rail. The BLET and the UTU we worked together on
our written testimonies extensively, so we didn't cover too
much of the same ground, and we will be splitting up the oral
presentation as well. We also support and endorse the testimony
of the Brotherhood of Railroad Signalman and Brother Parker
today.
In the brief time available to me, I would like to address
limbo time which arose earlier today and touch on a couple of
other factors which impact our BLET members. I also briefly
want to comment on fatigue for our BMWED members. Maintenance
of Way workers are not governed by Hours of Service
requirements. Nonetheless their working conditions do create a
certain amount of fatigue of which the Subcommittee should be
aware, given the safety sensitive nature of their work in
maintaining and repairing the Nation's rail infrastructure.
I do want to start with giving you some data on limbo time
because some of what we have collected in the past 18 months is
absolutely shocking. One class one railroad which I will call
Railroad A had nearly 335,000 crews that worked over 14 hours
counting limbo time between 2001 and 2006. For the last three
years, this railroad has averaged 205 crews a day over 14 hours
every day. Ninety-four of those crews worked longer than 15
hours and almost a crew a day worked over 20 hours.
We also have over two full years worth of data covering a
single terminal on another Class 1 railroad which I will call
Railroad B. This is one terminal. It has two pools and one
extra board and about 110 to 115 engineers. In the two year
period at this one terminal, there were over 3,100 work tours
in excess of 13 hours and over 900 in excess of 14 hours.
We also had, for Railroad B system, two days worth of data
from consecutive days in mid-September of last year. In those
two days in late summer, there were over 1,000 crews that
worked more than 14 hours and over 125 more than 15 hours. In
that two day period, there were three shifts that were 32 hours
long.
Now many crews do not receive additional pay for these work
tours. Under our National agreement, a crew in a 250 mile pool
must accrue almost three and a half hours of limbo time before
they are entitled to overtime. In a 325 mile pool, it must
accrue more than eight hours of limbo time before they are
entitled to overtime. As was previously mentioned, even while
in limbo time, the crew is responsible for obeying operating
rules requiring that they remain alert and observant and that
they take any action necessary to protect the train against an
unanticipated mechanical problem or vandalism.
We believe that the only solution to limbo time is
legislative.
Railroad-imposed attendance policies also contribute to
fatigue. Typically, these policies require an operating
employee to work or be available for work 85 percent of the
time or face discipline up to dismissal for a failure to do so.
An eighty-five percent standard makes sense in a five day, 40
hour work week, but it is absurd in a 24/7 setting like the
railroad industry where, for example, our divorced members
regularly must choose between visiting their children within
limits imposed by divorce custody orders or facing discipline
for poor attendance records.
Another contributor is cultural change over the past 30
years, and actually that is something that the carriers are
victimized as much as we have been. Dual income families are
the norm in 21st Century America, and today's railroad workers
have far more direct domestic responsibility than their
predecessors. But the railroad hasn't met us halfway in
responding to these cultural changes and indeed demands more
work from today's workforce than the past because of these
availability policies.
That said, both AAR and BNSF have testified concerning
ongoing fatigue mitigation efforts, and we have all worked
together very hard for a number of years, and they should be
congratulated for their efforts because they have worked as
hard as we have.
But progress has not been consistent and has not been even
across the industry. Railroad A, for example, that I referred
to before is currently attempting to reduce our members'
ability to combat fatigue. This railroad is attempting to
eliminate freight pools and replace them with identical pools
operating between the same terminals, but the railroad says
that these pools are new and as a result of that, 25 year old
agreements that permit engineers to take 24 or 36 hours rest
when they get back to their home terminal no longer apply.
Like the operating crafts, maintenance of way forces also
are affected by fatigue. Causes of MW fatigue and solutions are
very different than for operating crafts. In the MW craft,
fatigue is most often caused by long commutes, inadequate
overnight lodging and a lack of manpower. Over half of
maintenance of way employees today have to travel significant
distances just to get to work. Twenty-five to 30 percent of
them are responsible for covering production gangs that cover
an entire railroad system, in BNSF's case, 34,000 miles. Some
of these people have to travel several hundred miles or a
thousand miles just to be able to report to work.
We believe a solution to excessive fatigue-inducing
conditions for MW workers is to reinstate reasonable limits on
territorial sizes that they have to cover. But those long
commutes for maintenance of way workers combined with double
occupancy lodging or eight to ten person camp cars which are
decrepit and unclean also contribute to MW fatigue.
At this time with the permission of the Chair, I would like
to have a video played that shows the conditions facing our
BMWED members in camp cars.
Ms. Brown. Without objection.
[Video played.]
Mr. Pontolillo. I don't believe that noise is very
conducive to restorative sleep.
Madam Chair, the Rail Conference believes the evidence
establishes that fatigue seriously degrades safety in the rail
industry among all crafts. Real solutions to the problem need
to be formulated and implemented in some cases by legislation,
and we implore you to pass common sense legislation enabling
the FRA to affirmatively and aggressively regulate fatigue in
our industry.
Thanks for hearing us, and I will be happy to answer
questions when the time comes.
