United Transp. Union v. Skinner

• Decision Date: 12 March 1992
• Docket Number: 91-35911 and 91-36061,No. 90-16741,Nos. 90-16741,s. 90-16741,90-16741
• Citation: 975 F.2d 1421
• Parties: 30 Wage & Hour Cas. (BNA) 1761, 123 Lab.Cas. P 35,708 UNITED TRANSPORTATION UNION, Plaintiff-Appellant, v. Samuel K. SKINNER, Secretary of Transportation, et al., Defendants-Appellees. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al., Plaintiffs-Appellees, v. Samuel K. SKINNER, Secretary of Transportation, et al., Defendants-Appellants. . :
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1421

975 F.2d 1421

30 Wage & Hour Cas. (BNA) 1761, 123 Lab.Cas.

P 35,708

UNITED TRANSPORTATION UNION, Plaintiff-Appellant, v. Samuel K. SKINNER, Secretary of Transportation, et al.,

Defendants-Appellees.

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al., Plaintiffs-Appellees, v. Samuel K. SKINNER, Secretary of Transportation, et al.,

Defendants-Appellants.

Nos. 90-16741, 91-35911 and 91-36061.

United States Court of Appeals, Ninth Circuit.

No. 90-16741: Argued Feb. 11, 1992.

Submission Deferred Feb. 19, 1992.

Resubmitted March 12, 1992.

Nos. 91-35911, 91-36061: Argued and Submitted March 12, 1992.

Decided Sept. 22, 1992.

Frederick L. Nelson, Hildebrand, McLeod & Nelson, Oakland, Cal., for plaintiff-appellant.

John F. Daly and Sara Landise, U.S. Dept. of Justice, Washington, D.C., for defendants.

Lawrence M. Mann, Apler & Mann, Washington, D.C., for plaintiff-appellee.

Ralph J. Moore, Jr., Shea & Gardner, Washington, D.C., for amicus curiae, Ass'n of American Railroads.

Appeal from the United States District Court for the Northern District of California.

Appeal from the United States District Court for the District of Oregon.

Before: SCHROEDER, REINHARDT, and KLEINFELD, Circuit Judges.

REINHARDT, Circuit Judge:

These cases present the single question whether time spent by a railroad employee waiting for deadhead transportation from duty to his point of final release constitutes time on duty under the Hours of Service Act (HSA), 45 U.S.C. §§ 61-64b. Based on the language of the HSA and on its consistent interpretation by the courts throughout its 85-year history, we conclude that such waiting time is and always has been time on duty for purposes of the statute. Accordingly, we affirm the judgment of the district court for the District of Oregon in Brotherhood of Locomotive Engineers v. Skinner and reverse the order of the district court for the Northern District of California dismissing with prejudice the companion case of United Transportation Union v. Skinner.

I

The HSA was enacted in 1907 to promote railroad safety by setting limits on the hours worked by train crews, signal operators, and other railroad employees. Hours of Service Act, ch. 2939, § 1, 34 Stat. 1415 (1907). As originally worded, the statute provided for a maximum shift of sixteen hours, and specified that after completing a sixteen-hour shift, an employee was entitled to at least ten consecutive hours off duty. Id. § 2, 34 Stat. 1416 (codified as amended at 45 U.S.C. § 62(a)(1)). An employee who had been on duty for a total of sixteen hours within the preceding twenty-four hours was entitled to at least eight consecutive hours off duty. Id. (codified as amended at 45 U.S.C. § 62(a)(2)).

In 1969, Congress amended the HSA in order to resolve a dispute that had arisen between the railroads and the employees' unions regarding the treatment of time spent deadheading to and from duty assignments. Under the original HSA, all time was considered either "time on duty" or "time off duty". Because time spent by an employee deadheading to and from duty was not considered "time on duty" by the railroads, that time was counted as part of the employee's "time off duty". As a result, although the statute provided for a minimum of ten consecutive hours off duty between shifts, railroad employees were not in fact guaranteed ten hours of rest, but rather might spend part or all of their designated rest time deadheading from one assignment or to the next assignment.

