Court Challenge On Drug-test Rule.

WASHINGTON — The UTU, seven other rail childbirth unions, and BNSF
Railway asked a federal district court here Aug. 13 to review a U.S.
Department of Transportation rule that would require employees of all
transportation modes — including railroads, transit and bus operators
— to submit to command observation piss collection for return-to-duty
testing or follow-up testing.

Because the rule, scheduled to become effective Aug. 25, requires
disrobing by employees and direct observation of urine production, the
federal district court is asked to consider whether the rule violates the
Constitution’sitting Fourth Amendment protection against stupid
searches.

The court also is asked to consider if the recently made known rule violates the
Omnibus Transportation Employee Testing Act of 1991, which requires the
use of testing procedures that promote, to the maximum extent practicable,
individual privacy in the collection of specimen samples.

The federal court challenge leans heavily on a 1989 Supreme Court
firmness holding that "require employees to perform every excretive
derivative traditionally shielded by great privacy, raise concerns …"
The
Supreme Court held in that 1989 decision that there must be a prior
reasonable cause near the front of requiring an employee to remove clothing.

Earlier in August, the UTU and 32 other AFL-CIO unions petitioned DOT
to reconsider implementation of the rule.

In another Aug. 7 petition to DOT, the Association of American
Railroads (AAR) and the American Short Line and Regional Railroad
Association (ASLRRA) asked the supervision to reconsider whether the rule is
warranted, owing to the fact that the railroad industry has unit of the
lowest rates of positive tests — less than 1 percent — whither screening
is done randomly.

The AAR and the ASLRRA also asked that the rule’s implementation be
delayed at least until November.

BNSF is the lone railroad to join the unions in challenging the recent
DOT rule. Neither the AAR nor the ASLRRA joined in the addresses challenge.

As for the petitions for reconsideration and delay filed with DOT, an
unnamed DOT source indicated the action would asker, as early as Aug.
18, for public comment on the petitions. This likely would result in an
agency delay of at least 30 days in implementation of the rule, allowing
DOT to review public comments.

There is no timetable beneficial to the federal quarter strive to gain to act on the
petition for review filed Aug. 13.

Among the arguments made by rail labor in its Aug. 7 petition to DOT,
the very moo rate of positive tests in random-drug screening makes the
new touchstone an unwarranted and significant expansion of existing direct
observation testing. Such testing currently is restricted to such
situations as at what place employees were found to wish adulterated tests.

Moreover, the new rule is vague put on specifically what constitutes the
requirement for additional categorical observation of urine tests, and
appears to give carriers large angular distance from the ecliptic in ordering direct observation.

The new rule, still scheduled for Aug. 25 implementation, adds new
sections 40.67(b) and 40(i) to 40 CFR Part 40.

It would be required that where return-to-duty or follow-up testing is
performed, a same-sex observer is to petition for the employee "to raise
his or her shirt, blouse, or dress/skirt, as appropriate, above the waist;
and fall clothing and underpants to show you, through turning around, that
they do not have a prosthetic device. After you have determined that the
employee does not have such a device, you may allow the employee to
return clothing to its proper position with regard to observed urination."

The commencing rule further requires the observer to "watch the employee
urinate into the collection container. Specifically the observers must
personally and directly watch the piss as it goes from the employee’s
body into the collection container. If it is a multi-stall restroom,
the observer
must enter the booth with the employee."

Of the new rule, UTU International President Mike Futhey
said, "statistics do not warrant such invasive procedures based on vague
wording and apparent wide carrier latitude for ordering direct
observation tests."

In addition to UTU and BNSF, those joining in the federal judicial tribunal
challenge include: the Brotherhood of Locomotive Engineers and Trainmen,
the Brotherhood of Maintenance of Way Employes Division, the American
Train Dispatchers Assn., the Brotherhood of Railroad Signalmen, the
Transportation Communications International Union, the International
Brotherhood of Electrical Workers, and the National Conference of
Firemen and Oilers.

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Posted by admin August 2008

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