Mr. Brunkenhoefer. James Brunkenhoefer, United
Transportation Union. First, I would like to thank the
Committee for the opportunity to be here today, and I also
support the testimony of the Brotherhood of Railroad Signalmen
and the Rail Conference of the Teamsters.
The Hours of Service Act that was passed during your
grandmother's day, I worked under some of the agreements. You
had to live within a mile of the round house. The people would
get on a bicycle, pedal to your house and wake you up. Then you
could walk. You had to be less than a mile.
Today in the Los Angeles basin, people who work for the
railroads have to commute two to two and a half hours. Now they
are not fatigued at work, but they are deadly on the 405 or the
10 or they are deadly in New York on the I-5 as they go from
Hobart Yard down around to 10 or 210 West to San Bernadino to
get a train to go Barstow or Winslow, Arizona.
So the idea of if we look at fatigue and we look at limbo
time, we are looking at it in isolation. A person can just as
easily have an accident on the highway, and this presents a
public risk just like if they were on the job, a public risk.
When we hold people in limbo time, our membership lives in a
jet lag society. Can you imagine being in jet lag for 30 to 40
years?
We don't know when we are going to go to work. We don't
know how long we will work. We don't know when we are going to
get off, and we don't know how long we will be off. In between
that, we are supposed to put marriages and bar mitzvahs and
Little League and children on hold, and the result of that
lifestyle is called divorce, called troubled children. It is
terrible for family values. But the carriers say they need this
in order to be able to have a demand service.
I appreciate what the carriers are doing today. I went to
Mr. Dealy one time that I can remember and talked to him about
a problem involving Phoenix crews. It was taken care of, and we
never had any other problem. There are many good ideas out
there. Unfortunately, there is not enough of them.
Unfortunately, I have a political organization. I can't get
some things ratified that will save lives because, as Mr. Dealy
said, I got mileage hogs. They passed the Hours of Service Act
jokingly to keep them from making all the money and being on
duty 24 hours a day.
So as we struggle between labor and management to try to
search for an answer, where we can't get there, we call on you.
We call on you to do what has been requested today.
There is only thing I have disagreed with about Mr.
Boardman's testimony, and that is we would hate to see the act
completely repealed. We would like to add the rulemaking to it
because we are just afraid that the number of hours could be
raised or the amount of rest could be reduced.
We would like to see that it be science-based. We have
tried to do it collective bargain-based and I believe the
railroads have tried to do it operationally-based and sometimes
we just can't get to where both of us need to be. They can't do
it my way which is unreasonable, and I can't do it their way
which is unreasonable. We would like to see it based on
science.
We need to have the limbo time eliminated it. Call limbo
time what it is. You are on somebody's property. You are under
their supervision. You are under their discipline. You can't go
get a beer. And so, to sit down and say that you are not on
duty, I think is a myth. When I am off duty, I am off duty.
When I am on somebody else's property and they are in control
of me, I am not off duty, whatever you want to call it.
We need to address the calling time in relationship to
fatigue. Some of our people are called multiple times and
offered multiple jobs and woken up all hours of the day and
night.
We would like to have the correction to allowing sleeping
quarters in certain railroad yards.
We would like to have certification for conductors. We feel
like that is needed to have qualified, trained people. A member
of this Committee, I think became aware of our communication
problems. July the 27th at this table, Mr. Hamberger, Mr. Stem
and Mr. Boardman all said that we probably need to do something
about training. I left this committee room and called the
President of my union and said gee, we have got something on
training. We can move forward.
And he said, well, I just met with Mr. Bob Allen in Chicago
to try to handle it through contract negotiations, and the
nicest words I can say is he demurred.
How do we get a deal? We have an instance of where in the
State of Illinois where a piece of legislation passed through
the House unanimously. The railroads had concerns about the
penalty portion. Rail labor, rail management and the people
from the Assembly met and corrected the language. The bill
passed the Senate and because we had an agreement between rail
labor, rail management and government, we thought it was over.
God Bless their legislative people that are like Mr. Hamberger
and those here. Somebody forget to tell the legal department.
So the rail sued in Federal court to overturn their own
language and were successful.
I have in front of me what we call Letter 2 out of the last
National contract. It says: This confirms our understanding
with respect to Article 4, Service Skills, Document A agreement
of this date. The parties agree to the earliest opportunity. In
the next National round bargaining round, the matter relating
to existing service scales in effect on each participating road
to training and experience shall be addressed.
That is 2002. I have been in negotiations two years. We
haven't quite got around to talk to that. Now it says it is the
first thing we are going to talk about. Well, we talked about
health and welfare, and we talked about one person train crews,
and we talked about a lot of other things. At what point can my
partner and I sit down and make a deal that is a deal?
When we reach out with our hands and shake hands, I believe
the person I am shaking hands with I can trust. Unfortunately,
some of the times within a major corporation, those people in
other departments don't recognize or appreciate all that went
into make that partnership, whether it is the legal department,
whether it is the labor negotiations department or other
people. It is very difficult for us to sit here and say, gee,
we are really open to being disappointed again.
