In the railroad industry, random drug testing has consistently resulted in less than 1 percent positive tests, qualifying the industry for the lowest DOT random drug-testing rate requirement.

Nonetheless, the Bush administration’s Department of Transportation intends to implement a new rule Aug. 25 to require all transportation modes -- including railroads, transit and bus operators -- to require direct observation urine collection for return-to-duty testing or follow-up testing. The direct observer must be of the same gender as the individual being observed.

New sections 40.67(b) and 40(i) are to be added to 40 CFR Part 40.

This is a significant expansion of existing direct observation testing, currently restricted to situations, for example, where employees were found to have adulterated tests. The new rule is vague on specifically what constitutes the requirement for additional direct observation of urine tests, and appears to give carriers wide latitude in ordering direct observation.

The UTU and 32 other AFL-CIO unions petitioned DOT Aug. 7 to reconsider implementation of the rule as it affects rail, bus and other targeted transportation employees.

Additionally, the UTU and other unions will join with rail carriers to challenge the new rule in federal court as a violation of the Constitution's Fourth Amendment prohibition against unreasonable searches.

The Association of American Railroads and the American Short Line and Regional Railroad Association also have petitioned DOT to reconsider whether the rule is warranted.

Where return-to-duty or follow-up testing is performed, the new rule requires a same-sex observer to request the employee "to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by 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 permit the employee to return clothing to its proper position for observed urination."

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

Said UTU International President Mike Futhey, "statistics do not warrant such invasive procedures based on vague wording and apparent wide carrier latitude for ordering direct observation tests. There have been very few instances of railroad employees attempting to adulterate or refuse testing. This is why we will follow-up our petition for reconsideration with a lawsuit challenging the new rule as a violation of the Constitution's Fourth Amendment prohibition of unreasonable searches," Futhey said.

The federal court challenge will be based on a 1989 Supreme Court decision in which the Court held that "require[ing] employees to perform an excretory function traditionally shielded by great privacy, raise[s] concerns ..." The Court held there must be a prior reasonable cause before requiring an employee to remove clothing.

Additionally, the Omnibus Transportation Employee Testing Act of 1991, which granted DOT authority to conduct its drug and alcohol testing program, requires the use of procedures that promote, to the maximum extent practicable, individual privacy in the collection of specimen samples.

The AFL-CIO Transportation Trades Department -- on behalf of 32 transportation unions, including the UTU -- filed a reconsideration petition with DOT July 7, asserting the new rule fails to strike the proper balance between promoting safety and the legitimate rights of workers; that it goes beyond reasonable standards of conduct; and puts unwarranted burdens on workers and employers.

Moreover, the TTD said in its petition, "DOT did not provide TTD, our member unions, and the millions of transportation workers covered by this rule adequate opportunity to comment on the particular offending provisions now contained in DOT’s final rule.

"DOT offered no studies or evidence of the prevalence of employees using prosthetic devices to cheat on drug and alcohol tests," said the TTD in its petition. "The mere commercial availability of prosthetic devices or products that may mask the presence of drugs in urine does not justify subjecting numerous transportation workers to the grossly intrusive direct collecting testing required by this final rule."

The TTD said also that the rule is written in such vague terms as to give the employer wide discretion on when to impose "direct observation" testing.