BROTHERHOOD OF LOCOMOTIVE ENGINEERS v. ATCHISON, TOPEKA & SANTA FE RAILROAD CO.

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Argument of Lawrence M. Mann

Chief Justice Rehnquist: We'll hear argument next in Number 94-1592, Brother... spectators are admonished to be quiet until you get outside the courtroom.

The Court is still in session.

We're going to hear argument next in Number 94-1592, Brotherhood of Locomotive Engineers v. The Atchison, Topeka, and the Santa Fe.

Mr. Mann, you may proceed whenever you're ready.

Mr. Mann: Mr. Chief Justice, and may it please the Court:

The obvious question for you to ask me this morning is, if Congress intended for waiting time for deadhead transportation to be time on duty, why didn't it say so specifically?

Well, the answer to that, at least in my mind, is very simple.

We're dealing with a statute that first of all encompasses many train operations.

Even the petitioners acknowledge that there are thousands of train operations daily.

At the time of the '69 statute, there were 36,000 train operations each day, so--

Unknown Speaker: What do you mean when you say train operations?

Mr. Mann: --Meaning, a crew goes on duty and performs service for the railroad.

That would be one train operation, Your Honor.

And the other answer to that is, and I think it's the real guts of the case is, there was no need to specifically state that waiting time was time on duty because Congress treated that issue in several sections of the statute, and I refer the Court to section 21103(b), and I will talk about (1), (2), (3), (4), (5), and (6) subsections.

And in each one of those subsections it's very clear that Congress was attempting... and I submit to you they did close the loopholes, and one basic problem is that railroad workers at that period of time were sitting on trains for hours on end waiting for a pickup crew or another train to come along and take them to their final release period, and it's... throughout the entire amendments the sole purpose was to close those loopholes, and they did it in several ways.

First of all, you don't have to be working at all to be covered as time on duty under the act, because it's very clear... you know, I'm just a country boy, Your Honors, but English is English.

It says, interim periods available for rest at a place--

Unknown Speaker: Where are you reading from, Mr. Mann?

Mr. Mann: --Excuse me, Your Honor.

Unknown Speaker: And where will we find it?

Mr. Mann: This is section 21103--

Unknown Speaker: Page 2 of the petition?

Mr. Mann: --In my brief, Your Honor, it is... yes, page 2 of the petition.

Page 3, number (5), subsection (5), Your Honor, an interim period available for rest.

Now, what the carriers and the Government is telling you is that this period of time should not be considered here.

They want to write out and put conditions on each section, not giving it its broad and plain meaning.

They--

Unknown Speaker: Well, are you reading out the word, interim?

Mr. Mann: --The interim, Justice Souter, means interim between the time you go on duty and the time that you're finally released from duty.

Unknown Speaker: It doesn't mean interim as between two periods of active duty?

Mr. Mann: It does not, Your Honor.

Unknown Speaker: Do we have a definition in the statute?

Mr. Mann: Well, we have some legislative history.

In the hearings, as well as in the Senate report, it talks about final release of all... finally released from all responsibilities.

The proof of the pudding there is--

Unknown Speaker: I'm sorry, I'm just not getting it.

I'm sure somewhere they use that phrase, but how are you connecting that with the meaning of the word?

Mr. Mann: --Well, interim--

Unknown Speaker: Interim.

Mr. Mann: --Interim means, as discussed in the House hearings and the industry spokesman, the Association of American Railroads, made that point clear, Your Honor, if I--

Unknown Speaker: Well, he may have done it, but is there a House or a Senate report that defines the term, or indicates--

Mr. Mann: --It does not define the term.

Congress--

Unknown Speaker: --If I understand your argument correctly, your meaning would have been conveyed better if the word interim were left out, just a period available for rest.

Mr. Mann: --Well--

Unknown Speaker: What does interim add that helps rather than hurts your position?

Mr. Mann: --It... I submit it doesn't hurt my position.

It includes periods for operations.

Unknown Speaker: But you would be stronger, your argument would be stronger, would it not, if the statute didn't say, interim?

Mr. Mann: Somewhat, but I don't think it's definitive, because as the railroad... the chief railroad witness, and I think it's very critical, testified, and I refer to the House hearings at page 135, where Mr. Manion... Mr. Manion was the vice president of the Association of American Railroads, and he was talking about the problems of deadheading transportation and what would happen if the bill as was introduced were adopted, and after he discussed that part, he said, however, under another provision of H.R. 8449, which is the section dealing with interim periods for rest, section 1(b)(3)... now, that is exactly the same as what was passed, subsection (5), and I quote:

Periods available for rest at other than a designated terminal will be included as time on duty.

Consequently, if a crew reaches the hours-of-service limit in the country and is relieved there, it will still be on duty for purposes of hours-of-service purposes because it is not relieved at a designated terminal.

Unknown Speaker: Who says this?

Well, Mr. Mann, even for people devoted to legislative history, that's a fairly low level, isn't it, what a witness testified?

Mr. Mann: Except, Your Honors, this was an industry spokesman, the Association of American Railroads, on a bill that only affected them, and what Congress was attempting to do is to close all these loopholes, and I submit to you, this statement as far as I am concerned--

Unknown Speaker: Well, how do we know that Congress intended to "close all these loopholes"?

Mr. Mann: --Well, the act solely--

Unknown Speaker: It's not called the loopholes-closing act.

[Laughter]

Mr. Mann: --No, Your Honor.

The act solely deals with placing in the act periods of time that not... that previously were not time on duty as being time on duty, with one exception, deadhead transportation to the final release point.

Everything else that they did, the Congress made it time on duty to eliminate every abuse that was testified to in these hearings, and this is the industry spokesman.

Now, you can look at the hearings, and I spent some time doing that, to see what all the rest of the witnesses stated from the industry.

Unknown Speaker: But is there something in there that talks about the definition of deadhead transportation?

Mr. Mann: Yes, there is.

Unknown Speaker: Deadhead transportation, I would think sometimes when people are transported they include the time that they're sitting around in the station waiting room--

Mr. Mann: Well, that's--

Unknown Speaker: --or the airport--

Mr. Mann: --That's one of the issues.

Unknown Speaker: --and sometimes they don't, so it all seems quite ambiguous to me, anyway, and if it's ambiguous, shouldn't you leave this kind of interpretation to the agency?

Mr. Mann: Well, two things, Justice Breyer.

One is, of course, the industry, how they dealt with deadhead transportation, and here's how they define it... Mr. Manion again.

Deadheading may be defined as travel performed by railroad employees at the direction of a railroad.

