This kind of pres­sure is com­mon­place, accord­ing to rail­road and air­line work­ers. They say man­agers push work­ers to pilot planes, trains and bus­es when they are too tired to safe­ly do so. The stakes are high for the work­ers — and for the gen­er­al public.

“I’m not rest­ed,” Proud­lock is heard explain­ing in a com­pa­ny record­ing . The dis­patch­er threat­ened to dis­ci­pline him and can­cel his 2 P.M. train. ​“You’re oblig­at­ed to go. If you answer the phone, you have to go.”

Paul Proud­lock went to bed at mid­night to cal­i­brate his sleep for a freight train he was to dri­ve at 2 p.m. the next day. At 2:15 A.M., a Cana­di­an Pacif­ic dis­patch­er called him and asked him to take a pas­sen­ger train in three hours.

3 ⁄ 4 Fell Asleep

In a sur­vey of freight train oper­a­tors con­duct­ed by the Team­sters Cana­da Rail Con­fer­ence, 96 per­cent said they had gone to work tired. More alarm­ing­ly, three-quar­ters said they fell asleep while work­ing—in the pre­vi­ous month. Among those who, like Proud­lock, turned down jobs because of fatigue, 43 per­cent said they faced inves­ti­ga­tion or discipline.

“They’ll pres­sure peo­ple… and peo­ple don’t know what leg to stand on,” said CSX loco­mo­tive engi­neer J.P. Wright, who is based in Ken­tucky. ​“There are so many gray areas in the con­tract, if you could see a flow chart, it’s like a Mer­rie Melodies crazy cartoon.”

The rail­roads claim they don’t push peo­ple to work tired. Reg­u­la­tors scold­ed Cana­di­an Pacif­ic in the Proud­lock case.

The main prob­lem with freight rail­roads, said Wright, is that ​“they’ve short-staffed every­thing to the bone.” So when some­body takes time off, oth­ers have to unex­pect­ed­ly fill in, cre­at­ing cas­cades of sched­ul­ing complexity.

While rest times were increased in a 2008 rewrite of rail­road sched­ul­ing rules, fatigue prob­lems persist.

And reg­u­la­tions don’t help if the penal­ties are low, along with the chances of being fined. ​“I was just told, on a record­ed CSX line, that they knew specif­i­cal­ly they were vio­lat­ing the rest law but they would just go ahead and pay the fine,” said Wright, who is co-chair of the cross-union cau­cus Rail­road Work­ers United.

New Pilot Rules

Pilots of U.S. pas­sen­ger planes are oper­at­ing under new occu­pa­tion­al fatigue rules since Jan­u­ary, rules that could be a mod­el for oth­er trans­port work­ers. The new rules take into account that ​“there is ample sci­ence indi­cat­ing that per­for­mance degrades dur­ing win­dows of cir­ca­di­an low [2 A.M. – 6 A.M.] and that reg­u­lar sleep is nec­es­sary to sus­tain per­for­mance.” Work­ers should work few­er total hours if they are sched­uled dur­ing those hours, the new reg­u­la­tions acknowledge.

The rules also agree that day­time sleep is not as restora­tive as night-time sleep, and that ​“con­sec­u­tive nights of work degrade pro­duc­tiv­i­ty with­in three days because it is very dif­fi­cult for most peo­ple to sleep effec­tive­ly dur­ing the day.”

The change was a long time com­ing. After two decades of inac­tion, U.S. avi­a­tion author­i­ties were ordered by Con­gress to redo the reg­u­la­tions after pilot error result­ing from fatigue was blamed in a 2009 Col­gan Air crash near Buf­fa­lo, New York. Fifty peo­ple died, includ­ing every­one on the plane and one per­son on the ground. Their fam­i­lies pushed Con­gress to act.

The inves­ti­ga­tion deter­mined that the pilot had risen at 6 A.M. The flight left Newark at 9:20 P.M. and crashed an hour lat­er. The co-pilot had com­mut­ed from Seat­tle — if she slept at all, it had been in a crew room at the air­port or on a plane. She had not had a chance at nor­mal rest for 24 hours, inves­ti­ga­tors said.

While weath­er was also a fac­tor — the pilots wor­ried aloud about ice on their wings — fatigue meant they couldn’t deal well with unex­pect­ed circumstances.

“Fatigue, which results from the com­bi­na­tion of sleep loss and dis­rup­tion of cir­ca­di­an rhythms, is insid­i­ous,” writes health and safe­ty expert Suzanne Gor­don. It’s also hard for a fatigued per­son to know just how inca­pac­i­tat­ed they are, she says. Their judg­ment can be as impaired as some­one who is drunk.

