HOURS-OF-SERVICE ACT.

AUGUST 5, 1912.-Referred to the House Calendar and ordered to be printed.

Mr. MARTIN of Colorado, from the Committee on Interstate and Foreign Commerce, submitted the following

REPORT.

[To accompany H. R. 26023.]

The Committee on Interstate and Foreign Commerce, to whom was referred the bill (H. R. 26023) to amend section 2 of an act entitled "An act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon," approved March 4, 1907, having considered the same, report it with the recommendation that it do pass.

This bill is reported in lieu of H. R. 18969 and H. R. 25040, both by Mr. Martin of Colorado. Hearings were had upon H. R. 25040 of the representatives of the steam and the interurban electric railways and of the railway telegraphers, as the result of which certain amendments were recommended by the subcommittee having the bill in charge and are embodied in H. R. 26023, which reads as follows:

[H. R. 26023, Sixty-second Congress, second session.]

A BILL To amend section two of an act entitled "An act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon," approved March fourth, nineteen hundred and seven.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section two of an act entitled "An act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon," approved March fourth, nineteen hundred and seven, be, and the same is hereby, amended so as to read as follows:

"SEC. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, That no employee who, by the use of the telegraph or telephone or other electrical device dispatches, reports, transmits, receives, or delivers orders, or who from towers, offices, places, and stations operates signals or

switches or similar mechanical devices controlling, pertaining to, or affecting the movement of trains of more than two cars shall be required or permitted to be or remain on duty in any twenty-four-hour period for a longer period than eight hours, which period of eight hours shall be wholly within the limits of a continuous shift, and upon the completion of which period such employee shall not be required or permitted to again go on duty until the expiration of sixteen hours. This proviso shall not apply to employees who in case of emergency use the telephone to obtain orders or information governing the movement of trains."

Nothing in this act shall be held to affect or abate any violation of the act hereby amended or any suit or action pending because of such violation at the time of the approval of this act.

THE HOURS-OF-SERVICE ACT-ITS DEFECTS.

The hours-of-service act, as it is popularly called, applies to two classes of railway employees:

Employees who move trains, such as engine and train men, etc., and employees who direct the movement of trains, such as train dispatchers, operators, tower men, interlocking switchmen, etc.

Provision is made for both classes of employees in section 2 of the act, the provision relating to train dispatchers and operators, etc., being found in a proviso inserted therein during the course of the passage of the act through the Fifty-ninth Congress. As that part of the section relating to engine and train men is unamended by the pending bill, reference will be made only to the proviso.

Under the proviso as it now stands, operators in day offices may be worked a period of 13 hours in each 24 hours and in day and night offices a period of 9 hours in 24 hours. Either of these classes may be worked 4 additional hours per day on not exceeding 3 days per week. Owing to the failure of Congress to make consecutive the hours on and off duty of these employees, as in the case of engine and train men, many railways have divided the daily period of labor into two shifts, so that, for instance, an operator may be on duty six hours, then off three hours, then on again three hours. Examples might be multiplied indefinitely. This practice was upheld by the Supreme Court of the United States in the case of the United States v. The Atchison, Topeka & Santa Fe Railway Co. (220 U. S., 37). As the opinion in that case is brief, it is herewith submitted:

This is an action to recover penalties for violation of the "act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon" March 4, 1907 (ch. 2939, secs. 2, 3, 34 Stat., 1415, 1416). The Government had a verdict in the district court, subject to exceptions, and the judgment was reversed by the circuit court of appeals (177 Fed. Rep., 114; 100 C. C. A, 534.)

The case is this: By section 2 it is made unlawful for common carriers subject to the act to permit any employee subject to the act to be on duty "for a longer period than 16 consecutive hours," or after that period to go on duty again until he has had at least 10 consecutive hours off duty or 8 hours after 16 hours' work in the aggregate: Provided, That no telegraph operator and the like shall be permitted to be "on duty for a longer period than 9 hours in any 24-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than 13 hours in all towers, offices, places, and stations operated only during the daytime,' with immaterial exceptions. By section 3 there is a penalty of not exceeding $500 for each violation of section 2. The defendant was subject to the act. It had a station and telegraph office at Corwith, in the outer limits of Chicago, which was shut from 12 to 3 by day and by night but open the rest of the time. The Government contends that this was a place "continuously operated night and day." At this station the same telegraph operator was employed from half past 6 o'clock in the morning until 12, and again from 3 p. m. to half past 6, or 9 hours, in all, of actual work. The Government contends that when 9 hours have passed from the moment of beginning work the statute allows no more labor within 24 hours from the same time, even though the 9 hours have not all of them been spent in work. According

to the Government's argument the operator's nine hours expired at half past 3 in the afternoon. These questions on the construction of the statute are the only ones that we have to decide.