Now, he was not the only railroad witness.

Unknown Speaker: But that doesn't do it, does it?

Mr. Mann: Well--

Unknown Speaker: I say I'm traveling to Boston.

I might or might not include in my travel time the time spent at the airport.

Mr. Mann: --That's correct.

Unknown Speaker: All right.

So is there something there that says, by the way, we don't mean time spent at the station, or spent at the airport, or sitting around waiting for the train to show up?

Is there anything like that?

I--

Mr. Mann: There are three things.

One is commingled service, which is defined in the statute as any other service for the carrier.

You are part of the crew.

You're not free to leave the premises except being under the control and subject to being called, and you're not finally released from duty until you get back at the terminal and do other ministerial duties.

Unknown Speaker: --Mr. Mann, is it your position that if you are deadheaded back to your final point of release, while you're waiting to get the first train, let's say to Omaha, that is on-duty time?

What about... suppose you have to wait again in Omaha to get another train to New York City, where you're going to be released?

What about that wait?

Is that part of deadhead--

Mr. Mann: All time... all time--

Unknown Speaker: --So you're not on duty while you go from Omaha to... where did... from wherever you're... wherever you end your work to Omaha, you're not on duty--

Mr. Mann: --You are on duty.

Unknown Speaker: --While you're being transported?

Mr. Mann: You're on duty.

That's specifically in the statute.

From the time you mark on duty, and that's subsection (4) of the--

Unknown Speaker: I thought deadheaded transportation back is not counted.

Mr. Mann: --Deadheaded transportation back, at the end of your tour of duty, at the end of your tour--

Unknown Speaker: Okay--

Mr. Mann: --of operations--

Unknown Speaker: --My tour has ended in San Francisco.

Mr. Mann: --Okay.

Unknown Speaker: And I... they've arranged to get me back by putting me on a train to Omaha, all right.

Now, you say while I'm waiting in San Francisco, I'm still on duty, all right.

What about while I'm waiting in Omaha?

Mr. Mann: It's all commingled service, and it's also time that is free for rest, and under the statute, that's on-duty time.

Unknown Speaker: And what about the transportation while I'm on the train between San Francisco and Omaha?

Mr. Mann: That is not, because of the statutory provision.

That's why Congress carved out this one exception.

The only exception is that it will not be counted as time on duty, nor time off duty.

That one period of actual movement, traveling in... traveling in is the key.

Unknown Speaker: Why is that magic?

I don't understand that.

Mr. Mann: Well, because--

Unknown Speaker: I mean, if... it makes no sense at all.

Mr. Mann: --Well, maybe... maybe free at rest makes no sense at all, either, but it would create an anomaly.

The anomaly would be this--

Unknown Speaker: You don't think it's an anomaly that I'm on duty while I'm at rest and back on duty whenever I start moving again?

Mr. Mann: --Congress said so.

Unknown Speaker: And if I have eight stops along the way, I'm on-off, on-off.

Mr. Mann: If Congress had not said that rest time was time on duty, I would agree with you, but Congress didn't say that.

Unknown Speaker: Mr. Mann, what happens if I'm being transported back in a van and there's a breakdown, and it takes 3 hours to get that van fixed so it can move again to the place where I'll be released?

We know that the time that you're in the van is deadhead time, and it's not on-duty time.

What about when the car breaks down and I'm waiting to have it fixed?

Mr. Mann: It's a good question, but I would submit to you that the way Congress envisioned this, I would argue to you that any time that you're not traveling, and it's very clear if you look at the statute and the meaning of the terms, if you're not traveling in the deadhead transportation, then it's either commingled service, you're performing other service--

Unknown Speaker: No service.

I'm waiting--

Mr. Mann: --When you're waiting--

Unknown Speaker: --for the van to be fixed.

Mr. Mann: --that's rest time.

Unknown Speaker: Well, why isn't it on duty time, as it is in Justice Scalia's Omaha wait.

Why is he on duty in Omaha but not on duty sitting on the side of the road?

Mr. Mann: Congress said that an interim period available for rest is time on duty.

You can be at rest completely--

Unknown Speaker: He's at rest on the side of the road.

Mr. Mann: --Mm-hmm.

Unknown Speaker: So he's on duty, so the answer to Justice Ginsburg's question is, he's on duty.

Mr. Mann: He doesn't have to be performing any duty.

He can simply be doing nothing, just sitting there waiting, doing absolutely nothing--

Unknown Speaker: But it's treated as on-duty time.

Mr. Mann: --Specifically.

Unknown Speaker: Yes.

Yes.

I assume you don't take the position that when the van stops for a red light he's back on duty, do you?

[Laughter]

Is it a... it's not an in-motion theory, not completely that, huh?

Mr. Mann: Typically, the problem... we wouldn't be here if there hasn't been tremendous abuses.

What we have as a typical situation, at the end of the 12 hours a crew is waiting and waiting and waiting.

We have evidence in the record that up to 10 hours, sometimes, they have to wait for someone to come and get them--

Unknown Speaker: Can I go back... I'm... I--

Mr. Mann: --Yes, Your Honor.

Unknown Speaker: --My question... and you just didn't have a chance to get out the other two things--

Mr. Mann: Oh--

Unknown Speaker: --and what I was curious, remember, that this word deadhead transportation struck me, at least in the statute, as ambiguous, that of course deadhead transportation is limbo time, yes--

Mr. Mann: --Yes.

Unknown Speaker: --but what is deadhead transportation, and my question was, what evidence is there that you could not... not that you... but you could not read those words, deadhead transportation, to include time in the station, time waiting to go on the train itself, as we do with airplanes and trains normally.

Mr. Mann: If you're--

Unknown Speaker: And what is it in... and you listed three things.

The first thing was, you said I should look at the commingled, the definition of commingled--

Mr. Mann: --Commingling--

Unknown Speaker: --and you were going to mention two others.

Mr. Mann: --That's correct.

One is the rest period, interim period for rest--

Unknown Speaker: Where would I... where do I find--

Mr. Mann: --That is--

Unknown Speaker: --You mean just in the statute here, or in--

Mr. Mann: --In the statute.

Unknown Speaker: --All right.

I've looked at that.

It didn't seem--

Mr. Mann: Oh... oh, I--

Unknown Speaker: --to me that it was clear.

Mr. Mann: --Well, let me--

Unknown Speaker: One is the definition of commingled in the statute, the other is the definition of rest period, and what was the third?

Mr. Mann: --The third is, what was Congress trying to do here?

Unknown Speaker: Okay, what?

