Amicus Curiae Brief — Eastern Associated Coal Corp. v. Mine Workers

MOTION FILED

MAY’ 4 2000 @

No. 99-1038

In The

Supreme Court of the United States

October Term, 1999

EASTERN ASSOCIATED COAL CORPORATION,

Petitioner,

Vv.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17;

LOCAL 1503, UNITED MINE WORKERS OF AMERICA,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE -

BRIEF AND BRIEF OF AMICUS CURIAE,

_ THE INSTITUTE FOR A DRUG-FREE WORKPLACE,

IN SUPPORT OF THE PETITIONER

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

KATHERINE A. GOETZL

LITTLER MENDELSON, P.C.

1225 I Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Institute for a

Drug-Free Workplace

No. 99-1038

In The

Supreme Court of the United States

October Term, 1999

EASTERN ASSOCIATED COAL CORPORATION,

Petitioner,

V.

UNITED MINE WORKERS OF AMERICA, DISTRICT av

LOCAL 1503, UNITED MINE WORKERS OF AMERICA,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Pursuant to Rule 37.3 of this Court, the Institute for a

Drug-Free Workplace (“the Institute”), by its undersigned

counsel, hereby moves for leave to file its brief as an amicus

curiae in support of Petitioner, Eastern Associated Coal

Corporation.” In support of its Motion, the Institute states:

The Institute is a non-profit coalition of private

businesses and business organizations dedicated to

* Prior to filing this Motion, the Institute sought the consent of

the parties to the filing of its brief, as required by Rule 37.3 of this

Court. The Petitioner consented to the Institute’s request. The

Institute was unable to contact the Respondents, necessitating this

Motion.

promoting and protecting the interests of employers and

employees in effective and responsible drug-abuse

prevention programs.

In this regard, the Institute disseminates information to

assist in the development of workplace drug-abuse

prevention and treatment programs, and participates in

various forums — including legal, regulatory, and legislative

forums — on the development of the law on workplace

substance-abuse prevention throughout the United States.

The Institute has developed an enormous collection of

resources on current laws, regulations, and workplace

policies and practices regarding substance-abuse prevention.

In addition, the Institute has extensive information on the

successes and failures of workplace substance-abuse

programs and what measures have proven most effective.

The Institute believes that its amicus curiae participation

will benefit the Court in this proceeding. The Institute and

its members bring a unique “hands-on” perspective to the

consideration of the efficacy and value of meaningful

workplace drug-testing programs. Its members have

implemented such programs and applied them to sizable

portions of the nation’s work force and, thus, have

substantial experience with the benefits of effective

programs. Accordingly, the Institute and its members can

provide important input on the critical policy issues involved

in this case which the Court should consider.

WHEREFORE, the Institute for a Drug-Free Workplace

respectfully requests that the Court grant its motion and

permit it to file the accompanying brief as an amicus curiae

in support of the Petitioner.

May 4, 2000

Respectfully submitted,

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

KATHERINE A. GOETZL

LITTLER MENDELSON, P.C.

1225 I Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Institute for a

Drug-Free Workplace

TABLE OF CONTENTS

TABLE OO] ALS ERR CMG ccsnsscsccsnscsinsnhtintetnicvabinapiclendaiins ill

EU Eee eC Ts ID oases seincssancaamisisenesncamsginnaiis l

INTRODUCTION AND SUMMARY ..........ccccecssssseseeseeeees 3

PRETATION, ssiissmssissnssiomnoapasnoniaianmiaamaaaimaia 5

I. PUBLIC POLICY DICTATES THAT DRUG- OR

ALCOHOL-ABUSING EMPLOYEES NOT BE

PERMITTED TO WORK IN SAFETY-SENSITIVE

PUIEEE BIRO ncsantsinixananndniniinssenasianinnanicienmedimnnniiania 5

A. The U.S. Supreme Court Has Recognized the

Public Policy Against Employing Drug or Alcohol

Abusers in Safety-Sensitive Positions ...............0.+. 6

B. The Executive and Legislative Branches of the

Federal Government Have Recognized the Public

Policy Against Employing Drug or Alcohol

Abusers in Safety-Sensitive Positions ..............00++. 6

C. State Legislatures and Courts Have Recognized

the Public Policy Against Employing Drug or

Alcohol Abusers in Safety-Sensitive Positions...... 8

II. PROHIBITING REINSTATEMENT OF SAFETY-

SENSITIVE EMPLOYEES WHO FAIL DRUG

TESTS IS A LOGICAL AND NECESSARY

APPLICATION OF THE PUBLIC POLICY WHICH

GIVES PRIORITY TO WORKPLACE, PUBLIC,

AND ENVIRONMENTAL SAFETY ............0000000 10

il

A. Reinstatement of Employees Who Fail Drug or

Alcohol Tests Violates an Established Public

Policy Because It Drastically Undermines

Employer Efforts to Prevent the Placement of

Substance Abusers in Hazardous Positions........ 10

B. Employers with Effective Substance-Abuse

Prevention Programs Terminate Employees Who

Twice Test “Positive” for Illicit Drug Use......... 15

C.Alcoholism and Drug Addiction Are Chronic

Conditions for Which the Risk of Relapse Never

DDNIIE .ocrsscnininiiiieuaiiaaainnaiaaaanns 16

D.Reinstatement of a Safety-Sensitive Employee Who

Failed a Drug Test Sends the Wrong Message to

Courts, Arbitrators, Employers, and Employees

Regarding a Compelling Public Policy.............. 18

Ill. REVERSAL OF THE FOURTH CIRCUIT’S

DECISION IS NECESSARY TO PREVENT

FUTURE DRUG- AND ALCOHOL-RELATED

WORKPLACE TRACSHIPEII .ncssonccsinssescintsanchocntion 20

COIN LLISIIIN, oxeosi<sssuasunniinosenseetasuhinsnlbainaanniieiiainaaaeaianaee 22

ili

TABLE OF AUTHORITIES

FEDERAL CASES |

Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 861 F.2d

REE Ce Tita ee as 10

Eastern Associated Coal Corp. v. United Mine Workers of

America, No. 98-2527, 1999 WL 635632 (4" Cir. Aug. 20,

Ia ess siniosacinteaibnittipiieasusbeanaindanactiealaia ia cateliglia ceashaahnienieiania 10

Exxon Corp. v. Baton Rouge Oil & Chem. Workers Union,

PE Be OOO Ce. FI aiviichsassesctescississchenssitdectec 10

Exxon Corp. v. Esso Workers’ Union, Inc., 118 F.3d 841

FE Fi ivccitlainiipiectccccietmcnteaac ae

Exxon Shipping Co. v. Exxon Seamen's Union, 11 F.3d 1189

EAS el UNEP acicinsssisdntncnsiah sahaamsslipiaaiiataigionstennsiabaipeaaalgiaglecea 10

IBEW, Local 97 v. Niagara Mohawk Power Corp., 143 F.3d

Fe es ee iicichensciadiatacicabehadtileanicheitibrabanliaaasietias 10

Kennecott Utah Copper Corp. v. Becker, 195 F.3d 1201

Fe GN tin once ana 10

National Treasury Employees Union v. Von Raab, 489 U.S.

