Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn.

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No. 87-1555 | JOCEPH F. SPAN a |

ee —

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1988

JAMES H. BURNLEY, IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, et al.,

Petitioners,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

Page

PTET eccnscsncntncccsnvcenenvoniie 11ST ee ESS OE 1

Introduction and Summary ........................ PPT OT eS 1

I. Subpart C Of The FRA Regulations Mandates

Searches Which Are Constitutionally Unreason-

able ...... Ss EO oS a 6

II. Subpart D Of The FRA’s Regulations Exceeds

The FRA’s Authority Under The Federal Rail-

ESET: RT ABE: Seg R ee RT 19

CONCLUSION ...... iichedibldipianbicieecedsoiaiibiniaitiimeii seialecbsiasebanate 29

TABLE OF AUTHORITIES

CASES: Page

Almeida-Sanchez v. United States, 413 U.S. 266

|) ) SE 7,15

Ashwander v. Tennessee Valley Authority, 297

CB GD CID mn cecccesicctoreeseceseaneeeee 19

California v. Ciraolo, 476 U.S. 207 (1986) —........... 11

California v. Greenwood, —— U.S. ——, 55 L.W.

OO) OPS Ee 11

California v. Taylor, 353 U.S. 553 (1957) ............. 23

Connick v. Meyers, 461 U.S. 138 (1983) ................ 12

Cupp v. Murphy, 412 U.S. 291 (1973) ..........0......... 10

Delaware v. Prouse, 440 U.S. 648 (1979) ............... 9

Detroit Police Officers Assn. v. Detroit, No. 88-

7118 (E.D. Mich., June 14, 1988) .............00........ 3

Donovan v. Dewey, 452 U.S. 594 (1981) ................ 14

Dow Chemical Co. v. United States, 476 U.S. 227

{| | Eon ee I Ee 11

Fort Halifax Packing Co. v. Coyne, —— U.S. ——,

65 LW. 4600 (Fume 1, 1067) .......ccccccccccceccccossossees 23

Government Employees Council 33 v. Meese, No.

C-88-1419 SAW (N.D. Cal. June 16, 1988)

(.. . 2 @,, | 3

Griffin v. Wisconsin, —— U.S. ——, 55 L.W.

jt 8? 3 Sj ee pe 8

Guiney v. Rouche, F. Supp.

Ind. Empl. Rights. 598 (D. Mass., May 23,

BOB nnceevncovcccecccvceseosipecennsunttiesensecumananiaaannanneennas 3

Harmon v. Meese, No. 88-1766 (D.D.C., July 29,

BOB) oncecococececcosesevepesssncntunsenmcadtessinsisuansiaiaaaiaanaaeen 3,4

Local 3, Policemen Benevolent Ass’n v. Township,

, 3 BNA Ind. Empl. Rights 699

(3rd Cir., June i ee 3

Lovorn v. Chattanooga, 846 F.2d 1539 (6th Cir.,

ROD eccecacccrcescesiscosencnssensnpsusensunabonmnnainnmasnnaaaaanen 3

Maryland v. Macon, 472 U.S. 463 (1985) ....... eke 11

Metropolitan Life Ins. Co. v. Massachusetts, 471

Wh, FRG CEB mccsscccccsicscrsnssrscisstnaieminanee 23

Michigan v. Clifford, 464 U.S. 287 (1984) _.......... 16-18

Michigan v. Tyler, 436 U.S. 499 (1978) ..000........... 16-18

New Jersey v. T.L.O., 469 U.S. 325 (1985) ........ passim

iii

TABLE OF AUTHORITIES—Continued

Page

New York v. Burger, —— U.S. ——, 55 L.W.

4890 (June 19, 1987) i esate . 18-14

New York v. Class, 475 U.S. 106 (1986)... 11

O’Connor v. Ortega, —— U.S. ——, 55 L.W. 4406

ns scnsuenenl 8, 11, 12

Policemen’s Benevolent Assn. v. Township, 672

F. Supp. 779 (D.N.1. 1987), rev'd, F.2d

——, 3 BNA Ind. Empl. Rights. 699 (3rd Cir.,

Ne ccasennusesce 2

Quadros v. Reagan, No. C-88-1764-RHS (N. D. Cal.,

a sskeseouccsuens 3

Railroad Trainmen v. Terminal Co., 394 U. S. 369

Nee eiununenemsactouce 21-22

Rushton v. Nebraska Public Power Dist., 844 F.2d

Ss sccuccssocscenccces 3

Schmerber v. California, 384 U.S. 757 ( 1966) a 9, 10

Shore Line v. Transportation Union, 396 U.S. 142

SS Ee es 22

Smith v. Maryland, 442 U.S. 468 (1985) . 11

Steelworkers v. Warrior & Gulf Co., 363 U. S. ‘BTA

a suctoceusserenceonscooece 22

Telegraphers v. Chicago & N.W.R. Co, 362 U.S.

Ne cccesacensececes 21

Terminal Assn. v. Trainmen 311 U.S. 1 ( 1943) . 23

United States v. Biswell, 406 U.S. 311 (1972) ..... 14

United States v. Martinez-Fuerte, 428 U.S. 543

I erceeseens 8

United States v. Miller, 425 US. 435 (1976)... 11

Watt v. Alaska, 451 U.S. 259 (1981)... ss 24

Winston v. Lee, 470 U.S. 753 (1985)... 8,9

STATUTES AND REGULATIONS:

Execuitve Order No. 12564... 3

Federal Railroad Safety Act, 45 U.S.C. §§ 202

memes 19-29

Hours of Service Act, 45 U. S.C. §§ 61 et seq......... 3

Railway Labor Act, 45 U.S.C. §§ 151 et seq... 19-29

se passim

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIALS: Page

Hearings on Federal Standards for Railroad

Safety, House Committee on Interstate and For-

eign Commerce, 90th Cong., 2d Sess. (1968) ...... 25-26

Hearings on Federal Railroad Safety Act of 1969,

Subcommittee on Surface Transportation, Sen-

ate Committee on Commerce, 91st Cong., Ist

IRIN: TEI oi. sideccasttnenttabdiietnensialiuneniteabnaimesteeeniamatine 26

Hearings on Railroad Safety and Hazardous Ma-

terials Control, Subcommittee on Transportation

and Aeronautics, House Committee on Inter-

state and Foreign Commerce, 91st Cong., 2d

ee, IIE cocandncticshtamesiencippedeunientnammaiisiietinsitninninteine 27

H.R. 16890, 90th Cong., 2d Sess. (1968) ............... 25

S. 1933, sist Cong., Ist Sess. (1968) -............... — 26

S. 3061, 90th Cong., 2d Sess. (1968) ........................ 27

H.R. Rep. 91-1194, 91st Cong., 2d Sess. (1970) ....20, 26, 27

S. Rep. 91-619, 91st Cong., Ist Sess. (1969) ......... 24-25, 26,

27-28

eee 3, 15, 16, 20-21

OS Oe 3

A I citcssee<terensecscencsonssnvcenetutumneninnsciaes 26

SS, ere seve 28

MISCELLANEOUS:

Federal Railroad Administration Alcohol and

Drug Field Manual, Unit D .................................. 9

Cox, Recent Development in Federal Labor Law

Preemption, 41 Ohio St. L.J. 277 (1980) ......... 23

Fried, Privacy, 77 Yale L.J. 475 (1968) —.............. 9

Washington Post, April 27, 1988 —..............-... 4

Washington Post, May 5, 1988 ..................... -............ 4

Washington Post, July 7, 1988 _...........-...----..-........ 4

Washington Post, July 29, 1988 —..........0-... 5

24 President Documents 774 ........................ ee eeeee eee 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1555

JAMES H. BURNLEY, IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, et al.,

. Petitioners,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”), a federation of

90 national and international unions representing ap-

proximately 13,000,000 working men and women, sub-

mits this brief amicus curiae with the consent of the

parties as provided for in the Rules of this Court.