Mr. Mann: Congress was trying to eliminate the abuses, and this was one of the greatest abuses that the industry was accomplishing.

They were leaving these crews out there an inordinate amount of time, and they're still doing it today.

Unknown Speaker: Well, if, in fact, it is an abuse, and if, in fact, the agency has significant delegated power to define deadhead transportation either way or partial ways, then couldn't you deal with that problem through the agency dealing with it?

Mr. Mann: I don't think the agency, Justice Breyer, has the authority here.

This is the one statute, the only safety statute on the books, in which the Federal Railroad Administration does not have regulatory authority.

They enforce, but they have no regulatory authority.

In fact, Congress took away the authority.

In the old statute in 1908, the old statute, the Interstate Commerce Commission did have that jurisdiction.

Unknown Speaker: But they can interpret.

Mr. Mann: They can interpret, yes.

Unknown Speaker: They can interpret, and they did.

Mr. Mann: They did.

Unknown Speaker: And they said, we think that two things go together.

When you're going to the job, then the waiting time, everything, is on-duty time.

Mr. Mann: Yes.

Unknown Speaker: And when you're going from the job, then everything is this limbo thing.

Why doesn't that just make entire sense as an interpretation?

Mr. Mann: It does in one respect, but the other respect I can just say, the very opposite is true.

Going to deadhead trans... deadhead to-duty assignment obviously includes the time you report to duty, and the time you are actually traveling, because the first subsection states very clearly that time on duty begins when you report for duty, so obviously, and I could argue that if that is time on duty from the point of reporting to duty and actually moving in transit, then the opposite situation coming back is the same.

Unknown Speaker: But one thing is not the same.

You can't get very far with your release point, because the statute tells us that the deadhead transportation time back, before the point at which you're released, that that time is limbo time.

Mr. Mann: That's correct, but the statute also tells you that, unlike what the respondents are saying, it tells you that you are not... there's... the position of the respondents, simply put, is that the employee is off-duty, no further obligations, after the 12 hours is reached.

That's just not the fact.

Unknown Speaker: Well, that's a factual question.

We didn't take this case to figure out the fact of whether there are duties, and I at least am going to decide it on the assumption that there aren't.

Now, if you can prove that there are duties in a particular case, it's a different case.

But let's assume there are no duties, that the railroad worker is simply waiting to go back to where his rest time begins.

Now, I can see why Congress would want deadhead time, including the time waiting for the deadhead transportation to arrive, I can understand why they would want that to count at the beginning of the work period, because by the end of the work period, the worker's going to be very tired.

You should count that time against him, right?

But at the end of the work period, what difference does it make?

Mr. Mann: Well--

Unknown Speaker: He's not doing any more work for the railroad, his rest time for the mandatory period of rest he has to take doesn't begin... this is limbo time, right, it's not rest time.

Mr. Mann: --Correct.

Unknown Speaker: So what... why would Congress want it to count towards work time?

Mr. Mann: There are several--

Unknown Speaker: I can't understand it.

Mr. Mann: --answers to that.

Number 1, why would they want just rest time to be time on duty?

Because there were abuses at that time, and there are still abuses.

That's one reason.

Unknown Speaker: Yes, but that's going back to your claim that in fact they're really being required to do something.

It seems to me that that answer is inconsistent with the--

Mr. Mann: They're not required... Justice Souter, they're not required to do anything, and they're off... I mean, and they're on duty, specifically by the statute, and that was what the industry spokesmen were telling Congress at the time.

Congress, if you adopt this, we can never let anyone off at an interim point.

Unknown Speaker: --Yes, but--

--When they have more duties later.

That was addressing--

Mr. Mann: They do.

They still do.

Unknown Speaker: --the situation when they have more duties later, so that their total on the job, their total time on the job will be stretched, and by the end of the job, they'll be very tired.

Mr. Mann: Justice Scalia--

Unknown Speaker: Here we're talking, by definition, about a situation where their job is done, and it's not going to be counted toward their rest time, and it's not going to make them more tired for any duties that they perform.

Mr. Mann: --I respectfully differ with you because, as I've pointed out in my reply brief, the duties don't end.

When you get at the end--

Unknown Speaker: You're going to win in front of the Seventh Circuit.

Mr. Mann: --Sir.

Unknown Speaker: If that's true, then under the Seventh Circuit's opinion, you're going to win, ultimately.

Mr. Mann: The Seventh Circuit did not consider anything but that one section of subsection (4), time spent in deadhead transportation.

Unknown Speaker: Yes.

Mr. Mann: They did not look--

Unknown Speaker: If you can go back to the Seventh Circuit, or the district court under the Seventh Circuit opinion and say, aha, they have responsibilities, then you're going to win.

Mr. Mann: --Well, I can only suggest--

Unknown Speaker: I mean, the whole point of our taking this case is not to decide whether you win or not--

Mr. Mann: --Correct.

Unknown Speaker: --on that hypothesis.

Mr. Mann: Correct, but I think it is significant in that it counters the argument of the respondents that all duties end at that 12-hours time, and it doesn't.

I--

Unknown Speaker: But your case... in answer to my question, you were candid, and I appreciated it.

You said if the van breaks down so that they're not moving, that's limbo time, and it's clear that in that situation they have no trains to watch--

Mr. Mann: --Correct.

Unknown Speaker: --no safety hazards to report, they have nothing to do--

Mr. Mann: Correct.

Unknown Speaker: --except wait.

Mr. Mann: And they are not free to go.

They are part of the crew, still, until they finally mark off at the away-from-home terminal.

Unknown Speaker: May I ask you a question about the 1969 hearings, and you quoted Mr. Manion's statement, which I guess is the same one, at page 20 of your brief.

Mr. Mann: Yes.

Unknown Speaker: And his references to 1(b)(3)(A) in the bill that was then pending, that's what finally was enacted as subsection (5), is that correct?

Mr. Mann: That's correct.

Unknown Speaker: And am I correct in understanding that at that time the subsection (4) with the second clause in, at least, was not in the bill?

Mr. Mann: The deadhead transportation?

Unknown Speaker: Yes.

That was not yet in the bill, is that correct?

Mr. Mann: Not in the... not as it was finally passed.

Unknown Speaker: And so it is fair to infer as part of your argument, I gather, that in paragraph (4) everything after the word, but, was enacted in response to the concern expressed by Mr. Manion on page 20 of your brief.

Mr. Mann: It was... well, deadhead transportation in the originally drafted bill stated that all of the deadhead time was time on duty, so he was referring to both provisions, except when I read to you on page 135 of the House hearings, that only related to the subsection (5).