Re OE iii cicilscisabias acca keusiictiiaanicedianihinkaacelbcahdebenibiaielis 6

Newsday, Inc. v. Long Island Typographical Union, 915 F.2d

ee I iach iiaiidicisileicesnidiniinnndecarniceniaceibina dinate 19

Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602

CU isecsitiiisicicehais gulch accidab dc ble pias nadbebliiandaaili 6

Tennessee Valley Auth. v. Tennessee Valley Trades and

Labor Council, 184 F.3d 510 (6™ Cir. 1999) ......ceseeeseee. 10

Union Pac. R.R. Co. v. United Transp. Union, 3 F.3d 255

Pe See ae ee 10

United Transp. Union v. Union Pac. R.R. Co., 116 F.3d 430

“sah >, : SRO DDRII PORN eOREZE ete OMie ro EN 10

STATE CASES

Clevenger v. Employment Sec. Dep't, 770 P.2d 866

ERPS, Sr NING ssicin ciclo eaecclsaling ite cia talento oaaaaaess 9

iV

Parro v. Industrial Comm'n of Illinois, 657 N.E.2d 882

eas ear acs icine chsonshioeiticiee tes nada eddemaumaniciai ohana kasi sacsabiadich 9

Risch v. State, 879 P.2d 358 (Alaska 1994) oo... eee eeeeeeee 9

Warren v. Employment Sec. Dep't, 724 P.2d 227

EE: SID a pista tiavicaicslephacbslen atin setoindlindickiannccapeiiapbaniaceiaas 9

FEDERAL STATUTES

ZD USAF OSS CAT) CIGD) nn cccssnpeciesenesssccossecssssnensosans 11

BE UTR A.. Se ei ipccncassensnsniininensnanndhtabinntenksbaniunic 7

OF Oh. Bh ee FIED wiicviiccasialsintcnccndibeacnentcebteapmenaianhen 7

STATE STATUTES

ALA. CODE § 25-4-78 (Supp. 1998)...............scsscssssscsrecsseeees 8

PAL. COI SRT CEPA) sicarsctntinscssisenenanasecasinaseninnnianciah 9

ARIZ. REV. STAT. § 23-619.01 (1993)..............cccccssssssrcccesees 8

CAL. LAB. CODE § 3600 (West 1989 & Supp. 1999)............ 9

CAL. UNEMP. INS. CODE § 1256.5 (West Supp. 1999).......... 8

FLA. STAT. ANN. § 440.09 (West 1993)... ceeeeesesereeeseeee 9

FLA. STAT. ANN. § 443.101 (West 1997 & Supp. 1999)...... 8

GA. CODE ANN. § 34-8-194 (Michie 1998)............cceeeeeeeees 8

CEA. COG AMIE. © SOIREE CE IR visncesccinsncscsasssscnedannecnnanseine 9

LA. REV. STAT. ANN. § 23:1081 (West 1998) 0... eee 9

LA. REV. STAT. ANN. § 23:1601(10) (West Supp. 1999) ..... 8

Miss. CODE ADGN. 6 713-7 C1DFB) ncseccvcccssccesascccencasanessevsnces 9

TEX. LAB. CODE ANN. §§ 406.032 & 401.013 (West 1996). 9

VA. CODE ANN. § 60.2-618(2)(b) (Michie 1998).............0... 8

VA. CODE ANN. § 65.2-306 (Michie 1995)............eeceseeeeeees 9

Pe hs SE re a ies neehticnsclairsrcnasnnncinnienin 8

W.. VA. CODE § 23-6-2 (Step. 1996) nnn... scrcosssnsssscccssasvncsesnes 9

FEDERAL REGULATIONS

OG ic Ee FT eh ecsi i sccnnininnossnannnnhannsbiandiianintanzneiien 8

er is BN I IIE isstsesnsnnccicticcsosniicisneaicsidananeynenmennensannn 8

14 C.F.R. Part 121, Appendices I and J (2000)...........000000. 7

SB CF. FORE ZOE oko Fe CII ove riccncsaisssescccsanssnenaccnenes 8

A oar ae IE Se CI csi nanicncccsdnnansancinisinccastiannnasgutancea 8

cs Ie IE nancticaanhicibisivnciechatiniannincincicobinniiannaaicen 7

Ro I siiica seh tnntnnicturitneennnssenticsiniitsaiennisianh 7

A ce I ee ih ties sadininkaees isanenintenncinesicianli 7

MD CPR. Patan GSS wl GO4 (1G) san ssnssinscssssnecsccssenccncesses 7

ee Se a hicnintin cise cccetessnsctncnsonciaeitnnnsnnsinenianseninionncir 6

OTHER AUTHORITIES

A. Beck et al., Cognitive Therapy of Substance Abuse

CETTE isitsicnnsictieocriihiuhsechlescinscnisatiihscnteeliheoslenianniniansiniapiiction 17

Alan Finder, JRT Driver Charged in 5 Deaths; Crash Shuts

Line and Ties Up City, N.Y. Times, Aug. 29, 1991, at Al

PPS AS SDN A RTM TEST Ne PON Oh 7 AR OE ETE aE NT TIE 2 22

David L. Durbin, Alcohol Consumption and Workplace

Accidents, NCCI Digest, Dec. 1991, at 39 oe 12

Dennis J. Crouch, et al., A Critical Evaluation of the Utah

Power and Light Company's Substance Abuse

Management Program: Absenteeism, Accidents, and

Costs, Drugs in the Workplace: Research and Evaluation

Data, National Institute on Drug Abuse, at 169-93 (1989)

siccnihciiecasielaticblicccip ehisanscelletocbieienindacecgiaiietiisanibeth 12, 14

Dennis J. Crouch, et al., Prevalence of Drugs and Alcohol in

Fatally Injured Truck Drivers, 38 J. Forensic Sci. 1342

George Vaillant, M.D., A Long-Term Follow-Up of Male

Alcohol Abuse, Archives of General Psychology, Volume

ee , iiiiclinsnseeiaisnicistsesnhndinbiniieeniainnadianineidniinn 16, 18

Glenna Kay Twing, Working High: When Employees Take

Hits, So Do Profits, Journal of Property Management,

UU, TP A ss cdelinliananlnianil 12

Institute for a Drug-Free Workplace. “Member Survey:

Corporate Drug and Alcohol Policies and Programs.”

