AMERICAN FED. OF GOVERN. EMP., LOCAL 1533 v. Cheney

• Decision Date: 15 March 1990
• Docket Number: No. C88-3823-DLJ,C89-4112,C89-4443.,C88-3823-DLJ
• Citation: 754 F. Supp. 1409
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1533, et al., Plaintiffs, v. Richard B. CHENEY, Secretary of Department of Defense, et al., Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. H. Lawrence GARRETT, Secretary of the Navy, et al., Defendants. METAL TRADES DEPARTMENT, et al., Plaintiffs, v. H. Lawrence GARRETT, Secretary of the Navy, et al., Defendants.
• Court: U.S. District Court — Northern District of California

754 F. Supp. 1409

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1533, et al., Plaintiffs, v. Richard B. CHENEY, Secretary of Department of Defense, et al., Defendants.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. H. Lawrence GARRETT, Secretary of the Navy, et al., Defendants.

METAL TRADES DEPARTMENT, et al., Plaintiffs, v. H. Lawrence GARRETT, Secretary of the Navy, et al., Defendants.

Nos. C88-3823-DLJ, C89-4112, C89-4443.

United States District Court, N.D. California.

March 15, 1990.

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Anne Wagner of the AFGE Gen. Counsel's Office, Washington, D.C., and Michael Rubin of Altshuler & Berzon, San Francisco, Cal., for plaintiff American Federation of Government Employees ("AFGE").

Jeffrey Sumberg, Staff Atty., Washington, D.C., for plaintiff Nat. Federation of Federal Employees ("NFFE").

David Rosenfeld of Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., and Beth A. Jacobson of O'Donoghue & O'Donoghue, Washington, D.C., for plaintiff Metal Trades Dept. AFL-CIO ("Metal Trades").

David Rosenfeld of Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for intervenor United Ass'n of Plumbers & Pipe Fitters, Local 127.

Asst. U.S. Atty. Shawn B. Jensen and Captain Ray Lee of the Office of Civilian Personnel Management, Arlington, Va., for all defendants.

James E. Eggleston, San Francisco, Cal., and Julia L. Akins of Silver Spring, Md., for the Intern. Federation of Professional and Technical Engineers ("IFPTE") on its application to intervene as a plaintiff.

ORDER REGARDING CROSS-MOTIONS FOR PRELIMINARY INJUNCTION AND FOR SUMMARY JUDGMENT

JENSEN, District Judge.

On January 31, 1990, in a consolidated hearing the Court heard plaintiffs' motions for preliminary injunction and defendants' motions for summary judgment as to disputed provisions of the Department of the Navy's Drug-Free Workplace Program drug testing plan for civilian employees ("the Plan").

At the hearing the Court GRANTED IFPTE's motion to intervene and gave IFPTE and defendants leave to file further briefing on random testing of personnel holding top secret with access security clearances.

The scope of hte drug testing plan under challenge here is quite broad, designating approximately 80,000 civilian Naval employees in over 100 separate job positions for potential random drug testing; in addition, all civilian Naval employees, numbering over 300,000 worldwide, will be subject to the post-accident and reasonable suspicion testing provisions of the Plan. The legal challenge is almost as broad, challenging the post-accident and reasonable suspicion provisions as well as the random testing provisions for all but a handful of the designated job positions.

Based on the briefs and supporting evidence submitted by the parties, the oral argument of counsel, and the applicable law, the Court hereby PARTIALLY GRANTS the motions for PRELIMINARY INJUNCTION, as to identified provisions of the Plan. The Court also PARTIALLY GRANTS the motions for SUMMARY JUDGMENT as to other identified provisions of the Plan.

I. BACKGROUND

A. The Present Litigation

The Department of the Navy employs over 325,000 civilian at its activities and bases around the world. The Navy developed and adopted a Drug-Free Workplace Program to comply with Executive Order 12,564, 51 Fed.Reg. 32,889 (1986) (E.O. 12,564), which directed the heads of all executive agencies to "develop a plan for achieving the objective of a drug-free workplace." Id. § 2(a). As part of such a plan, urinalysis drug testing programs were ordered to be developed within each agency to test for drug use under certain circumstances, in particular, to detect "the use of illegal drugs by employees in sensitive positions" within the federal civil service. Id. § 3(a).

These lawsuits were brought by collective bargaining agents (hereinafter collectively referred to as "the Unions") who represent employees subject to testing under the Plan. The Unions allege that the Plan violates their members' Fourth Amendment right to be free of unreasonable searches as well as violating the Civil Service Reform Act of 1978, which prohibits disciplining federal employees for off-duty misconduct which does not adversely affect job performance.