Unknown Speaker: Which was then subsection (3).

Mr. Mann: Yes.

Unknown Speaker: And (4) was amended in response to this testimony, is your position.

Mr. Mann: That's correct.

Unknown Speaker: And my question is, if you... and the question, then, is, what does the word deadhead transportation mean in that amendment, under your analysis?

The question, does it include the time waiting for the transportation to begin?

Mr. Mann: And let me address--

Unknown Speaker: Let me finish my question, please.

Mr. Mann: --Oh, I'm sorry.

Unknown Speaker: And so that's what we're trying to decide, as I understand it.

Now, if your view is correct that it does not include the period before they get on the bus, or whatever it is, how did that solve the problem he described on page 20 of the brief?

Mr. Mann: It didn't solve that problem.

They are still--

Unknown Speaker: Unless you construe it the way the Government does.

Mr. Mann: --They're still on duty.

Now, I want to point out, Justice Stevens, that another industry spokesman, a Mr. Hilt, who was the chairman of the National Railway Conference... this is the negotiating arm for the railroad industry.

He was asked, what does deadhead mean?

He said, on page 220 of the House hearing, deadheading is being transported from one point to another at carrier's orders without performing any service, and then, later in his testimony--

Unknown Speaker: But again, he's describing something before that's in the bill.

Mr. Mann: --Yes, but later he was asked by Congressman Tiernan, in regards to defining deadhead, would you say to the committee that the definition covers the complete description of deadheading, and his answer was... he didn't fully answer.

He said, deadheading is a widely used term, except management relationships is more or less the complete definition, and then Congressman Tiernan again pressed him.

He said, you don't want to add anything to the definition you gave with regards to what deadheading is, and he said, I don't think so.

So he is saying to Congress, it is only transportation in, and that's all it is, the transportation.

Unknown Speaker: Maybe he was wrong.

Mr. Mann: But that's what Congress relied on.

Unknown Speaker: No, but you still haven't answered--

--You think... how do you know that?

Mr. Mann: Well--

Unknown Speaker: You really think--

Mr. Mann: --I really think--

Unknown Speaker: --Who do you think heard that testimony?

Mr. Mann: --Who did?

Unknown Speaker: Do you think Congress heard that testimony?

Mr. Mann: Well, it was their hearings.

Unknown Speaker: How many people do you think were present there?

Mr. Mann: There were 30-some on that committee.

Unknown Speaker: Okay, so you think because 30 Members of Congress, if they were all present at the hearing, heard him say those words.

You want us to assume that therefore the statute means what he said.

Mr. Mann: It's what Congress--

Unknown Speaker: Does that seem reasonable to you?

Mr. Mann: --I do, because this committee is the one that drafted the provisions, and they relied on what the witnesses told them, and it was part of that testimony--

Unknown Speaker: They didn't pass the statute.

There are how many, 432 Members of Congress, 530, 532, something like that.

Mr. Mann: --Yes.

Unknown Speaker: They passed the statute, not the 30--

Mr. Mann: They passed it based on the representations of the chairman of the committee.

Unknown Speaker: --They did.

Mr. Mann: Unanimously, I might add.

Unknown Speaker: But counsel, even if you confine yourself to the committee members... I understand what you're trying to say.

You're not going to convince Justice Scalia on this, but you might convince me, so give it a try.

[Laughter]

How does the amendment... what I don't understand under your view, assume that all the committee members meant the amendment to solve the problem described there, as I read it, it does not solve the problem--

Mr. Mann: It only--

Unknown Speaker: --because the time between they get off the crew and they wait for the bus could run out to several hours and still cause the very violation he's concerned about.

Mr. Mann: --That's correct.

Congress didn't buy that.

That's the whole point I'm making.

The only thing they bought from the railroad industry was, we're going to give you a break on deadheading--

Unknown Speaker: I see--

Mr. Mann: --not time on duty.

Unknown Speaker: --Why would they buy that little piece of the problem?

Mr. Mann: Because--

Unknown Speaker: Why would they say, we're going to fix this part but you're in trouble for the rest?

Mr. Mann: --Because it's the abuses, Justice Souter.

They had crews sitting out there hours on end, and they still do, and the problem is, maybe there's no immediate danger to safety because they're not... the crew's not going to operate this particular train any more, but it gets cumulative.

Day-in, day-out, you're not knowing when you're going on duty, 8 hours later today, 6 hours earlier tomorrow, and it cumulates, and as I quoted--

Unknown Speaker: They have guaranteed rest period whenever they get back, and that is not shortened whether this limbo time... I mean, this limbo time doesn't go toward that.

Mr. Mann: --It doesn't, but you have... and I submit that cumulative fatigue is a cause of serious safety problems, as stated by the National Transportation Safety Board, which I've quoted, as stated by the General Accounting Office as well--

Unknown Speaker: Do they get paid for the limbo time?

Mr. Mann: --They do.

Unknown Speaker: So why do they mind?

Mr. Mann: It's a safety problem.

We're not talking about wages.

We're talking about safety.

Unknown Speaker: They still have to have the off duty.

They have to have the off-duty hours after the limbo time plus the transportation is over.

They have to have the 10 off-duty hours anyway.

Mr. Mann: That's correct.

Unknown Speaker: So why does it become... I mean--

Mr. Mann: It's not an economic problem.

That's the whole point.

Unknown Speaker: --No, no, but I mean, why is it a safety problem if when they get back they still have to have the 10 hours?

Mr. Mann: Because day in and day out, that time is not regular, and it cumulates this fatigue, and I... when you have an opportunity to look at the... and even the reports of the Federal Railroad Administration point out to the... this problem in the railroad industry, and it is definitely a cause of accidents.

Employee error causes about 30 percent of the rail accidents in this country, and a significant portion of those that were addressed by the National Transportation Safety Board involve fatigue, and both chairman of the board, as well as the vice chairman, going to Congress several times trying to get attention to this problem, and this is what Congress was trying to do, and that's why they didn't buy the amendment sought by the railroads.

Unknown Speaker: I guess the only difficulty I have with your response is, I mean, you're relying on legislative history for part of the answer, but when we get to drawing the distinction between the waiting time and the transportation time, and you're saying well, Congress bought that distinction, there's nothing in the legislative history which you were previously relying on that supports you.

Mr. Mann: They didn't change the bill.

The bill is exactly the same as what was complained of.

Unknown Speaker: But it seems... it just strikes me as odd that when they adopted, in effect, the compromise which are the... when they adopted the language following but, in what is now (4), it just strikes me as odd, if we're going to rely on legislative history, to find that there is no explanation of what you're telling us.