I Ts CIO icicsnennitaccceresivesiintivtnsaanconisoisniinlaamen’ 15

vi

Institute for a Drug-Free Workplace. “Oil and Chemical

Industries Survey of Corporate Substance-Abuse

Prevention Programs and Policies."" Washington, D.C.

CREPE tdi tininisdiorcintereddieacemmeindammninoamaaie iciaieesaeen 15

J. M. Polich et al., Stability and Change in Drinking Patterns,

The Course of Alcoholism: Four Years After Treatment

Fe EI TD iknxnsessahecuiiestentaintinhipianvcidbamilnsdibassboenininls 16

John Sheridan & Howard Winkler, An Evaluation of Drug

Testing in the Workplace, Drugs in the Workplace:

Research and Evaluation Data, National Institute on Drug

Py eT Cr ii ihtritisisistabnasinininciananeineine i4

Kristen Delguzzi, Driver Fired Twice For Drug Use, New

Orleans Times Picayune, May 14, 1999, at Al .............. 21

Lyndsey Layton and Don Phillips, Drug Use Cited in Crash

of BWI Train, Wash. Post, Feb. 24, 2000, at B1............. 21

Matthew Mosk, Driver in BWI Train Crash Had Prior Rail

Accidents, Wash. Post, Feb. 25, 2000, at BI... 21

Maxine Bernstein, Trucker in Wreck Had Drugs in System,

The Oregomaan, Apr. 30, T9SG, Ot 5 ..ccccscscessscssseesssssscenss 21

M. Dusoe, The Use of Self-Efficacy Training in the

Treatment of Relapse-Prone Individuals, EAPA

NIN, ES GI Taree a sinis nce sccisosacninsnobisiinsadanehaniiiin 17

National Association of Plumbing-Heating-Cooling

Contractors, The Construction Industry Survey on

SOMA AMES CATE TI GE Yai viccassscsncenscasasssspssssnsensions 14

Occupational Health Programs React 4s Some Employees

Decide Drug Testing Doesn't Work, Occupational Health

Management, Mar. 1994, at 33 .....:csccccscssssecessscssovenssceses 12

Office of Applied Studies, Substance Abuse and Mental

Health Services Administration, Services Research

CE FTG iiisi ict ncn esinsiicessidcsnetitiainninasiidatintn 16

Reginald Stuart, Drug Trace Found in 2 Rail Workers After

Fatal Crash, N.Y. Times, Jan. 15, 1987, at Al......0...... 22

R.L. Rogers & C.S. McMillan, Relapse Traps: How to Avoid

the 12 Most Common Pitfalls In Recovery (Bantam Books

SPE P evisianiantadsinntthiaiisahacaniasisdgeaniaddiicaged baudetadnaineNaiiaciaiadaate 17

Vii

SmithKline Beecham, Drug Testing Index (Mar. 16, 1999)

siadayindcnae ot Mea dshjenckcclanicae aia dacieisunnietbadeahaea aanaenesabantiibcipeaalabsaeai 13

Substance Abuse and Mental Health Services

Administration, U.S. Department of Health and Human

Services, /998 National Household Survey on Drug Abuse

CARR, SI ep cisiiasa sasntixcihihinsceialatnsiseiaenistnisnbeléetbtashinatasens 11

Survey of 1,006 Full-Time Employees, Aged 18 and Older,

Working Outside of the Home, conducted for the Institute

for a Drug-Free Workplace by the Gallup Organization,

Princeton, New Jersey (1995) ..........ccrrsrcscrssssscssessceeses 13

Thomas E. Backer, Strategic Planning for Workplace Drug-

Abuse Problems, National Institute on Drug Abuse, at 4

CRIED scceniicasinsionessnecpsicdepsntinninisiabeededianneiisiakdesisennabensuaniden 12

“Traditional Drug Programs Face Up to _ Chronic

Recidivism,” Wash. Post (Aug. 20, 1990). .......::ccceseeeee 18

U.S. Department of Health and Human Services, National

Drug Survey Results Released with New Youth Public

Education Materials (Sept. 12, 1995) ......cccccsceseseeeeceeees 11

United States Postal Service, Personnel Research &

Development Branch, Office of Selection and Evaluation,

Preemployment Drug Testing: Associations with EAP,

Disciplinary, and Medical Claims Information (July 1992)

isis aeons beaplshcaian aiaatadteiiasshelaLaugabiontagaesmeaiintiniakiaaisigbiniecetaian 14

William M. Marine and Tracy Jack, Analysis of Toxicology

Reports from the 1992 Census of Fatal Occupational

Injuries, Compensation and Working Conditions, Oct.

i TIN caicccinasttedccocesiniateiiaselsninsiahnibalabiieiedeemnaanens 12

No. 99-1038

In The

Supreme Court of the United States

October Term, 1999

EASTERN ASSOCIATED COAL CORPORATION,

Petitioner,

V.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17;

LOCAL 1503, UNITED MINE WORKERS OF AMERICA,

Respondents.

/

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICUS CURIAE,

THE INSTITUTE FOR A DRUG-FREE WORKPLACE,

IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS'

The Institute for a Drug-Free Workplace (the “Institute”)

is a non-profit coalition of major businesses and business

organizations dedicated to promoting and protecting the

interests of employers and employees in effective and

' The Institute hereby certifies, in accordance with Rule 37.6 of

this Court, that no counsel for a party authored this brief in whole

or in part, and no person or entity, other than the Institute for a

Drug-Free Workplace, its members, or its counsel, has made a

monetary contribution to the preparation or submission of this

brief.

responsible drug-abuse prevention programs. The Institute

includes in its membership many of the largest employers in

the United States, and a wide range of companies of all sizes,

chambers of commerce, trade associations, and community

coalitions.

Among other functions, the Institute disseminates

information to assist in the development of workplace drug-

abuse prevention and treatment programs, and to positively

influence the national, state, and local consideration of drug-

abuse prevention issues. The Institute is uniquely positioned

to provide relevant and helpful information on the nature and

dangers of substance abuse, and on the design and

implementation of effective policies and procedures to

combat those problems in the workplace, particularly where

such policies promote the safety and welfare of employees,

their co-workers, and the public at large.

