Yesterday (January 11), the Supreme Court heard oral arguments in a case you may have heard about — Friedrichs v. California Teachers Association (CTA).
The gist of the case is this: many California public school teachers are members of CTA. Like all union members, California teachers can choose whether or not to join the union. However, when the majority of people vote to form a union (as is the case with California school teachers), the union is required by law to represent everyone in the workplace, whether that employee is a union member or not. Teachers who don’t want to belong to a union only have to contribute to the costs of the representation they receive. Because all teachers enjoy the benefits, job security and other protections the union negotiates, it is only fair that all employees contribute to the cost of securing those benefits and protections.
Pretty simple, right? Not so fast. Those challenging this common-sense system argue that simply paying fair-share fees is a violation of free speech.
So why should transportation workers across the country care about teachers in California?
Friedrichs v. California Teachers Association (CTA) is an orchestrated, malicious attack on workers’ rights. This case isn’t just about teachers in California—it’s about weakening the rights of workers, specifically those employed in the public sector. The group behind the court case is the Center for Individual Rights, which has ties to greedy CEOs and wealthy special interests. If the court finds that teachers no longer have to pay fair-share fees (and sides with those wealthy extremists), teacher unions (and all other public sector unions) will lose considerable strength and leverage. By the way, if details of this case sound familiar to you, it’s because they are. The same special interests that backed Gov. Scott Walker’s attack on public sector workers in Wisconsin in 2011 are the same groups and individuals at play here.
Many transportation workers are public sector workers. Transportation workers account for less than 3 percent of all public sector workers, but nearly 50 percent of those workers are covered by collective bargaining agreements. A bad decision by the Supreme Court could significantly weaken the power these workers have to stand up for basic workplace rights, like fair wages and safe working conditions.
A bad decision by the Supreme Court will only make the rich richer. For far too long, America’s economy has unfairly favored the wealthy at the expense of ordinary people. Our middle class is shrinking and it’s getting harder to get by, let alone get ahead. If the Supreme Court rules in favor of the plaintiffs, things will only get worse. That’s because unions act as a check against corporate power. When unions are weak, corporate CEOs and wealthy individuals have more power to manipulate the rules in their favor and exploit working people.
$5.4 billion — that’s how much public transit agencies collectively spend on buses and trains each year.
U.S. public transportation authorities are using taxpayers’ dollars to employ Americans. Well, sort of — there’s a lot of room for improvement. Thanks to weak laws and procurement rules, taxpayer dollars all too often reward low-road companies that pay poor wages and routinely game our domestic content rules to manufacture just the minimum here in America.
That’s why transportation unions have long supported policies that raise domestic content standards for transit and rail purchases made with federal funds — the same kind of laws found in the recently passed Fixing America’s Surface Transportation (FAST) Act. In addition to being the first long-term, bipartisan surface transportation bill in a decade, the FAST Act raises Buy America standards for transit vehicles from a 60 percent minimum to a 70 percent minimum domestic content.
This is a great next step in our effort to beef up transportation manufacturing jobs, but we aren’t stopping now: the goal must be 100% domestic content for publicly funded transit and rail equipment orders. Unfortunately, changes to procurement laws alone aren’t enough to get us there. In fact, a new report by economist Robert Pollin and the Political Economy Research Institute (PERI) shows more can and needs to be done to ensure that investments in our nation’s transportation infrastructure help sustain domestic manufacturing and the millions of jobs the sector supports. The report, titled Strengthening U.S. Manufacturing Through Public Procurement Policies, focuses on railcar procurements, but its lessons can be applied to the broader Buy America program.
The report finds that:
60 is the new 40. Under law, 60 percent of component production and 100 percent of final assembly of railcar manufacturing are supposed to happen in the U.S. However, as the authors show, for a variety of reasons, these standards amount to an overall requirement of only 40 percent domestic production.
Monitoring and enforcement standards are a weak link. Because few local transit agencies have adequate capacity to conduct audits in-house and public interest groups face major obstacles in obtaining relevant compliance information, the monitoring and enforcement of domestic content requirements leave much to be desired.