ARGUMENT

Introduction and Summary

In the brief amici curiae the AFL-CIO, et al., sub-

mitted in Treasury Employees v. von Raab, No. 86-1879

—the case scheduled to be heard in tandem with the in-

stant case—we began by observing that von Raab “pro-

vides a distorting prism through which to consider” the

questions posed by the run of cases challenging drug

testing requirements. AFL-CIO Br. in No. 86-1879 at 3.

That observation applies with even greater force in the

instant case.

At issue here are regulations promulgated by the Fed-

eral Railroad Administration (“FRA”) requiring rail-

roads to conduct drug testing following certain types of

train accidents and “authorizing” railroads to test under

other defined circumstances (such as following certain

rule violations). As in von Raab, the testing program

here applies to all employees falling within a narrowly

defined cohort. And, as in von Raab, the Solicitor Gen-

eral is able to proffer carefully-tailored and quite limited

justifications for the program.

In the final analysis, however, the Government’s de-

fense of these programs rests on the proposition that

while subjecting individuals to blood and urine tests for

drugs may cause “some inconvenience,” Pet. Br. at 35,

such “modest toxicological test[s],” id. at 30 n.30, “en-

tail a minimal intrusion on employees’ expectation of pri-

vacy,” id. at 25. That proposition, if sustained, could be

used to justify virtually any drug testing program no

matter how far-ranging, and not just the more limited

programs before the Court. It is thus essential, in our

view, at the very outset for the Court to be informed

about what is going on in the word of drug testing.

As public concern over drug use in the society has

risen, broadscale, random testing has become very much

the order of the day. These random drug testing pro-

grams lie at the “heart and soul” of the wave of con-

stitutional litigation in the lower courts. Policemen’s

Benevolent Assn. v. Township, 672 F. Supp. 779, 785

(D.N.J. 1987), rev’d, —— F.2d ——, 3 BNA Ind. Empl.

Rights. 699 (3d Cir., June 21, 1988) ."

1Jn just the past four months, since our brief in von Raab was

filed, seven new decisions have been reported concerning the consti-

The nature of the more-contemporary, random testing

programs is perhaps best illustrated by the recently-

announced program for the testing of federal employees.”

Acting pursuant to Executive Order No. 12564, 51 Fed.

Reg. 32889 (1987), which authorizes testing only of em-

ployees occupying “sensitive” positions, the cabinet agen-

cies and large non-cabinet agencies—the “Tier I” agen-

cies for purposes of the drug testing program—have de-

cided to subject to random testing 345,528 federal em-

ployees, roughly 17% of the workforce employed by these

tutionality of random drug testing. The plan of several agencies of

the Federal Government to commence random drug testing, which

we discuss in text infra at pp. 3-5, has been enjoined by three district

courts. Harmon v. Meese, No. 88-1766 (D.D.C., July 29, 1988) (Jus-

tice Department); Government Employees Council 33 v. Meese,

No. C-88-1419 SAW (N.D. Cal. June 16, 1988) (Bureau of Prisons) ;

Quadros v. Reagan, No. C-88-1764-RHS (N.D. Cal., August 22, 1988).

In addition, one appellate court and two district courts have in-

validated random drug testing programs initiated by local govern-

ments. See Lovorn v. Chattanooga, 846 F.2d 1539 (6th Cir. May 23,

1988); Guiney v. Rouche, —— F. Supp. ——, 3 BNA Ind. Empl.

Rights, 598 (D.Mass., May 23, 1988) (Keeton, J.); Detroit Police

Officers Assn. v. Detroit, No. 88-7118 (E.D. Mich., June 14, 1988).

Two courts of appeals have reached contrary conclusions. Ruston

v. Nebraska Public Power Dist., 844 F.2d 562 (8th Cir. 1988);

Local 8, Policemen Benevolent Ass'n v. Township, —— F.2d ——, 3

BNA Ind. Empl. Rights 699 (3rd Cir., June 21, 1988).

2 Indicative of the change in the times is the fact that just three

years after the FRA promulgated the regulations at issue in this

case, and even though, by its own admission, the drug testing that

has been done under those regulations has revealed a level of drug

use “below many previous estimates . . . notwithstanding the fact

that drug users would be expected to be overrepresented in the popu-

lation sampled (employees involved in accidents),” 53 Fed. Reg.

16641 (May 10, 1988), the FRA has recently proposed a new regula-

tion which would mandate random drug testing of every railroad

employee who is covered by the Hours of Service Act, 45 U.S.C.

§§ 61 et seq. See 53 Fed. Reg. 16651-52 (May 10, 1988). Signifi-

cantly, the FRA rejected such a requirement just three years ago.

See 50 Fed. Reg. 31550 (1985) (“it does not appear to be fair to

subject the majority of sober employees to testing in the absence

of some reason to question their fitness”).

agencies.’ The positions designated for such testing in-

clude, e.g., financial analysts, financial assistants, statis-

ticians and secretaries in the Economic Litigation Section

of the Antitrust Division of the Justice Department; *

attorneys in the Appellate Section of the Civil Rights

Division;*® recreation assistants and public affairs of-

ficers employed by the Interior Department;* and pipe-

fitters, cooks, and messmen employed by the Department

of Commerce.’

As the scope of these random drug testing programs

has expanded, the rationale that is being offered has

shifted as well. Increasingly, such programs are defended

not so much on employment-related grounds as on law

enforcement grounds, viz., on the ground that the work-

place provides a convenient situs for detecting illegal

drug use, and that employment-sanctions provided a use-

ful means of deterring such drug use. Thus, for example,

President Reagan has stated that employment-based drug

testing is “an essential part of the effort” to “trans-

form[] illegal drug users into nonusers.”* Former At-

torney General Meese likewise advocated expansive drug

testing programs in part because such program would

“prevent people from disobeying the law.” *® And Assist-

ant Attorney General Bolton, in urging the United States

District Court for the District of Columbia to dismiss a

constitutional challenge to the Justice Department’s plan

to test randomly a sizable number of its own employees,

3 Daily Labor Report, May 5, 1988, p. A-8.

4 See Harmon v. Meese, No. 88-1766 (D.D.C. July 29, 1988).

5 Jd.

6 Washington Post, July 7, 1988, p. A3.

7 Washington Post, May 5, 1988, p. A22.

824 President Documents 774 (remarks to the National Confer-

ence on a Drug Free Workplace, June 9, 1988).