The Institute has a significant interest in the questions

presented in this case. By holding that an arbitration award

reinstating an employee, who has repeatedly tested

“positive” for illegal drug use, to a safety-sensitive position

does not violate public policy, the U.S. Court of Appeals for

the Fourth Circuit has failed to recognize the increased

likelihood that the employee’s drug-related impairment

could cause or contribute to an accident and the potentially

catastrophic consequences of such an accident. The decision

inappropriately and unjustifiably undermines employers’

ability to provide safe workplaces, and to take necessary

steps to protect life, property, and the environment.

The Institute’s members have a strong interest in

ensuring that the disciplinary component of their drug-free

workplace policies cannot be evaded by employees who —

like the employee in this case — claim to have temporarily

relapsed into illegal drug use because of a “personal/family

problem.” A policy of mandatory reinstatement of a safety-

sensitive employee who tested “positive” for marijuana, if

not reversed by this Court, would drastically diminish the

positive deterrent effect that drug-free workplace programs

have on employee substance abuse.

INTRODUCTION AND SUMMARY

The Fourth Circuit’s decision to uphold the arbitrator’s

award reinstating former employee James Smith (“Mr.

Smith”) violates the well-established public policy against

allowing drug-impaired employees to work in safety-

sensitive positions. As the First, Third, Fifth, Eighth, and

Eleventh Circuits have recognized, prohibiting reinstatement

of safety-sensitive employees who have tested “positive” for

illicit drug use is a logical and necessary application of that

public policy. That public policy — grounded in concerns

relating to public, environmental, and workplace safety — is

of overriding importance, and requires that the Fourth

Circuit’s decision be reversed.

Petitioner’s employee, Mr. Smith, was a Mobile

Equipment Operator. That position required a Commercial

Driver’s License, and thus Mr. Smith was subject to drug

and alcohol testing under the U.S. Department of

Transportation’s regulations. In addition, Petitioner’s drug-

free workplace policy requires all employees to submit to

random drug testing. Petitioner’s policy provided that a

driver who tests “positive” for illegal drugs will be removed

from any safety-sensitive position and subject to disciplinary

action up to and including termination.

In March 1996, Mr. Smith tested “positive” for

marijuana, and Petitioner suspended him with the intent to

discharge him. Mr. Smith grieved Petitioner’s action. An

arbitrator reinstated Mr. Smith on the condition that he

participate in a substance-abuse treatment program and

submit to random drug testing for the following five years.

Less than a year and a half after his first “positive” test, Mr.

Smith tested “positive” for marijuana again. Petitioner

suspended Mr. Smith, who grieved the impending discharge

through his union, the Respondents in this case. The

arbitrator reinstated Mr. Smith, finding credible his

testimony that “a personal/family problem... caused this one

time lapse in drug usage.” Seemingly acknowledging the

danger of reinstating Mr. Smith, the arbitrator noted “{i]f the

arbitrator was misled by the gnievant, the arbitrator is

confident that the grievant will make another misstep with

drug use and be caught.”

Petitioner filed a lawsuit to vacate the arbitration award

in the U.S. District Court for the Southern District of West

Virginia, which ruled that the arbitration decision be

enforced. Petitioner appealed that decision to the U.S. Court

of Appeals for the Fourth Circuit, which affirmed the District

Court’s decision. Petitioner requested rehearing and

rehearing en banc, which were denied.

The same safety concerns that motivated the widespread

adoption of workplace drug-testing policies, particularly for

employees working in safety-sensitive positions, support a

broad public policy against reinstating employees who have

failed drug tests to safety-sensitive positions. Reinstatement

to a safety-sensitive position violates public policy by

compromising multiple, compelling safety interests. Such a

conclusion clearly violates public policy by undermining the

myriad requirements that lawmakers and employers have

adopted to ensure that substance abusers are not employed in

these positions. Despite this well-defined public policy

against reinstatement of safety-sensitive employees who

have tested “positive,” the Fourth Circuit upheld the

reinstatement of Mr. Smith to his safety-sensitive position.

If this arbitration had been held in the First, Third, Fifth,

Eighth, or Eleventh Circuit, the award would have been

vacated.

For these reasons, the Institute urges this Court to

recognize that public policy forbids the reinstatement of

substance abusers to safety-sensitive positions, and to

reverse the decision of the Fourth Circuit.

ARGUMENT

i. PUBLIC POLICY DICTATES THAT DRUG-

OR ALCOHOL-ABUSING EMPLOYEES NOT

BE PERMITTED TO WORK IN SAFETY-

SENSITIVE POSITIONS.

This Court, the Executive Branch, the Legislative

Branch, numerous lower federal courts, and state legislatures

and courts have articulated a consistent and forceful legal

doctrine that to permit safety-sensitive employees to engage

in illicit drug and alcohol use — including reporting to work

with a detectable amount of drugs or alcohol in one’s system

— would violate public policy.

A clearly defined and dominant public policy supports

the removal of potentially drug- or alcohol-impaired workers

from safety-sensitive positions. This policy has been

expressed explicitly again and again through a large volume

of federal court decisions, Executive Orders, federal

legislation, federal regulations, state court decisions, and

state legislation.

A. The U.S. Supreme Court Has Recognized the

Public Policy Against Employing Drug or

Alcohol Abusers in Safety-Sensitive Positions.

This Court, in Skinner v. Railway Labor Executives’

Association, 489 U.S. 602 (1989), and National Treasury

Employees Union vy. Von Raab, 489 U.S. 656 (1989),

recognized the public policy against allowing impaired

employees to work in safety-sensitive positions — such as the

one Mr. Smith held at Eastern Associated Coal Corporation.

In Skinner, this Court held that in light of the great

potential harm that drug- or alcohol-impaired employees

may cause in the railroad industry, railroad employees could

be required to undergo drug and alcohol testing, despite the

Constitutional prohibition against the government

conducting unreasonable searches of individuals.

Similarly, in Von Raab, this Court held that U‘S.

Customs agents who carry firearms could be subject to

mandatory drug testing because of the dangers associated

with the possible impairment of agents in these positions.

B. The Executive and Legislative Branches of the

Federal Government Have Recognized the

Public Policy Against Employing Drug or

Alcohol Abusers in Safety-Sensitive Positions.

The policy against employing substance abusers in

safety-sensitive positions also has been incorporated into

federal law by the Executive and Legislative Branches.

Executive Order 12,564, issued by President Reagan in 1986,

mandated that the heads of all executive agencies of the

federal government establish a drug-free workplace program.

In 1988, Congress enacted the Drug-Free Workplace Act,

which requires federal contractors and grantees to establish a

ee ee

=

drug-abuse prevention program including education,

counseling, and penalties for drug use. 41 U.S.C. § 702(a)

(1994).