After the crash, anoth­er Col­gan pilot, Chris Wiken, told PBS’s Front­line he had been pres­sured into fly­ing when he was fatigued. After work­ing sev­er­al con­sec­u­tive 16-hour days, he told his man­ag­er he was too tired to fly.

Wiken said the man­ag­er respond­ed, “‘We can, you know, short­en your duty day for you. Instead of say­ing you showed up at 5:40 this morn­ing, we can say you showed up at 6, and that would give you that extra 20 min­utes to take that flight back to Albany.’”

Carved Out

The Fed­er­al Avi­a­tion Author­i­ty revamped the fatigue rules, but then a strange thing hap­pened, said Bri­an Gaudet of the Inde­pen­dent Pilots Asso­ci­a­tion, the union rep­re­sent­ing UPS car­go pilots.

“When they were sup­posed to be released… instead the rules went to the OMB for 90 days,” he said.

Specif­i­cal­ly they went to the Office of Man­age­ment and Bud­get divi­sion known as OIRA, the Office of Infor­ma­tion and Reg­u­la­to­ry Affairs. OIRA con­duct­ed a cost-ben­e­fit analy­sis, accord­ing to the union, even though the Con­gres­sion­al man­date spec­i­fied that safe­ty was the only per­ti­nent consideration.

When the rules came back, they exempt­ed car­go planes. Car­go plane crash­es are regard­ed as accept­able loss­es, said Gaudet, ​“because it’s only two pilots” who would die. (The union points out that car­go planes share air­space and air­ports with pas­sen­ger jets.)

The carve-out is all the more exas­per­at­ing because car­go pilots are more like­ly to fly at night. Cur­rent­ly they can be sched­uled for 16 hours of duty, night after night. Sleep prob­lems are wors­ened when flights cross many time zones. UPS pilots may fly to Anchor­age, Shen­zen, Dubai, and Cologne, then back to Louisville.

UPS and FedEx lob­bied hard for the carve-out, argu­ing that ​“the dol­lar val­ue of the pilots and air­craft that would be lost in fatigue-linked crash­es would be far out­weighed by the high­er labor costs to the indus­try,” accord­ing to a ProP­ub­li­ca report.

The shad­owy OIRA office, con­trolled by the White House, is noto­ri­ous for water­ing down reg­u­la­tions in favor of busi­ness interests.

Makes No Sense

Car­go pilots were aware that the reg­u­la­tions were chang­ing, but not for them. UPS pilot Cerea Beal, Jr., and first offi­cer Shan­da Fan­ning dis­cussed the carve-out on August 14, 2013, as they flew from Mem­phis to Birmingham.

“I mean, I don’t get that. You know, it should be one lev­el of safe­ty for every­body,” said Beal. Fan­ning agreed, ​“It makes no sense at all.”

We know this because the cock­pit voice recorder was recov­ered after the plane crashed short of the run­way at 4:47 a.m., killing both pilots. Just before the flight, Beal told the union’s sched­ul­ing com­mit­tee chair, ​“These sched­ules over the past sev­er­al years are killing me.”

“UPS is an extreme­ly puni­tive com­pa­ny,” Gaudet said. ​“Nine­ty per­cent of the time if you say you’re too fatigued to fly, the pilot man­ag­er will call you up and say ​‘is there a problem?!’”

He said the company’s aggres­sive­ness means that instead of refus­ing flights, pilots often ​“fly it and grieve it.”

The union did a sur­vey of its active pilots, and 88 per­cent agreed or strong­ly agreed that ​“call­ing in fatigued will invite adverse scruti­ny from UPS.” Only 3 per­cent disagreed.

The union has sued to make the new fed­er­al reg­u­la­tions apply to all pilots, and a new deci­sion is expect­ed this month.

4 A.M. Dead Zone

The train safe­ty reg­u­la­tions in force since 2008 say you can work a max­i­mum of 12 hours on duty; then you have to be giv­en 10 hours off. You can work six con­sec­u­tive days, or some­times sev­en, but then you get two to three days off.

But the reg­u­la­tions don’t take into account the 2 A.M. to 6 a.m. ​“win­dow of cir­ca­di­an low.”

“That’s def­i­nite­ly one of the things rail­road­ers talk about, the 4 a.m. dead zone,” said Wright, who is based in Ken­tucky. ​“Most of the trag­ic acci­dents that hap­pen on the rail­road hap­pen at those times.”