So as we move forward dealing with fatigue and we move
forward dealing with safety overall, we are open. We are ready,
but we need your help. We can't get there by ourselves. We have
tried. There has been progress, and Mr. Dealy has done some
wonderful things on his railroad, but we can't get to the
solutions, I believe, to protect both our members and the
public.
Thank you.
Mr. Parker. Thank you, Madam Chair, Mr. Shuster, members of
the Subcommittee. On behalf of my International President, Dan
Pickett, it is an honor for me to testify on fatigue in the
rail industry.
I am the Legislative Director for the Brotherhood of
Railroad Signalmen and also have 34 years of rail service. We
support the testimony from my brothers at the table.
Our lives depend on qualified trainmen. Signalmen install,
maintain and repair the signal system that railroads utilize to
direct train movements. Signalmen also install and maintain the
grade crossing signal systems used at highway railroad
intersections which play a vital role in ensuring the safety of
highway travelers.
The rail industry is moving more freight today than ever
before with fewer employees. This is a critical point that must
be acknowledged. Through mergers and the railroads' quest to
eliminate workers, railroad staffing levels are at an all time
low. In the past years, those numbers have increased as the
railroads need to train new people to fill the increased
vacancies as a result of baby boomers retiring. This trend of
retirees outnumbering new hires is expected to continue for the
next 10 years.
As a result, current railroad workers are working longer
hours. A 12 to 16 hour day is not unusual for railroad workers
and in many cases it is the norm. The railroads are abusing
their most important resource, railroad workers.
The BRS seeks to amend the Hours of Service Act for
signalmen by eliminating the four hour emergency provision due
to its abuse by the railroads. The Hours of Service Act allows
individuals performing signal work to work 12 hours in a 24
hour period with an emergency clause provision calling for an
additional four hours of service in a 24 hour period. When the
act was expanded to include signalmen, it was intended to a 12
hour law.
This is how the railroads originally applied the law. If a
signal employee needed additional time to correct a signal
problem, he would inform his lower level supervisors of the 12
hour limit. The supervisor would determine if the employee
could finish the work within 12 hours or if another signalman
employee could be called to finish the repair work. This worked
for years.
However, through gradual creep, railroads have mutated the
act into a 16 hour law. Many railroads now consider any signal
problem an emergency. Signal employees are routinely instructed
to work the 16 hour limit. Many railroads authorize outright
violations of the act by ordering signalmen employees to
continue working until repair work is completed. That is why it
is up to Congress to remove the four hour emergency provision.
This discretion combined with the railroads' tendency to push
the limits of the law has morphed the act and is contrary to
the intentions of the 1976 Congress.
Of greater concern is when a BRS member can work 20 hours
in a 24 hour period without adequate rest. The cumulative
effect of the law on the individual is that he is allowed to
work a total of 20 hours of service within a 32 hour period.
While the employee has had 12 hours off, he has gotten
virtually no sleep.
This situation is exasperated further when railroads
require signalmen personnel to work an additional four hours
under the emergency provision. If an emergency occurs at the
end of his shift, the railroad will require him to work an
additional four hours. The cumulative effect of the law on the
individual would now be that he is allowed to work a total of
24 hours of service within a 40 hour period with virtually no
sleep. This type of work schedule is a recipe for disaster.
The BRS asks that the Hours of Service Act be amended to
require that employees performing signal work receive at least
eight hours of extra rest during a 24 hour period. Our request
is due to the fact that many of the railroads willfully abuse
the act. For example, when the railroad receives emergency
calls prior to the end of eight hours of required rest, they
will delay calling signal personnel until eight hours have
passed since the end of their scheduled shift.
Chairman Oberstar has gone on record, calling for
legislation that strengthens the act, stating: I believe that
the safety of railroad workers and the safety of the general
public which all too often are the victims in these train
accidents should not be relegated to a negotiation between
management and labor. This Congress has a responsibility to
prevent fatigue.
Madam Chair, I could not agree more with Chairman Oberstar.
The railroads have manipulated the 12 hour Congressional Hours
of Service Act into a 16 hour law.
The situation is even worse in the industry than what I
have explained so far. The BRS is currently engaged in National
negotiations with the railroads. The railroads want work
provisions that allow them to subcontract out safety-sensitive
signal work to the lowest bidder. The reason for that is
contractors are not covered under the Hours of Service Act.
Madam Chair, an adequately staffed signal department with
well trained and well rested signalmen is needed to make the
critical safety-sensitive decisions that are routinely part of
our daily duties. Signalmen employees often work alone in the
worst weather conditions and some of the most demanding
terrain, and it is imperative that these workers have the
opportunity to perform their duties after receiving adequate
rest.
There is much to accomplish to eliminate fatigue for rail
signalmen and the rail industry as a whole in order to make the
Nation's railroads safer for communities across the Country and
rail workers. Experience teaches us that it is Congress, that
it is Congress, that it is Congress that must provide the
leadership to make safety a reality. I hope we can work
together to see that improved safety practices become a
reality.
On behalf of rail labor and the Brotherhood of Railroad
Signalmen, I appreciate the opportunity to testify before this
Committee. Thank you.