Why might they not have said, well, we're going to add these words following but, and we're going to put them in (4), but that does not affect the question of how we're going to treat waiting time, because waiting time is subject to abuse.

There's nothing in the legislative history record that addresses this.

Mr. Mann: Maybe not specific words, waiting time, but they addressed it clearly in two ways.

One is, which I've just mentioned, they did not change the wording at all from the introduced bill and that which was complained about by the industry.

They didn't change it at all.

Unknown Speaker: But they added that part of subsection (4).

Yes.

Mr. Mann: That's correct.

Unknown Speaker: That's a change in response to... arguably is a change in response to the concern you've identified.

Mr. Mann: Not on waiting time.

Unknown Speaker: Well, you think it isn't because it doesn't expressly say that.

It's a question of, what did they mean by deadhead transportation?

Mr. Mann: That's what--

Unknown Speaker: Did they intend to include waiting time, which would have solved the problem--

Mr. Mann: --But that's--

Unknown Speaker: --if you read it that way.

Mr. Mann: --They solved it by saying you can't get that relief that you want.

Unknown Speaker: Thank you, Mr. Mann.

Mr. Mann: Thank you, Your Honor.

Unknown Speaker: Your time has expired.

Mr. Stewart, we'll hear from you.

Argument of Malcolm L. Stewart

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

In the view of the Federal respondents, time spent waiting for the arrival of a deadhead vehicle at the conclusion of an employee's duty assignment is neither on nor off-duty time.

That construction is consistent with the text of the pertinent statutory provision, and with the policies underlying the Hours of Service Act.

As Justice Breyer was saying in one of his questions, if a person is asked, how much time did it take you to travel from Washington and Boston, the question is ambiguous.

If the import of the question is, how big a chunk out of your day did the process of travel take, a person would normally answer it in a way that included associated waiting time.

If the person were known to find air travel particularly uncomfortable or unpleasant, the person might naturally infer that the point of the question was, how much time were you placed in this uncomfortable position, and might answer it in a way that included only the time actually in the air.

So to see whether waiting time should be counted as part of time spent in deadhead transportation, I think the inquiry should focus on, why did Congress define this as limbo time in the first place, and do the same concerns that caused Congress to define a category of limbo time apply with equal force to the waiting time at issue here, and for all purposes relevant to the Hours of Service Act, the time spent waiting for the deadhead vehicle is functionally indistinguishable from time actually riding in that vehicle.

Unknown Speaker: Well, what about the abuse argument?

There's no... the railroads weren't engaging in abuses while they were transporting.

They were engaging in abuses by being very unsystematic and uncaring about getting the... doing the transportation.

I think that's his argument.

What is your response to that?

Mr. Stewart: Well, a couple of responses.

I think first, as to what complaints of abuse were brought before the congressional committee that held the hearings, the union's complaints focused both on the waiting time and on the length of transportation itself.

That is, there were statements to the effect that--

Unknown Speaker: They didn't draw any distinction, you're saying.

Mr. Stewart: --No, and--

Unknown Speaker: So that the problem Congress had was a unified problem.

Mr. Stewart: --That's correct, and the Senate committee report stated that part of the problem was that an employee... several hours of an employee's off-duty time might be time deadheading back from his duty assignment, so clearly... there's no evidence in the legislative history that Congress believed that the ride in the deadhead vehicle itself was typically short, but that the waiting periods were typically lengthy, so I don't believe that the legislative history provides a basis for distinguishing between the two.

The reason that time spent in deadhead transportation is limbo time is that it shares some of the characteristics of both on and off-duty time.

That is, the employee is not free to come and go as he pleases.

The employee is unlikely to have a meaningful opportunity for rest, and therefore it would be inappropriate to count this as off-duty time and count it towards the minimum number of consecutive hours of rest that he has to--

Unknown Speaker: May I just get your view on one, kind of fundamental thing for me?

Is it... do you agree that the second clause in subparagraph (4) was inserted in response to the concern expressed by the testimony of Mr. Manion?

Mr. Stewart: --I don't know if I would say that Mr. Manion specifically, but yes, I think--

Unknown Speaker: Just generally.

Mr. Stewart: --Yes.

The original bill, the bill as originally introduced provided that time deadheading either to or from a duty assignment would be considered on-duty time, and this appears to reflect a... to define the deadheading from a duty assignment as limbo time appears to reflect a compromise that allayed the concerns of the railroads while ensuring that this would not be treated as off-duty time, thereby depriving the employee of an adequate opportunity for rest.

So because the employee is not free to come and go as he pleases, and is unlikely to have a meaningful opportunity for rest, it would be inappropriate to consider this off-duty time.

On the other hand, so long as the employee has no duties to perform, his fatigue can pose no danger to himself and others, or others, and therefore it would be inappropriate to treat this as on-duty time, and I think it's instructive to contrast this with the interim periods available for rest that Mr. Mann referred to.

That is, the reason that the interim periods are defined as on-duty time is not that the employee poses a danger during those periods himself.

That clearly wouldn't be the case if the employee is performing no services.

Rather, the reason is that if these periods are not provided at a place where an employee actually has an adequate opportunity for rest, the employee is likely to be tireder at the end of that period than at the beginning, and therefore they need to be counted as on-duty time in order to ensure that he's not performing safety-sensitive tasks more than 12 hours after he initially reported for duty.

Unknown Speaker: Do you know how many designated terminals an employee usually has?

Mr. Stewart: Well, typically, I think my understanding is that typically there would be a home terminal and an away-from-home terminal.

This is generally a subject of collective bargaining, and Mr. Johnson may have a more precise answer than I do, so that what is a designated terminal insofar as a particular employee is concerned is defined not by the act, but by the collective bargaining agreement.

Unknown Speaker: But under your view, if the employee waits for deadhead transportation after his duty, when he's off duty, and then goes to a designated terminal which is available for rest under (5), but then he's also waiting for further transportation, I take it that this is on duty, because he has a place to rest, even though he's also waiting for further deadhead transportation.

Mr. Stewart: I'm not sure if I understand the question, but our position is that after the employee has been released of the obligation to perform any duties, all of the waiting and the actual riding would be considered limbo time, and the statute speaks of--

Unknown Speaker: No, but it's on-duty time once he gets to a place other than a designated terminal and it's available for rest, pursuant to (5), or is that not an interim period?

Mr. Stewart: --That's not an interim period.