We are of opinion that the Government's argument can not be sustained, even if it be conceded that Corwith was a place continuously operated night and day, as there are strong reasons for admitting. The antithesis is between places continuously operated night and day and places operated only during the daytime. We think that the Government is right in saying that the proviso is meant to deal with all offices, and if so, we should go farther than otherwise we might in holding offices not operated only during the daytime as falling under the other head. A trifling interruption would not be considered, and it is possible that even three hours by night and three hours by day would not exclude the office from all operation of the law, and to that extent defeat what we believe was its intent.

But, if we concede the Government's first proposition, it is impossible to extract the requirement of 15 hours' continuous leisure from the words of the statute by grammatical construction alone. The proviso does not say 9 "consecutive" hours, as was said in the earlier part of the section, and if it had said so, or even "for a longer period than a period of 9 consecutive hours," still the defendant's conduct would not have contravened the literal meaning of the words. A man employed for 6 hours and then, after an interval, for 3 in the same 24 is not employed for a longer period than 9 consecutive hours. Indeed, the word consecutive was struck out when the bill was under discussion on the suggestion that otherwise a man might be worked for a second 9 hours after an interval of half an hour. In order to bring about the effect contended for, it would have been necessary to add, as the section does add in the earlier part, a provision for the required number of consecutive hours off duty. The presence of such a provision in the one part and its absence in the other is an argument against reading it as implied. The Government suggests that if it is not implied, a man might be set to work for 2 hours on and 2 hours off alternately. This hardly is a practical suggestion. We see no reason to suppose that Congress meant more than it said. On the contrary, the reason for striking out the word consecutive in the proviso given, as we have mentioned, when the bill was under discussion and the alternative reference in section 2 to "16 hours in the aggregate" show that the obvious possibility of two periods of service in the same 24 hours was before the mind of Congress, and that there was no oversight in the choice of words.

Judgment of circuit court of appeals affirmed.

The committee believes that it was not the intent of Congress that the 9 and 13 hour days, with privilege of making these 13 and 17 hour days on three days in each week, were to be still further extended in the manner above shown, but all doubt is removed by the proposed amendment, which provides that the hours, both on and off duty, shall be continuous. While it is true that Congress, by the omission of the word "consecutive" in the telegraphers' proviso, when it is to be found in the provision relating to train and engine men, gives color to the contention of the Supreme Court that Congress intended that the operator's period of employment should be divided in the manner mentioned in the above case, room for argument to the contrary is to be found in the fact that the words "in the aggregate," inserted by the Senate in the telegraphers' proviso, were afterwards stricken from the bill and do not appear in the act as it now stands. Such action would indicate that the omission of the word "consecutive" was an oversight, and that when Congress struck out the words which were intended to permit of a division of the daily period of labor, it at least negatively expressed the intent that the working period should be continuous. However, the practice complained of, and which has been a source of friction, will not be permissible under the proposed amendment.

STRAIGHT 8-HOUR DAY PROPOSED.

The proposed law abolishes the present statutory classification of offices, with their 9 and 13 hour days, respectively, and provides a straight 8-hour day for all employees embraced by the proviso.

Between fifty and sixty thousand employees are affected by the proviso, approximately one-half of whom are already, by the regulations of the railway companies or by agreement between the companies and their employees, on the 8-hour basis, and it is not disputed that the great majority of the remaining employees enjoy shorter hours of labor than are provided by law; so that the enactment of the 8-hour day is only applying the standard to all employees performing substantially the same highly important and responsible duty.

To clearly indicate the changes proposed to be made by the pending bill, H. R. 26023, there are here set out:

THE EXISTING PROVISO.

Provided, That no operator, train dispatcher, or other employee who, by the use of the telegraph or telephone, dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twentyfour-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four-hour period on not exceeding three days in any week.

THE PENDING PROVISO.