Congress next enacted (by wide vote margins in both the

Senate and the House of Representatives) the Omnibus

Transportation Employee Testing Act of 1991, 49 U.S.C. §

5331 (1997). Pursuant to this law, the Department of

Transportation, through its five operating agencies,

established mandatory substance-abuse _ prevention

requirements for 8.1 million workers in safety-sensitive,

transportation-related positions in the private sector

(including, of course, Mr. Smith’s position). The Federal

Aviation Administration (“FAA”), the Research and Special

Projects Administration (“RSPA”), the Federal Railroad

Administration (“FRA”), the Federal Highway

Administration (“FHWA”), and the Federal Transit

Administration (“FTA”) promulgated detailed regulations in

this area, all of which reflect the policy judgment that no

drug- or alcohol-impaired employees should work in safety-

sensitive positions in transportation operations — and all of

which require the removal of employees who test “positive”

from such positions.”

The Department of Energy (“DoE”) and Department of

Defense (“DoD”) also have issued regulations to ensure that

safety-sensitive jobs are not performed by drug abusers.

DoE and DoD contractors must have programs to identify

those who engage in illicit drug use, including testing of

? See 14 C.F R. Part 121, Appendices I and J (2000) (FAA); 49

C.F.R. Part 199 (1999) (RSPA); 49 C.F.R. Part 219 (1999) (FRA);

49 C.F.R. Part 382 (1999) (FHWA); 49 C.F.R. Parts 653 and 654

(1999) (FTA).

8

employees who perform sensitive functions — that is,

functions that pose dangers to public health and safety.’

C. State Legislatures and Courts Have Recognized

the Public Policy Against Employing Drug or

Alcohol Abusers in Safety-Sensitive Positions.

A vast majority of the states also have recognized this

public policy in one way or another. Many state legislatures

have enacted statutes encouraging and rewarding employers

who implement drug-free workplace programs including

drug testing, by disqualifying substance abusers from

receiving unemployment and workers’ compensation

benefits.

For example, 24 state unemployment compensation

statutes explicitly deny unemployment benefits to workers

who were dismissed due to alcohol or drug use.* In the

absence of an explicit statutory provision, unemployment

commissions in many other states faced with a worker

> See 10 C.F.R. Part 707 (2000); 48 C.F.R. Part 252.223-7004

(1999); see also 48 C.F.R. Part 1852 (1999) (National Aeronautics

and Space Administration drug-testing requirements for

contractors); 10 C.F.R. Part 26 (2000) (Nuclear Regulatory

Commission drug-testing requirements for nuclear plant

employees).

* See, e.g., ALA. CODE § 25-4-78 (Supp. 1998); ARIZ. REV.

STAT. § 23-619.01 (1993); CAL. UNEMP. INS. CODE § 1256.5

(West Supp. 1999); FLA. STAT. ANN. § 443.101 (West 1997 &

Supp. 1999); GA. CODE ANN. § 34-8-194 (Michie 1998); LA.

-REV. STAT. ANN. § 23:1601(10) (West Supp. 1999); VA. CODE

ANN. § 60.2-618(2)(b) (Michie 1998); W. VA. CODE § 21A-6-3

(1996).

iy OP ae

dismissed for drug or alcohol use have denied claims for

unemployment benefits.”

Similarly, 45 states have enacted explicit statutory

limitations on the receipt of workers’ compensation benefits

by an employee who is injured due to his or her own drug or

alcohol use.° In the absence of statutory provisions for

automatic denial of benefits, state courts have denied

alcohol- and/or drug-impaired employees these benefits.’

While these statutes and rulings vary by state, the policy

is manifestly clear in each case: employees should not be

permitted to recover compensation for job loss or for injury

when they intentionally endanger themselves and others by

using drugs and alcohol.

5 See, e.g. Risch v. State, 879 P.2d 358 (Alaska 1994);

Clevenger v. Employment Sec. Dep’t, 770 P.2d 866 (Nev. 1989);

Warren v. Employment Sec. Dep't, 724 P.2d 227 (N.M. 1986).

6 See, e.g., ALA. CODE § 25-5-51 (1992); CAL. LAB. CODE §

3600 (West 1989 & Supp. 1999); FLA. STAT. ANN. § 440.09

(West 1993); GA. CODE ANN. § 34-9-17 (1998); LA. REV. STAT.

ANN. § 23:1081 (West 1998); MISS. CODE ANN. § 71-3-7 (1995);

TEX. LAB. CODE ANN. §§ 406.032 & 401.013 (West 1996); VA.

CODE ANN. § 65.2-306 (Michie 1995); W. VA. CODE § 23-4-2

(Supp. 1998).

7 See, e.g., Parro v. Industrial Comm'n of Illinois, 657 N.E.2d

882 (Ill. 1995).

10

Il. PROHIBITING REINSTATEMENT OF

SAFETY-SENSITIVE EMPLOYEES WHO

FAIL DRUG TESTS IS A LOGICAL AND

NECESSARY APPLICATION OF THE

PUBLIC POLICY WHICH GIVES PRIORITY

TO WORKPLACE, PUBLIC, AND

ENVIRONMENTAL SAFETY.

The First, Third, Fifth, Eighth, and Eleventh Circuits all

have ruled that arbitration awards reinstating employees who

have tested “positive” for illicit drug use to safety-sensitive

positions violate public policy.* However, the Second,

Fourth, Sixth, Ninth, and Tenth Circuits have reached the

opposite conclusion.’

A. Reinstatement of Employees Who Fail Drug or

Alcohol Tests Violates an Established Public

Policy Because It Drastically Undermines

Employer Efforts to Prevent the Placement of

Substance Abusers in Hazardous Positions.

Employers with safety-sensitive operations hire from a

population in which nearly three-quarters of America’s illicit

® See Exxon Corp. v. Esso Workers’ Union, Inc., 118 F.3d 841

(1“ Cir. 1997); Exxon Shipping Co. v. Exxon Seamen's Union, 11

F.3d 1189 (3d Cir. 1993); Exxon Corp. v. Baton Rouge Oil &

Chem. Workers Union, 77 F.3d 850 (5" Cir. 1996); Union Pac.

R.R. Co. v. United Transp. Union, 3 F.3d 255 (8" Cir. 1993);

Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 861 F.2d 665

(11" Cir. 1988).

° See IBEW, Local 97 v. Niagara Mohawk Power Corp., 143

F.3d 704 (2d Cir. 1998); Eastern Associated Coal Corp. v. United

Mine Workers of America, No. 98-2527, 1999 WL 635632 (4" Cir.