® Washington Post, April 27, 1988, p. 1.

argued that “We believe the whole world is watching .. .

including ... Manuel Noriega.” ”°

The breadth of these random testing programs and the

fact that the government interest underlying those pro-

grams is quite different from the interest asserted

here arguably provides a ground for distinguishing ran-

dom testing from the post-accident testing required by

the FRA regulations. But the threshold question raised

by random testing and raised here—viz., whether the

testing entails only “a minimal intrusion” on employee

privacy—is the same. And while, under the developed

Fourth Amendment law, the Government’s burden in

justifying a drug testing program varies depending on

the degree of the intrusion, the converse is not true:

whether an intrusion is significant does not depend upon

the number of employees being tested or the strength or

weakness of the justification for the testing.

Thus, if the Court were to accept the Solicitor Gen-

eral’s position on this threshold issue that would go far

toward validating wide-ranging random drug testing pro-

gram as constitutionally reasonable. We therefore pro-

ceed in developing our argument on the premise that this

case must be approached as if the lawfulness of random

testing of the type instituted by the Federal Government

were hanging in the balance.

With this in mind, we turn to the specifics of the

FRA regulations at issue here. In Part I we address the

portion of the regulation that mandates post-accident

testing; we show that because drug testing necessarily

threatens significant privacy expectations, the FRA regu-

lations are violative of the Fourth Amendment insofar

as the regulations require testing without any reason to

believe, in a particular case, that the testing will yield

evidence of wrongdoing.

In Part II, we address the portion of the FRA regula-

tion that authorizes, but does not compel, testing under

10 Washington Post, July 29, 1988, p. A17.

other circumstances. As we demonstrate, it is neither

necessary nor appropriate for the Court to decide the dis-

tinct constitutional questions posed by governmental au-

thorization of drug testing by private employers, because

the authorization here is so clearly contrary to the Rail-

way Labor Act as to be beyond the FRA’s regulatory

authority.

I. Subpart C Of The FRA. Regulations Mandates Searches

Which Are Constitutionally Unreasonable.

Subpart C of the FRA regulation provides in pertinent

part that following an accident of the type described in

the regulation, the railroad “shall take all practicable

steps to assure that all covered employees of the raiiroad

directly involved in the accident”—including “each and

every operating employee assigned as a crew member”

and any “dispatcher, signal maintainer, or other covered

employee . . . directly and contemporaneously involved in

the circumstances of the accident”—provide blood and

urine samples for toxicological testing by FRA.” 45

C.F.R. § 219.2038(a) (1), (2). Once secured, the blood

and urine must be “made available” to FRA by mailing

the samples to a laboratory designated by the FRA; the

laboratory then notifies the FRA and the FRA in turn

“notifies the railroad and the tested employee of the re-

sult of the toxicological analysis.” Jd. §§ 219,204(c), 250

(a), 206(d), 211(a).

There is no doubt, and the Solicitor General concedes,

that the “post-accident testing under Subpart CC...

must be regarded as a search within the meaning of the

Fourth Amendment.” Pet. Br. at 24 n.26. It is equally

clear, as the Solicitor General at least implicitly acknowl-

edges, that these searches are conducted absent any “in-

dividualized suspicion” of wrongdoing by the employees

being searched, Pet. Br. at 22: given the multiple causes

of accidents, the fact that an accident has occurred does

not provide reason to believe that any employee—let alone

every crewmember and every other employee somehow

involved in the “circumstances of the accident” whether

or not the employee can be said to have played any role

in causing the accident—was under the influence of al-

cohol or drugs at the time. Thus, to defend Subpart C

the FRA must bear the heavy burden of justifwing these

searches as falling within the very limited cons! tutional!

permission for searches without individualized suspicion.

As we proceed to show, the FRA has failed to sustain

that burden.

A. The Fourth Amendment states: “The right of the

people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall

not be violated.” The central challenge posed by the

Amendment is to define “reasonable” and “unreasonable”

searches.

From the first it has been clear that the Amendment

proscribes more than merely gratuitous invasions of pri-

vacy; viz., invasions unsupported by any reason. The

guiding principle of the Founders is that the Govern-

ment’s power to initiate a search must be limited even

where the Government is acting to further a legitimate

end in a sensible and efficient way. Thus, for example,

while a rational law enforcement officer, dedicated to

maximizing the deterrent power of the law and the ef-

ficacy of police investigations, would no doubt deem it

entirely reasonable to conduct spot searches or searches

based on trained intuition in order to uncover evidence

of wrongdoing, the Fourth Amendment has always been

understood to embody a higher value than promoting the

most efficient or most effective law enforcement techniques.

As the Court has stated:

The needs of law enforcement stand in constant ten-

sion with the Constitution’s protection of the individ-

ual against certain exercises of official power. It is

precisely the predictability of these pressures that

counsels a resolute loyalty to constitutional safe-

guards. [Almeida-Sanchez v. United States, 413 U.S.

266, 273 (1973) ].

To protect the values of the Fourth Amendment, the

Court has held that “individualized suspicion is usually a

prerequisite to a constitutional search or seizure.” United

States v. Martinez-Fuerte, 428 U.S. 543, 560-62 (1976).

In most cases, that suspicion must reach the level of

“probable cause” before a search (or seizure) is per-

mitted; in our society we have decided that at “that point

it is ordinarily justifiable for the community to demand

that the individual give up some part of his interest in

privacy and security.” Winston v. Lee, 470 U.S. 753,

758 (1985).

The probable cause requirement is not an absolute, of

course; “when ‘special needs, beyond the normal need for

law enforcement, make the warrant and probable-cause

requirement impracticable’ ” the Court has “permitted ex-

ceptions” to that requirement and authorized searches

on a “lesser quantum of evidence,” viz., on “reasonable”

(rather than probable) cause, Griffin v. Wisconsin,

U.S. ——, 55 L.W. 5156, 5157-58 & n.4 (June 23, 1987)

(emphasis added). See also O’Connor v. Ortega,

U.S. ——, 55 L.W. 4406 (March 31, 1987); New Jersey

v. T.L.O. 469 U.S. 325 (1985). And the Court has even

held that individualized suspicion is not an “irreducible

requirement” of the Fourth Amendment. United States

v. Martinez-Fuerte, supra, 428 U.S. at 561.

But for present purposes the essence of the matter is

this: “{e]xceptions to the requirement of individualized

suspicion are generally appropriate only where the pri-

vacy expectation implicated by a search are minimal.”

New Jersey v. T.L.0., supra, 469 U.S. at 342 n.8. Ac-

cordingly, as the Solicitor General at least implicitly con-

cedes, to sustain Subpart C the Government must estab-

lish that “{t}]he FRA regulations entail a minimal intru-

sion on employees’ expectation of privacy.” Pet. Br. at

25. As we proceed to show, the intrusion on privacy here

is anything but minimal.

1. Subpart C requires that both a blood and a urine

sample be collected from each covered employee following

each covered accident incident. Blood testing, of course,

necessitates an “intrusion|| into the human _ body.”

Schmerber v. California, ~34 U.S. 757, 767 (1966). And

urine testing, at least as mandated by the FRA, requires

that an individual expose herself; urinate on command

while a government agent watches; and ther turn over

the urine to the government for a chemical analysis."

