932 F.2d 1292 (9th Cir. 1991), 89-70165, International Broth. of Teamsters, Chauffeurs, Western Conference of Teamsters v. Department of Transp.

Docket Nº:89-70165, 89-70166, 89-70185, 89-70186 and 89-70248.
Citation:932 F.2d 1292
Party Name:6 Indiv.Empl.Rts.Cas. 767, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WESTERN CONFERENCE OF TEAMSTERS, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent. AMALGAMATED TRANSIT UNION, etc., et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent. RAILWAY LABOR EXECUTIVES' ASSOCIATION; United Transportation Union, Petitioners, v
Case Date:April 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1292

932 F.2d 1292 (9th Cir. 1991)

6 Indiv.Empl.Rts.Cas. 767,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WESTERN CONFERENCE OF TEAMSTERS, Petitioner,

v.

DEPARTMENT OF TRANSPORTATION, Respondent.

AMALGAMATED TRANSIT UNION, etc., et al., Petitioners,

v.

DEPARTMENT OF TRANSPORTATION, Respondent.

RAILWAY LABOR EXECUTIVES' ASSOCIATION; United Transportation Union, Petitioners,

v.

DEPARTMENT OF TRANSPORTATION, Respondent.

RAILWAY LABOR EXECUTIVES' ASSOCIATION; Brotherhood of Maintenance of Way Employees, etc., et al., Petitioners,

v.

DEPARTMENT OF TRANSPORTATION, Respondent.

The OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION ("OCAWIU"), and Locals 1-219, 1-128 and 1-5, et al., Petitioners,

v.

DEPARTMENT OF TRANSPORTATION, NATIONAL TRANSPORTATION SAFETY BOARD, et al., Respondents.

Nos. 89-70165, 89-70166, 89-70185, 89-70186 and 89-70248.

United States Court of Appeals, Ninth Circuit

April 26, 1991

Argued and Submitted Dec. 11, 1989.

As Amended May 9, 1991.

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Lawrence A. Mann, Alper & Mann, Washington, D.C., for petitioners.

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W. David Holsberry, Davis, Cowell & Bowe, San Francisco, Cal., for petitioner, Railway Labor Executives' Ass'n.

Gary Witlin, Intern. Broth. of Teamsters, Washington, D.C., for petitioner, Teamsters.

Thomas A. Feldman, McKendree, Toll & Mares, Denver, Colo., for petitioners, Oil, Chemical, and Atomic Workers Int'l Union, et al. in No. 89-70248.

Michael B. Roger, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for petitioners, Intern. Broth. of Teamsters.

Bruce R. Lerner, Bredhoff & Kaiser, Washington, D.C., Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, Cal., for petitioners, Amalgamated Transit Union, et al. in No. 89-70166.

Robert Zener, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondents.

Robert A. Naeve, Sheppard, Mullin, Richter & Hampton, Newport Beach, Cal., for amici curiae, Altantic Richfield Co. and Merchants & Mfrs. Ass'n.

Jeffrey W. King, Collier, Shannon & Scott, Washington, D.C., for amicus curiae, Owner-Operators Independent Drivers Ass'n of America, Inc. and Michael York.

Petition for Review of an Order of the Federal Highway Administration of the United States Department of Transportation.

Before TANG, SKOPIL and FLETCHER, Circuit Judges.

TANG, Circuit Judge:

INTRODUCTION

In this consolidated case, the International Brotherhood of Teamsters, Amalgamated Transit Union, Railway Labor Executives' Association, and Oil, Chemical, and Atomic Workers Union (collectively, "the Unions") petition for review of an order issued by the Federal Highway Administration of the Department of Transportation ("FHWA") mandating various forms of drug testing for commercial motor vehicle operators. The Unions argue that the planned implementation of random, pre-employment, post-accident, and biennial drug testing violates the drivers' fourth amendment right against unreasonable searches. The Unions also contend that the FHWA acted arbitrarily and capriciously in promulgating the regulations. We hold that these regulations do not run afoul of the fourth amendment. Neither was the FHWA's decision to promulgate the regulations arbitrary or capricious. Accordingly, we deny the petition for review.

BACKGROUND

  1. The Testing Program

    On June 14, 1988, the FHWA published a notice of proposed rulemaking, in which it proposed that certain commercial drivers be tested for the use of controlled substances. 53 Fed.Reg. 22,268 (1988). Over the ensuing months, the FHWA received approximately 145 comments concerning the proposed drug testing program. 53 Fed.Reg. 47,134, 47,136 (1988). Additionally, 43 persons and organizations testified at four public hearings conducted by the FHWA. Id.

    On November 21, 1988, the FHWA published its final drug testing regulations. 53 Fed.Reg. at 47,151 (1988) (codified at 49 C.F.R. Secs. 391.81-391.123 (1989)). The announced purpose of the testing program was "[t]o detect and deter the use of drugs by bus and truck drivers." 53 Fed.Reg. at 47,135. The FHWA reasoned that:

    Drug testing and sanctions for use will help discourage substance use and reduce absenteeism, accidents, health care costs, and other drug-related problems. It will act as a deterrent to those individuals who might be tempted to try drugs for the first time or who currently use drugs. Finally, drug testing will protect the health and safety of the employees of motor carriers and other users of the highway system through the early identification and referral for treatment of workers with drug use problems.