Ms. Brown. Thank you and thank everyone for their
testimony.
Let me just say before I begin with my questioning, to a
person, I feel very strongly that we would like for, and maybe
I am meddling at this point, but we would like to see an
agreement between the rail and labor. I don't know what you do.
You go into a room, you lock the door and failure is not an
option. We don't really want to deal with that up here. I am
telling you. We would like for you all to come up with an
agreement, and some of the issues that I hear you discuss are
things that you need to resolve.
Now I know all about signalmen. My brother is one for over
30 years. You have got a rock in a hard place. They want more
time, they want more flexibility, but they like the money. They
want the hours. So you have got to work with them and you have
got to work many of these issues.
You all are very close to coming up with an agreement. I
think maybe the last meeting you had was in Las Vegas. Maybe
you need to go somewhere up here where is rainy and snowy and
not a wonderful place to be and lock the door.
With that, I will get into questions.
Mr. Shuster. Would you yield?
Ms. Brown. Yes, sir. Yes, sir.
Mr. Shuster. I couldn't agree with the Chairwoman more. The
last thing I think you said was you were meddling. I think that
is what they are inviting us to do, and I think that is the
last thing you want is for the Federal Government because it
has been my experience the Federal Government is going to just
screw things up worse.
So I couldn't agree with the Chairwoman more. Come to an
agreement amongst yourselves and don't have us interject. I
think it is going to be terrible for everybody, not only bad
for you folks in the rail industry but bad for the American
people. It is going to mean that we are not going to get
shipments on time or get the goods to market.
I couldn't agree with the Chairwoman. Go lock yourself in a
room somewhere there is no golf, no beer and no TV and force
yourselves to work that agreement.
Ms. Brown. No sunshine.
Mr. Shuster. I better stop there or we are going to get in
trouble.
I thank you for yielding.
Mr. Brunkenhoefer. In other words, you don't want us to go
to Jacksonville in your district. You would prefer that we went
up to Mr. Oberstar's district.
Mr. Shuster. I could find a place for you in Central
Pennsylvania that there is not much fun going on.
Ms. Brown. Anyway, one of the things, the camp cars that
you showed us in the video, my understanding, Mr. Hamberger, is
only one railroad continues to use that.
Mr. Dealy, I don't understand. It looks like slave quarters
to me. I hate to use such a strong term. Why is it that is the
only railroad that is still using those camp cars?
Mr. Hamberger. It is my understanding that your
understanding is correct, that is, that it is one railroad only
still using the camp cars. Further, it is my understanding that
they are in the process of transitioning out of those camp cars
over time and they will be providing housing in hotels or
motels consistent with labor agreements.
Ms. Brown. Like most of the railroads, is that correct?
Mr. Hamberger. Like all the other Class 1s do, that is
correct. But I will reiterate what I mentioned last week. There
are FRA standards, and I would hope that if that camp cars were
not in accord the FRA standards, that would have been reported
to the FRA.
Ms. Brown. There has been a lot of discussion about limbo
time. Is this something that is paid for?
Explain to me because my understanding in talking to the
workers, some of it is maybe manageable and some of it can run
up to five or twelve hours. While they are there, they have to
be alert and to be vigil, and so they are really still working.
Mr. Dealy. I will take that one, first, Chairwoman Brown.
Ms. Brown. OK, yes, sir.
Mr. Dealy. One, they are paid. Two, they are not required
to perform duties. Three, from a management perspective,
speaking for BNSF and I set the policy, if we know a train crew
is not going to make their destination and we know they are not
going to make their destination, it is our policy to get them
off the train and to their tie-up point within 12 hours.
Now there are a lot of times where things happen. In
Congressman Lipinski's territory, I will talk about two brief
cases here. One of them was in his district over the last two
days. In Lisle, Illinois, we had a trespasser, not at a road
crossing, step in front of one of our trains and was killed.
That shut the railroad down for about five or six hours, and
that happened all of sudden, unpreventable, unforeseeable. We
reacted to it as quick as we can. We had crews on duty that
couldn't get into Chicago because all the routes were closed,
and we couldn't get them off the train quick enough because we
couldn't get to them in traffic. There are situations like
that.
I had one in northern California yesterday. A crew was on a
train for 18 hours. That is unconscionable. But they were in
the Feather River Canyon, a rockslide came down, and we got to
them as quick as we could, and believe me, it was as quick as
we could.
So limbo time comes in a couple of different shapes and
sizes. The most heinous of them all is when we know a train
crew is not going to make their destination and we don't get
them off their train. We are solidly, from a policy
perspective, in agreement that that is not the right thing to
do and we need to get them off the train. But we don't require
employees to do any work while they are on the train after 12
hours.
Ms. Brown. Would you say that this is how the emergency
time is being used?
Mr. Dealy. I am sorry. I don't understand.
Ms. Brown. The emergency time, for example, the two areas
that you just mentioned.
Mr. Dealy. Right, they would be under emergency, yes,
ma'am.
Ms. Brown. I would consider that an emergency.
Mr. Dealy. There is also one other issue in emergency now.