There can be no doubt that such forced blood and urine

collection implicates vital Fourth Amendment interests,

“the individual’s dignitary interests in personal privacy

and bodily integrity,” Winston v. Lee, supra, 470 U.S. at

761. See AFL-CIO Br. in No. 86-1879 at 8-13.'* That

the collection occurs, under the FRA regulation, immed-

iately after a traumatic event, viz., an accident, at a time

when the employee is likely to feel especially vulnerable,

and takes place under an aura of suspicion, with the test

results going directly to the Federal Government in Wash-

ington, makes the “psychological intrusion,” Delaware v.

Prouse, 440 U.S. 648, 657 (1979), all the more severe,

and the Fourth Amendment concern that much greater.

2. The Solicitor General nonetheless attempts to mini-

mize the Fourth Amendment interests that are involved

here by seeking to trivialize both the nature of the pro-

cedures that are required under Subpart C and the pri-

vacy expectations of the employees who are subject to

™ The FRA’s Alcohol and Drug Field Manual, Unit D, 9% 4.5.2,

4.5.3 at p. D-5 requires that the employee urinate “[u]nder direct

observation” by the technician of the medical facility at which the

urine is being collected.

12 See also Fried, Privacy, 77 Yale L.J. 475, 487 (1968):

[I]n our culture the excretory functions are shielded by more

or less absolute privacy, so much so that situations in which this

privacy is violated are experienced as extremely distressing, as

detracting from one’s dignity and self-esteem.

those procedures. The Solicitor General’s argument fails

at all points.

(a) The fundamental error in the Government’s sub-

mission is its failure to come to grips with the fact that

the Fourth Amendment interest that is implicated here

is the interest in “bodily integrity.” This Court has

never held an invasion of that interest—an invasion of

the body—to be a “minimal intrusion on . . . expecta-

tion[s] of privacy.” Cf. Pet. Br. at 25. To the contrary,

the Court has ruled that even the process of removing

“scrapings” from under the fingernail “constitute[s] the

type of ‘severe, though brief, intrusion upon cherished per-

sonal security’ that is subject to constitutional scrutiny.”

Cupp v. Murphy, 412 U.S. 291, 295 (1973). And whereas

all searches of property are permissible where sufficient

justification is shown, the Court has held that some inva-

sions of the body are per se unconstitutional regardless

of the strength of the government’s justification. See Win-

ston v. Lee, supra. In short, there is no higher Fourth

Amendment value than the protection of the individual’s

bodily integrity.”

Contrary to the Solicitor General’s suggestion, the fact

that it “has become routine in our everyday life” for in-

dividuals to voluntarily submit to the “blood test pro-

cedure” or for men to voluntarily urinate in view of

other men, Pet. Br. at 35-36, is of no relevance in assess-

ing whether the privacy expectations at stake here are

minimal or substantial. By a parity of reasoning, gen-

eral searches of the home could equally be character-

ized as minimally intrusive inconveniences since it is

equally commonplace for homeowners to invite guests to

visit in (and household employees to work in) the home.

13. Cf. Schmerber v. California, supra, 384 U.S. at 767-68 (“Be-

cause we are dealing with intrusions into the human body rather

than with state interferences with property relationships or private

papers ... we write on a clean slate”).

As this hypothetical illustrates, the determinative issue

regarding the existence vel non of a reasonable expecta-

tion of privacy is whether the individual claiming such an

expectation has retained control over access; the frequency

with which the individual has on a selective case-by-

case-basis voluntarily opened up that which she otherwise

has elected to keep private says nothing about whether a

forced government entry is proper. Not surprisingly the

cases in which this Court has found privacy expectations

to be minimal or nonexistent have involved, in the main,

situations in which the individual claiming the privacy

expectation could not reasonably expect to determine

whether an intrusion would occur."

Similarly, and again contrary to the Solicitor General’s

suggestion, the fact that under Subpart C the blood and

urine samples are taken from employees who work in

the railroad industry is quite beside the point. The “op-

erational realities of the workplace” may lead employees

to have a diminished expectation of privacy “in their

place of work”—viz., “in their offices, desks and file cabi-

nets’—at least with respect to “an intrusion [which] is

by a supervisor,” but it is equally true that... [n]ot

everything that passes through the confines of the busi-

ness address can be considered part of the workplace

context.” O’Connor v. Ortega, supra, 55 L.W. at 4407-08

(emphasis added).

In particular, in our society employees do not surren-

der their expectation of privacy with respect to their

14 California v. Greenwood, U.S. ——, 56 L.W. 4409 (May 16,

1988) (bags of garbage placed outside for collection) ; Dow Chemical

Co. v. United States, 476 U.S. 227 (1986) (aerial photographs of

outdoor areas) ; California v. Ciraolo, 476 U.S. 207 (1986) (same);

New York v. Class, 475 U.S. 106 (1986) (vehicle identification num-

ber required to be in plain view); Maryland v. Macon, 472 U.S. 463

(1985) (books in bookstore); Smith v. Maryland, 442 U.S. 735

(1979) (phone numbers called from one’s telephone); United States

v. Miller, 425 U.S. 435 (1976) (checks, deposit slips and the like

held by a bank).

bodily integrity each time they report to work any more

than employees surrender their expectation of privacy with

respect to their “handbag or briefcase each workday.”

Id. at 4407. See AFL-CIO Br. in No. 86-1879 at 13-14.

And while, as the Solicitor General observes, the railroad

industry is “subject to extensive public and private regula-

tion,” Pet. Br. at 26, nothing in that regulatory scheme

—‘the ‘bulk’ of [which] ... relate[s] to the fixed facili-

ties and equipment, not to personnel,” id. at 30 n.380—

suggests that railroad employees’ have diminished expec-

tations of privacy with respect to the integrity of their

bodies.

The closest the FRA comes to identifying some pre-

existing practice or regulation even remotely bearing on

railroad employees’ privacy expectations is its assertion

that “the railroads have historically imposed exacting

physical requirements for employment in particular posts,

including periodic physical exams that typically involve

taking blood and urine samples.” Pet. Br. at 29. But as

we showed in our brief in von Raab, physical examina-

tions are conducted in a medical environment for medical

reasons by medical personnel who are subject to the con-

straints of the medical profession with respect to disclos-

ing the test results, and thus the existence of such pro-

grams does not diminish the exployees’ reasonable

expectations of privacy with respect to the type of

government-mandated drug testing at issue here. AFL-

CIO Br. in No. 86-1879 at 24-26.¥

15 In von Raab, the Solicitor General has argued that “the govern-

ment, in its capacity as an employer, may impose reasonable em-

ployment-related restrictions on the rights of employees that would

be plainly unconstitutional if imposed on citizens at large.” Br. for

Resp. in No. 86-1879 at 20, citing, e.g., Connick v. Meyers, 461

U.S. 138, 147 (1983) (“a federal court is not the appropriate forum

to review the wisdom of a personnel decision taken by a public

agency’).

It is important to note that. whatever its merits, that argu-

ment has no force here since in this case the Government is not

(b) For all these reasons, this case is poles apart from

New York v. Burger, U.S. ——, 55 L.W. 4890 (June

19, 1987), the Court’s most-recent administrative search

case, on which the Solicitor General relies. Pet. Br. at 26,

30. In that case the Court sustained an inspection, with-

out individualized suspicion, of the inventory of an auto-

mobile junkyard. But that inspection implicated only a

minimal privacy interest for two reasons.

