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

FERNANDEZ, Circuit Judge, with whom Circuit Judge FLETCHER

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 *528clearance,3 truck drivers,4 gas pipeline workers,5 airline personnel,6 prosecutors of drug offenses,7 correctional officers with regular prisoner contact,8 jockeys,9 and workers handling sensitive information10 have all been found to be proper subjects of testing. Of course, it is true that we would feel a cold chill if we knew that workers in some of these categories were on drugs while performing their duties.

It is also true, however, that the courts have excluded some workers from testing programs, in spite of the desire of timorous bureaucrats to test everyone who can be found. So, courts have held that perhaps some accountants, lawyers, typists, clerks and messengers cannot be tested, even where other people in an agency can be.11 We have suggested that some people who work about gas pipelines may also be protected from testing, if their jobs are not safety related. IBEW, Local 1245, 913 F.2d at 1462. Moreover, the Seventh Circuit has observed that administrative and back office personnel who do not pose any great threat to safety or other interests of the government are exempt, even if they work for the armed forces. Dimeo, 943 F.2d at 685. The Seventh Circuit has also held that a “generalized interest in the integrity of the work force” will not support a testing program. Taylor, 888 F.2d at 1199. In addition, even in a prison setting there can be no such testing of employees who neither come into regular contact with nor have opportunities to smuggle drugs to the inmates. Id.

Thus, it must be said that the courts have not yet become entirely insouciant about the Fourth Amendment rights of American workers. Still, the constant dripping of exceptions on the rock of those rights cannot help but have an effect. Each earnestly advanced argument makes the next one seem more plausible. That is particularly true since the explanatory ruminations that each case evokes from the courts offer up language to help the government’s next argument. The arguments of the NRC regarding clerical workers demonstrate that.

Many if not most of those workers have basic tasks which are secretarial, typing, filing, collecting payroll information, preparing payrolls, tracking injuries, and carrying mail. How in the world can those tasks result in a nuclear disaster at a power plant? Well, the NRC says that a drug-taking clerk might smuggle drugs into the plant and distribute them to other people whose jobs are vital. The majority properly rejects that chimaera. Ah, says the NRC, but maybe a drug impaired secretary will wander into a vital area and distract someone or begin pushing buttons. Of course, the same could be said in any situation where a person with a non-vital function could possibly come into contact with a person who has a vital function. Perhaps a prison worker with no access to inmates could get access once or could interfere with a guard. But cf. Taylor, 888 F.2d at 1199. Or perhaps a non-frontline customs worker could interfere with a frontline worker, or induce him to do evil. But cf. Von Raab, 489 U.S. at 678, 109 S.Ct. at 1397. Or perhaps a back office person in the armed forces could run amok and harm national security. But cf. Dimeo, 943 F.2d at 685. Finally, almost any prosecutor, *529clerk or manager could engage in a drug induced disturbance of the Department of Justice. But cf. Harmon, 878 F.2d at 492-93. Other courts have at least implicitly rejected those kinds of scenarios. Yet it is just that kind of possibility that the NRC, in its earnest desire to cast its testing net as widely as possible, has argued as justification for the testing of clerical workers at Diablo Canyon. I do not agree that so ephemeral an argument is justification enough.

In a similar vein, the NRC says that if a disaster does occur, some clerical workers may have some tasks to perform that are of importance because they would “staff” the emergency response center, whatever that means. It seems to me that it does not mean enough to require that all of the clerical workers be subjected to testing at all times.

For these reasons, I cannot agree with that portion of the majority opinion which finds merit in the reasons the NRC gives for its desire to test all clerical workers, and I must add my sough to the jeremiads of others who have watched developments in this area with dismay. See, e.g., Von Raab, 489 U.S. at 680-87, 109 S.Ct. at 1398-1402 (Scalia, J., dissenting); Dimeo, 943 F.2d at 686 (Wood, J., dissenting).

Having said all of this I, nevertheless, concur in the opinion of the majority for rather mundane but still weighty reasons.

On the record before this court, it is not possible to ascertain whether many clerical workers truly do hold positions which would make testing appropriate. Merely labeling people as clerical workers does not lead to an obvious result. See IBEW, Local 1245, 913 F.2d at 1462. Had petitioner presented its case to the NRC in such a way as to allow the making of the necessary discriminations among workers and classifications, I would be more prepared to strike down the portions of the regulations which do sweep too broadly. I suspect that would be a significant portion. As the record stands, it would be quite impossible to shape a proper order. No doubt, the failure of the petitioner to be more specific was driven by its zealous desire to protect all of its members. In so doing, however, it has committed an error akin to the error it ascribes to the NRC — it has tried to accomplish too much.12

Thus, given the state of the record before us, the majority’s determination that we must uphold the determination of the NRC that it should do nothing regarding the clerical workers at this time is surely correct. The same, incidentally, is true of the warehouse workers, although on this record it is even less clear that they are entitled to relief.

In sum, I am unable to accept the NRC’s argument that its reasons for including all clerical workers in its testing regulation are sufficient. They are not. The same may well be true as to some of the warehouse workers. On the other hand, the petitioner’s presentation of its case to the NRC was so unfocused that it is impossible to separate categories of workers who should not be covered from categories of those who should be.

Therefore, I do not agree with the portion of the majority’s discussion which allows the NRC to use a net with mesh so fine that it will catch many who should be allowed to pass through and go free. However, given the state of this record, I concur.

. Skinner v. Railway Labor Executives Assoc., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).

. AFGE, Local 1533 v. Cheney, 944 F.2d 503 (9th Cir.1991). Cf. Harmon v. Thornburgh, 878 F.2d 484, 493 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990).

. International Brotherhood of Teamsters v. DOT, 932 F.2d 1292 (9th Cir.1991).

. IBEW, Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir.1990).

. Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), cert. denied, - U.S.-, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991).

. Harmon, 878 F.2d at 492.

. Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1988).

. Dimeo v. Griffin, 943 F.2d 679 (7th Cir.1991) (en banc).

. Department of the Navy v. Egan, 484 U.S. 518, 527-28, 108 S.Ct. 818, 824, 98 L.Ed.2d 918 (1988).

. Von Raab, 489 U.S. at 678, 109 S.Ct. at 1397; Harmon, 878 F.2d at 492-93.

. Indeed, IBEW’s purported "exemption request” was in effect an attack on the random drug testing requirement itself. The bulk of IBEW’s argument was that random drug testing was unnecessary at Diablo Canyon because the facility had an excellent safety record, the previous policy of administering drug tests for cause was adequate, and there was no evidence of drug use at Diablo Canyon. These general claims demonstrate IBEW’s conviction that the requirement of random drug testing was fundamentally misconceived. Yet a broad-based attack on the very premises of the drug testing rule would be more appropriate in a petition for rulemaking. See 10 C.F.R. § 2.802. The claim regarding categories of workers was similarly general. To challenge the drug testing rule as applied to particular types of workers, the IBEW must make a factual showing narrowly tailored to those workers.