Aug. 20, 1999); Tennessee Valley Auth. v. Tennessee Valley

Trades and Labor Council, 184 F.3d 510 (6" Cir. 1999); United

Transp. Union v. Union Pac. R.R. Co., 116 F.3d 430 (9™ Cir.

1997); Kennecott Utah Copper Corp. v. Becker, 195 F.3d 1201

(10" Cir. 1999).

11

drug users are employed.’ The U.S. Department of Health

and Human Services has estimated that one out of every four

Americans is directly affected by the alcohol or drug

dependency of a family member, friend, or co-worker."

Companies with employees who perform safety-sensitive

tasks must be able to decrease the likelihood of accidents

which have substantial - and sometimes tragic — human,

economic, and environmental costs. :

In addition, these companies have a statutory duty under

the Occupational Safety and Health Act to ensure safe and

healthy workplaces for all of their employees. 29 US.C.A.

§ 654 (a)(1) (1999).

Furthermore, employers are liable in tort to individuals

who suffer personal injury and/or property damage as a

result of an accident. When catastrophic events occur due to

drug or alcohol use by employees in safety-sensitive

positions, the financial consequences can be staggering.

Thus, companies clearly need to be able to reduce the

likelihood of accidents, not only because of the severe

economic burden that the company would face in the wake

of such an accident, but also because of the human suffering

and harm that is a realistic threat.

Drug and alcohol use are known to substantially impact

workplace safety. For example, drug-using employees were

10 According to the most recent government figures, 73 percent

of all current illicit drug users are employed. Substance Abuse

and Mental Health Services Administration, U.S. Department of

Health and Human Services, 1998 National Household Survey on

Drug Abuse (Aug. 1999).

'! U.S. Department of Health and Human Services, National

Drug Survey Results Released with New Youth Public Education

Materials (Sept. 12, 1995).

12

found to be 3.6 times more likely to be involved in a

workplace accident than are employees who do not use

drugs.'* In addition, a Utah Power and Light study estimated

that employees testing “positive” on drug tests were five

times more likely to be involved in a vehicle accident than

those who tested “negative.”!?

Studies also show that workplace fatalities are frequently

attributable to employee drug and alcohol use. An analysis

of truck drivers killed in over-the-road vehicle accidents

found that 33 percent of the drivers had detectable

concentrations of psychoactive drugs or alcohol in their

systems.'* In addition, illicit drugs or alcohol were found in

one-sixth of workers who were fatally injured in 1992.'°

'2 Thomas E. Backer, Strategic Planning for Workplace Drug-

Abuse Problems, National Institute on Drug Abuse, at 4 (1987).

'3 Dennis J. Crouch, et al., A Critical Evaluation of the Utah

Power and Light Company’s Substance Abuse Management

Program: Absenteeism, Accidents, and Costs, Drugs in the

Workplace: Research and Evaluation Data, National Institute on

Drug Abuse, at 169, 186 (1989); see also Occupational Health

Programs React As Some Employees Decide Drug Testing Doesn't

Work, Occupational Health Management, Mar. 1994, at 33

(employees who tested “positive” for drugs are 60 percent more

likely to be responsible for plant accidents than those who have

not); David L. Durbin, Alcohol Consumption and Workplace

Accidents, NCCI Digest, Dec. 1991, at 39 (five states with the

highest alcohol consumption have 33 percent higher average

workers’ compensation costs).

'* Dennis J. Crouch, et al., Prevalence of Drugs and Alcohol in

Fatally Injured Truck Drivers, 38 J. Forensic Sci. 1342 (1993).

'S William M. Marine and Tracy Jack, Analysis of Toxicology

Reports from the 1992 Census of Fatal Occupational Injuries,

Compensation and Working Conditions, Oct. 1994, at 2; see also

Glenna Kay Twing, Working High: When Employees Take Hits,

So Do Profits, Journal of Property Management, Nov.-Dec. 1995,

os EOE

13

Given the magnitude of the nation’s drug- and alcohol-

abuse problem, it would be naive to assume that employees

in safety-sensitive positions do not abuse drugs or alcohol.

In fact, the latest drug-test “positive” figures show otherwise:

4.8 percent of the 5.7 million employees and applicants who

were tested for drugs at SmithKline Beecham laboratories in

1998 tested “positive.”"°

Of more direct relevance, out of more than 650,000 drug

tests performed by that one commercial laboratory on safety-

sensitive transportation workers, 3.4 percent tested

“positive” for illegal drug use. That percentage indicates

that at least 22,100 individuals in safety-sensitive jobs in the

transportation industry who knew they were subject to drug

testing still tested “positive” for illicit drug use.

Furthermore, in a national survey of employees, 35

percent of full-time employees interviewed by the Gallup

Organization said they had “personally seen or heard of”

illicit drug use on the job, and 43 percent said that drug use

in their workplace “seriously affects their ability to get the

job done.”'’ In addition, 59 percent agreed that alcohol

abuse is a major workplace problem.

Studies have documented declines in workplace

accidents after substance-abuse problems were reduced or

eliminated through workplace drug testing. For example, a

survey of construction industry companies revealed that

at 20 (up to 40 percent of industrial fatalities can be attributed to

substance abuse).

'6 SmithKline Beecham, SmithKline Beecham Drug Testing

Index (Mar. 16, 1999).

'7 Survey of 1,006 Full-Time Employees, Aged 18 and Older,

Working Outside of the Home, conducted for the Institute for a

Drug-Free Workplace by the Gallup Organization, Princeton, New

Jersey (Nov. 1995).

14

where substance-abuse testing was implemented, workplace

accidents declined by 34 percent.'* In addition, Utah Power

& Light experienced 27 percent fewer vehicle accidents in

the first year that employees were subject to drug. testing and

31 percent fewer vehicle accidents the next year.

Studies of workers who test “positive” for drug use

establish that the costs of workplace substance abuse can be

cut by implementation of substance-abuse detection

programs. For example, the U.S. Postal Service and Georgia

Power Company found that they could have saved $105

million and $1.7 million, respectively, by discharging

employees who failed drug tests.

Legislators, regulators, and employers have relied on this

information and similar data-in formulating policies and

strategies to protect the public from these well-documented

risks. If arbitrators and courts effectively mandate that a

safety-sensitive employee who tests “positive” for illegal

drugs twice should be reinstated, they will frustrate the

underlying purposes of these laws, regulations, and policies,

and place the public at much greater risk.

'® National Association of Plumbing-Heating-Cooling Contract-

ors, The Construction Industry Survey on Substance Abuse (April

1992).