First, as the Court explained, the search in Burger

“was of a commercial premises,” and “|a]n expectation

of privacy in commercial premises . . . is different from,

and indeed less than, a similar expectation in an individ-

ual’s home.” 55 L.W. at 4893. Second, junkyard dealers

are so “closely” and “pervasively” regulated, id., that the

junkyard dealer “ ‘cannot help but be aware that his

property will be subject to periodic inspections under-

taken for specific purposes,” id. at 4894 n.16, quoting

Donovan v. Dewey, 452 U.S. 594, 600 (1981). The Bur-

ger Court thus analogized the junkyard business to the

business of selling firearms, 55 L.W. at 4892, and quoted

United States v. Biswell, 406 U.S. 311, 316 (1972), in

which the Court had found that “When a dealer chooses

to engage in this pervasively regulated business and to

accept a federal license, he does so with the knowledge

that his business records, firearms, and ammunition will

be subject ‘o effective inspection.”

This case, in contrast, involves searches of the person,

and not of “commercial property.” And nothing in the

regulations or practices on which the Solicitor General

relies suggests that employees who work on railroads

“cannot help but be aware” that they will be subject to

forced periodic searches by the Government which com-

promise their bodily integrity. Thus, the testing required

by Subpart C does invade a significant expectation of

acting as employer; rather, the Government is acting in its tradi-

tional role of regulator of private employers.

privacy. Because that is so, New Jersey v. T.L.O. re-

quires some measure of individualized suspicion to jus-

tify the intrusions. P. 8 supra. As Subpart C mandates

searches absent such suspicion, the regulation is constitu-

tionally infirm."*

B. In light of the foregoing, the Solicitor General’s dis-

cussion, Pet. Br. at 36-39, of the “governmental inter-

ests” served by Subpart C is ultimately beside the point;

indeed, we do not understand the Solicitor General to

claim that these interests can support the regulation if,

as we have shown to be the case, significant privacy in-

terests are in fact implicated. Nonetheless, our discussion

16 In New Jersey v. T.L.O., the Court stated a second and in-

dependent requirement for dispensing with individualized suspicion :

“ ‘other safeguards’ [must be] available ‘to assure that the individ-

ual’s reasonable expectation of privacy is “not subject to the discre-

tion of the official in the field.” ’” 469 U.S. at 342 n.8.

In the instant case, Subpart C, while placing on the railroads

mandatory obligations to conduct testing, leaves it to the “railroad

representative responding to the scene of the accident/incident [to]

determine whether the accident/incident falls within the require-

ments of .. . this section.” 45 C.F.R. § 219.201(c). The “railroad

representative” thus must make a series of quasi-factual determina-

tions as to whether, e.g., the accident caused “[d]amage to railroad

property of $50,000 or more”; which employees were “directly and

contemporaneously involved in the circumstances of the accident/

incident” and which employees “had no role in the causes(s) of the

accident/incident”; and whether the “safety and convenience of

passengers” requires that the crew continue operating the train

rather than report for testing. See 45 C.F.R. §§ 219.201(a) (ii),

.203(a) (2), (a) (3)(i), (b) (3). As a result, to a considerable degree

Subpart C leaves railroad employees subject to the “discretion of

the official in the field” as to whether they will or will not be tested.

The question of whether field officials are adequately controlled

when so much fact-finding discretion remains is an open one in this

Court, and a question of considerable difficulty. We do not pursue

that question here because, in any event, as we have showed in text,

the searches mandated by Subpart C infringe a substantial expecta-

tion of privacy.

would be incomplete if we did not at least briefly review

the two justifications advanced for the FRA regulations.

1. The Solicitor General first argues that the post-

acident testing mandated by Subpart C will “help to

deter employees from using alcohol and drugs on the

job.” Pet. Br. at 38, quoting, 50 Fed. Reg. 31541 (1985).

That rationale could be used to justify any drug testing

program and indeed any type of search. Permitting

searches without individualized suspicion can almost al-

ways be said to deter the wrongdoing the search is de-

signed to ferret out; the common sense of the matter is

that some wrongdoers will be sufficiently confident of

their own ability to avoid raising suspicion that they will

fear only random-—as distinguished from cause-based—

police investigations. If this rationale were sufficient to

justify a search, the Fourth Amendment would be

drained of its vitality. Not surprisingly, therefore, the

Court has squarely rejected this rationale when advanced

to justify other searches not supported by individualized

suspicion. E.g., Almeida-Sanchez v. United States, supra,

413 U.S. at 273 (“It is not enough to argue... that the

problem of deterring unlawful entry by aliens across long

expanses of national boundaries is a serious one’).

2. The FRA alternatively argues that its program of

post-accident testing will “permit the agency ‘to deter-

'7 Tronically, the instant case may be one of the few in which

there is reason to doubt the Government’s claim that permitting

searches without individualized suspicion will have a deterrent effect

on those subject to the searches.

The claim for deterrence here rests on the premise that em-

ployees who are so fearless or foolish as to be unaffected by the

prospect that their use of drugs or alcohol may cause an accident

in which the employees themselves will be at risk—and who are

thus willing to put their own life and the lives of others on the

line—nonetheless will be deterred by the prospect that if an acci-

dent meeting certain criteria occurs, the employees’ blood and urine

will be tested. That is, at the least, a questionable premise.

mine with greater precision the causes of major accidents

of interest to the public’ and thereby to take further

measures to safeguard the general public.” Pet. Br. at

38-39, quoting, 50 Fed. Reg. 31541 (1985). This argu-

ment, unlike the first, is carefully tailored to support

only post-accident drug testing rather than all forms of

drug testing. Nonetheless, the argument does not with-

stand close scrutiny.

We do not doubt that the Government has a significant

interest in ascertaining the cause of train accidents; in-

deed that interest is much like the governmental interest

in ascertaining the causes of fires. See Michigan v. Clif-

ford, 464 U.S. 287 (1984); Michigan v. Tyler, 436 U.S.

499 (1978). And in Clifford and Tyler the Court went

so far as to sustain warrantless, investigative searches

conducted by fire officials without individualized suspicion

of wrongdoing. But as might be deduced from the So-

licitor General’s failure even to cite those cases, the

searches mandated by Subpart C of the FRA regulations

go further than even Clifford and Tyler allow.

Clifford and Tyler permit fire investigators to conduct

administrative searches of premises damaged by “a fire

of undetermined origin.” Clifford, 464 U.S. at 294. The

permitted search must “not intrude unnecessarily on the

fire victim’s privacy” and must “be executed at a reason-

able and convenient time.” Jd. Moreover, the scope of

the search must be “limited to that reasonably necessary

to determine the cause and origin of a fire and to ensure

against rekindling.” Jd. at 297. And very much to the

point here, if “the primary object of the search is to

gather evidence of criminal activity,” id. at 294, or if, in

the course of the search, “the investigating officials find

probable cause to believe that arson has occurred and re-

quire further access to gather evidence for a possible

prosecution,” Tyler, 436 U.S. at 512, a “showing of prob-

able cause” is required. Clifford, 464 U.S. at 294; Tyler,

436 U.S. at 512.

In at least two respects, the searches mandated by

Subpart C of the FRA regulation go beyond the carefully

confined permission for administrative searches recog-

nized in Clifford and Tyler.

