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NATIONAL TREASURY EMPLES. UNION v. WATKINS

June 16, 1989

NATIONAL TREASURY EMPLOYEES UNION, Plaintiff,
v.
JAMES D. WATKINS, Secretary of Energy, Defendant


John H. Pratt, United States District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff, the National Treasury Employees Union (NTEU), brings this action challenging the legality of the Department of Energy's (DOE) "Drug-Free Federal Work Place Testing Implementation Program" (DOE Program), which authorizes the random urinalysis drug testing of certain DOE employees the agency has designated as holding "sensitive" positions and "reasonable suspicion" urinalysis testing of all DOE employees. Plaintiff has moved for a preliminary injunction enjoining the implementation of the program on its members pending a decision on the merits. Plaintiff argues that the proposed testing is an unconstitutional infringement of the Fourth Amendment rights of NTEU members. The issues have been extensively briefed and a hearing on the motion was held on June 13, 1989.

 I. Background

 NTEU is a federal sector labor union that represents 2,200 DOE Headquarters employees. All DOE employees in NTEU's bargaining unit have been notified that they will be subject to reasonable suspicion urinalysis testing. Additionally, DOE has notified 31 NTEU member employees that they will be subject to random testing. NTEU seeks preliminary relief only as to 24 of its members *fn1" who are designated for immediate random testing and all of its members who are subject to reasonable suspicion testing.

 The DOE Program was instituted pursuant to Executive Order 12,654, 51 Fed.Reg. 32,889 (1986), which requires all executive agency heads to create and implement plans to achieve a drug-free workplace, including plans to institute random, reasonable suspicion and post-accident urinalysis drug testing of employees. On July 29, 1988, DOE issued regulations describing its program to implement the Executive Order. DOE Order 3792.3. On June 13, 1989, DOE issued a detailed "Drug Free Federal Work Place Plan" (DOE Plan), which explains how the regulations would be implemented, along with a general notice to all of its employees that drug testing would begin after 60 days. Due to the pendency of this action, the government has agreed to delay testing until June 19, 1989.

 Random testing

 The DOE Order sets out five categories of "sensitive positions" which may be subject to random testing. DOE Order § I(2). *fn2" A total of 1,150 out of 16,000 DOE employees nationwide, approximately 7% of the DOE workforce, were designated to hold sensitive positions for which random testing is required. Defendant's Memorandum, Exhibit A, Declaration of J. Merle Schulman para. 19. Employees selected for random testing will generally receive notice within 2 hours of the scheduled test. DOE Order § II(5)(a).

 As stated previously, NTEU seeks preliminary relief against random testing only as to 24 DOE employees. Of these, 18 hold positions as motor vehicle operators and drive cars or vans to transport documents and passengers throughout the Washington metropolitan area. Three of the motor vehicle operators are required to maintain a Level 2 security clearance (a clearance for access to "top secret" information) and carry firearms to protect the documents they transport. The remaining 15 motor vehicle operators are required to maintain a Level 3 security clearance ("secret" information) and do not carry firearms. The remaining six employees of concern to us here are Computer and Communications Specialists or Assistants. These employees operate secured computerized voice and facsimile communications equipment for DOE, transmitting both sensitive and non-sensitive information through appropriate agency channels. The Communications Specialists have a DOE Q/Secured Compartmentalized Information (SCI) security clearance and are required to submit to a background investigation before working in the secured Communications Center.

 Reasonable Suspicion Testing

 The DOE Program also provides for "reasonable suspicion" testing of any employee, regardless of the sensitivity of his or her position and regardless of whether the suspected drug use occurred during work hours. See DOE Order § 4(f). Supervisors are to initiate the reasonable suspicion testing based upon, among other things:

 
(1) observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug; (2) a pattern of abnormal conduct or erratic behavior; (3) arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug use, possession or trafficking; (4) information provided either by reliable and credible sources or independently corroborated; or (5) newly discovered evidence that an employee has tampered with a previous drug test.

 Id.

 Testing ...


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