That is exactly the issue. You cannot explain the 228 rules in a vacuum. You must consider relevant labor law, specifically what constitutes Company (read: railroad, t/h/s/e/museum railroad) work vs. personal/contracted/leisure work. I've been down this road and what immediately comes to mind is the basic tenet/dividing line between the two. My reference to name tags and uniforms is reference to that line. When a person performs work that is guided by rules, procedures, standards of conduct, etc. particular to a Company, that is work for the company - compelled work, regardless of pay/monetary status. The Railroad Retirement Board uses this when deciding whether a RR falls under RRB or not. It is not simply the ability to walk away or work the hours one might only want to. There are plenty of jobs where employees come and go more or less at will (flexible hours), and this is not a forced labor country (yet). Any employee can quit and leave at any time (financial and personal considerations aside) and find another job whether they work for a Class 1 or a museum. More people that I care to say have done exactly that in today's RRing environment.

Hence, anytime a person performs any service for a t/h/s/e/museum railroad that is a regular/sanctioned function (for example: track worker, acting as docent with or without a name tag/uniform, or T&E/covered service) of the t/h/s/e/museum road, that person is functioning as an employee (compelled work, railroad required activity, condition of employment) and that work is subject to HOS commingled service requirements. Even though there are many levels of organization/rules/procedures at museum/tourist operations around the country, volunteers are still generally reporting to the museum property and following the operation's rules. And one way or another, if they don't they are no longer associated. While they are only mentioned on here occasionally, there have been instances where volunteers have fallen out of line with organization's rules/standards/wishes and have been summarily dismissed so you cannot argue that, while organizational standards vary, volunteers don't have to abide by any compelling controls/standards. There are also quite a few tourist operations that utilize paid employees, and of course those employees are very much influenced by pay as much as a Class 1 freight RR employee, but the line is still the compelling rules/standards of performance.

And just to expand on the previous posts for others who are unfamiliar, there's this:

e.g. - Any non-covered company service, with regards to commingling, can be either before or after the covered service - the entire time on duty must be included in the total HOS commingled service period.


This just pegs my WTF?? meter. No one suggested such a thing.

Robert - you and I were typing at the same time, so I'll add a bit from your last -

The argument over what a RR employee does off-duty can get a little gray, but in light of the arguement I listed above regarding compelling controls/standards, I will say that it should be considered that a t/h/s/e/museum railroad is operating a railroad and therefor any of the aforementioned sanctioned work performed for the a t/h/s/e/museum railroad would be RR work the same as on a Class 1.

The key words being 'any non-covered service'. It should be obvious to anyone that no one gets to have a separate 14-day/12-hour/calendar day clock for separate RR operations.

So while the 'Company Band' volunteering its off-duty time and card playing during off-duty time are not subject to commingling, a scheduled museum track-work session very much would be. And it's not just about the uniform/name-tag. To make the gray area a little darker - if an off-duty uniform-wearing-or-not 'Company Band' member did something highly inappropriate or 'inconsistent with the Company's values' during an off-duty volunteer performance as a representative of the company, that employee would likely be terminated for cause, so the railroad-related (not compelled/behest) activity is still subject to the company's rules/standards.

So, are you saying that time spent in a company sponsored band “commingles” because of the possibility that highly inappropriate conduct by a band member (like sexually abusing a minor) at a band event could trigger disciplinary action by the railroad? If that’s so, everything an employee does during his/her rest periods commingles (with the possible exception of sleep).

Again, the proper criteria for determining whether off duty work commingles is whether the WORK is truly voluntary. Is the employee compelled to do the WORK? Can the employee walk away from the WORK at will? Any activity involving coordination of multiple people will have requirements for HOW the work is done (like my example of the band members all playing the same piece at a concert) which the employee will have to follow if he/she chooses to engage in the activity. There's no requirement I'm aware of that a group activity be a total anarchy to avoid being commingled.

You also say that "while the Company Band volunteering its off-duty time and card playing during off-duty time are not subject to commingling, a scheduled museum track-work session very much would be.”

A scheduled museum track work session which is MANDATORY would certainly be subject to commingling – no argument there. But simply scheduling track work session for anyone who voluntarily chooses to show up (a common pattern at RR museums) should not be, if participation is truly voluntary.

Not at all. I'm simply saying that there are situations where company rules/standards extend outside of on duty time. It's not to be confused with commingling, but there are other issues people need to be aware of because they have potential flow-back to on-duty situations. I'm not thinking your abuse reference, but what about a band member getting beligerantly drunk before going on duty? Remember commingling requirements include that the non-covered service be adjacent (without a qualifying rest period) to covered service, so there is a potential there.


This seems to be getting a bit ridiculous. Again, to be potentially commingled service means RAILROAD SERVICE, and that includes railroad service of a t/h/s/e/museum railroad, and as I said before, with or without pay - no one works literally with a gun to their head. I explained the at-will thing in the last post. I could care less (as far as RR service goes) whether the band plays in tune, wears uniforms or plays naked with monkeys dancing on their heads. What happens off duty is irrelevant except for that pesky drunken band member who publicly humiliates his RR employer or impinges on his on-duty time. It may be worth your while to read the actual criteria and wording the RRB uses regarding determination of whether a RR falls under Railroad Retirement or not. I'm too tired of this and overloaded to look for it now so you're on your own finding it.