There is a service law and it generally comes in snowstorms
where we actually would have a crew work over the 12 hour law
and then file that as a known violation-exception to the FRA,
that is was safer to work them over to get them into a point
where we could get to them rather than let them sit in the
snowstorm just because the 12 hour law had hit them.
Ms. Brown. I would like labor to respond.
Mr. Pontolillo. Briefly, Madam Chair, thank you.
With respect to the camp cars, what FRA has published
actually are guidelines, not enforceable regulations where
there is any sort of penalty if a railroad like the NS did not
meet those standards. There are merely guidelines.
On the question of limbo time, Mr. Dealy makes a very good
point. Our system operates 24/7 in all sorts of climate, in all
sorts of weather, expected and unexpected, and there are
situations. I had, I guess, after I had worked about five or
six years, I was in a situation where I was told in the middle
of a snowstorm, you have to violate the Hours of Service. That
is really not what we are talking about here, but it is more
the systemic type of issues.
Railroad A that I mentioned before, which is not BNSF,
334,000 incidents over a six year period is just more than
unexpected weather.
Briefly, also on the pay issue, it is not as simple as the
industry suggests. Under the National agreement, you get paid
the miles of the run. If you are on a 325 mile run and you do
that in 9 hours, you make the same amount of money as you do if
you outlaw on the line of road and then it takes another 8
hours of limbo time to get you back in. You get the pay for the
mileage regardless of how, and then you only get additional pay
or overtime depending on the length of the run and how long it
takes you to work out the over miles. On a 325 mile run, you do
not go on overtime until after 20 hours. So the crews aren't
losing money out there, but they are sitting there basically
for nothing until the mileage runs out. Now that is in the
national agreement.
It is true that in the last several years, there have been
some local agreements and there are some system agreements
where in limbo time situations, the crew will begin to receive
additional pay. I believe that sort of financial incentive
probably does help reduce the limbo pay situation if it could
be straightened out at the table. I agree with you, Ms. Brown
and Mr. Shuster. Unfortunately, the management guy you would
have to lock up is not on this panel today in order to get that
deal done.
Mr. Parker. Madam Chairwoman, I would like to speak.
Ms. Brown. I think you are getting the message.
Mr. Parker. I would like to speak on the emergency time.
There are devastating times for signalmen when maintenance away
production gang come and we spend days and days and days at a
time. There are some employees where there is a problem with
overtime. When it comes to situations like that, when it comes
to rest and overtime, rest takes precedence.
There are times when you are working a signal circuit, and
your time is gone, and the railroads will say, that signal
circuit is causing the crossing gate to go down, so now we
declare this an emergency for protection of the public.
As we stated in our testimony, the railroads will use any
circumstance and situation to make us work past our 12 hour
period. It is devastating. Anytime they want to call it an
emergency or tell us to work past the Hours of Service Law,
they do that.
Ms. Brown. Mr. Parker, are they paid for the overtime?
Mr. Parker. Yes, they are paid for the overtime, but the
problem is they need more employees to fulfill some of that,
some of that time. There are some people who all their time is
spent on the railroad.
Ms. Brown. The question about the camp car video, can labor
respond to that? Is this being negotiated?
Mr. Pontolillo. I believe that the BMWED has attempted on
numerous occasions to negotiate it with Norfolk Southern. I
can't speak personally. We can supply greater details, but if
it is similar to many other rail union negotiations, NS is
probably looking for something in return.
Ms. Brown. Well, Mr. Hamberger, you will give us that
response in writing.
Mr. Hamberger. Yes, ma'am.
Ms. Brown. Mr. Shuster?
Mr. Shuster. Thank you.
I can go back to the last hearing we had, and I will keep
saying this over and over again. I am trying to get my hands
around and my brain around all these issues. For me, it is
extremely important to have some points of reference, and those
become the statistics. I was told and I am aware you can make
the statistics move a little bit, but if I can see how you got
your statistics, I can figure out how you moved them or what
you did. I need that kind of information.
Mr. Pontolillo, did I pronounce that correctly?
Mr. Pontolillo. Yes, sir.
Mr. Shuster. The numbers that you put forward, they sound
like big numbers to me, but I have no point of reference so I
am not sure. Mr. Hamberger in the rail industry comes up here
and says that 83 percent of the rail workers are on duty less
than 200 hours per month and 95 percent or less are under 250
hours per month. Now I can dive into the numbers and figure out
how he got it.
If you folks in labor, can give me those kind of numbers so
I can handle it better, it will help me as we move forward.
I agree with the Chairwoman, I hope we don't have to do
anything on this because I think it would be much better served
if you did it. So that is something that I need coming from you
folks.
A question I have about the declaration of emergencies, I
understand Mr. Parker brought that up and that has been on the
increase. Whoever wants to take it first, management or labor,
tell me about it. Has there been an increase in emergencies,
declaration of emergencies, and why do those occur?
Mr. Hamberger. I am not sure I can answer the delta over
time, but we have done a little research on the number of such
declarations in talking to the railroads. If a signalmen has to
work more than 12 hours, that has to be filed with the FRA. So
there is a repository at the FRA that keeps track of the number
of times that a person is asked to exceed the 12 hours of all
the crew tours of duty, if you will, that are out there.