Provided, That no employee who, by the use of the telegraph or telephone or other electrical device, dispatches, reports, transmits, receives, or delivers orders, or who from towers, offices, places, and stations operates signals or switches or similar mechanical devices controlling, pertaining to, or affecting the movement

of trains of more than two cars shall be required or permitted to be or remain on duty in any twenty-four-hour period for a longer period than eight hours, which period of eight hours shall be wholly within the limits of a continuous shift, and upon the completion of which period such employees shall not be required or permitted to again go on duty until the expiration of sixteen hours. This proviso shall not apply to employees who in case of emergency use the telephone to obtain orders or information governing the movement of trains.

The first material difference between the existing and the proposed law is to be found in the phrase on page 2, lines 15, 16, and 17, 'or who from towers, offices, places, and stations, operates signals, switches, or similar mechanical devices." Inventions and improvements in train control and operation multiply so rapidly that much of this work is done by means of devices which are not used in connection with the telegraph or the telephone, and one road may be using devices to direct and control train movements which are not known to or used by other roads. Men in towers operate the levers for 12 hours under oral orders from other men at the telephone, etc. All employees performing such highly responsible duty by whatever method human ingenuity may devise, should be clearly placed upon the 8-hour basis. Train accidents due to the errors of dispatchers, operators, and signal men, whose brains were drowsy, or nerves unstrung, or who were otherwise derelict because of long hours on duty and lack of sleep, caused Congress to undertake the regulation of the hours of these employees in the first place. Experience has shown that there are numbers of employees who are but arms and fingers, as it were, of the dispatcher, the operator, and the signal man, whose inclusion in the law is a matter of dispute, but who, for the same reasons moving the regulation of the hours of train dispatchers and operators, ought to be included.

This situation may be illustrated by the case of The United States v. The Cleveland, Cincinnati & St. Louis Railway Co. in the United States District Court for the Southern District of Ohio, Eastern Division, in which the court, in an oral decision rendered December 12, 1911, decided that certain switchmen who threw switches upon telephonic information received at a telephone station in the yards, were within the law. The railway company excepted to the ruling of the court, and the case is now probably pending on appeal. Such instances might be multiplied. Why these employees, though they were merely throwing switches, are and should be within the hoursof-service act, is very clearly and succinctly stated by the Hon. Howard R. Hollister, the judge of said court, in the following paragraph:

If you consider the purpose of the statute, which was to secure, so far as practicable, alertness and activity of mind and wakefulness upon the part of the employees on the railroad engaged in such service, it would seem that, if there was any doubt about the language of the statute, yet if, in the operation of trains at this point, an accident could happen by reason of the exhausted or tired condition of the switchmen in charge, in mind or body, or both, it was just such a case as the Congress had in mind.

Some roads now have a system of signal boards operated wholly by sight. There is no telegraphic or telephonic communication. The man in charge of a board ascertains from the position of the next board which is in sight whether the block over which he has control is open or closed, and operates his board accordingly, holding trains and letting them in and out of the block. One leading railway operates largely by means of electric bells. To meet this latter condition, the words "or other electrical device" have been inserted on page 2, line 14, after the words "telegraph or telephone"; but to cover the entire situation, the phrase "or who from towers, offices, places, and stations operates signals or switches or similar mechanical devices" has been added to the law.

USE OF TELEPHONE BY CONDUCTORS.

The next material change and one which, as the provision stood at the time of the hearings, was strongly objected to by the railway companies, was its application to conductors out on the road who found it necessary to make use of the telephone at passing tracks or blind sidings where there is no operator. It was testified by the railway representatives that this use of the telephone by the conductor was emergency in character and that it was not practical, or at least it was not the practice, to regularly order the movement of trains by direct communication between the dispatcher and the conductor. On many roads the telephone has replaced the telegraph in whole or in part, but the train orders are received by telephone operators, reduced to writing, and delivered to the conductor as in the case of telegrams. On many roads there is a small per cent of sidings where trains may meet and pass at which a telephone is installed without an operator. Trains may find themselves at such places and may be unable to proceed by reason of the failure of opposing trains or other difficulty somewhere along the line. In such case the conductor goes to the telephone booth, calls up the dispatcher, and gets orders enabling the train to proceed.

It is complained by the telegraphers that the hours-of-service act led to the abolition of many small telegraph stations and the installation thereat of the telephone without an operator, and this complaint