' Dennis J. Crouch, et al., A Critical Evaluation of the Utah

Power and Light Company's Substance Abuse Management

Program: Absenteeism, Accidents, and Costs, Drugs in the

Workplace: Research and Evaluation Data, National Institute on

Drug Abuse, at 169, 187 (1989).

2° United States Postal Service, Personnel Research &

Development Branch, Office of Selection and Evaluation,

Preemployment Drug Testing: Associations with EAP,

Disciplinary, and Medical Claims Information (July 1992); John

Sheridan & Howard Winkler, An Evaluation of Drug Testing in

the Workplace, Drugs in the Workplace: Research and Evaluation

Data, National Institute on Drug Abuse, at 195-216 (1989).

—

15

B. Employers with Effective Substance-Abuse

Prevention Programs Terminate Employees

Who Twice Test “Positive” for Illicit Drug Use.

For a drug-testing program to be effective, there have to

be appropriate sanctions which employees know will result if

they violate the policy. A survey of the Institute’s members

found that 70 percent of the companies always terminate

employees for a second “positive” test.7’ In addition, a

survey of the Institute’s members in the oil and chemical

industries found that 82 percent terminate employees for a

second “positive” test, and 94 percent sometimes terminate

employees for a first “positive” test.”

If safety-sensitive employees must be reinstated after a

second “positive” drug test, their employers’ drug-free

workplace policies are rendered impotent. They essentially

have no deterrent effect, and the detection impact is greatly

reduced as a segue to rehabilitation opportunities.

Thus, the perpetuation of such a precedent would destroy

the value of workplace drug-testing programs. If drug-

abusing employees know they can be caught without there

being adverse consequences, they will not fear being caught.

Thus, the incentives to stop engaging in illicit drug abuse —

or not to start — would be eviscerated.

21 Institute for a Drug-Free Workplace. “Member Survey:

Corporate Drug and Alcohol Policies and Programs. #

Washington, D.C. (1994).

22 Institute for a Drug-Free Workplace. “Oil and Chemical

Industries Survey of Corporate Substance-Abuse Prevention

Programs and Policies.” Washington, D.C. (1996).

16

C. Alcoholism and Drug Addiction Are Chronic

Conditions for Which the Risk of Relapse Never

Disappears.

Drug addiction and alcoholism are chronic diseases, and

the possibility of relapse at any given time is both real and

unpredictable. Medical evidence shows that for addicted

individuals who seek rehabilitative services, the recidivism

rate is disturbingly high. One study of alcohol recidivism,

for example, reported that approximately 90 percent of

alcoholics are likely to experience at least one relapse over

the four-year period following treatment.”

A good-faith attempt by highly motivated individuals to

cease the use of abusive substances does not guarantee a

cure: in a 15-year study of alcoholics who were able to

abstain for two years, 41 percent later relapsed, many after

more than a decade of abstinence.”

Success in overcoming drug dependency is even more

elusive. A nationally representative longitudinal study of

drug users showed that five years after completing

rehabilitation, the treated individuals reported a 21 percent

decline in the use of any illicit drug — meaning that 79

percent continued to use drugs at least at the same rate as

they did before treatment.”° Another recent study reported

>> J. M. Polich et al., Stability and Change in Drinking Patterns,

The Course of Alcoholism: Four Years After Treatment, 159-200

(1981).

** George Vaillant, M.D., A Long-Term Follow-Up of Male

Alcohol Abuse, Archives of General Psychology, Volume 53 (Mar.

1996).

*° The study analyzed the success rates of in-patient, out-patient,

and a variety of other types of rehabilitation programs. Office of

Applied Studies, Substance Abuse and Mental Health Services

Administration, Services Research Outreach Survey (1998). The

17

that approximately 55 percent of people with chemical

dependency are prone to relapse at some time.”°

While these figures demonstrate that some substance

abusers may benefit from treatment, they in no way support a

conclusion that a former drug user who is able to return to

work is cured. In short, mo one can guarantee that an

alcoholic, or a drug addict or chronic drug abuser, can

abstain, will abstain, or will — or will not — relapse. Nor can

one say when and under what circumstances relapse will

occur.

What treatment professionals can predict is that relapse:

(1) is more likely to occur during times of heightened tension

or pressure (including on-the-job stress),”’ (2) is often linked

to interpersonal conflicts (which may arise away from work

and of which the employer is unlikely to have knowledge),”*

and (3) is more likely to occur when the historically

substance-abusing individual is in isolation or relative

isolation (such as in a job without on-going direct

supervision).””

Significantly, in a world where the majority of

individuals with substance-abuse problems have few or no

treatment options — or, at most, are offered three months of

rehabilitative services — 85 percent of those who began the

highly regarded and _ well-funded addiction-treatment

study is accessible through SAMHSA’s web site at

http://www.samhsa.gov.

2° M. Dusoe, The Use of Self-Efficacy Training in the Treatment

of Relapse-Prone Individuals, EAPA Exchange, at 6 (Feb. 1995).

7 R.L. Rogers & C.S. McMillan, Relapse Traps: How to Avoid

the 12 Most Common Pitfalls In Recovery (Bantam Books 1991).

28 A. Beck et al., Cognitive Therapy of Substance Abuse (1993).

2° See n.27.

18

program at Phoenix House were unable to complete the two-

year treatment.°?

While no doctor, employee assistance professional, or

counselor can ever determine that any individual is fully

recovered and/or rehabilitated — nor can anyone predict or

prevent a relapse with any certainty — all reach one universal

conclusion: the rate of relapse always will be higher than the

rate of first-time drug addiction or alcoholism. The bottom

line is irrefutable: those with a history of substance abuse

pose a much greater risk of relapse and its attendant risks

than those without such a history.”!

The undeniable truth is that an historically addicted

individual may relapse into self-destructive addictive

behavior without obvious signs or warning, at any time, even

after years of sobriety or abstinence. If that individual’s job

includes safety-sensitive responsibilities, as Mr. Smith’s did,

the consequences of a relapse could be disastrous.

D. Reinstatement of a Safety-Sensitive Employee

Who Failed a Drug Test Sends the Wrong

Message to Courts, Arbitrators, Employers, and

Employees Regarding a Compelling Public

Policy.

Reinstatement of Mr. Smith would subvert public policy,

and send a jarring signal to employers that work diligently —

and successfully — to achieve the goal of a drug-free

workplace, particularly in safety-sensitive environments.

Rather than reinforcing the clear and dominant policy

endorsed by all levels and branches of government, the

Fourth Circuit’s holding — unless reversed — would frustrate

*° “Traditional Drug Programs Face Up to Chronic Recidivism,”

Washington Post (Aug. 20, 1990).

