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Railroad Workers block DNA testing

By Michael Kuchta

Union Advocate editor


Lawsuits filed by the Brotherhood of Maintenance of Way Employees and the U.S. Equal Employment Opportunity Commission have forced Burlington Northen Santa Fe Railroad to halt clandestine genetic testing of workers suffering from carpal tunnel syndrome. It is the first time the EEOC has sued a company to stop genetic testing.

On Feb. 12, three days after the lawsuits were filed, Burlington Northern Santa Fe agreed to a cease-and-desist order and to suspend testing that seeks to identify a genetic cause for repetitive stress injury among it's employees.

The railroad acknowledged that since March, 2000, it had included genetic testing as part of a standard medical exam it requires for workers filing injury claims. The exams included blood samples, which then were subject to a genetic DNA screening for chromosome 17 deletion. Some studies have linked the genetic condition to the development of some forms of the repetitive stress injury.

Repetitive stress injuries, which include carpal tunnel syndrome, are the leading type of workplace injury, according to federal reports.

Charles Collins, a St. Paul lawyer representing the Maintenance of Way Employees, said the union and EEOC believe the testing is illegal. "The EEOC moved incredibly fast on this," he said.

"Whether it's legal or illegal, everybody thinks it's wrong. The policy is so cobbled together, so heavy-handed and so surreptitious, BNSF is backpedaling as fast as they can on this"

Bruce Glover, general chairman for the Maintenance of Way Employees in the Twin Cities, said the union discovered the testing thanks to Janice Avery, wife of injured worker Gary Avery, of Nebraska.

Glover said Janice Avery, a registered nurse, questioned why her husband was asked to go to an unknown doctor as part of the company medical exam of his injury.

"He got a letter," Glover said, "saying the medical department had reviewed the information in his claim. They couldn't tell is his injury was duty related, so they wanted further testing as the below-named doctor.

"The letter also reminded him of Rule.26.3, that he is subject to any testing the company thinks is necessary."

Janice Avery called the doctor's office in January. Glover said, "and they told her they needed blood for laboratory tests. She asked a few more questions, and they causally mentioned that the purpose of the blood was for genetic testing"

Glover said the railroad had never mentioned genetic testing to injured workers or to the union.

BNSF has since said about 125 workers filed carpal tunnel injury claims since last March, and that about 20 had been tested. But Glover said the accuracy of these figures is unknown.

"How many more there actually are is a fair question," Glover said.

He also nots that the numbers are dramatically higher than the number of repetitive stress injuries BNSF has reported in other federal filings.

2 lawsuits seek same result. The lawsuits against BNSF were filed in the U.S. District Court in Sioux City, Iowa. The EEOC lawsuit claims the genetic testing violates the Americans with Disabilities Act. It seeks to ban the testing, as well as to ban any disciplinary action or termination of employees.

Collin said the two lawsuits are common in many respects, but that the union's lawsuit claims the railroad's testing is an illegal change in working conditions.

Genetic testing is not covered by the railroad's collective bargaining agreement, but such "major" issues must be negotiated. Collins said. "However," he said, "this is illegal. There's nothing we could bargain about . Even if we wanted to, we couldn't agree ti something that ‘s illegal."

He said the testing is illegal in at least half the 28 states in which BNSF operates, including Delaware, where BNSF is incorporates; Texas, where it has headquarters; Kansas, which is BNSF's "state of choice" for law; and Iowa, which Collins said was chosen because of its central location in the BNSF system.

The preliminary hearing on a permanent injunction against the testing is scheduled for April 16.

Reprinted with permission from Feb. 21, 2001, edition of The Union Advocate newspaper. The Union Advocate is the official publication of the Saint Paul Trades and Labor Assembly, AFL-CIO.