    Id.

    While recognizing drivers' privacy concerns about the program, the FHWA concluded

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    that "the clear public interest in assuring that commercial motor vehicle drivers perform their duties free of prohibited substances" outweighed the intrusion on drivers' expectations of privacy. Id. at 47,13 7. The FHWA conceded from the outset that data documenting actual drug use by commercial drivers and its role in highway accidents were scarce. 53 Fed.Reg. 22,268, 22,270. The FHWA attributed this dearth of evidence, at least in part, to the fact that commercial drivers generally work without supervision and that epidemiological studies of accident causes were in their nascency. 53 Fed.Reg. at 22,269. Hearings on the proposed regulations produced testimonial evidence and empirical studies corroborating the existence of a drug problem among commercial drivers, but left undetermined the extent of the problem. The FHWA felt, nonetheless, that the combination of evidence adduced at the hearings and the pervasiveness of drug abuse in society in general justified the promulgation of the drug testing regulations. 53 Fed.Reg. at 47,137.

    The regulations require all interstate motor carriers to implement drug testing programs for drivers operating vehicles (i) weighing more than 26,000 pounds, (ii) carrying fifteen or more passengers, or (iii) transporting hazardous materials. 49 C.F.R. Sec. 391.85. The carriers must test all employee drivers and all contract drivers who are under contract with them for ninety or more days a year. The FHWA estimated that the regulations would affect 200,000 motor carriers and three million drivers. 53 Fed.Reg. 47,149.

    The regulations prescribe the institution of drug tests in six different instances. First, drivers must submit to random testing. 49 C.F.R. Sec. 391.109. The random selection of drivers to be tested must be done "in a scientifically acceptable manner." 53 Fed.Reg. 47,134, 47,137. Random tests must be conducted at a rate at least equal to fifty percent of the eligible drivers per year. 49 C.F.R. Sec. 391.109. 1

    Second, the regulations require biennial testing of drivers. 49 C.F.R. Sec. 391.105. Carriers are instructed to conduct the first test in conjunction with the routine medical examinations of their drivers. 49 C.F.R. Sec. 391.105(a). The regulations permit employers to cease biennial testing once they have fully implemented their random drug testing programs. 49 C.F.R. Sec. 391.105(c).

    Third, motor carriers must conduct pre-employment drug tests. 49 C.F.R. Sec. 391.103. Testing is limited to driver-applicants whom the carrier intends to hire. 49 C.F.R. Sec. 391.103(a).

    Fourth, drivers involved in "reportable accident[s]" must arrange to take a drug test within thirty-two hours of the incident. 49 C.F.R. Sec. 391.113. The regulations consider an accident "reportable" if it involves (1) a fatality, (2) an injury demanding immediate medical treatment away from the scene of the accident, or (3) at least $4,400 in property damage. 49 C.F.R. Sec. 394.3.

    Fifth, the regulations require testing when the employer has cause to believe that a driver is using a controlled substance. 49 C.F.R. Sec. 391.99. The conduct inspiring the reasonable suspicion must have been witnessed by at least one supervisor trained in the detection of probable drug use. 49 C.F.R. Sec. 391.99(c).

    Sixth, drivers who test positive for drug use must submit to follow-up testing for up to five years after their return to work. 49 C.F.R. Sec. 391.123.

    The Unions do not challenge the propriety of the latter two drug testing programs (reasonable suspicion and follow-up). They confine their petitions to attacking the validity of the random, biennial, pre-employment, and post-accident testing schemes.

  2. Drug Testing Procedures

    The regulations incorporate the Department of Transportation's procedures for conducting drug tests. 49 C.F.R. Secs. 391.81(b)-391.123 (incorporating in various sections the procedures set out at 49 C.F.R. Secs. 40.1-40.41). As a result, the drug testing

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    collection site must be properly secured and must provide a private enclosure within which urination can occur. Direct observation of urination is allowed only in narrowly defined circumstances where the monitor may reasonably suspect the integrity of the specimen. 2 49 C.F.R. Sec. 40.25(e). The collection procedure must be supervised by either a licensed medical professional or an individual specifically trained in specimen collection procedures. 49 C.F.R. Sec. 40.23(d). Strict collection and chain of custody procedures must be followed. 49 C.F.R. Secs. 40.23, 40.25(f).

    The regulations likewise prescribe the qualifications and testing procedures to be followed by laboratory personnel in analyzing the specimens. 49 C.F.R. Secs. 40.27, 40.29, 40.31, 40.33. Employers may only use laboratories certified under the Department of Health and Human Services' Mandatory Guidelines for Federal Workplace Drug Testing Programs. 49 C.F.R. Sec. 40.39.

    The laboratories initially perform an...

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