ATU Pressures Congress to Mandate Overtime Pay for Intercity Bus Drivers; Avoids Key Issues

Greyhound coach busIt’s a common news story these days: A bus on the highway crashes, resulting in multiple deaths and injuries. And the official cause is “driver fatigue.” Sen. Charles Schumer, D-N.Y., backed by the Amalgamated Transit Union (ATU) and the AFL-CIO, has a bill, the Driver Fatigue Prevention Act (S.487), to reduce such tragedies by extending the Fair Labor Standards Act’s overtime pay provisions to intercity bus drivers. For over 50 years the Department of Transportation has precluded overtime laws from applying to such travel. The ATU in recent weeks has stepped up pressure for passage of the bill, unveiled last March. The union insists the exemption allows bus companies to exploit drivers, who become susceptible to falling asleep at the wheel. Yet evidence suggests the union, in seeking more compensation for members, is avoiding key facts.

Buses remain a highly popular means of transportation in this country. According to the U.S. Department of Transportation (DOT), there were a little over 76,000 registered commercial buses in 2011. That doesn’t even include nearly 600,000 privately-owned noncommercial (e.g., school buses) or publicly-owned buses. There are about 4,000 motor coach operators currently in business. Given such high activity, accidents are inevitable. The question is how many and of what magnitude. The issue perhaps can be best understood as a function of loss of human life. According to DOT’s Federal Motor Carrier Safety Administration (FMCSA), which regulates commercial surface vehicles, in 2009, the most recent year for which data are available, there were 240 total bus crashes with at least one fatality. These accidents resulted in 254 deaths in reporting states, or a little over one death per accident. Intercity buses, by their nature, present a high risk of multiple deaths. Being far larger and heavier than cars, they carry a greater risk of disaster if they veer off the road, especially if into a ditch, down a ravine or off an overpass. According to the National Transportation Safety Board (NTSB), about half of all motor coach bus deaths in recent years have occurred due to vehicle rollover and 70 percent of persons killed in rollover accidents were ejected. Galvanized steel guard rails, while an effective accident deterrent for automobiles, aren’t capable of retaining buses at high speeds.

Intercity bus driving is different from local bus driving. Long-distance drivers travel at a fast pace. And they don’t make stops every few minutes. This adds up to high-impact collisions and death if drivers work long hours. Back in 2011, the ATU came out with a study, “Sudden Death Overtime,” which reviewed National Transportation Safety Board accident data for the period June 1998-January 2008. The report concluded, among other things, that drivers who turned down driving jobs faced retaliation from employers in the form of an ultimatum to choose between working beyond the standard 40-hour work week and accepting major reductions in available work hours. As most drivers need the money, they choose the former. The result is they have little sleep when they get behind the wheel. The result is more accidents, including fatal ones. The report cited fatigue as a contributing factor in 36 percent of all motor coach fatalities, a figure far higher than either road conditions (2 percent) or driver inattention (6 percent).

The Amalgamated Transit Union, now with nearly 200,000 members in the U.S. and Canada, 6,000 of whom are intercity bus drivers, consistently cites this report in claiming that bus companies are putting drivers and their passengers in harm’s way. By not having to pay drivers overtime rates, bus companies effectively force drivers to find outside work to pay for living expenses. As a result, drivers are pushed beyond their limits of endurance. ATU President Larry Hanley goes so far as to call the long-distance bus industry a “sweatshop on wheels.” He states, though without evidence: “Hundreds of intercity bus companies get away with paying their bus drivers criminally low wages, forcing drivers to work 100 hours a week or more, often balancing two or three jobs, just to make a living. Unsuspecting customers get on these buses and disaster can strike.”

The best defense against fatal accidents, Hanley insists, is to bring intercity bus driving under the Fair Labor Standards Act’s overtime coverage. Sen. Schumer had introduced such legislation in December 2011. To boost chances for passage, the ATU shortly thereafter hired the Ickes & Enright Group, headed by Clinton White House lawyers-senior aides Harold Ickes and Janice Enright, to lobby Capitol Hill. “For decades the FLSA has covered 85 percent of American workers,” declared Hanley in May 2012. “In the intercity bus industry, the lack of guaranteed overtime pay after a forty-hour work week is a dangerous exception to the rule. Extending these protections to intercity bus drivers is not only the right thing to do; it’s the safe thing to do for our riders.” Hanley recently reiterated this view in January 14 testimony before a subcommittee of the House Transportation and Infrastructure Committee: “Since intercity bus drivers are exempt from the Fair Labor Standards Act’s overtime provisions, many are forced to work second jobs during their so-called ‘rest period’ to make ends meet. It’s time to lift the overtime exemption for intercity bus drivers.”