*" See n.24.

19

employers’ efforts to protect all at-risk parties and interests

from potentially catastrophic harm. It would condone

employee misconduct — illegal drug use — and undermine a

legitimate and widely accepted tool for achieving the critical

social goal of drug-abuse prevention.

The ruling of the Fourth Circuit in this proceeding

inappropriately subordinates the compelling interest of

keeping drug abusers out of safety-sensitive positions. It

would improperly insulate employee action at odds with the

goal (substance-abuse prevention) and methodology (testing

and disciplinary action) widely embraced by both the public

and private sectors, and would otherwise tend to perpetuate

the harm which public policy seeks to avoid.”

Employer practices throughout the country have proven

that comprehensive drug-testing and drug-abuse prevention

programs with known, uniform consequences are the most

effective means of preventing the harm that employee drug

abuse can cause. The effectiveness of drug testing, however,

is severely compromised when employees terminated for

illegal drug use are reinstated. The current unpredictability —

and sometimes irrationality — of arbitration decisions in this

regard fundamentally undermines the effectiveness of

workplace drug testing.

Clear tenets of public policy argue against allowing

impaired employees and employees who test “positive” for

illicit drug use to perform safety-sensitive jobs. The Institute

urges the Court not to frustrate employers and employees in

their efforts to achieve drug-free workplaces. The Court

should preserve employers’ rights to have meaningful and

* See, e.g., Newsday, Inc. v. Long Island Typographical Union,

915 F.2d 840 (2d Cir. 1990) (arbitrator’s reinstatement of

employee terminated for sexual harassment vacated due to conflict

with and adverse effect upon public policy interests).

20

effective drug-testing programs, and to terminate safety-

sensitive employees for “positive” drug tests.

In summary, if the Fourth Circuit’s decision is not t

reversed, drug testing will be much less effective at deterring

drug abuse. There will be more drug abuse by employees, a

substantial compromise of workplace safety, and an

undermining of most employers’ current substance-abuse

prevention programs. A policy which results in more drug

abuse cannot be a good thing. Protecting the rights of the

“James Smiths” of our society to continue to engage in

IORI a on RENT

dangerous and illegal behavior, while neglecting the nights of ’

others not to be endangered by the continued employment of E

a known, repeated drug abuser in a safety-sensitive position ‘

is the height of illogic. It is wrong. The Fourth Circuit was .

wrong. The U.S. Supreme Court should right this wrong. :

il. REVERSAL OF THE FOURTH CIRCUIT’S

DECISION IS NECESSARY TO PREVENT

FUTURE DRUG- AND ALCOHOL-RELATED

WORKPLACE TRAGEDIES.

The devastating effects of alcohol- and drug-impaired

employees are, unfortunately, widespread — and sometimes

are well-publicized.

For example, on February 13, 2000, a light rail train at

Baltimore-Washington International Airport crashed into a

steel barrier, injuring 22 passengers. The train operator

admitted to being under the influence of prescription drugs at

the time of the crash and subsequently was fired from his

job. The results of drug tests revealed that he also had

recently used cocaine. The train operator had been involved

21

in at least one prior accident while operating a light rail

train.”

Another recent example occurred on May 9, 1999, when

a tour bus carrying nursing home residents veered across

three lanes of traffic and crashed into a concrete and dirt

embankment. Twenty-two of the passengers were killed. At

the hospital after the accident, the driver tested “positive” for

marijuana. Later investigation revealed he previously had

been discharged from two bus driver jobs after he tested

“positive” and failed successfully to complete rehabilitation.

He also had tested “positive” for cocaine on a

preemployment drug screen administered by Greyhound.**

Another highly publicized fatal accident involving a

drug-impaired employee occurred on April 15, 1998, when a

truck driver drove a gasoline tanker filled with 9,100 gallons

of fuel off the road and through the fence of an asphalt

refinery in Portland, Oregon. The driver died in the crash,

and toxicology tests showed that he had alcohol, cocaine,

marijuana, and methamphetamines in his system. :

In fact, the impetus for Congressional action on required

drug and alcohol testing for employees in safety-sensitive,

transportation-related jobs came from two fatal disasters

caused by drug-impaired employees.

3 Lyndsey Layton and Don Phillips, Drug Use Cited in Crash of

BWI Train, Wash. Post, Feb. 24, 2000, at B1; Matthew Mosk,

Driver in BWI Train Crash Had Prior Rail Accidents, Wash. Post,

Feb. 25, 2000, at B1.

** Kristen Delguzzi, Driver Fired Twice For Drug Use, New

Orleans Times Picayune, May 14, 1999, at Al.

35 Maxine Bernstein, Trucker in Wreck Had Drugs in System,

The Oregonian, Apr. 30, 1998, at 5.

22

First, on January 4, 1987, a high-speed Amtrak passenger

train collided with three Conrail locomotives at a junction in

Chase, Maryland. Sixteen people were killed, 170 people

were seriously injured, and $19 million in damages were

caused. The engineer and brakeman of the Conrail

locomotives both tested “positive” for manjuana after the

accident.°°

Subsequently, on August 28, 1991, a subway train in

New York City derailed, killing 5 people and injuring more

than 200 people. The subway motorman was legally drunk

and ran the subway across a switch at high speed. In

addition, an empty vial with traces of crack was found in the

cab of the train. The motorman, who was not injured in the

accident, was charged with manslaughter.°’

If this Court affirms the Fourth Circuit’s decision that

reinstatement of a safety-sensitive employee who has tested

“positive” for illicit drug use does not violate public policy,

James Smith may well be the perpetrator of the next

catastrophic drug-related workplace acciden’

CONCLUSION

The Institute for a Drug-Free Workplace respectfully

urges the Supreme Court to reverse the rulings that would

require the reinstatement of James Smith despite his

recurring illegal conduct and violations of company policy —

specifically, his repeated “positive” drug tests — and to

recognize that his mandated reinstatement would be a clear

and indefensible violation of public policy.

°° Reginald Stuart, Drug Trace Found in 2 Rail Workers After

Fatal Crash, N.Y. Times, Jan. 15, 1987, at Al.

*7 Alan Finder, IRT Driver Charged in 5 Deaths; Crash Shuts

Line and Ties Up City, N.Y. Times, Aug. 29, 1991, at Al.

May 4, 2000

23

Respectfully submitted,

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

KATHERINE A. GOETZL

LITTLER MENDELSON, P.C.

1225 I Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Institute for a

Drug-Free Workplace