Too many waivers are still granted. Available evidence suggests that a significant number of domestic content waivers are being granted to contractors bidding on transportation procurement projects covered under Buy America. The good news? Under the Obama Administration, the wavier process has improved significantly. But there’s more work that needs to be done. The Department of Transportation needs to keep systematic records on waiver applications and decisions and to establish consistently high thresholds for granting waivers.
As the authors of the study point out, we must pair stronger laws with straightforward, effective measures that encourage public transportation agencies to consider the impact of their purchases here at home. Some of the plans outlined in the report — including changes to Request for Proposal (RFP) procedures — are the same kind of forward-thinking measures being pushed by the Jobs to Move America Coalition, of which TTD has been a member since 2013. They include incentivizing companies that bid on publicly-funded transportation equipment orders to describe the number and quality of jobs that would be created from a contract, and encouraging local transit authorities to select bids based on best value instead of just the lowest price. This new approach rewards employers that train their workers and make a genuine effort to hire people from disadvantaged populations including, for example, veterans and single mothers.
These kinds of smart procurement strategies act as a win-win for all parties involved: public transportation dollars help create good transportation manufacturing jobs here at home; transit agencies purchase high-quality, American-made components; and high-road manufacturers are rewarded for lifting labor standards and keeping buses and trains made in the USA.
Washington — Edward Wytkind, president of the Transportation Trades Department, AFL-CIO (TTD), issued this statement in response to a House-Senate deal on a long overdue surface transportation reauthorization bill:
“The Fixing America’s Surface Transportation (FAST) Act is a bipartisan, long-term funding bill for our nation’s transit systems, highways, bridges and passenger rail networks that we are proud to support. The deal reached by House and Senate negotiators breaks the cycle of flat-line funding and short-term extensions that has strangled our economy and stunted job creation. We applaud Congressional leaders for their work on this important legislation and particularly want to thank Chairman Shuster, Ranking Member DeFazio, Chairman Inhofe and Ranking Member Boxer for their pursuit of a long-term bill.
“TTD and its member unions have never relented in our multi-year campaign to convince lawmakers to forge a bipartisan compromise on a long-term highway-transit bill that prioritizes funding growth and job creation. We applaud lawmakers for crafting a bill that makes great strides in reversing many years of neglect.
“The FAST Act strikes the right balance on many of the important policy issues that were considered in this legislation. The bill includes measures to address bus driver assaults, handles transit public-private partnerships in a more responsible manner, improves Buy America rules and makes improvements to rail safety and the transport of hazardous materials. Conferees wisely chose not to use this bill to attack the bargaining rights of port workers, adopted provisions that preserve the role of sound science in determining the appropriateness of hair specimen drug testing and rejected an attempt to force contracting out of public-sector engineering work.
“We are pleased that the FAST Act contains a multi-year Amtrak reauthorization that will help sustain America’s national passenger railroad, protect thousands of middle-class jobs and allow Amtrak and its employees to meet the soaring demand for rail transportation. Finally, the bill includes the reauthorization of the Export-Import Bank, which will help American manufacturers and their employees compete with foreign companies and support good middle-class jobs in this country.
“We urge both chambers to pass the FAST Act and send it to the President’s Desk for his signature.”
It’s that time of year again. Americans across the country will get ready for the time-honored tradition of gathering with family and friends to give thanks. But first, they will agonize – possibly panic – over how to get where they’re going on the busiest travel day of the year. The latter isn’t exactly how Norman Rockwell depicts this day — but it is reality.
Forty-two million travelers will hit the road or take to the skies. Before that grand turkey feast graces their dinner tables, Americans will first have to endure long lines, suffocating traffic, canceled, delayed and overbooked flights, and lots of stress. It is on this day when we feel the true consequences of letting our transportation system and infrastructure fall apart.
Yes, Congress is poised to pass a long-term surface transportation bill — the first of its kind in a decade. But that doesn’t change the fact that, right now, there are 70,000 bridges in the U.S. in need of replacement or repair, transit systems choked by anemic budgets, Amtrak trains running through century-old tunnels, millions of miles of neglected highways, an aviation system operating with severely outdated technology and a maritime system, including ports, suffering from decades of neglect.
