(BLE LETTERHEAD NOT REPRODUCED)

DON M. HAHS

International President

1370 ONTARIO STREET     

CLEVELAND, OHIO 44113‑1702

TELEPHONE: (216) 241‑2630            

FAX: (216) 241‑6516

E‑MAIL: hahs@ble.org            

January 22, 2003

To All General Chairmen

Union Pacific Railroad Company

Dear Sirs and Brothers:

As most of you are aware, at your insistence, I wrote a letter on September 19, 2002, to Allan Rutter, FRA Administrator, complaining that the Union Pacific Employee Assistance Plan (EAP) had violated the confidentiality requirements of the Federal Railroad Administration's regulations for voluntary referral policies. Among other things, I asserted that UP's defense counsel in FELA cases have issued subpoenas to EAP officers for potential evidence relative to alcohol and substance abuse and also regarding family issues. I pointed out that in one case UP FELA counsel obtained psychological tests and marital counseling reports.

Under date of December 17, 2002, Mr. Rutter deflected a number of the points I raised by noting that the "Confidentiality and Information" regulations set forth in 49 C.F.R. Part 40, related to the Department of Transportation Programs, had been amended in 1998. At that time, 49 C.F.R. §40.323 changed the confidentiality policy to allow release of "relevant portions of [employee] information in adversarial proceedings," which include FELA lawsuits initiated by or on behalf of the concerned employee. Having said this, the FRA's Administrator informed us that this exception does not apply to the employee's treatment for, among other things, money problems or stress, or the treatment of the employee's spouse, family members or relations, which actions arose from the employee's treatment for alcohol/substance abuse.

In regard to those qualifications, FRA found that UP has not fully complied with the regulations. Mr. Rutter, therefore, " has accordingly advised UP to revise its EAP information to clarify its confidentiality policy."

Based upon this information about the exception in "adversarial proceedings" and Rutter's suggesting that BLE members should be made aware that only certain types of employee EPA records are protected under FRA and DOT regulations, I believe each of you should give consideration to distributing this information to your members on UP so they can determine if the UP's EAP policies fit their individual situations and needs.

Secondly, I requested General Counsel Ross to determine if there were any other Federal statutes or regulations or State laws that might bar UP's EAP from releasing such documents. It would appear so; however, it is quite clear that these are not an absolute bar. Moreover, some states have Right to Privacy Acts, most do not. In any event, that portion of counsel's memorandum to me is enclosed for your information.

Fraternally yours,

Don M. Hahs

International President

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