The actions were consolidated on February 2, 1990. Pursuant to a stipulation entered by the parties in Case No. C88-3823 on September 28, 1989, notice of any implementation of the Plan was required to provide the Unions sufficient time to file for preliminary injunction of the challenged aspects of the Plan. On December 1, 1989, the first 30-day notices of testing issued, and by its Order Issuing Stay, dated December 29, 1989, the Court stayed implementation of the Plan pending disposition of the present motions.

B. The Navy Drug Testing Plan

1. Types of Drug Testing.

The Plan is embodied in Civilian Personnel Instruction 792-3, issued June 30, 1989 (cited herein as "OCPMINST 12792.3"). The Plan establishes four types of urinalysis drug testing for all employees under certain circumstances: (1) testing upon reasonable suspicion of illegal drug use; (2) testing following occurrence of an accident or unsafe practice ("post-accident testing"); (3) voluntary testing; and (4) testing as part of or as a follow-up to drug counseling or rehabilitation. OCPMINST 12792.3 at 23-26.

2. Testing Designated Job Positions.

The Plan further requires random urinalysis testing of employees in 45 identified job classifications, known as "Testing Designated Positions" ("TDPs"). OCPMINST 12792.3 at 17-23. Six of these classifications are "Automatic" TDPs — i.e., subject to random testing regardless of specific job duties;¹ and 39 are "Job Function" TDPs — designated positions in which employees are subject to testing only if their duties involve "national security; protection to life and property; law enforcement; drug/alcohol rehabilitation; public health and safety; or operation or maintenance of transportation or major mechanical or electrical equipment."²See Testing Designated Position List, App. E to OCPMINST 12792.3 at E-4 to E-8 (hereinafter "TDP List"). Applicants for any of these positions are subject to a one-time drug test as part of their application. OCPMINST 12792.3 at 28.

The Unions here do not challenge the voluntary, followup, or applicant testing provisions in the Plan. Further, no challenge is made to the program of testing applicants for TDPs. Finally, plaintiffs do not seek preliminary relief for the following TDPs designated for random testing: Presidential Appointees; Nuclear Weapon Personnel Reliability Program; Military Sealift Command, Nuclear Weapon Personnel Reliability Program; Military Sealift Command Civilian Mariners; Navy Drug Screening Laboratory Employees; and those holding Air Traffic Control positions.

Thus, the features of the Navy Plan presented for the Court's review on these motions are (1) random testing of employees holding Top Secret Clearances with Access and employees in Job Function TDPs (other than Air Traffic Control personnel); (2) the post-accident testing provisions; and (3) the reasonable suspicion testing provisions.

3. Drug Testing Procedures.

Procedures for specimen collection, testing, and chain of custody follow the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" ("HHS Guidelines"), 53 Fed.Reg. 11,970 (April 11, 1988). A general notice announcing the Plan was sent to Navy civilian employees on or about September 1, 1988. Reasonable suspicion and post-accident specimen collections will be scheduled upon approval following the precipitating event. OCPMINST 12792.3 at 23, 26.

Under the Plan, employees found to work in TDPs will receive 30 days notice that their positions have been found to meet the criteria and justification for random testing.³ OCPMINST 12792.3 at 11. An employee subject to random testing will be informed approximately two hours in advance that a urine specimen will be collected, and will be notified of the exact time and location of the specimen collection approximately 30 minutes in advance. OCPMINST 12792.3 at 21.

The Plan requires that all urine samples be tested for the presence of five drugs: cocaine, marijuana, amphetamines, opiates, and phencyclidine (PCP). In cases of reasonable suspicion or post-accident testing, the Navy may also test for any drug in Schedules I and II of the Controlled Substances Act, 21 U.S.C. § 812. OCPMINST 12792.3 at 11.

All urine samples will be initially screened using the Radio-Immuno-Assay ("RIA") technique. If this test is positive for the presence of drugs, a more accurate gas chromatography/mass spectrometry ("GC/MS") confirmatory test will be performed. HHS Guidelines § 2.4(g)(2). All positive laboratory results must be reviewed and verified by a Medical Review Officer before they are reported as positive. HHS Guidelines § 2.7(c). An employee whose test is reported by the laboratory as positive will have an opportunity to present the Review Officer, a physician knowledgeable about substance abuse problems, with evidence of a legitimate reason for the result, such as a doctor's prescription. OCPMINST 12792.3 at 31-32. If the Review Officer determines that there is no medical justification for the positive result, the result will be considered a verified positive result with the consequences discussed below.

Direct observation of urination to provide a testing specimen is permitted under the Plan "if an activity/command has reason to believe that the individual may alter or substitute the specimen." OCPMINST 12792.3 at 13. Testing based on reasonable suspicion of drug use is one circumstance which may provide such reason to believe that tampering is possible; however, the Plan does not require that all reasonable suspicion testing be conducted under direct observation. Id.

Other standard collection procedures further require the employee subject to testing to produce...