As frustrated as travelers may feel, there’s a group of people who understand their concerns all too well: the men and women who keep America moving. Transportation employees know, probably more than anyone else, that this country can and must do better when it comes to making travel safe and efficient. After all, they, too, contend with the consequences of a neglected transportation system — and they do so on a daily basis.
Talk to a transportation worker, and you’ll hear about more than just poor infrastructure. They’ll tell you stories about staffing shortages, obsolete and outdated equipment, fatigue on the job, belligerent employers, supposed cost-saving schemes that hurt customers and workers alike, and attacks on bargaining rights. You’ll hear about budget cuts that undermine safety and reliability, and threaten good wages, benefits and job security.
You’ll also hear about dedication, hard work and responsibility. That’s because, despite the immense challenges they face, the men and women who keep America moving remain focused on the needs of the people and country they serve. America’s transportation workforce understands that no matter what obstacles they face, their priority is transporting people and goods as safely and efficiently as possible. Many will give up or postpone Thanksgiving plans with family and friends to accommodate the needs of the traveling public. And that — putting others before yourself — is what the season of giving is all about.
This Thanksgiving, pause for a moment and give thanks to the people who operate, maintain and build our transportation systems. Their commitment to getting the job done is what keeps our journeys safe. Their commitment to service helps make holidays, including the one we’re about to celebrate, possible.
California has more museums dedicated to railroads than any other state in our country – and it’s easy to see why. From the transcontinental railroad to the developing high-speed rail system, rail transportation has played a significant role in shaping this state’s history.
The people of California believe passenger rail is key to the state’s future, too. At a public hearing in Modesto last summer, plans to improve and expand passenger rail service received overwhelming support from area residents, Republicans and Democrats alike. And a new poll prepared by Dean Mitchell of DFM Research found those same sentiments are shared by the people of California’s 10th Congressional District.
Those living in the district enjoy six daily Amtrak train routes in the San Joaquin Valley, running from Bakersfield to Sacramento and the Bay Area. More than 8 of 10 polled say they want to see Amtrak service increased or at least remain the same, and more than 80 percent want commuter rail services increased or maintained at current levels.
Modesto-area residents aren’t alone. As Amtrak continues to grow in popularity – ridership hit an all-time high in 2014 with 31 million passengers – an overwhelming majority of Americans support increasing passenger rail service in all parts of the country, both in traditionally blue and red states from the south to the Midwest and Northeast.
Sadly, not everyone is hearing this call.
Some in Congress continue to fight the old anti-Amtrak wars by proposing the elimination of all federal funding to support the service, which would bankrupt the railroad and strand riders in California and across America. While those efforts have failed, the persistence of anti-passenger rail forces has brought headwinds to efforts to advance a robust passenger rail expansion and modernization plan.
Like the vast majority of Americans, most residents of Stanislaus County and the surrounding areas have shown they don’t agree with such proposals. In fact, when told that Amtrak gets over $1 billion per year in federal support, more than 80 percent say they reject attempts to eliminate it and want to continue the current funding level.
In addition to expanded passenger rail service, Californians also say emphatically that they favor policies making rail transportation safer.
Not unlike the views of most Americans, the idea of running 19,000-ton freight trains – many containing hazardous materials – with only one crew member doesn’t sit well with the people of the 10th Congressional District. With up to 50 freight trains running through the region each day, a stunning 95 percent of residents support a state law requiring a minimum of two crew members on all freight trains running through California – such as the one signed into law in September by Gov. Jerry Brown.
More than 90 percent of those surveyed want national legislation mandating the same thing. This issue impacts passenger rail safety as well, because in most parts of the country Amtrak shares the tracks with freight trains.
Californians understand that having a safe, efficient rail system is vital to a strong economy. We need actions that can bring relief to a clogged transportation system that is choking productivity, stunting job creation and undermining efforts to grow our economy. California voters couldn’t be more clear: they like passenger rail service, they want more of it and they expect their elected officials to make it as safe as possible.