The interim periods would be those that are preceded and followed by periods of service, and again, the reason for treating those periods differently is, if you're going to have to perform services when the period is over, we're concerned about whether you're going to be tired and pose a safety hazard at that time, but if your tour of duty is up, if you're simply in the process of getting from your duty assignment to the place that you'll get your 8 or 10 hours consecutive rest, that concern is not present.

Unknown Speaker: I see.

So interim is followed and preceded by on duty.

Mr. Stewart: That's correct.

Unknown Speaker: Mr. Stewart, does the Government assert any entitlement to deference of its views in this case?

Mr. Stewart: Yes, we do.

This is... obviously, this litigation has taken a strange path in the sense that the Government is asserting a different reading of the statute than we asserted in the court of appeals, but the concerns that caused the FRA to shift its position, briefly, essentially are inapposite once the case comes before the Court.

That is, in the Seventh Circuit the Government was asserting that the interest in Nation-wide uniformity was so great as to outweigh the interest in choosing the better of the two readings as between two that the FRA considered within the realm of reasonableness.

Given that we're in this Court, and that whatever ruling this Court hands down obviously will have Nation-wide application, there's no need to balance any concern for uniformity against competing interests.

Unknown Speaker: What that would mean, of course, if we agree with you on the deference point, is that although we... if we were to find your interpretation reasonable, you could change the interpretation later.

Even if we thought yours was the more reasonable you would still be able to go to the other one.

Mr. Stewart: I think that's correct.

It would depend to a certain degree on how the Court wrote the opinion.

if the Court went out of its way to say not only is this a reasonable construction but it's in our view the only one that could plausibly be asserted--

Unknown Speaker: Now, the FRA does not have rule-making authority explicitly conferred, does it?

Mr. Stewart: --No, that's correct, as to the Hours of Service Act.

Unknown Speaker: And there is a circuit conflict, is there not, on whether agencies that do not have rule-making authority are entitled to deference?

Mr. Stewart: I think there is... there are... this Court has accorded--

Unknown Speaker: We've reserved the question, haven't we?

Mr. Stewart: --Right.

Unknown Speaker: You don't want us to decide that in this case, do you?

Mr. Stewart: I think because our... clearly, we believe our reading of the statute is the better of the two, and if the Court--

Unknown Speaker: I think... do I understand you right to be saying that you're not talking about the Chevron kind of deference, because there's no delegated rule-making authority here, right?

Mr. Stewart: --That's correct.

The FRA is entrusted with the responsibility for assessing civil penalties, but it is not given substantive rule-making authority.

Unknown Speaker: So you're talking about the Skidmore kind of deference where the agency, because it's been in the business, where the Court would look to the persuasiveness of its reasons that's kind of a--

--Is that what you were talking about?

I was talking about Chevron deference.

I would have to rephrase my question.

Mr. Stewart: I under--

Unknown Speaker: You understood me to mean Chevron deference, didn't you?

Mr. Stewart: --Yes, I did.

Unknown Speaker: Let me just throw this into the discussion.

Which opinion, Judge Bauer's or Judge Easterbrook's, do you think better explains your position on deference?

Mr. Stewart: Well, part of the problem with that is that in the--

Unknown Speaker: If you have an answer.

Mr. Stewart: --I don't have an answer, because I think neither really goes to the question.

That is, at this point, in the court of appeals the question of deference arose in the context of the FRA's argument that it's concern for Nation-wide uniformity was so great as to trump its view as to what was the better reading of the statute, and we... the FRA in the court of appeals asked that court to defer to the FRA's view regarding the importance of Nation-wide uniformity as opposed to the importance of getting the better of the two answers, so the two opinions were addressed to that sort of deference.

Here, what we're talking about is deference regarding the FRA's view as to what is the more persuasive meaning of the statutory language, so the types of things that Judge Bauer and Judge Easterbrook were debating really are not particularly germane to this Court's resolution of the question.

Unknown Speaker: They're like ships passing in the night, I guess.

Mr. Stewart is there anything in the record that indicates why the Government didn't appeal the Ninth Circuit and try to reconcile its views of the better interpretation with national uniformity that way?

Mr. Stewart: There is nothing in the record.

I think--

Unknown Speaker: I don't wish to go outside it.

I just wondered whether there was anything in it.

Mr. Stewart: --I would only remark that it was the first court of appeals ruling that had addressed the question, and it would be... there would be nothing in this Court's rules, obviously, that would preclude us from filing a cert petition or the Court from granting it, but it would not be consistent with the Court's normal practice.

Unknown Speaker: Well, why didn't you then... I mean, if you still persisted, I mean, why isn't the answer, that is, if you still persisted in thinking the other view the better one, why wouldn't it have been worth the Government's while at least to persist in one other circuit to get a conflict and get the thing up here?

Mr. Stewart: Again, these go to questions of both litigation strategy and also the FRA's view as to the importance of uniformity as of a particular moment.

Certainly a reasonable person could believe that that would have been the better course.

Obviously, the reasonableness of that decision is not before the Court at this stage.

Unknown Speaker: You do agree that, if there's any duty assigned, like watch the train to see that there's no vandalism, that that's full on-duty time.

Mr. Stewart: That's correct.

With respect to the vandalism point, I would like to distinguish between two types of instructions that an employee could be given.

If the employee were told, watch for vandalism, be alert, be vigilant, that is clearly on-duty time.

If the employee were told, you can do whatever you want, read, play cards, sleep, but if you happen to see vandalism you have an obligation to report it, we wouldn't regard the reading, sleeping, et cetera time as on-duty time, but if vandalism happened to catch the employee's eye, and he reported it pursuant to instructions, that act would be on duty.

Unknown Speaker: He could be given those instructions for rest time, too, I assume.

Mr. Stewart: That's correct, and even if there were no identified contingency that would call the employee back into duty, these people are always in radio contact with supervisors.

The possibility would always exist that a supervisor would give an instruction to the employee to do a particular thing, so whenever the employee is in this waiting period, there always exists the possibility of being recalled to duty whatever the instructions he was given at the outset of that period.

The only other point I'd like to make is that I think our reading of the statute is buttressed by the other point at which time spent in deadhead transportation is used in the same section of the Hours of Service Act.

That is, the act provides that time spent in deadhead transportation to a duty assignment is considered time on duty, and I feel quite certain that the union would state that time spent in deadhead transportation to a duty assignment includes any waiting period between the time that the employee reports and the time that the deadhead vehicle is actually ready to go.

That's buttressed by the structure of the statute and by the legislative history, which the Senate report states that time spent in deadhead transportation to a duty assignment is to be calculated from the time an employee reports for duty, so this gives further confirmation of the fact that the waiting period is properly included within the phrase, time spent in deadhead transportation.

