Brotherhood of Locomotive Engineers and Trainmen - a division of the Rail Conference of the International Brotherhood of Teamsters

Court upholds DOT direct observation, strip search regulations

Written by BLE-T.org Tuesday, 19 May 2009 19:17

CLEVELAND, May 18 — On Friday, May 15, the United States Court of Appeals for the District of Columbia Circuit denied a petition for review of two Department of Transportation (DOT) drug testing regulations that were published last year. The legal challenge had been filed by the BLET and eight other unions, including the Teamsters and the UTU, along with the BNSF Railway.

At issue were DOT regulations requiring a strip search and direct observation of urine collection when a transportation worker returns to duty after failing or refusing to submit to a drug test, as well as during follow-up tests after a failure or refusal. The legal challenge asserted that the two regulations violated the Administrative Procedure Act (APA) and the Fourth Amendment to the U.S. Constitution.

In finding that DOT complied with the APA, the court — while acknowledging that there was no evidence of any transportation workers using prosthetic devices to “cheat” during drug tests — nevertheless found that the mere existence and availability of such devices made DOT’s actions “reasonable.”

In finding that the regulations did not violate the Fourth Amendment, the court held that “the employees’ prior misconduct is particularly salient, especially compared to their choice to work in a pervasively regulated industry. True, direct observation is extremely invasive, but that intrusion is mitigated by the fact that employees can avoid it altogether by simply complying with the drug regulations.”

In other words, the court held that the need for transportation safety trumped the privacy concerns raised by the drug-testing policy.

BLET National President Ed Rodzwicz said the decision “marks a dark day for BLET members, all transportation workers, and all Americans. As counsel pointed out during oral argument, never before has a U.S. court upheld suspicionless direct observation testing of non-incarcerated civilians.

“This decision is one more example of the fact that elections have consequences, a lesson that is underscored as President Obama prepares to nominate his first Supreme Court appointee,” Rodzwicz added.

Attorneys for the BLET and the other petitioners are studying the opinion and reviewing their options.