WASHINGTON — Transportation labor leaders — gathered today at the fall Executive Committee meeting of the Transportation Trades Department, AFL-CIO (TTD) — met with key members of Congress to seek solutions to a woefully underfunded transportation system and to boost job creation in what remains a slow recovery that TTD’s leader said is “leaving too many working people behind.”
“The need for long-term investments in our transportation system and infrastructure will not ‘just go away,’” said Edward Wytkind, president of TTD, who added that the dialogue with congressional guests “focused like a laser” on ending the stalemate on crucial investment bills. “With the recent progress on a surface transportation bill and strong bipartisan display of support for the U.S. Merchant Marine, we may be witnessing a brief but important timeout from senseless partisanship.”
TTD hosted roundtable discussions with Rep. Peter DeFazio (D-OR), the ranking Democrat on the Transportation and Infrastructure Committee, Senator Bill Nelson (D-FL), the ranking Democrat on the Senate Commerce Committee, and Rep. Mario Diaz-Balart (R-FL), chairman of the Transportation, Housing and Urban Development Appropriations Subcommittee.
“As Chairman of the Transportation Appropriations Subcommittee, I value input from my friends in the transportation labor community who bring a critically needed front-line employee perspective to our work,” Diaz-Balart said. “By seeking the views of both labor and business, community leaders and other important partners, we can develop real, long-term solutions to our nation’s transportation infrastructure challenges.”
“We need to increase investments in our infrastructure and focus on the areas that will truly help create jobs and support our economy,” Nelson said. “We also need to protect the men and women who are out there every day making our transportation systems work.”
“Transportation infrastructure is at the heart of the U.S. economy. Our economic competitiveness, our businesses and millions of American jobs depend on robust investments in our crumbling network of roads, bridges, highways and transit systems,” DeFazio said. “We must continue to push for legislation that will modernize our nation’s transportation infrastructure, create good jobs and enhance the rights and working conditions of the men and women who keep America moving. I thank TTD for joining in that effort.”
The Executive Committee also held a discussion about plans for member education in the 2016 presidential election.
TTD, which represents some 2 million workers in every sector of transportation, has been working with its affiliates on a flurry of key issues. Just today TTD and its maritime and aviation affiliates sent a letter to President Obama urging his Administration to keep maritime and aviation out of any TTIP negotiations. TTD has aggressively countered the trucking lobby’s agenda to bring “unscientific” hair specimen drug testing to front line bus and truck drivers. And TTD coordinated efforts with its member unions to advance a surface transportation bill out of committee last week that awaits House floor consideration.
“When you’re talking about transportation jobs, you’re talking about middle-class jobs — the types of jobs that elude too many Americans,” Wytkind added. “The policies that affect our sector have a real impact on working families, and that’s something Congress can’t forget despite working in the Washington bubble.”
Washington — Edward Wytkind, president of the Transportation Trades Department, AFL-CIO (TTD), issued the following statement on the progress to build a new Hudson River rail tunnel:
“We are pleased that Governors Chris Christie (N.J.) and Andrew Cuomo (N.Y.) have advanced a joint plan — in a letter to President Obama — to build a desperately needed Hudson River tunnel that serves Amtrak and commuter rail traffic between New Jersey and New York, and links to the entire Northeast Corridor. We applaud the governors for coming together to offer a path forward and thank Senators Charles Schumer (D-NY), Cory Booker (D-NJ) and Robert Menendez (D-NJ) for their leadership on this important issue.
“While we will want to review the details of this proposed funding partnership between New York, New Jersey and the federal government, today’s news gives us hope that this looming mobility and economic crisis may be resolved.
“We have long called for investment in a new Hudson River rail tunnel, especially since Superstorm Sandy devastated the region’s infrastructure including these tunnel crossings. Soon, Amtrak will be forced to initiate rolling shut downs of tunnels for major repairs and upgrades. The chaos and economic damage a shutdown of any of Amtrak’s tunnels would cause are immeasurable as commuters and businesses alike would face many years of severe disruptions.
“We want to thank Secretary of Transportation Anthony Foxx for his persistence. The Secretary’s aggressive effort to bring the parties together kick-started New Jersey-New York negotiations and led to today’s progress.