This sounds reasonable on the surface. But it leaves out a good deal more than it includes. For in pointing a finger at bus companies as a whole, the Amalgamated Transit Union and its allies are distorting the issue. It ought to be intuitive that if Congress passes the Schumer bill, union rank and file could be made worse off by being laid off or reclassified as part-time employees. Yet there also are several bus safety issues that don’t fit the union script. 

First, the exemption of intercity bus driving from overtime wage coverage isn’t some sadistic way the government has cooked up to deprive drivers of income. The rule exists for a reason: public safety. And it applies to all motor coach companies, from major carriers such as Greyhound, Martz and Peter Pan, to countless smaller ones whose buses board and de-board passengers at street curbs rather than terminals. Bus drivers, as hourly employees, have an incentive to work overtime. If eligible to receive time-and-a-half pay beyond a 40-hour week, many would jump at the chance to work 50 or 60 hours a week, if not more. Federal law, by exempting intercity bus employers from paying overtime rates, discourages this practice. In the process, it reduces the risk of driver fatigue. The law also provides other safeguards. A motor coach driver may not drive more than 10 consecutive hours following eight consecutive off-duty hours. This “eight hour” rule also applies to instances of 15 consecutive hours of combined on-duty driving and non-driving time. Moreover, a driver may not operate a bus after having been on duty for at least 60 hours following seven consecutive days, or 70 hours following eight consecutive days. These rules are meant to minimize the likelihood of bus drivers operating a vehicle in a fatigued condition. Presumably, this is what the union wants, right?

Second, and related to the first point, bus travel, whether or not intercity, is a reasonably safe mode of transportation. While data are not necessarily consistent, a fact owing heavily to differences in state reporting practices, it is fair to say that such travel has gotten somewhat safer in recent years. As noted earlier, FMCSA data indicate 254 fatalities for all types of bus travel in 2009, a decline from 337 in 2006. Injuries from bus crashes dropped slightly, from 15,489 in 2006 to 15,327 in 2010. Reductions are more dramatic when viewed from the standpoint of composite mileage. In 1988 there were 556 injuries per 100 million bus passenger miles traveled. Two decades later, in 2008, the figure had dropped to 343 injuries per 100 million passenger miles. Assuming a constant rate and an increased fleet on the road, the number of injuries would have risen rather than fallen. It’s also worth noting that long-distance motor coach bus travel – the kind that Senator Schumer’s bill addresses – accounts for only a little over 10 percent of all bus crashes nationwide. Most accidents involve mass transit buses, school buses, mini-buses or large vans.

Third, fatigue is only one cause of bus accidents, and not necessarily the most prominent. Poor driver training, aptitude and safety habits raise the risks of a crash, as do mechanical failures. Several years ago, the Federal Motor Carrier Safety Administration released a report, “The Bus Crash Causation Study” (see pdf). Based on data and interviews related to 39 crashes involving 40 buses in northeastern New Jersey during 2005-06, the FMCSA study found that a large portion of crashes were due to driver error, both on the part of bus drivers and drivers of other vehicles with which the buses collided. The 15 instances in which an accident was primarily attributable to the bus driver broke down as follows: “inadequate surveillance” (6); “inattention” (4); “following too close” (2); and “other reasons” (3). In the 24 other accidents, the critical reason for the accident was related to mechanical failure, weather, pedestrians or (most frequently) behavior of drivers of other vehicles. Perhaps most telling were the “associated factors” in an accident, of which there could be more than one. “Line of sight obstructed,” “in a hurry,” “inadequate evasive action,” and “unfamiliar with road” were associated, respectively, with 22, 16, 15 and 11 accidents. By contrast, “fatigue” was associated with just one accident. Granted, the sample consisted of accidents in a metropolitan area in one state over a two-year period. But that hardly renders the results insignificant. More research will be needed before anyone can draw firm assertions that driver fatigue brought on by employer greed is the primary reason for bus accidents.

Fourth, intercity bus accidents involving multiple fatalities are more likely to happen at smaller companies that pick up and drop off riders at curbsides, not terminals. More than terminal-based carriers, buses operated by such companies experience more mechanical failures. And their drivers may have less training and fewer inhibitions behind the wheel. Not all bus operations are created equal. “Fatigue,” in other words, may be an all-purpose way of camouflaging this. And the tragedies are real. In July 2013, a privately-owned curbside long-distance bus returning home from a church retreat struck a retaining wall at a high rate of speed while exiting a ramp from Interstate 465 in Indianapolis. The crash killed three passengers and sent 26 others to the hospital. Following this accident, the Indiana legislature proposed and eventually passed a bill mandating inspections of private buses. Even more horrifically, in March 2011, a bus traveling along Interstate 95 in the Bronx, N.Y., on the way home to Manhattan’s Chinatown from the Mohegan Sun Casino in Connecticut, jumped over a shoulder and crashed into a barrier, killing 15 of the 33 occupants. There were a few interesting details surrounding that crash. First, the bus operator, World Wide Travel of Greater New York Ltd., had an accident rate 375 percent higher than the allowable FMCSA threshold. Second, the driver was something less than a model for other drivers. His chauffer’s license had been suspended on 18 previous occasions and he had been fired from his two preceding transportation jobs. Third and finally, though “fatigue” was cited as a cause of the accident, the driver had been going 78 miles an hour in a 50 mile an hour zone. So the question arises: What was this guy doing behind the wheel? 