I know for a fact with Mr. Dealy's railroad, that number in
2006 was .08 percent--.08 percent of the number of times a BRS
person went out to work that they were asked to spend more than
12 hours. It is my belief and understanding and we will get
those data for you, that the other railroads are all less than
1 percent as well. So I don't see that as the widespread abuse
of the emergency.
If I could just make one further point, I am sorry Mr. Kuhl
left because his area in New York just got 10 feet of snow, and
certainly that is going to demand a lot of checking of grade
crossings and a lot of work on signal work and you can't staff
up to have people sitting around waiting for a 10 foot
snowstorm however many years they come. Mr. Parker referenced
the negotiations about contracting out, and certainly that is
one of the reasons that we need to have that authority, so that
you can put the resources when there is a disaster like that
and a need, that you can put more resources out there. Anyway,
that is one of the issues that is begin dealt with at the
bargaining table.
Mr. Shuster. Has then been more, a greater number of
declarations of emergencies over the past? Is that what you
said?
Mr. Hamberger. I don't have that information. All I know is
the real number is that it is less than 1 percent for the Class
1s and I just happen to know Mr. Dealy's is .08 percent.
Whether or not that is more than the past, I don't know, but
just as a real number, it seems to me to not be a crisis if it
is less than 1 percent.
Mr. Shuster. One percent, I must have misunderstood you.
Mr. Hamberger. So you take a look at all of the shifts that
a BRS employee works. Of all those shifts over the course of a
year, how many times were they asked to work more than 12
hours? They have to be reported to the FRA if they are.
Mr. Shuster. Less than 1 percent?
Mr. Hamberger. Less than 1 percent.
Mr. Shuster. Mr. Parker?
Mr. Parker. The problem is it is not defined in the act.
Any supervisor on the railroad track can say that this is an
emergency, and a signal employee has no other alternative but
to do exactly what he says. They also know how to manipulate
the time of the signalmen. You go sit over here for a while.
You go do this. You go do that.
Depending on the individual, the problem is not a need of
contract. The problem is a need of more employees. We have had
a shortage of employees for a long time. Territories have been
increased, more responsibility, more testing, more things to
do. It is something that the railroads could do something
about.
If it is an emergency, if it is a snowstorm, if it is a
fire, if it is an icestorm, we understand that. That is an act
of God. We understand that is an emergency. That is not what w
are talking about. We are talking about when a lower line
supervisors or a vice president declares an emergency just to
keep you out there rather than call somebody else just to keep
you out there so he can have somebody available for the next
day.
We need a definition. I am telling you it is devastating to
us for 20 years,30 years, five year employees. We have to do
what we are told. What is the word they use for when you have
no protection for reporting incidents? Whistleblower. We have
no whistleblower protections on the railroad. It is just
devastating for the things we have to do in the name of so-
called emergency.
Mr. Shuster. I see my time has expired. I yield back.
Ms. Brown. Mrs. Napolitano?
Mrs. Napolitano. Thank you, Madam Chair.
On that point, Mr. Parker, I have discussed with the Chair
the possibility of adding some kind of protection to
whistleblowers because that seems to be an issue that keeps
coming up again and again, that there is no provision. There is
no safety for those employees who are trying to protect not
only the infrastructure of the railroad but their own safety
and safety of those areas where they go through. So that is a
good point.
There are many, many questions, and most of you already
probably have heard me talk over and over again. L.A., the
biggest sample, we are going to be increasing rail traffic
through my whole district six to tenfold. You talk about a
train every six to ten minutes. I want to be assured that
whatever railroad, be it UP or BNSF, going through my district,
the rest of the district, the rest of California too, is not
only trained, experienced, not tired, not fatigued because that
has seemed to be a big player in some of the accidents that I
have heard about.
Now I am not sure. You have told me you have enough trained
employees, and yet I hear time and again that you do not have
enough trained personnel, adequately trained personnel. I
certainly would want some of the organizations to tell us what
about the training the employees are receiving. Is it adequate?
Are there questions in regard to the length of time, to the
type or methodology rather used?
What is it that we can ask that be given to all employees
to protect them and the rail cars and the public?
Mr. Parker. We signed an agreement with one railroad five
years ago, six years ago, ten years ago to have advanced
training. It has never happened. Sometimes the training is a
film. The majority of the time, the training is from an older
maintainer. A lot of the older maintainers are gone from the
experience. You would just be surprised at the lack of training
that we have.
Mrs. Napolitano. No, I wouldn't because I have heard about
it.
Mr. Parker. OK. I had an old maintainer when I began as a
signal maintainer, and there was no training as a signal
maintainer at the beginning. You went to school eventually but
not for long, and the school was set up not for training, for
testing, probably to get rid of some people.
He taught me to survive. He said do this, do that, do that,
so this switch can go. I learned how. I learned to survive. He
taught me to survive until I learned exactly what I was doing.
Without the expertise of the older fellows, the railroads have
no desire, speaking of my own experience and some of the
others. They just don't believe in training for signals.