As amended, the HSA defines "time on duty" to include time spent deadheading to an assignment, as well as some interim rest periods. 45 U.S.C. § 61(b)(3)(A)-(C). It further provides that time spent deadheading from an assignment shall not be considered either "time on duty" or "time off duty". Id. § 61(b)(3)(C). Instead, the proviso to subsection (C) establishes a third category of time, known in the industry as "limbo time", for such return deadheading. In full, the statutory definition of "time on duty" now reads as follows:

(3) Time on duty shall commence when an employee reports for duty and terminate when the employee is finally released from duty, and shall include:

(A) Interim periods available for rest at other than a designated terminal;

(B) Interim periods available for less than four hours rest at a designated terminal;

(C) Time spent in deadhead transportation by an employee to a duty assignment: Provided, That time spent in deadhead transportation by an employee from duty to his point of final release shall not be counted in computing time off duty;

(D) The time an employee is actually engaged in or connected with the movement of any train; and

(E) Such period of time as is otherwise provided by this chapter.

45 U.S.C. § 61(b)(3). The 1969 amendments also reduced the maximum shift to twelve hours. 45 U.S.C. § 62(a)(1).

The dispute in the cases before us concerns the treatment under the HSA of time spent by a railroad employee waiting for the arrival of deadhead transportation from duty to his point of final release ("waiting time"). Under current industry practice, when the members of a railroad crew have worked eleven hours and fifty-nine minutes, they are required to stop the train and await the arrival of deadhead transportation bearing the relief crew. Crew members are not free to leave the train until the relief crew arrives, nor are they free simply to relax. To the contrary, during the waiting period they may be required to provide certain additional services for the railroad, should the need for any of those services arise. For example, waiting crew members are responsible for protecting the stopped train against vandalism and for ensuring that the brakes remain engaged. The parties do not dispute that employees who failed to perform either of these tasks, as needed, or who left the train unattended would be subject to discipline by the railroad. The parties also do not dispute that crew members frequently must wait several hours for their replacements to arrive.

Prompted by complaints from members that significant amounts of waiting time were not being included in the calculation of their time on duty, several railroad unions requested an opinion from the Federal Railroad Administration (FRA), the body charged with enforcing the HSA, regarding the proper treatment of waiting time under the statute. The FRA responded that it did not consider waiting time to be "time on duty" under the HSA. Rather, wrote the FRA, waiting time, like time spent in deadhead transportation from duty to the point of final release, was properly classified as "limbo time"--neither "time on duty" nor "time off duty". The FRA acknowledged that crew members might be called upon to perform certain duties during the waiting period. It indicated that if such a need arose, crew members should be considered "on duty" only for the amount of time necessary to complete the required tasks.

The United Transportation Union (UTU), the designated collective bargaining representative for a variety of railroad crafts including trainmen, conductors, and yard service employees, filed suit against the FRA and the Secretary of Transportation in the district court for the Northern District of California. It sought a declaratory judgment that time spent by railroad employees waiting for the arrival of deadhead transportation from duty to their point of final release constituted "time on duty" under the HSA regardless of whether the waiting employees were actually required to perform any services for the railroad. In addition, the UTU requested injunctive relief and mandamus to compel the FRA to take appropriate enforcement action. The Brotherhood of Locomotive Engineers (BLE), which represents the craft of locomotive engineers in collective bargaining, filed an identical complaint in the district court for the District of Oregon.

The FRA filed a motion to dismiss UTU v. Skinner on the ground that the union lacked standing to seek to compel the agency to enforce the HSA. The FRA argued that regardless of which interpretation of the statute was correct, both particular enforcement decisions and more general decisions regarding enforcement policies and priorities were committed to agency discretion. Relying on Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021 (9th Cir.1985), the district court agreed with the FRA that the UTU lacked standing and dismissed the action with prejudice. The UTU timely appealed the order of dismissal.

The district court for the District of Oregon stayed proceedings in BLE v. Skinner pending the outcome of the UTU's lawsuit. Following the order of dismissal in UTU, the BLE amended its complaint by eliminating the requests for injunctive relief and mandamus. The amended complaint requested only a declaratory judgment regarding the proper interpretation of the HSA. The parties filed cross-motions for summary judgment. After examining the pre-1969 cases that addressed the treatment of waiting time under the HSA, the district court concluded that employees who are required to wait on a train for the arrival of deadhead transportation bearing their relief crew have always been considered to be "on duty" under the statute. The court further concluded that nothing in the 1969 amendments to the HSA altered or was intended to alter that longstanding interpretation. Accordingly, the district court granted summary judgment for the BLE. The FRA filed a timely appeal.

At the close of oral argument in UTU, we deferred submission of the case pending oral argument in BLE. At the BLE argument, the FRA, through the Department of Justice, withdrew its objection in UTU to the union's standing to seek declaratory relief under the HSA. The FRA expressly declared itself willing to adopt and enforce the interpretation of the HSA that is judicially determined to be correct. The appeals in the two cases were consolidated...