International Brotherhood of Electrical Workers, Local 1245 v. United States Nuclear Regulatory Commission & United States of America

966 F.2d 521 Nuclear Reg. Rep. P 20,554 , 61 USLW 2047 , 7 IER Cases 890 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1245, et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION & United States of America, Respondents. No. 90-70647. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 12, 1992. Decided June 11, 1992. Sanford N. Nathan, Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Remar, Oakland, Cal., and Tom Danzell, Walnut Creek, Cal., for petitioners. Charles E. Mullins, Office of the Gen. Counsel, U.S. Nuclear Regulatory Com'n, Washington, D.C., for respondents. Petition to review a decision of the United States Nuclear Regulatory Commission. Before: FLETCHER, D.W. NELSON, and FERNANDEZ, Circuit Judges. OVERVIEW D.W. NELSON, Circuit Judge: 1 Petitioner Local 1245 of the International Brotherhood of Electrical Workers ("Local 1245") appeals the Nuclear Regulatory Commission's ("NRC") refusal to exempt clerical, warehouse, and maintenance employees at the Diablo Canyon nuclear power plant from an industry-wide drug testing program. Local 1245 argues that the testing program is unconstitutional as applied to these employees…

joins, concurring:

This case demonstrates the wisdom shown by the founders of this nation when they insisted upon the adoption of the Fourth Amendment, despite the claims of many that the declaration of explicit guarantees was unnecessary and undesirable. See The Federalist, No. 84 at 531-36 (A. Hamilton) (B.F. Wright ed. 1961). It also demonstrates just how slippery the slippery slope we have stepped upon has become. Perhaps because I have slid down that slope with the rest of the judiciary, I can and do accept most of the reasoning contained in the majority opinion. I agree, also, that it is sufficiently clear that maintenance workers can be subjected to the indignity of mandatory drug testing. However, I believe the NRC went too far when it decided that all clerical workers must have their Fourth Amendment rights sacrificed on the altar of our drug fears.

Since the federal courts have entered upon the enterprise of balancing the privacy of workers against the “need” for testing, more and more citizens have become subject to the escorted trip to the bathroom. For example, railroad workers, 1 customs workers, 2 anyone with a security *528 clearance, 3 truck drivers, 4 gas…

OVERVIEW

Petitioner Local 1245 of the International Brotherhood of Electrical Workers (“Local 1245”) appeals the Nuclear Regulatory Commission’s (“NRC”) refusal to exempt clerical, warehouse, and maintenance employees at the Diablo Canyon nuclear power plant from an industry-wide drug testing program. Local 1245 argues that the testing program is unconstitutional as applied to these employees because they do not have access to the “vital areas” of the plant, are highly supervised, and do not perform job duties that could compromise plant safety. We affirm the decision of the NRC. Local 1245 has failed to establish that the groups of workers in question are not in safety-sensitive positions.

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 1989, the NRC promulgated “fitness-for-duty” regulations that required all commercial nuclear power plants to develop and implement fitness for duty (“FFD”) programs. 1 The regulations specified that each FFD program must include a random drug testing program for workers who have unescorted access to “protected areas” of nuclear facilities. 2 10 C.F.R. § 26.24 (1990). In accordance with the regulations, the Pacific Gas and Electric Company, which…