June 18, 2007
CHICAGO (June 18)—The Federal Railroad Administration has told the UTU the Canadian National Railroad “was in violation of Federal Law” when a supervisor ordered a drug test for a Decatur conductor after a minor cornering incident involving a coal train at the Archer Daniels Midland Company co-generation plant last November.
In a May 31 letter to Illinois Legislative Director Joseph C. Szabo, FRA Region IV Administrator Laurence Hasvold said CN did not have a basis to order a drug test.
Hasvold said the FRA had conducted an investigation into a complaint by UTU Local #453 Chairman Lloyd Holman that CN trainmaster Paul Bourzekis acted without developing sufficient facts leading to a “reasonable suspicion” as required by federal protocol. FRA guidelines require substantial observation of the employee’s behavior and legitimate “just cause” before a “reasonable suspicion” of drug use can be lodged against him.
Holman charged that, even after helping the conductor separate the two coal cars that had grazed each other’s grab irons, the supervisor left the conductor in service, ordered him to complete his shift and then left the area.
Normally, an employee suspected of using drugs would be taken out of service immediately rather than returned to work.
“There are certain thresholds you’re expected to meet before ordering a drug test,” Holman said. “You can’t simply order the testing of an employee based upon a whim.”
Holman said the conductor had been ordered to terminate a very long unit coal train at the ADM co-generation power plant, believed to be the largest of its type in the nation. The train’s length required that it be “doubled” to a series of tracks, each of them broken by a grade crossing in the middle. Visibility in the yard is poor because of track curvature, and normal procedure calls for one cut of cars to be shoved to foul a switch, Holman said.
“It’s a situation made for an accident, and there was a little incident,” he said. “Two ADM employees were witnesses, but the trainmaster never talked to them to see if the employee showed any signs of ‘irregular behavior.’” They were willing to talk, but the supervisor never asked them.”
In addition, Holman said, the supervisor broke the law by acting on his own. Federal law requires that at least two railroad officials be present to make a determination that an employee merits a drug test, and one of the officials must have passed a three-hour course in how to spot drug or alcohol impairment. The conductor never was subjected to such observation.
“The investigation disclosed evidence that the CN was in violation of Federal Law,” Hasvold wrote to Szabo. “A recommendation for civil penalties [fines] will be forwarded to FRA’s Office of Chief Counsel.”
“There’s good news in this outcome,” Szabo said.
“This case can be attributed to an overly aggressive supervisor who either lacked the will or knowledge to perform his duties in a legal and ethical manner,” Szabo said.
“The good news is that our union can protect its members against abuse by overly aggressive supervisors. If employees step forward and report the abuse to their local, the incident will be written up, forwarded to the UTU Illinois Legislative Board in Chicago, and turned over to the appropriate enforcement agency for action,” he said.
“The process works. Either the supervisor learns how to act in a proper and ethical manner, or the company faces fines. If it happens again, the supervisor faces personal fines or a possible change in employment. This one was handled exactly ‘by the book,’ and it got prompt results.”