First, the regulation requires testing for all employees

and all accidents, without regard to whether the partic-

ular test is necessary or even useful in ascertaining the

accident’s cause. The regulation thus leaves virtually no

room for judgments to be made as to which employees

are most implicated or least implicated in the accident;

the only time drug testing is excused is if the “railroad

representative” who “responds to the scene” can “imme-

diately determine on the basis of specific information,

that the employee had no role in the cause(s) of the

accident/incident,” and even that narrow exception is

inapplicable with respect to “major train accidents,” viz.,

those involving a fatality, release of a hazardous mate-

rial, or over $500,000 in property damage, 45 C.F.R.

§ 219.204(a) (3). And the regulation does not require,

or even permit, the railroad to limit the testing to em-

ployees suspected of being under the influence of a drug

even though the record demonstrates that railroad repre-

sentatives responding to accidents can be trained to make

such assessments in a reliable way on the basis of non-

intrusive examinations.

Second, Subpart C mandates two discrete intrusions on

privacy, the collection of blood and the collection of urine,

each of which raises independent Fourth Amendment con-

cerns. Yet blood testing alone is sufficient—and, indeed,

is necessary—to determine whether the individual tested

is under the influence of a drug at the time of the test.

Because the drug works its influence only while is in the

blood stream, the only individuals who will test positively

on a urine test but not on a blood test are individuals

who used a drug long enough in the past to no longer

fee] its effects but who still have a metabolite (or by-

product) in their urine. Urine testing, in other words,

adds nothing to an investigation genuinely concerned with

identifying the cause of an accident and therefore ex-

pands the scope of the search in a wholly unwarranted

fashion."*

Because Subpart C mandates testing in every case and

mandates both blood and urine testing, the regulation

mandates searches which are not “reasonably necessary

to determine the cause” of a train accident and which

“intrude unnecessarily” on the privacy of railroad em-

ployees. Clifford, 464 U.S. at 294, 297. Indeed the Sub-

part C urine tests are explicable only on the theory that

the true purpose of the test is not administrative/

investigative but rather “to gather evidence of criminal

activity.” Jd. at 294. In all events, at least this much is

clear: the searches required by Subpart C cannot be

squeezed within the holding and rationale of this Court’s

fire-inspection cases. And there is no other basis on

which the blood and urine testing mandated by the regu-

lation can stand. The regulation should therefore be held

to be violative of the Fourth Amendment.

18 Significantly, Subpart D of the FRA regulations, which au-

thorizes (but does not require) drug testing in circumstances not

covered by Subpart C, requires only urine testing but gives the

employee the option of providing a blood sample, see 45 C.F.R.

$$ 219.305(d), .309; under the regulation the employee must be

informed of this option at the time the sample is collected, must be

told that the “blood test will provide information pertinent to cur-

rent impairment,” and must be advised as follows:

Because of its sensitivity, the urine test may reveal whether

or not you have used certain drugs within the recent past (in

a rare case, up to sizty days before the sample is collected).

As a general matter, the test cannot distinguish between recent

use off the job and current impairment. [Jd. § 219.309(b)(2).]

ee rc er

II. Subpart D Of The FRA’s Regulations Exceeds The

FRA’s Authority Under The Federal Railroad Safety

Act.

Subpart D of the FRA’s regulations, unlike Subpart C,

does not require any drug testing but merely provides

“authorization” to the railroads under defined circum-

stances, such as on the employee’s violation of one of

various operating rules, to conduct such testing as the

railroads deem appropriate. The parties have urged this

Court to decide the constitutionality of this “authoriza-

tion,” and in so doing to resolve the novel question of

whether searches conduct by a private party pursuant to

governmental authorization must satisfy the dictates of

the Fourth Amendment. See Pet. Br. at 24-25 n.26; Pet.

App. 10a-13a.

In our view, however, it is not necessary, and there-

fore not appropriate, to resolve this constitutional issue.

Cf. Ashwander v. Tennessee Valley Authority, 297 U.S.

288, 346-47 (1936) (Brandeis, S., concurring.) For, as

we proceed to show, Subpart D is so clearly contrary to

the Railway Labor Act, 45 U.S.C. §§ 151 et seg. (“RLA”),

as to fall outside the FRA’s regulatory authority under

the Federal Railroad Safety Act, 45 U.S.C. §$§ 421 et seq.

(“FRSA”)

A. It is important to be clear at the outset as to pre-

cisely what is intended by the “authorization” of drug

testing contained in Subpart D. The Solicitor General

coyly notes that Subpart D was promulgated “in part to

1 The court of appeals in this case considered and rejected a

variety of statutory arguments, including several based upon the

RLA. See Pet. App. at 32a-34a. It is not entirely clear to us

whether the argument developed in text was subsumed within any

of the statutory contentions pressed before the lower courts.

Nonetheless because this is a pure question of law, because the

FRA will have a full opportunity to respond to our submission in

its reply brief, and because a ruling on this ground would avoid a

needless constitutional decision, we believe the Court is free to

reach the statutory issue even if the issue had not been squarely

presented below.

preempt state and local rules that might otherwise have

prohibited breath and urine testing by private employ-

ers.” Pet. Br. at 25 n.26.°° But as the preamble to the

regulation makes clear, the far larger purpose of Subpart

D is to relieve railroads of their obligations under the

RLA to meet and confer with the representatives of their

employees before instituting a drug testing program and

to relieve railroads of the obligation to comply with their

lawful collective bargaining agreements regulating drug

testing. Thus, the FRA explained the need for the regu-

lation in the following terms:

Although the railroads clearly desire to prevent

alcohol and drug-related accidents, and have obvious

incentives to do so, the policy of the Railway Labor

Act, as construed in arbitration and in the courts,

severely limits the ability of management to imple-

ment new techniques to control the problem. .. .

[Plrograms of testing would ... be deemed to offend

the status quo policy of the Railway Labor Act, if

implemented by unilateral action of management.

2° It is far from clear that Subpart D can have such preemptive

effect. Section 205 of the FRSA, 45 U.S.C. § 205, provides in perti-

nent part that:

The Congress declares that laws, rules, regulations, orders and

standards relating to railroad safety shall be nationally uniform

to the extent practicable. A State may adopt or continue in

force any law, rule, regulation, order, or standard relating to

railroad safety until such time as the Secretary has adopted a

rule, regulation, order or standard covering the subject matter

of such State requirement.

As the statutory language indicates, in enacting this section

Congress intended that “[o]nce the Secretary has prescribed a

uniform national standard, the State would no longer have author-

ity to establish Statewide standards.” H.R. Rep. 91-1194, 91st Cong.

2d Sess. at 19 (1970) (emphasis added). Subpart D, however, does

not in any meaningful sense establish national uniformity; under

that Subpart it is left to each railroad to decide whether and to

what extent to administer drug tests following rule violations.

Whether this is the type of federal standard that can displace state

law is thus open to the most serious question.

i tia ee ll, aa

ee eee

In theory, of course, the railroads could bargain

with employees to obtain the right to test. But his-

tory suggests that there is no real likelihocd that

such an agreement could be reached ... [50 Fed.