“We urge the Obama Administration and Governors Christie and Cuomo to reach an agreement quickly on a full funding plan for a Hudson River rail tunnel. This project will put thousands to work, give Amtrak and commuter railroads the infrastructure they need to meet projected growth in traffic and serve as a much needed shot in the arm for our economy.”
Decades of wrong-headed ideology and public policies backed by the corporate lobby and extremists have dramatically altered America’s economic landscape. Advancements made by generations of workers — including fair wages and decent benefits, safe working conditions and the right to form unions and bargain collectively — have been beaten down in favor of dangerous austerity policies, a tax code that coddles the rich, rigged trade deals that send good jobs overseas and what seems like free rein by employers to break unions.
These backward policies have led to an intolerable wage gap, the lowest union density since the 1930s and 35 years of wage stagnation for working Americans. By removing union representation, arguably, the most reliable way for working people to demand better, from the equation, upward mobility and economic stability — characteristics that define the American Dream — have become increasingly difficult to achieve.
Despite these challenges, there is a smart strategy that can boost our economy and help rebuild the middle class: investing in our failing infrastructure and transportation systems.
WASHINGTON — In a letter to the leadership of the Transportation and Infrastructure Committee, the Transportation Trades Department, AFL-CIO (TTD), together with member unions and coalition partners, is urging lawmakers to follow established protocol for developing federal drug testing procedures and exclude provisions for hair specimen testing from any House surface transportation bill.
Historically, experts at the Department of Health and Human Services (HHS) have determined how and when new drug testing procedures should be administered. Those guidelines are then used by the Department of Transportation (DOT) to create federal drug testing standards for bus and truck drivers, and other transportation employees.
HHS has not determined whether hair is a valid and reliable specimen for use in federal drug tests and has not issued technical guidelines permitting its use. Despite this, a provision in the Senate’s version of the surface transportation bill would circumvent HHS and allow bus and truck companies to use hair samples to comply with DOT drug testing.
“The Senate has undermined the expertise of scientists and potentially jeopardized the jobs of thousands of bus and truck drivers with this unproven testing method,” said TTD President Edward Wytkind. “We urge the House to reject the Senate’s hair testing provision and ensure that federal drug tests are backed by scientific and forensically sound evidence. Nothing less should be acceptable.”
Studies show that hair testing may have an inherent racial bias. Darker and more porous hair retains some drugs at greater rates than lighter hair. Hair specimen can also cause individuals to test positive for drugs they never ingested, as drugs from the environment can absorb into hair and cause positive results.
“The science behind hair testing is questionable and the drug test results it produces may be discriminatory and could produce false positives,” Wytkind warned.
The following organizations joined TTD on the letter:
American Civil Liberties Union Association of Flight Attendants-CWA Air Line Pilots Association American Medical Review Officers, LLC American Train Dispatchers Association Amalgamated Transit Union Brotherhood of Railroad Signalmen International Association of Machinists and Aerospace Workers International Brotherhood of Teamsters Jewish Alliance for Law and Social Action Lawyers’ Committee for Civil Rights and Economic Justice National Air Traffic Controllers Association National Workrights Institute Sheet Metal, Air, Rail and Transportation Workers-Transportation Division Sailors’ Union of the Pacific Transport Workers Union of America United Steelworkers
In a letter to the Department of Health dated July 29, 2015, President Edward Wytkind of the Transportation Trades Department (TTD) of the AFL-CIO supported the gold standard in drug testing but opposed unsubstantiated hair specimen testing. Read the letter below.
On behalf of the Transportation Trades Department, AFL-CIO (TTD), I write to comment on the Substance Abuse and Mental Health Services Administration (SAMHSA) Request for Information Regarding the Use of the Hair Specimen for Drug Testing. By way of background, TTD consists of 32 affiliate unions that represent workers in all modes of transportation including those who would be directly impacted by any changes made to the current Mandatory Guidelines for Federal Workplace Drug Testing Programs. We therefore have a vested interest in this notice. In addition to the comments that follow, we endorse those submitted independently by TTD affiliates, the Air Line Pilots Association (ALPA), International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division (SMART TD), and the Transport Workers Union of America (TWU).
