WASHINGTON -- The UTU, seven other rail labor unions, and BNSF Railway asked a federal appeals 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 direct observation urine 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 District of Columbia Court Circuit Court is asked to consider whether the rule violates the Constitution’s Fourth Amendment protection against unreasonable searches.

The court also is asked to consider if the new 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 appellate court challenge leans heavily on a 1989 Supreme Court decision holding that "require[ing] employees to perform an excretory function traditionally shielded by great privacy, raise[s] concerns ..." The Supreme Court held in that 1989 decision that there must be a prior reasonable cause before 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 agency to reconsider whether the rule is warranted, owing to the fact that the railroad industry has one of the lowest rates of positive tests -- less than 1 percent -- where 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 new DOT rule. Neither the AAR nor the ASLRRA joined in the court challenge.

As for the petitions for reconsideration and delay filed with DOT, an unnamed DOT source indicated the agency would ask, 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 for the federal appeals court 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 low rate of positive tests in random-drug screening makes the new rule an unwarranted and significant expansion of existing direct observation testing. Such testing currently is restricted to such situations as where employees were found to have adulterated tests.

Moreover, 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 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 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."

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 joining with rail labor in the court challenge, BNSF said, "We believe that our employees are entitled to be treated with dignity and respect at the workplace, and this new regulation is an intrusion on employees."

In addition to UTU and BNSF, those joining in the federal court 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.