Reg. 31528 (1985) ; emphasis added. ]

And the FRA explained the effect that Subpart D would

have as follows:

[T]he regulation supersedes any provision of a col-

lective bargaining agreement, or arbitration award

construing such an agreement, and preempts any

State law limiting the ability of an employer to re-

quire testing.

This does not mean that a railroad may not enter

into collective bargaining agreements relating to con-

ditions under which tests may be conducted. The

railroad may do so and is free to observe, as a mat-

ter of practice, any constraints contemplated by the

agreement, so long as the railroad is not inhibited

from effective enforcement of these regulations.

However, the railroad may not divest itself of the

authority conferred by this section... The authority

conferred here is conferred for the purpose of pro-

moting the public safety, and a railroad may not

shackle itself in a way inconsistent with its duty to

promote the public safety. [Id. at 31552; emphasis

added ]

B. It is difficult to imagine a more frontal assault on

the RLA and its policies. The RLA rests on the premise

that “stable and fair terms and conditions of railroad

employment are essential to a well-functioning national

transportation system.” Telegraphers v. Chicago &

N.W.R. Co., 362 U.S. 330, 336 (1960). To achieve such

terms the Act “safeguards an opportunity for employees

to obtain contracts through collective rather than individ-

ualistic bargaining.” Jd. Indeed, the duty to bargain

stated in RLA § 2, First, 45 U.S.C. § 152, First, lies at

“the heart of the Railway Labor Act,” Railroad Train-

men v. Terminal Co., 394 U.S. 369, 377 (1969) .**

“lA]bsent a collective bargaining agreement,” manage-

ment “hires and fires, pays and promotes, supervises and

plans ... freely except as limited by public law and by

the willingness of the employees to work under the par-

ticular, unilaterally imposed conditions.” Steelworkers v.

Warrior & Gulf Co., 363 U.S. 574, 583 (1960). The very

point of the collective bargaining system which the RLA

(and the National Labor Relations Act) seek to foster is

thus to enable employees to secure legally-enforceable

rights which will “regulate or restrict the exercise” of

management’s otherwise unfettered prerogatives. /d.

In promulgating Subpart D, the FRA has, in essence,

decided that the judgments Congress made in enacting the

RLA were wrong (at least with regard to drug testin) ;

collective bargaining is not, in the FRA’s view, an effec-

tive or desirable means of promoting rail safety. Rather,

according to the FRA, rail safety is best served by as-

suring employers unfettered discretion to decide whether

21 Equally “central to [the] design” of the RLA is the Act’s “status

quo requirement,” viz., the obligation “to refrain from altering the

status quo by resorting to self-help while the Act’s remedies [a]re

being exhausted.” Shore Line v. Transportation Union, 395 U.S.

142, 150, 148 (1969). The “immediate effect” of that requirement

is to prevent the union from striking and management from

doing anything that would justify a strike. In the long run,

delaying the time when parties can resort to self-help provides

time for tempers to cool, helps create an atmosphere in which

rational bargaining can occur, and permits the forces of public

opinion to be mobilized in favor of a settlement. Moreover,

since disputes usually arise when one party wants to change

the status quo without undue delay, the power which the Act

gives the other party to preserve the status quo for a prolonged

period will frequently make it worthwhile for the moving

party to compromise with the interests of the other side and

thus reach agreement without interruption to commerce. [J/d.

at 150]

_ = ts eh

and to what extent to administer drug tests. Thus, the

point of Subpart D is not only to allow employers to act

unilaterally with respect to drug testing—itself a cardinal

violation of the RLA—but to remove that subject from

the bargaining table altogether.

The FRA’s action, moreover, it must be stressed is not

based on the belief that safety considerations require test-

ing in Subpart D circumstances. Had the FRA mandated

drug testing beyond Subpart C’s requirements, rather

than leaving the matter to unilateral employer decision-

making, such FRA action would be judged against the

longstanding rule that the bargaining contemplated by

the RLA takes place against the background of “mini-

mum requirements laid down by state authority...

regulating working conditions.” Terminal Assn. v. Train-

men, 311 U.S. 1, 7 (1943). But because Subpart D

seeks to preserve for employers the discretionary right to

test employees, the regulation “comes into conflict” with

the RLA’s “policy of protecting collective bargaining.”

California v. Taylor, 353 U.S. 553, 559 (1957) .*

22 Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,

753-58 (1985); Fort Halifax Packing Co. v. Coyne, Us. —,

55 L.W. 4699, 4704-05 (June 1, 1987).

23 In California v. Taylor, this Court held that a state cannot

apply its civil service law to state employees working on a state-

owned railroad regulated by the RLA because “[t]his state civil

service relationship is the antithesis of that established by collec-

tively bargained contracts through the rail industry.” 353 U.S. at

559. The Court distinguished Terminal Ass'n as a case involving

“minimum health and safety regulations in the interests of railway

employees” which “did not concern a conflict between federally

protected collective bargaining and inconsistent state laws.” Id.

at 560 n.8. Cf. Cox, Recent Developments in Federal Labor Laws

Preemption, 41 Ohio St. L.J. 277, 297-98 (1980) (arguing that “the

NLRA leaves the states free to regulate employment conditions,

provided that the state legislation does not discriminate against

collective bargaining” but that a state law whose only policy is

that certain subjects “should not be fixed by collective bargaining”

is preempted).

Indeed, if Subpart D were deemed to fall within the

FRA’s statutory authority under the Railroad Safety

Act, the FRA would be equally free to remove any other,

safety-related subject from the scope of mandatory bar-

gaining on the same rationale proffered here, viz., that

bargaining under the RLA is too cumbersome a process

and that employer discretion is too important with respect

to the particular matter at hand. Thus, the theory under-

lying Subpart D would ultimately leave the FRA free to

act. as the czar of a wide range of negotiability disputes

under the RLA.

C. It follows that it would take an extraordinary

showing to establish that Subpart D falls within the

FRA’s statutory authority. To defend its regulation the

FRA ultimately must be able to show that the Railroad

Safey Act authorizes the Agency to trump the RLA by

precluding collective bargaining over matters which the

RLA plainly commits to its bargaining process. Such

“repeals by implication’ —which is what the FRA’s claim

reduces to—‘are not favored’; unless “(t]he intention

of the legislature to repeal [is] ‘clear and manifest’ ” the

proper course is to “read the statutes to give effect to

each if we can do so while preserving their sense and

purpose.” Watt v. Alaska, 451 U.S. 259, 266-67 (1981).

And nothing in the language or history of the Railroad

Safety Act supports the sweeping assertion of authority

on which Subpart D necessarily rests.

1. Prior to the enactment of the Railroad Safety Act

in 1970, “scant attention ha[d] been paid to railroad

safety at either the State or Federal levels.” S. Rep. 91-

619, 91st Cong. Ist Sess. at 4 (1969). There were at that

time only a handful of federal rail-safety statutes, most

quite old, and each “appl[ying] to some very specific

safety hazard”; for example, federal authority with re-

spect to freight and passenger cars was limited “to safety

. ee

appliances and certain aspects of the brake system.” /d.

In the main, where standards existed prior to 1970, they

were “self-imposed by the railroad industry” and were

“completely voluntary.” Id.

The Railroad Safety Act was passed because Congress

was persuaded that these “|vjoluntary efforts on the

part of railroads have failed to meet the need.” Jd. at 5.