Again you're assigning some extraordinary level of compulsion/behest to a museum when it's unnecessary. If museum participation is truly voluntary, how is it made mandatory? Threat of dismissal or some other punishment may make it more more compulsory, but as I said in the last post, the underlying notion isn't some forced compulsion, it's that the museum's trackwork project is a RAILROAD function, subject to railroad rules and standards (compelled performance), and the employee is subject to physical and mental wear and tear in a railroad setting which is what the HOS Act is intended to mitigate. The simple fact that the museum has programmed/organized the work is the behest. Most any decent museum will have, at a minimum, a safety rulebook, team-member functions, a foreman and an orderly process for getting that track-work done in a timely and safe manner . When a volunteer shows up to perform that RAILROAD function, they are on duty and that on duty time must be held up against commingling. Again - Both 228 and the Compliance Guide reference service performed by other railroad employees/types of service and I'd say the 'any' 'and performed for the railroad' pretty much cement in the intent. But as has been said, the local inspectors and regions are the opinions/authorities that any operation needs to placate.

This has been a topic I hope has been of some use to the OP and anyone else with an interest, but I'm done spending hours trying to explain something I dealt with day in and day out for years ... a long time ago in a galaxy far, far away.

As a 40+ year Class One employee and active member of a non-profit, it seems to me it can really boil down to this; if you are on the property doing a non-train crew function, that time counts against your HOS if you become part of a train crew at some point that day.

I can work on a project for my group in my garage at home and it doesn't count if I am not on the property of the RR. It could get questionable if I am representing the nonprofit off-property at say, a train show manning a table or giving a presentation. As far as I know, the FRA and State inspectors aren't going to come to your house to see if you are violating HOS, but they might take exception in a public venue. This is what I would base my decisions on regarding level of activity/participation.

Without getting mired in the details (though being aware of them is necessary), this is how we’d look at it. HOS compliance is generally not a problem for us as we don’t operate on a daily basis. Work days are generally 6 hours and we only need to switch occasionally. Event days with operating equipment may last up to 10 hrs on-site total including prep work before and after actual operation.

Those that operate consecutive days do need to be more judicious in watching your HOS requirements, though.

I'm sorry, but the band example doesn't work for a number of reasons which are too complex for this forum.

The absence of payment may make it seem a bit murky for some folks but, look at it this way.

The museum's goal is generally restoration/ preservation. When a person joins such an organization they agree to abide by the organization's rules and to work toward it's mission statement. Since a volunteer working at the museum in any capacity is doing so exclusively for the purpose of advancing the museum's stated goal(s,) the volunteer is performing service at the behest of the same organization for which he also performs covered service, making all the volunteer work commingled service.

A railroad cannot control what an employee does on his or her off time, that's true. A railroad can and DOES require that employees show up "rested and ready for duty" as a condition of employment. If an employee violates this policy it can result in dismissal. A railroad also CAN control what an employee does and is legally responsible for them while that employee is on the property. As a museum, that volunteer is there all day for YOUR benefit. Just because he likes to do it so much that he does it free is not an acceptable pretense to allow him to work beyond the law's requirements, or claim no responsibility for him or his safety. He isn't at church, a soup kitchen, at a bar, or playing jazz at a nightclub when he is at the museum. As a member (read employee,) the whole time he is at the museum he is the museum's responsibility.

While I am happy to vigorously point out and discuss the limits and requirements of the law, I also recognize that it would be a rare circumstance that an inspector would come in and audit files or observe operations at museum to a level where he would be able find a few volunteer hours that constituted an HOS violation. Sadly, most groups get little or any serious attention from FRA or its representatives until something bad happens. Frequent inspection reports saying that the RR is compliant with all required regulations are tremendously helpful in terms of establishing credibility with host railroads and insurance companies, not to mention any other legal issues which might arise.

This is an excellent discussion, guys. Hopefully this might inspire a few regulated preservation groups to seriously review and update their policies and programs or even ask for help from an official source with respect to HOS.

I agree that further discussion of this subject is not going to be very productive, and may also lead to irresistible suicidal urges by some of RYPN's readers.

But let me leave it with one observation. When interpreting “enactments” like legislation or regulations, one must give full effect to all of the language used in the enactment as it is actually written. That’s what courts do when they interpret enactments like these. The actual enactment language can’t be ignored because of preconceptions about what the enactment “should” be. It is whatever a natural reading of the language used in the enactment actually says, like it or not. I’ll leave it at that. You can make you own judgment about what the commingling language used in the 228.5 regulation actually says.

Folks,
I do not do train operation (visually impaired) but know people who do and the Western Railway Museum has reported the work hours for years. And I know several people who had to stop work after 12 hours and have another person take over switching duties, for example.

Ted 66

As mentioned awhile back on this thread, FRA has taken the position since at least 1988 that hours of service requirements apply to tourist/museum railroads even if they aren't part of the general system. To my knowledge, most tourist/museum roads are aware of this and of what they need to do to comply with the main HOS requirements (your comment about WRM shows that they are aware of it).