Thank you.

Unknown Speaker: Thank you, Mr. Stewart.

Mr. Johnson, we'll hear from you.

Argument of Ronald M. Johnson

Mr. Johnson: Mr. Chief Justice, may it please the Court:

Before the Ninth Circuit ruling, there was... the statutory scheme was administered in a very straightforward, simple manner, predictable and certainty for the railroad in how to schedule crews and operate their trains.

The very simple rule that the Hours of Service Act provided was that you could operate the crew up to 12 hours, but if you realized, if you saw that the train was not going to make its intended terminal, all you had to do to avoid a violation of the act was notify the crew to identify a place where they could pull over, park the train, and then they were relieved from all other duty.

At that point, all they had to do was wait for transportation to arrive, which typically also brought the relief crew as well.

The relief crew got on the train, took the train on to its terminal, then the expired or outlawed crew would be transported to its place of final release.

Now, one thing I'd like to make clear right here is--

Unknown Speaker: What do you call them?

You call them an outlawed crew?

Is that the industry terminology?

Mr. Johnson: --There's a lot of industry jargon, Your Honor, and the crew is outlawed at that point in time.

The crew sometimes sent out to pick it up was called the dog-catcher, to pick up the outlawed train.

[Laughter]

Now, one thing I'd like to point out here is a difference between us and the unions, one among many differences, is that they try and argue that under the statute the crew is on duty until it reaches its place of final release, which is the terminal that it didn't make, but that's not the way the statute works.

The language is quite clear that on duty runs from the time you report for duty until you're finally released from duty, and you're finally released from duty under the statute when the railroad dispatcher advises the crew you're relieved from duty, don't do anything else.

Now, I believe in response to a question from Justice Breyer was asked, are these crews paid while they're in limbo time, and the answer is yes, they are paid all throughout this time.

They're paid while they're waiting for deadhead transportation.

They're paid while they're in the deadhead transportation vehicle.

They're paid until they get to their final terminal.

Unknown Speaker: What about the period of time when the employee reports to go on duty, and is waiting for transportation to the duty station?

Mr. Johnson: Well, they're paid at that point in time, too, Justice O'Connor.

Unknown Speaker: For the waiting period?

Mr. Johnson: Yes, and actually they're paid a little extra amount, because--

Unknown Speaker: And are they considered on duty during the waiting period?

Mr. Johnson: --Yes, Your Honor.

From the time they report to duty... I mean, typically there's a train... they try and schedule it so the train is there ready for them to get on board and go on, but if the train hasn't come in yet, that time period they're waiting to assume duty and that's counted as on-duty time.

But to come back to the point I was going to make about the pay, all that happens at the place of final release, they don't have any more duties because they've been relieved from duty on the train, they have no duties while they're waiting for deadhead transportation, they have no duties while they're in the taxicab or the van, or another train, perhaps, but they're being paid, and when they get to the place of final release, all that is, is they clock out.

That's all final release means.

When they get to their terminal, they clock out.

That stops the pay, and it starts their rest period, because the railroad has to know when the rest period begins so they can be called again.

Now, there aren't any abuses here.

I know the union attorney talks about abuses in the record, but there really is no record here other than what was put before the agency by the railroads, because the union did not put anything in the record other than the stuff they've attached to their briefs.

But even if there were abuses here, the abuses were whatever they were related to deadhead transportation, and they've all been addressed by the fact that waiting for deadhead transportation and the deadhead transportation itself is not counted towards the rest period, and therefore, when they get to the end, when they get to the place of final release, they get their full rest period.

Now, it's been very hard for the railroads to try and comply with this new interpretation, and that is why the railroads went to court.

It is impossible to always predict, now... before, you could simply predict that when the train would be outlawed, you could just tell the crew to stop.

You wouldn't violate the law.

The only variable you had to have was to pick a place where they could pull the train aside off the main line onto a siding.

Now, you have to try and predict not only where they're going to reach the 12-hour maximum, you have to also work in other variables.

You have to call transportation, try to get transportation to meet a place before the 12 hours... it just can't be done.

Unknown Speaker: What penalties are there for violating... I mean, I can imagine you might have a snowstorm or something, and you can just stop the train, but if that unforeseen delay causes your crew to be on duty longer than you had expected, what would the penalties be?

Mr. Johnson: Well, the penalties, the minimum penalty to be imposed is $500 per violation.

The maximum penalty is $20,000 per violation.

The violation, each crew member is a violation, so if you have three members on the crew, that's three violations.

That would be three times whatever the amount is.

Now, the agency has discretion above $500 how much to impose.

Currently, what they've been imposing is $1,000 per violation, so each of these crews typically has a crew of two or three people, it's $2,000 or $3,000 per violation.

Now, the problem here is, it's impossible--

Unknown Speaker: Of course, they might make an exception for snowstorms.

You know, even if we adopted the union's view of the matter, there... couldn't we count on the agency's discretion not to impose the penalty when indeed the reason the excessive time occurred was simply some unforeseen event such as a snowstorm?

Mr. Johnson: --Yes, Your Honor.

They have that... I think it's a matter of prosecutorial discretion, and also there's a specific exception in the statute for emergency situation acts of God.

But what's happening right now in the Ninth Circuit, because they still feel compelled to apply this interpretation of the Ninth Circuit, in the States within the Ninth Circuit, the railroads are continuing to be assessed violations for this waiting time.

Even though the waiting time periods are as little as 5 minutes, we're still being faced with penalties right now.

Now, I'd like to talk briefly about interim rest periods.

It's clear that interim means you're between points of duty, and all that Congress was trying to get at when they put interim... when they defined what interim periods of rest were in the statute is, the case law before 1969 was all over the place.

You know, some courts would say 2 hours works, some courts would say 3 hours works.

All Congress did was codified that it has to be at least 4 hours, and it has to be at a certain place where accomodations are available for rest.

Now--

Unknown Speaker: May I ask to whom the penalties are paid for violations?

Mr. Johnson: --The penalties are paid to the United States Government.

I assume they go into the Treasury, Your Honor.

Now, the current interpretation that the union wants just makes no sense, because the crew has been relieve from all duties, has no duties, but yet they would have that crew continue to be counted as on duty even though they're not physically on the train, even though they have no further duties.

It just doesn't make any sense.

There's no safety problem here because the crew is not going to be allowed to operate a train again until after they've received their full rest period, and--

Unknown Speaker: Well, of course, I mean, you know, an argument can be made for the other side.

The argument is... what is the rest period that's... what's the minimum rest period?