We reconfirm transportation labor’s commitment to ensuring the highest level of safety across our transportation system. We recognize that an important component of that standard is maintaining a drug-free workforce, and the workers represented by TTD affiliates are dedicated to upholding that principle. TTD unions also share in this commitment by operating effective programs on drug and alcohol education, prevention, and elimination.
As SAMHSA is aware, the Omnibus Transportation Employee Testing Act of 1991 requires the Department of Transportation (DOT) to adopt HHS’s Mandatory Guidelines for Federal Workplace Drug Testing Programs as the foundation of its policies for testing transportation workers for drugs and alcohol. Thus, any changes to HHS’s scientific and technical guidelines will necessarily change DOT drug and alcohol testing policies as well.
SAMHSA’s notice under consideration is a Request for Information regarding a variety of issues related to the use of hair specimen for drug testing. While it is not a proposal to permit hair specimen testing, the notice indicates that the Drug Testing Advisory Board (DTAB) is considering the scientific supportability of amending the Mandatory Guidelines to allow entities to test hair specimen for drug use.
Given that more than six million transportation workers are subject to DOT drug testing requirements, SAMHSA must ensure that any changes to the longstanding federal testing standards are backed by objective, scientifically and forensically sound evidence that prove a new testing method can be applied in an even and fair manner. However, the current state of hair testing cannot meet this requirement, and we respectfully request that SAMHSA not propose hair as an alternative specimen for federal drug tests.
SAMHSA’s Past Concerns for Hair Testing Remain
In 2004, SAMHSA proposed revisions to its Mandatory Guidelines to establish hair as an alternative specimen in drug tests. In the preamble of that notice, the agency identified external contamination and hair color as concerns particular to hair specimen testing. Four years later, the agency rescinded its proposal, writing that, “with regard to the use of alternative specimens including hair…significant issues have been raised by Federal agencies during the review process which require further examination, and may require additional study and analysis.” Those same concerns SAMHSA expressed in 2004 remain today.
As noted above, the Omnibus Transportation Employee Testing Act of 1991 requires DOT to test transportation workers for the illegal use of drugs. Restricting workers’ exposure to drugs or proximity to those who illegally use drugs is not contemplated under the statute. As such, SAMHSA must ensure that an alternative specimen and the standards by which to test the specimen can reliably and conclusively prove the donor ingested the drug and was not merely exposed to it. In the case of hair specimen, however, this is not possible.
Exposure to drugs in the environment can contaminate hair, potentially causing the specimen to test positive even in the absence of drug ingestion. In 2004, SAMHSA stated that washing procedures may remove some contaminates, but that testing for a metabolite indicative of only ingestion would differentiate contamination from actual use.
To date, experts have not identified a biomarker indicating ingestion of cocaine or marijuana. Without such a substance to test for, workers are forced to put their faith in labs’ washing methods to remove external contaminates. The theory holds that these procedures eliminate contaminates and what remains after completion of the wash is the presence of ingested drugs.
However, it is widely held that wash procedures are not capable of removing all contaminates from the specimen. The residue left behind is particularly troubling in hair testing because the concentration at which labs test for drugs in hair is extremely small – at the nanogram and pictogram levels. Thus, even the slightest remains of passive contamination could cause a worker to test positive for a drug she or he never ingested. As additional states legalize the recreational use of marijuana, this concern will continue to grow.
If an individual may be barred from gaining employment or fired from her/his job solely on the basis of a positive drug test, SAMHSA must have complete confidence in the accuracy and reliability of that test result. The possibility of passive contamination of hair specimen does not allow for such confidence.
Hair Color, Treatments, and Disparate Impact
Natural qualities and treatment of hair can also affect how hair specimen test for drugs. For instance, melanin is a known receptor for certain drugs. Some evidence shows that individuals with darker hair retain some drugs at greater levels than those with lighter hair. Also, cosmetic treatments such as dying or straightening can damage hair and increase the absorption of drugs. Similarly, curly hair may be prone to damage and thus more susceptible to drug bonding.