Hav­ing anoth­er per­son to help you stay awake — and to be awake them­selves — is enor­mous­ly impor­tant. On com­mer­cial air­craft, a copi­lot is still required. But on the rail­roads, where crews usu­al­ly con­sist of an engi­neer and a con­duc­tor, that’s under attack. Rail­road Work­ers Unit­ed has fought a decade-long bat­tle to stop the rail­road com­pa­nies from insti­tut­ing sin­gle-per­son train crews.

As train jobs have become increas­ing­ly auto­mat­ed, the com­pa­nies have reduced crews from five mem­bers to two. With help from RWU, con­duc­tors vot­ed down a con­tract with BNSF in Sep­tem­ber that would have allowed one-per­son trains.

And before that, engi­neers on the small­er Wheel­ing and Lake Erie Rail­way, mem­bers of the Loco­mo­tive Engi­neers (BLET), struck to stop impo­si­tion of sin­gle-per­son trains there. That case is before an arbitrator.

While the sin­gle-per­son crew issue has gained trac­tion, rail­road­ers often aren’t so enthu­si­as­tic about lim­it­ing hours. Like bus dri­vers and pilots, they’re paid by the trip.

“If you reduce the amount of hours or days we can work, that can poten­tial­ly be a salary issue,” said Wright.

He said one Cana­di­an con­tract with strong fatigue lan­guage was vot­ed down by mem­bers for this rea­son. When the 2008 U.S. reg­u­la­tions went through, a lot of rail­road­ers thought it would mean a $20,000 pay cut. Wright thinks that was over­stat­ed, but peo­ple who had been work­ing mas­sive over­time did take a hit.

This ambiva­lence among work­ers is one rea­son it may be bet­ter to insti­tute nation­al fatigue reg­u­la­tions than to try to man­age fatigue through union contracts.

Anoth­er rea­son is that with­out fed­er­al reg­u­la­tions, non-union com­pa­nies can under­cut union ones. That’s what has hap­pened in the inter­ci­ty bus indus­try, infa­mous for sev­er­al recent dead­ly accidents.

Dereg­u­la­tion

To start a bus com­pa­ny, you used to need fed­er­al approval for every­thing from stops to routes to fares. Those reg­u­la­tions were loos­ened in 1982. Now bus com­pa­nies need only min­i­mal knowl­edge of reg­u­la­tions, plus insurance.

This cre­at­ed a race to the bot­tom, said Jeff Rosen­berg of the Amal­ga­mat­ed Tran­sit Union, which rep­re­sents Grey­hound (includ­ing Bolt Bus) and Peter Pan dri­vers. He esti­mates half the indus­try is now mom-and-pop oper­a­tions, many with only two or three bus­es, and very dif­fi­cult to organize.

With all the com­pe­ti­tion, Grey­hound has strug­gled, and wages in the indus­try have stag­nat­ed, Rosen­berg said. As a result, dri­vers take sec­ond jobs to make ends meet, leav­ing them tired when they drive.

“It’s become a very dif­fi­cult indus­try to work in,” Rosen­berg said.

A lot of the over­work could be fixed, ATU says, if inter­ci­ty bus dri­vers were cov­ered by over­time pay pro­tec­tions. Sur­pris­ing­ly, they’re not, so they dri­ve more hours or get addi­tion­al jobs. The union is try­ing to get a change in the Fair Labor Stan­dards Act so these dri­vers would be included.

Fed­er­al reg­u­la­tions lim­it bus dri­vers to 10 hours of dri­ving. After 15 hours on duty (includ­ing non-dri­ving time, like safe­ty checks and load­ing bag­gage) they must be giv­en an eight-hour rest peri­od. They’re not allowed to dri­ve after 60 hours on duty in sev­en days.

But the exist­ing reg­u­la­tions are bare­ly enforced against dis­count oper­a­tors. After sev­er­al fatal crash­es of dis­count bus­es, a Cal­i­for­nia TV news crew fol­lowed dri­vers of var­i­ous bus com­pa­nies and found they were dri­ving for shifts as long as 20 hours.

“Unsus­pect­ing cus­tomers sim­ply do not know that they are rid­ing with dri­vers who are falling asleep because they nev­er rest,” writes ATU in a report on inter­ci­ty bus trav­el stark­ly titled ​“Sud­den Death Overtime.”

This arti­cle first appeared at Labor Notes.