Mr. Johnson: --The minimum rest period is 8 hours.

If they work right up to the maximum of 12 hours, it is 10 hours under the statute.

Unknown Speaker: Okay.

Mr. Johnson: Now, that rest period doesn't begin... what happens when they reach... you know, there's all this railroad industry jargon in the statute, but again, the place of final release simply means the building that they walk into when they clock out.

That means they're going to begin their rest period, and what they do then is, if they're... I believe one of the justices asked how many terminals they have.

They have the home terminal... the home terminal, of course, they live at their home, but when they get to their away-from-home terminal, the railroad has made arrangements... it's in the collective bargaining agreement.

This is all treated in the collective bargaining agreements... has made arrangements for a hotel to go to and stuff, and that's where they get their rest.

Unknown Speaker: Okay, but doesn't this scheme of the statute show that Congress thought that an 8-hour rest period is needed for a... what, 10-hour normal work period?

Mr. Johnson: Yes, Your Honor.

Unknown Speaker: But a 10-hour rest period is needed for a 12-hour work period, is that right?

Mr. Johnson: Yes.

Unknown Speaker: So the law... you can't say there's just an absolute rest period which is going to be a balm for all ills, no matter how long you've been on... you know, working before then, and what the union is saying is look, realistically, traveling, deadheading back is... it takes it out of you, and if I should get 10 hours' rest for 12 hours' duty, I should also get 10 hours' rest for 10 hours of duty plus 2 hours of deadheading back, including the waiting time for the deadheading.

I don't know that that's an unreasonable argument.

I mean, the minimum time is a minimum time that has been calculated on the basis of what the maximum duty time was, and if that duty time is stretched out, maybe... you know, maybe the minimum time should be more.

Mr. Johnson: Your Honor, they have a way to get that, and the way they get that is expressly addressed in the statute, and that is through collective bargaining.

Congress specifically says in section 2107 of the Hours of Service Act that these are minimums, and nothing is to stop the parties from sitting down and collectively bargaining longer rest periods, and--

Unknown Speaker: This is a safety issue, they say, and Congress... you know, Congress was concerned with safety.

Mr. Johnson: --That's true, Your Honor, and Congress, though, has made the judgment that safety is satisfied here.

If we limit the crews to 12 hours on duty, if we make transportation time limbo time, and if we mandate a minimum rest period of 8 hours, Congress has made a judgment that that satisfies the safety concern, and if the parties want to go beyond that minimum they can and, in fact, they have, and some collective bargaining agreements provide that the minimum rest period is, in all instances is 10 hours rather than 8 hours.

And the safety issue, though, here that the unions are complaining about is not the safety issue of waiting time, it's not the safety issue of how long the day is.

You read their brief, and over and over and over again, the safety problem they're worried about is fatigue from irregular work hours, upsetting Circadian rhythms because crews are being called at all hours of the day and night to man trains, and that's true.

That's the way the railroad business works.

But that is not a safety issue that's addressed by this statute, because even if you counted waiting time as limbo time, that doesn't affect the fact that the crew, when it gets back and after it's had its rest, could be called again at any hour of the day or night to man that train.

Unknown Speaker: Indeed, it's purely fortuitous whether it helps that problem or hurts that problem.

It could help it.

Mr. Johnson: That's correct, Your Honor, and again, the parties are meeting together in task force to address the safety issues that may result from these irregular work schedules, and Congress last year did add an amendment to the Hours of Service Act that encouraged the parties to work together to develop a solution, if there is a problem here, on irregular work hours.

But there's not a safety problem here with treating waiting time as limbo time, and the Government made a reasonable choice in a somewhat ambiguous term whether to treat it... that's one difference we have with the Government.

We believe there are only two options on how to treat this waiting time.

It can either be treated as off-duty time or limbo time, and the Government made a reasonable choice to treat it as limbo time.

That's the way this statute has operated for more than 20 years, and we believe that's the correct application of the statute.

Unknown Speaker: May I ask one very important question?

The term dog-catcher refers to the crew that picks up the outlawed crew, or to the crew that substitutes for it?

Mr. Johnson: That picks... that refers to the crew that comes out from the terminal to pick up the train that got outlawed because it fell short of its final destination because the first crew outlawed--

Unknown Speaker: So they're the substitute crew.

Mr. Johnson: --They're the substitute crew, Your Honor.

Unknown Speaker: Thank you.

Mr. Johnson: I thank the Court.

Chief Justice Rehnquist: Thank you, Mr. Johnson.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 94-1592, Brotherhood of Locomotive Engineers versus the Santa Fe will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: This case involves the Hours of Service Act Congress first passed in 1907 is designed for railway safety by limiting the number of hours a train crew may remain on duty.

It requires the railroads to provide crew members with a certain number of off duty rest periods of adequate rest and before a new shift can begin.

As a general rule, a train crew may not work more than 12 consecutive hours and when the limit is reached, the crew must ceased at once and a six number of hours of rest as I have indicated in the designated rest term must be afforded before the new shift can begin.

If a crew works more than 12 consecutives hours, as specified in the Act the railroad places heavy fines for each member of the crew who works beyond the permitted period.

This means that railroad try to schedule their operations so that a crew can change at a convenient terminal point but sometimes this cannot occur.

If the 12-hour limit is about to be reached, the railroad must stop the train so that the second crew can replace the first crew then the crew that is to be relieved at the end of the shift is now called the outlawed crew, and transportation of the fresh crew to the train and with the outlawed crew back to the rest point is called deadhead transportation.

This case involves the question of how to classify the time of the outlawed crew spends waiting for the deadhead transportation to arrive.

The petitioners of Brotherhood of Locomotive Engineers and the United Transportation Union claim that the waiting, a time is on-duty time that counts against the 12-hour limit.

The Railroad and the Federal Railroad Administration which is the agency that administers the Act says that the waiting time is not on-duty time.

They claim it so called limbo time.

This is a third category of time that the Act does recognize although it does not call it by this name.

Limbo time does not count for on-duty time or the crew’s rest time and limbo time is paid time.

We agree with the Railroads and Federal Railroad Administration at the time spent waiting for the deadhead transportation is not on-duty time, it is, in our view, limbo time.

The deadhead transportation for the outlawed crew has that character and we conclude that the time waiting for the deadhead transportation should be characterized the same way.

The time the employees spent in waiting for the deadhead transportation will not contribute to employee fatigue during the work assignment because of the interval rest period that will take place.

As our reading of the Act is in full accord with that given by the Seventh Circuit in the en banc decision, which we now review, the judgment is affirmed and the opinion for the Court is unanimous.