The basic point of the Safety Act was thus to authorize

the “imposition of mandatory [safety] standards by the

Secretary ...” Id. (emphasis added).

The legislative history of that Act begins in 1968

with the submission to Congress by the Department of

Transportation of a rail safety bill. H.R. 16890, 90th

Cong. 2d. Sess. That bill faltered in the face of labor

and management opposition and was not reported out of

committee in either the House or the Senate; indeed at

the House hearings Representative Springer, the ranking

minority member of the Commerce Committee, commented

that the hearing marked “the first time in a long time I

ean remember that a bill has appeared before this com-

mittee with which neither labor nor management is

happy.” Hearings on Federal Standards for Railroad

Safety, House Comm. on Interstate and Foreign Com-

merce, 90th Cong. 2d Sess. 230 (1968) (“1968 House

Hearings’).

Among the issues that proved most controversial was

the question of whether and to what extent to authorize

the FRA to regulate railroad employees, as distinguished

from railroad equipment. Section 3(a) (3) of H.R. 16890

would have permitted the FRA to promulgate “rules,

regulations or minimum standards governing qualifica-

tions of employees and practices, methods and procedures

of rail carriers”; that provision was the subject of a

great deal of discussion and concern. See 1968 House

Hearings at 61-65, 129-30, 227-32, 240-41, 256-5), 267,

272-73. Indeed, following the House hearings, Senator

Hartke, chairman of the Senate Subcommittee on Surface

Transportation, prepared a bill which the Senator intro-

duced at the start of the next session of Congress, which

would have denied the Secretary power to “issue rules,

regulations, and standards relating to the qualifications

of employees.” S. 1933, 91st Cong. Ist Sess. §2 (1968).

At about the same time that Senator Hartke introduced

his bill, the new Secretary of Transportation concluded

that “a new approach was imperative” and Secretary

Volpe then appointed a labor-management Task Force on

Railroad Safety. Hearings on Federal Railroad Safety

Act of 1969, Subecomm. on Surface Transportation, Sen.

Comm. on Commerce, 91st Cong. 1st Sess. 337 (1969).

Within two months that task force submitted a unani-

mous report which DOT hailed as a “landmark develop-

ment” which “sets the stage for a new era of cooperating

in building a safe railroad system.” Jd. at 246. That

report set in motion the process which led, in relatively

short order, to the enactment of the Railroad Safety Act.

See 115 Cong. Rec. 40204 (1969) (Sen. Prouty) .*

As part of the compromise which led the railroads to

agree to support a federal law the task force unani-

mously recommended

1. That the Secretary of Transportation, through

the Federal Railroad Administration, have authority

to promulgate reasonable and necessary rules and

regulations establishing safety standards in all areas

of railroad safety, through such notice, hearing, and

review procedures as will protect the rights of all

interested parties. [See H.R. Rep. 91-1194, supra,

wd 7 added) (reprinting Task Force re-

port).

*4 Indicative of the significance of the Task Force report is the

fact that it is reprinted in full as an attachment to both the Senate

and House Reports on the FRSA. See S. Rep. 91-619, supra; H.R.

Rep. 91-1194, supra.

In implementing this recommendation, Congress went

to pains to assure that the authority being conferred on

the Secretary to regulate employee qualifications would

be narrowly cabined. Thus, the Senate Commerce Com-

mittee added to the bill drafted by the Transportation

Department, S. 3061, 90th Cong. 2d Sess., the penultimate

sentence now found in § 202(a) of the FRSA, 45 U.S.C.

§ 431(a):

[Nothing in this title shall prohibit the bargaining

representatives of common carriers and their em-

ployees from entering into collective bargaining

agreements under the Railway Labor Act, including

agreements relating to the qualifications of employ-

ees, which are not inconsistent with rules, regula-

tions, orders, or standards prescribed by the secre-

tary under this title.”

The Committee explained:

The ... sentence .. . is intended to preclude un-

warranted interference by the Secretary of Trans-

portation with any matters which traditionally have

been or would have been subject to settlement

through collective bargaining agreements. The pro-

25 When the Senate bill reached the House, Secretary Volpe op-

posed the sentence which the Senate Commerce Committee had

added on the ground that “there is some uncertainty as to whether

agreements relating to qualifications of employees are now within

the scope of the Railway Labor Act” and that Congress should not,

in the FRSA, impliedly resolve that issue; thus Secretary Volpe

urged that the statute simply permit agreements “not inconsistent

with Federal safety requirements.” Hearings on Railroad Safety

and Hazardous Materials Control, Subcomm. on Transportation and

Aeronautics, House Comm. on Interstate and Foreign Commerce,

91st Cong. 2d Sess. 30 (1970). Congress was unmoved by this

objection; indeed the House Committee in its report stated:

The extent to which [sic] collective bargaining relating to quali-

fications of employees has not been considered subject to the

Railway Labor Act, this section is intended to make it applicable

to the Railway Act. [H.R. Rep. 91-1194, supra, at 17.]

tection for agreements arrived at through collective

bargaining would not, however, extend to those

agreements or elements thereof which were incon-

sistent with rules, regulations, or standards pre-

scribed by the Secretary in accordance with the au-

thority over railroad safety granted to him by this

act. [S. Rep. 91-619, supra, at 6-7; emphasis added. |

The House Commerce Committee went still further and

added the sentence now found as the final sentence in

FRSA § 202(a):

Nothing in this title shall be construed to give the

Secretary authority to issue rules, regulations, orders

and standards relating to qualifications of employees,

except such qualifications as are specifically related

to safety.

And on the floor of the House members of the Commerce

Committee assured the House that although the Secre-

tary’s regulatory authority “will necessarily involve per-

sonnel activities ... [t]he Railway Labor Act is in no

way changed or affected by this law.” 116 Cong. Rec.

27612 (1970) (Rep. Springer). “We do not repeal any

portion of the Railway Labor Act and the matter of col-

lective bargaining pertaining thereto.” Id. at 27613 (Rep.

Pickle).

2. The legislative history of the Railroad Safety Act,

then, rather than supporting any possible claim that the

Safety Act was intended to authorize the FRA to pre-

clude bargaining over a mandatory subject under the

RLA, negates that claim. Three aspects of that history

are especially significant here.

First, in enacting the Railroad Safety Act Congress

sought to vest the FRA with the authority to promulgate

mandatory standards to replace “voluntary efforts” by

the railroads. A regulation like Subpart D, which sim-

ply leaves the railroads free to do what they will with

— i.

respect to drug testing, was thus the furthest thing from

Congress’ mind in 1970.

Second, in creating this regulatory authority, Congress

went to pains to place statutory limits on the Secretary

of Transportation’s power over railroad employees. Con-

gress did so in order “to preclude unwarranted inter-

ference by the Secretary of Transportation with any mat-

ters which traditionally have been or would have been

subject to settlement through collective bargaining.” P.

27 supra.

Third, and most important of all, the congressional

sponsors of the law gave express assurances that the

FRSA did not “repeal” and would “in no way change[]

or affect[]” the Railway Labor Act. P. 28 supra.

The Railroad Safety Act thus leaves no room for a

regulation like Subpart D whose purpose and effect is to

place in the exclusive discretion of railroad employers a

matter that the RLA requires be settled by collective

bargaining.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,