We have vital circuits. It is just so vital. The nightmare
that the signal maintainers have to go through, knowing there
is some lack of knowledge. Sometimes with the new crossing
systems that come in, they may bring a salesman to teach you,
but they just do not invest in proper training for the
signalmen.
Mrs. Napolitano. Would it be more appropriately called on
the job training?
Mr. Parker. On the job training if you have someone there
who has the experience to give you on the job training, but we
need them to fulfill their agreement with advanced training.
Mrs. Napolitano. Yes?
Mr. Brunkenhoefer. Mrs. Napolitano, the Federal Government
has regulations on all of us. In the last round of the safety
bill, we did drug testing which has turned out to be good--we
need to work on that together some more--and we have what is
known as personal liability. I have a responsibility to comply
with a Federal regulation or if I don't comply with that
Federal regulation, I can be fined or removed, banned from the
industry.
In our wish list, we would like that the Federal Railroad
Administration would set training standards for both labor and
management so that we would make sure that we are being
adequately trained to comply with the Federal regulations to
protect ourselves and protect our public.
Mrs. Napolitano. Thank you.
One of the things, and I am almost out of time, is the cost
to the industry gentleman. Mr. Hamberger, while in California,
the only way I can bring the railroad to comply with some of my
community's requests to do certain things in their own back
yard is by going to the FPPC, the State regulatory, to do fines
on them. Is there another way that we may be able to get better
compliance?
I know that I had one representative for one railroad for
the whole West Coast including Hawaii, and when I called, he
was either not available or was very not understanding is
putting it mildly. I certainly would want those that have
requests to make that would help bring compliance to the
community's request or at least addressing the issues to be
able to help address some of the issues that have been brought
up today.
Mr. Hamberger. Probably a long answer, I have a request in
to meet with you. I would like to be able to come in and, with
the railroads, BNSF and UP, and talk through some of the
specifics you have voiced in the last couple of hearings, that
I would like to get a little more detailed understanding so we
can make sure we can respond properly.
Mrs. Napolitano. The last question, you can answer it, is
because you have had some findings from the research that was
done over fatigue. Have you reviewed them? Have you found out
whether some of them can be implemented? What about some of the
work that should be done?
Mr. Hamberger. Mr. Dealy is in charge of doing that.
Mr. Dealy. Sure, I think some of it points to earlier
testimony, but it really does come back down to looking at the
modeling that the two individuals talked about in the panel
ahead of us. I think it directly applies on the small group of
employees that I referred to that do work a lot, and we would
just as soon they take days off. We would be all in favor if
there was mandatory off time for those, and we think it does
fit the modeling that Dr. Sherry and Dr. Hursh have done.
If I could just touch on the question you said earlier
because you asked a good question. One, do you have enough
people and, two, are they adequate trained?
Right now I am surplus 100 people. I know my counterpart
with Union Pacific because both of us operate through your
district, we both have a surplus of employees. Two, we have
worked with the unions in the last two months to keep them on
the payroll even though economics probably would dictate we
furlough them. So we have worked through some innovative ways
to keep them around, so they can continue to get training. Then
thirdly, both the training program for our conductors and for
our engineers are by agreement with the UTU and the BLE and
actually the UTU training agreement also applies for a UTU
coordinator on each seniority district to supervise the
training.
Mrs. Napolitano. Sir, after 9/11, a lot of the personnel
was deleted. Are you comparing the statistics after 9/11 or
before 9/11 where you had full complement and you did not fill
all of those positions?
Secondly, as we have heard the testimony, you are utilizing
less and less personnel on the trains themselves.
Mr. Dealy. Well, before and after 9/11, we had two men, two
person train crews, conductor and engineer, so that really
didn't change.
Two, I am talking current state when I said we have plenty
of people right now. We still plan to hire this year. We all
know the pain of running short of employees. That is not a good
thing, and we all have intentions of staying ahead of this. We
have it in our business plan to stay ahead of it with really
still aggressive hiring programs, and we will still hire at
BNSF in the neighborhood of 1,500 employees this year even
though right now I have got 1,000 surplus. We know that because
we have a good idea of what the retirements are going to be,
and we think we understand what the growth rate is going to be,
particularly out of southern California this year.
Mrs. Napolitano. I am sorry. There is apparently a response
to that.
Mr. Brunkenhoefer. Railway Age off the web site, February
the 7th, between mid-December, 2005 and mid-December, 2006,
Class 1 employment in railroads increased 1.63 percent to a
total of 167,558 according to Surface Transportation, where the
largest employee group was transportation train engineers which
rose to 75,815 during the period, an increase of 3.10 percent.
The second largest group was the maintenance away structures
decreased 1 percent to 34,000. They were laying them off.
The biggest percentage increase was the category of
executives, officials, staff assistants whose numbers increased
6.37 percent to 10,148. So, yes, they are hiring.
But are they hiring at the rate, one, that business is
growing? God bless Dave and the sales department that got
business growing. Are they hiring fast enough to cover the
business that is growing and retirements?
