Brotherhood of Locomotive Engineers

ALL LOCAL CHAIRMAN                                                     July 31, 2001
BNSF NORTHLINES                                                             File: Drug Testing Regulations

Dear Sirs and Brothers:

This is in reference to recent federal changes in drug testing regulations under 49 CFR Part 40. Attached you will find recent correspondence from the Carrier advising of implementation of some of the new requirements effective August 1, 2001. Also included is a later memo advising that this portion of the new regulations apply only to drug and alcohol testing that is performed under federal authority.

As information, these changes are primarily the result of rule making hearings that took place last year with one of the main issues being validity testing, or in plain English, testing for substitutions and adulterations. Although validity testing has been in place on BNSF for several years, it was not previously mandatory under DOT regulations. For that reason, there were no hard fast DOT regulations in place covering the process. Rule making hearings were held, gathering input on whether mandatory validity testing was needed, and if so, what the requirements should be. The BLE International Division participated in these hearings, as did other labor organizations and Carriers. Ultimately, DOT has required that validity testing is now mandatory, and also added some new rules on the steps that must be followed to make it next to impossible to tamper with the test. The information included in the Carrier’s letter is part of these new federal regulations and applies to all tests conducted under federal authority.

As further information, there are several changes in the new regulations that do actually improve on the employee’s rights, when accused of tampering with a sample. When DOT made validity testing mandatory, they also agreed with BLE’s argument that the employee charged with tampering should at least get the same benefit of the doubt that an alleged positive drug or alcohol test gets. Those benefits being split sample testing and MRO review. Prior to January, neither were afforded as the federal regulations did not require it. DOT added mandatory access to these rights along with mandatory validity testing, and the end result is a fairer form of due process for an accused employee.

We are providing this information as it is imperative that our membership comply with these federally mandated regulations. These changes have been established by DOT, not the Carrier, and any refusal to comply with them could result in disastrous consequences. As always, please contact the office if there are any questions concerning the changes and I remain,

Fraternally yours

M.W.Geiger Jr.

General Chairman

DRP

cc: Local Chairmen, MRL

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July 13, 2001

To:                        BNSF General Chairman

Subject:                New Drug Testing Regulations

As you are probably aware, The Department of Transportation has revised its drug testing regulations with an effective date of August 1, 2001. The new CFR 49, Part 40.61 (f) (4) provides the following instructions to the specimen collector.

"You must direct the employee to empty his or her pockets and display the items in them to ensure that no items are present which could be used to adulterate the specimen. If nothing is there that can be used to adulterate a specimen, the employee can place the items back into the pockets. The employee must allow you to make this observation."

Each employee designated for a urine drug screen must empty the contents of their pockets prior to providing a urine specimen. Personal valuables including keys, wallets, change, money, and jewelry may be returned to the employee before the urine collection.

Other items brought to the collection site by the employee, including eye drops, inhalers, medications, cosmetic make-up, or other items that could be used to tamper with a specimen, will be secured and maintained by the collector until the collection process is completed, then returned to the employee.

With this letter, I would ask that you remind representatives throughout your organization of these changes so that they can pass along this information to those employees they represent. The intent is to prevent any employee conflict that may arise during a drug test.

In addition to this letter, news articles will appear in Signals and BNSF Today explaining this change. If you have any questions, please contact the BNSF Drug & Alcohol Testing Department at (817) 352-1648. Sincerely,

Art Freeman
Dir. Medical Support Services

Date: July 24, 2001 

To: BNSF Field Officers 

From: Art Freeman — Dir. Medical Support Services 

Subject: Reasonable Cause Testing 

This memo is intended to provide further clarification regarding the upcoming changes to 49 CFR Part 40— Procedures for Transportation Workplace Drug and Alcohol Testing effective on August 1, 2001. These regulations apply only to drug and alcohol testing that is performed under federal authority and not under BNSF authority.  

Reasonable Cause testing at BNSF is conducted under company authority; therefore, the revisions to the federal regulations involving the emptying of pockets will not apply for reasonable cause tests at this time. The on-site collector will provide all applicable instructions to the donor, including the instruction to empty and display items in their pockets when the test is conducted under federal authority only. BNSF officers are not to be involved in the testing process beyond ensuring the employee arrives at the testing area, and to manage conflict when it arises. 

In summary, BNSF Officers are not to give any instruction to an employee to empty his/her pockets, this will be the responsibility of the specimen collector when applicable. 

If you have any questions regarding this issue, please contact the BNSF Medical Department at (817) 352-1648 for clarification.