As you have likely heard, BNSF is adding administrative hurdles to your tie-up procedures. They claim these new requirements comply with BRS Rule 12D which is not entirely true. The new procedures mandate accessing a “Service Now” app to answer questions and additionally require supervisor notification any time your tie up is for “other reasons”. This is an interruption of rest under the HOS law. It is critical to remember, there is nothing the RR can do through an app or any other means to alter your right to sign off without requiring permission, as provided under Rule 12D.

What compliance with their new tie-up procedure can do, however, is limit your availability for the next day. Provided you properly reset your rest when you tie up and document this on your HOS, the railroad’s self-inflicted availability nightmare isn’t your problem. Unlike the old process, the new process requires you to perform "administrative duties" at "the behest of the railroad" which is considered "service" and must be counted as time on duty. (49 CFR 228.5 “Administrative duties”; 49 CFR 228.5 “At the behest of the railroad”; 49 CFR 228.5 “Commingled service”)

The requirement to perform a "double tie-up" by contacting a supervisor AND answering questions in an app in order to tie up is also an interruption of rest. Furthermore, if you are not free to turn off your company device without following the new process, any phone calls, emails, or text messages received on that device are interruptions of your rest. (United States, Department of Transportation, Federal Railroad Administration. Memorandum on Hours of Service. 11 Sept. 2014.) Under FRA guidelines, a railroad is allowed to dictate their policy regarding how you tie up (subject to the union contract.) However, they cannot mandate “double reporting” or require “administrative duties” when you are on a mandatory rest period after hitting your maximum on-duty time. This is why the Service Now app allows you to tie up for HOS reasons without having to answer additional questions or without having to notify anyone. BNSF knows that requiring these additional items would constitute “service at the behest of the railroad” and would cause you to illegally exceed your maximum HOS. What they don’t tell you is that the same logic applies to the process for tying up for “other reasons.” The double reporting requirement and the administrative task of entering work related information in the app constitutes service for the railroad and is considered time on duty. This is especially true when a phone call and answering of additional questions is required.

It is important we emphasize Rule 12D does not require permission. While some maintainers have been duped into believing this by an overbearing or uneducated supervisor this is a violation of Rule 12D. To sign off you merely have to "notify" them. We understand the app also requires you to list a location where you may be found. Considering Rule 12 says to do so only “when possible” and if you are tying off you are not likely to be reached, a reasonable entry in that required field could simply be “not possible.” If you call and have a discussion about coverage, other maintainer availability or any other work related conversation, this is service for the railroad. The railroad does not own you. You are allowed to have a life outside of work and you have the right to tie up when you want. If you are denied your right to sign off, you are considered involuntarily held for duty and should be paid continuously for such time. If this pay is denied, contact your local chairman and a claim will be filed.

When you contact your supervisor, limit the conversation to simply informing him of the hours you will be off call, keeping in mind any work-related questions are service at the behest of the railroad and reset your rest. If the supervisor gives you a hard time about marking off, this should be reported to a local chairman as proper HOS reporting is protected activity under the Federal Rail Safety Act (FRSA). Following the HOS law qualifies you for whistleblower protection under the statute if you are harassed, coerced, targeted or discriminated against for doing so. (United States, Congress. United States Code, title 49, sec. 21103. "Federal Railroad Safety Act")

As we see it, the BNSF has two options at this point to avoid an HOS catastrophe. It can either require you to tie-up strictly using an app, or require you to tie-up strictly by notifying (not asking) a supervisor. We will be fighting to prevent them from requiring both, and they can suffer the self-inflicted HOS consequences if they do.