I would say that if I am understanding correctly, recent
growth in business has been at the double digit level for the
last several years. God bless them. But at the same time, the
overall hiring numbers, at least according to the numbers
quoted by the Surface Transportation Board, do not reflect that
other than we are getting a lot more supervision. For every one
employee in the category of operating the trains, we are
getting two supervisors hired.
Mrs. Napolitano. Thank you, sir, and thank you for your
indulgence, Madam Chair.
Ms. Brown. I am going to go to Mr. Lipinski for the last
question, but let me just ask you quickly.
I went to the training program that CSX had, Mr.
Brunkenhoefer, in Atlanta, and my understanding is they are
training 24 hours. In some of the I guess railroads, they are
training as many as they can accommodate. This is a good
problem for the industry, and I think maybe we need additional
training programs for people that have been there. Maybe it
took a five man crew and they actually didn't run the train
until after they had been there for a number of years, by
themselves. I guess with the technology, the industry has
changed.
Mr. Brunkenhoefer. Ms. Brown, put me down in the Amen
corner down at the AME at 11:00 on a Sunday morning. I am in
agreement with you. I would just like somebody like the FRA to
set some standards to make sure that everybody gets quality
training because the trains that they handle are all the same
all over the United States. And so, all we want is if somebody
has got something good, let us apply it everywhere.
Ms. Brown. Help me now. The trains may all be the same, but
the conditions are not always the same.
Mr. Brunkenhoefer. Amen.
Ms. Brown. All right, Mr. Lipinski?
Mr. Shuster. Thank you, Madam Chairwoman.
I just want to point out one thing. I just want to tell Mr.
Brunkenhoefer, who I normally call Broken Rail but I wasn't
sure. This is the first time in this formal surrounding that I
addressed you.
Mr. Brunkenhoefer. I hope you forgive me for not wearing my
jacket.
Mr. Shuster. That is perfectly all right, but I knew you
knew what statistics were.
Mr. Brunkenhoefer. Thanks very much.
Mr. Lipinski. I just heard you fire off several of them, so
I appreciate that.
Ms. Brown. Mr. Lipinski?
Mr. Lipinski. Thank you, Madam Chairwoman. I get to go
clean-up, otherwise known as last, and I know everyone is ready
to get out of here. A couple things I just want to mention here
a little bit.
Mr. Dealy, I don't know. I may have misunderstood you. I
just want to make clear that this tragedy that occurred was in
Berwyn that happened yesterday. I wasn't sure if that was what
you had said, but I didn't want to interrupt you.
Mr. Dealy. I stand corrected, Congressman. Thank you.
Mr. Lipinski. The issue of the camp cars is something that
certainly has been brought to my attention many times, and
certainly seeing this video makes it very clear what a terrible
situation. I just imagine trying to get sleep in there. I just
want to make sure that we do get that cleared up about what is
going on, if this is something that, as Mr. Hamberger said, NS
is going to end. I just want to make sure.
Mr. Hamberger. I don't want to overstate that. It is my
understanding they are in a transition phase, but I do know, as
Mr. Pontolillo indicated, they are in discussions with the
unions on that exact path. So I don't want to say that it is
over, but I think they are discussing it with the unions.
[The information received follows:]
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Mr. Pontolillo. We will supplement our response and let you
know exactly what our people are telling us. Thank you.
Mr. Lipinski. I thank you.
Mr. Broken Rail, I will go ahead and use that, although it
is a simple German name there that we could probably really
pronounce, but I guess this works well.
I just want to make sure. I heard this now brought up a
couple of times about this issue in Illinois. We are working on
getting that straightened out, aren't we?
Mr. Brunkenhoefer. I expect that Mr. Szabo who is our State
Director will be making a request to that particular. This is a
problem when you win a lawsuit that says it is federally
preempted. Now it looks like we are going to have to come to
you and this Committee and ask that we have a Federal law to
solve the problem in Illinois.
It is not a problem just in Illinois, but we were trying to
address this at the State level. We thought we had successfully
done it. Unfortunately, we misunderstood. We thought a deal was
a deal, and so we will be approaching this Committee to add
language to the safety bill to address it.
Mr. Lipinski. I have spoken with Mr. Szabo. I know that
others have also and Chairman Costello has, it being an issue
directly with Illinois although, as you say, it also applies
elsewhere. Every week, well, the last two weeks, I have heard
about this issue regarding Illinois, so I will have to work on
that.
That is all. I yield back, Madam Chairwoman.
Ms. Brown. Mr. Shuster?
Mr. Shuster. I just want to congratulate you in your
judgment today, Madam Chair. Where everybody else left in the
Federal Government at 2:00, those of you who are going to leave
at 5:00 are not going to have the traffic to deal with tonight.
So you can all thank the Chairwoman for her great insight into
that.
Mr. Pontolillo. We appreciate that very much too.
Ms. Brown. I hope we don't have ice.
Let me just thank the witnesses for their valuable
testimony and the members for their questions.
Again, the members of the Subcommittee may have some
additional questions. I know I do. I am going to put them in
writing.
With that, this hearing is adjourned.
[Whereupon, at 4:40 p.m., the subcommittee was adjourned.]
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