November 17, 2011

EAST ST. LOUIS (Nov. 16)—The crew was not operating a train, just doing what hundreds of crews do every day–being transported in a contract carrier vehicle to their terminal for final tie-up.

Yet this Union Pacific engineer and conductor were held for 6 hours and 5 minutes beyond their federally mandated Hours of Service for a drug-and-alcohol test.


Union Pacific has said only that the officials responsible appear to have acted because “they did not immediately possess all the facts.”

“In other words, they over-reacted,” said UTU Illinois Legislative Director Robert W. Guy, who asked the Federal Railroad Administration to investigate the bizarre incident.

What IS known is that on the morning of August 15 the engineer and conductor, who had been on duty for approximately 10 and a half hours, were being transported to their point of final destination, Dupo, Ill. During that trip, the PTI contract-carrier van in which they were passengers was rear-ended on Illinois Route 3 near Cahokia as it was traveling at approximately 40 miles per hour. The van sustained modest damage, and one of the crew members was slightly injured. No charges were filed against PTI or its driver.

But when UP Managers arrived at the scene they ordered the train-crew members to undergo drug-and-alcohol testing. Interestingly, that process didn’t start until approximately 2:45 p.m., some 3 hours or so after the crew had expired on their Hours of Service.

First the employees were transported across the river to a St. Louis clinic where the crew members were examined and the injured crew member was treated. Then they were transported to Dupo for drug-and-alcohol testing, even though neither the crew members nor the UP had any apparent responsibility for the van accident and the crew members were not suspected of having violated any rules while operating their train. Their total time on duty: 18 hours 5 minutes.

UTU Local #1402 Legislative Representative William A. Mathes swung into action as soon as he heard about the incident.

“There was no rule violation that would justify a drug or alcohol test,” Mathes told “Hot Topics.” “I have a copy of the van driver’s report, and he said everybody in the van was riding with seat belts fastened.”

Since neither the men’s conduct in the van nor their performance aboard the train was in question, the drug & alcohol test looked increasingly mysterious.

On August 30 Mathes wrote UP St. Louis Supt. Dan Witthaus.

“What criteria did these tests come under?” Mathes wrote. “Were they mandated tests under the FRA, or were Union Pacific drug and alcohol tests performed? What possible reason could [the UP managers] have for ordering these tests?”

Mathes then cited language from UP’s own policy manual showing that a manager’s decision to order drug or alcohol testing “must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee.”

No such allegations against either employee were made by UP.

Witthaus’s September 19 reply to Mathes only deepened the mystery.

“Your information…. is incorrect,” he claimed. “[UP Manager] did not initiate any actions. His presence at the scene was to assist in the immediate aftermath of the incident.”

And in an effort to justify the decision, Witthaus appeared to have made up his own UP policy on the spot.

“According to Union Pacific policy,” he wrote, “drug testing must be conducted whenever an employee is allegedly involved in a rules violation or a human factor rail equipment incident.”

But neither of those preconditions existed: No rules violation was alleged, nor was there any damage to rail equipment.

As Mathes had pointed out in his letter to Witthaus, the company’s only written criteria for drug or alcohol testing, paragraphs 8.1.1 and 8.1.2 in its policy manual, are the “appearance, behavior, speech or body odors of the employee” as observed by officials on the scene. No other criteria are adduced as “reasonable suspicion to believe that the employee has violated any prohibition concerning use of [alcohol or controlled substances].”

On September 21 Guy wrote up the incident for FRA Region 6 Administrator Steven J. Fender. In a November 16 reply Fender said FRA investigators found that UP violated three FRA regulations: failing to report the crew member’s injury, violating the Hours of Service Law by detaining the crew for drug testing and failing to file an excess-hours report in connection with the HSL violation. Because the latter two charges involve separate violations against each of the two crew members, UP was determined to have 5 separate FRA violations.

But there was no finding regarding UP’s questionable justification for the drug and alcohol tests, something Guy pointed out.

“If nothing else,” he wrote to Fender, “we feel that the UP needs to understand that these sorts of ‘reasonable cause’ tests are transparent and used only as a tool for intimidation and harassment of employees.”

“We expect the UP to be fined,” Guy told “Hot Topics.” They basically took a minor incident in which their employees were not implicated and were observing appropriate rules and turned it into a five-count violation of FRA regulations and ended up holding a crew for over 18 hours. And even though they conducted a drug-and-alcohol test, those tests didn’t begin until almost 5 hours after the incident, according to FRA reports.”

Guy said Mathes “did a wonderful job of researching the incident and tracking down the facts and writing it up for the FRA.” One of the employees, he said, was a borrow-out from California who had gone back to his regular job before Mathes could reach him and get his story.

But Guy had few good words to say about—or to—Union Pacific.

“We certainly feel and hope that this is not the norm, but it’s this type of reaction that leads to the development of employee attitudes like, ‘What exactly are management’s priorities?’”—he said. “It sends absolutely the wrong kind of message. What possibly could they have been afraid of to take this kind of approach with their employees? It’s amazing the way these managers sometimes think.”