In light of this evidence, some have raised concerns for whether hair testing inherently has a racial bias. While SAMHSA dismissed this concern in 2004, we highlight an ongoing case alleging a hair testing program caused disparate on the basis of race.
Ten African Americans brought a case before the United States Court of Appeals for the First Circuit against the Boston Police Department’s (BPD) drug testing program. The plaintiffs claimed “that the department’s program, which used hair samples to test for illegal drug use, caused a disparate impact on the basis of race in violation of Title VII of the Civil Rights Act of 1964.”
As part of their case, the plaintiffs presented eight years of BPD drug program test results demonstrating a statistical significance in the difference in rates at which African Americans tested positive for cocaine compared to their Caucasian counterparts. In May 2014, the Court found that the “difference in outcomes…were not random” and that, “we can almost be certain that the difference in outcomes associated with race over that [eight year] period cannot be attributed to chance alone.” The Court held that the plaintiffs proved “beyond reasonable dispute a prima facie case of disparate impact under Title VII” of the Civil Rights Act of 1964. In doing so, the Court reversed and remanded the US District Court for the District Massachusetts summary judgement to the defendants.
While the case is now back at the District Court, the May 2014 decision must not be taken lightly. The possibility that a drug testing program can discriminate is deeply troubling. Discrimination has no place in federal regulation, and we must insist that new federal testing standards can be applied evenly to all participants.
Lack of Standardization
Today, virtually no standardization exists among hair testing programs. SAMHSA examines this issue in the notice, requesting feedback on whether federal standards should be set for various aspects of hair tests. As SAMHSA considers the lack of standards for hair testing, we refer the agency to the highly standardized procedures contained in the Mandatory Guidelines on urine specimen testing.
For decades, HHS has required employers to test workers for the illicit use of drugs by testing employee urine. The HHS Mandatory Guidelines provide comprehensive and standardized procedures for the complete process of urine testing. These requirements include that urine specimen collectors and Medical Review Officers receive initial and recurrent training on urine testing standards; specify exact procedures for capturing, labeling, and shipping specimens; and specify testing requirements and procedures labs must follow. These standards help ensure professionalism and consistency in the collection of specimens and helps reduce discrepancy and error in the treatment of specimen.
While labs performing hair testing conceal much of their information under proprietary protection, publicly available information shows vast inconsistencies in hair testing today. Labs collect different amounts of hair and from different locations, they boast superiority of their version of external contamination wash procedures and analysis of the wash solution, they use various methods to analyze hair specimen, and they even use different cutoff levels at which a test result is considered positive or negative. There is no standardized training requirement for collectors, and labs and their procedures are not held to the high standard of the National Laboratory Certification Program.
We understand that SAMHSA could set these parameters if it proposed hair specimen testing. We also recognize that labs performing these tests will likely provide the agency with a wealth of information about their procedures. But we urge the agency to critically examine that feedback. Just late last year, the Massachusetts Superior Court upheld a 2013 ruling by the Commonwealth of Massachusetts Civil Service Commission that “the present state of hair testing…does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards…” (emphasis in original). The Commission’s decision provides detailed concerns for a variety of aspects of hair testing, including problems with external contamination and the processes and cutoff levels used by the lab performing the employees’ hair tests.
We continue to believe that a drug-free, safe workforce can be achieved while simultaneously protecting the rights and dignities of individual workers. The longstanding HHS drug testing standards have proven effective at maintaining a high level of safety while helping to protect workers from flawed testing techniques, human error, and other issues capable of impacting a drug test result. As adopted by the Department of Transportation, today’s urine testing standards also provide workers with appropriate and necessary due process rights.
The decades-old standards are effective and should continue to be held as the gold standard. Hair testing is not mature enough to be a trusted measure of illicit drug use, and it should be rejected.
We appreciate the opportunity to comment on this notice, and we respectfully request our comments receive due consideration.
 Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs. April 13, 2004, 69 FR 71, 19673-19732.