The New York disaster prompted Sen. Schumer and Rep. Nydia Velasquez, D-N.Y., to jointly request a study by the National Transportation Safety Board. The NTSB, which normally takes at least a year to complete such reports, produced this one in seven months. The study (see pdf) concluded that curbside bus companies are seven times more likely to produce passenger deaths than companies using terminals (1.4 fatalities per 100 vehicles vs. 0.2 deaths per 100 vehicles). True, the study had its critics. A television producer for the Reason Foundation, Jim Epstein, charged that the board had loaded the dice by classifying Greyhound and a few other terminal-based carriers as “curbside” simply because some of their routes fitted that definition. Yet a subsequent recalculation by Bloomberg News concluded that proper classification (as defined by Reason) would have lowered the 7-to-1 curbside-to-terminal fatality ratio to 4.6 to 1 – still a much higher incidence. National Transportation Safety Board spokesman Eric Weiss defended the report on grounds that it focused on company safety records rather than size, routes or bus models. “Safe bus operations should not depend on whether passengers are picked up or dropped off at a traditional bus station or down on the corner,” he said. “They should depend on safety culture and other issues such as driver training and bus maintenance.” Some bus companies apparently don’t believe in a safety culture. 

The Federal Motor Carrier Safety Administration already had been conducting its own study prior to the release of the NTSB report. Based on its findings, the FMCSA, in a one-day multistate sting on May 31, 2012, closed 26 Chinatown-connected curbside bus companies, many of which already had been ordered closed and were illegally operating under a new name. The operation was part of a larger, increasingly proactive agency enforcement approach. In recent years, the FMCSA has doubled bus inspections; banned text messaging by commercial bus drivers; and instituted a mobile app, SaferBus, that enables passengers to review a bus company’s safety record before buying a ticket. 

On the legislative front, Congress in July 2012 passed, and President Obama signed into law, a broad transportation reuathorization bill which included numerous provisions to promote bus safety. Among major features, the law forces bus companies to submit to a full safety audit no later than 120 days after approval to commence operations; bars motor carriers from reopening if declared unfit to operate; and requires a Department of Transportation review of carriers every three years.      

States also have stepped up monitoring. Last year, Fung Wah, the largest Chinatown-based bus company operating between New York and Boston, was shut down by the Massachusetts Department of Public Utilities. The department had found cracked bus frames and, equally troubling, it concluded that attempts at repairing these defects appeared to make matters worse. And in 2012, following the I-95 crash in the Bronx, the State of New York passed legislation authorizing the City of New York to regulate the local curbside bus industry. 

The American Bus Association (ABA) supports aggressive enforcement of safety rules. Responding to ATU President Larry Hanley’s House testimony of last month, the association commented: “Companies that operate illegally and without regard for passenger safety or driver conditions will do so regardless of any regulations, unless and until there is sufficient enforcement action to stop them.” The ABA added that one of the bus companies cited by the union as underpaying its drivers had nearly 200 safety violations.

The Amalgamated Transit Union isn’t against safety monitoring. But it does believe that such oversight will be nearly meaningless unless drivers are paid at overtime rates for working beyond a 40-hour week. Yet according to the Bureau of Labor Statistics, intercity/rural motor coach drivers in May 2012 received an annual mean wage of $34,580, a figure only a little lower than the $35,050 mean for urban transit bus system drivers. Allowing overtime rate wages would raise the intercity figure, but also might reduce their ranks. Bus companies, in seeking to cut labor costs, might respond with layoffs or reclassifications as part-time employees. That’s the view of American Bus Association President Peter Pantuso, who remarked of the original Schumer bill: “I think the bill has been mischaracterized. It would do more to reduce pay and put drivers out of work than anything else.”

Unions, by nature, exist to advance the interests of dues-paying members. The Amalgamated Transit Union is no exception. While the ATU is properly concerned about public safety, it is using this concern to push for more benefits for members via misguided legislation. In supporting the Senator Schumer’s Driver Fatigue Prevention Act, union leaders assert that since bus companies typically work their drivers way beyond 40 hours a week – an unproven assertion – drivers deserve extra compensation so they won’t have to take outside jobs and drive under extreme fatigue. Now granted, bus companies should be investigated if there is evidence that they are forcing drivers to work beyond federally-prescribed limits. And if shown to have engaged in this practice, they should be punished. But this is not a problem that paying overtime wages is going to fix.