 In addition to hair specimen, SAMHSA’s 2004 notice also proposed to make oral fluid and sweat alternative specimens for drug testing.
 Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Mandatory Guidelines for Federal Workplace Drug Testing Programs, Revised Guidelines. November 25, 2008, 73 FR 228, page 71858.
 Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs. April 13, 2004, 69 FR 71 19673-19732, page 19675.
 Ronnie Jones, et al. v. City of Boston, et al. No 12-2280 (1st Cir. 2014), page 3.
 Id. at 11.
 Id. at 47.
 Boston Police Department v. Commonwealth of Massachusetts Civil Service Commission, Suffolk Superior Ct. No. 13-1250-A
 In Re Boston Police Department Drug Testing Appeals (“D” Cases), Commonwealth of Massachusetts Civil Service Commission, page 107.
 Id. The 2013 case was brought before the Commonwealth of Massachusetts Civil Service Commission by ten Boston police officers who were terminated by the Boston Police Department after they tested positive for cocaine on hair tests. The officers denied use of cocaine and challenged their terminations on the basis that the science of hair testing is not sound and “the process used to collect and test their samples were seriously flawed, making the test results insufficient to prove ‘just cause’ for their termination.” The Commission reinstated six of the officers with back pay.
Washington, DC — Edward Wytkind, president of the Transportation Trades Department, AFL-CIO (TTD), issued this statement on the Comprehensive Transportation and Consumer Protection Act of 2015, introduced by Sen. John Thune (R – S.D.):
“At a time when our country’s transportation infrastructure is failing and disenfranchised Americans are desperate for work, bipartisan support is crucial to fund our nation’s highway and transit systems, and boost job creation.
“Instead of following a bipartisan model — as Senators James Inhofe (R-OK) and Barbara Boxer (D-CA) of the EPW Committee demonstrated last month — Commerce Committee Republicans are unwisely using their section of the surface transportation reauthorization bill to advance a partisan agenda that harms workers.
“The Thune bill includes a poorly veiled measure designed to blame workers and their unions for all port delays during a bargaining dispute. It also prematurely allows the use of hair specimens for drug testing of bus and truck drivers. These provisions have no place in any portion of the surface transportation reauthorization bill.
“Sen. Thune’s bill also fails to require rail carriers to provide emergency responders with information about the amount and type of hazardous materials moving through their localities — a commonsense measure that is critical to the efforts of first responders to save lives.
“The highway/transit reauthorization bill is one of the most important initiatives Congress will consider this year. Senate Commerce Committee Republicans must stop playing partisan politics with this already long-delayed transportation investment bill, and reject proposals that undermine the rights of employees and fail to support our transportation system.”
Washington, DC — Edward Wytkind, president of the Transportation Trades Department, AFL-CIO (TTD), issues this statement on the consideration of the Amtrak Reauthorization bill:
“We applaud Senators Roger Wicker and Cory Booker for working in a bipartisan fashion to craft a sensible Amtrak Reauthorization bill that will be considered by the Commerce Committee today. The bill proposed by Wicker and Booker provides Amtrak with higher funding levels than the bill passed by the House, and includes reforms to the rail financing program that meet pressing needs to replace 100-year-old rail tunnels and other major infrastructure projects.
“While we strongly support these provisions, we remain concerned that the Wicker-Booker bill allows entities other than Amtrak to bid on service without full assurances that these rail operators will be covered by the same rail labor laws Amtrak follows today. If entities other than Amtrak are going to compete for business in the intercity passenger rail sector, then they should be required to comply with the same rail labor statutes and not be permitted to gain a competitive advantage at the expense of rail employees.
“While we are pleased that the bill contains provisions to bolster rail safety, we believe this legislation misses the chance to advance a number of common sense reforms that will make rail transportation safer. We also reject efforts to use this bill to mandate inward-facing cameras without basic privacy and anti-harassment protections for workers who spend up to 70 hours a week in locomotive cabs.
“We look forward to working with Senators Wicker and Booker to address these shortcomings and to craft a final bill that ensures our nation’s passenger rail system receives the funding and support needed to make it an engine for good jobs, mobility and strong economic growth.”