Amicus Curiae Brief — Monroe Auto Equipment Co. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America

| ji

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No. 92-1512

Siywreme Court of the United States

IN THE rm

OCTOBER TERM, 1992

MONROE AUTO EQUIPMENT COMPANY,

a Delaware Corporation,

- Petitioner,

INTERNATIONAL UNION, UNITED AUTOMOTIVE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW), MONROE

AUTO EQUIPMENT COMPANY UNIT OF LOCAL 878,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

THOMAS W. REED

MCGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

April 14, 1993 * Counsel of Record

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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1512

MONROE AUTO EQUIPMENT COMPANY,

a Delaware Corporation,

” Petitioner,

INTERNATIONAL UNION, UNITED AUTOMOTIVE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW), MONROE

AUTO EQUIPMENT COMPANY UNIT OF LOCAL 878,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION OF THE EQUAL EMPLOYMENT ADVISORY

COUNCIL FOR LEAVE TO SUBMIT BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

To the Honorable. the Chief Justice and the Associate

Justices of the United States Supreme Court:

Pursuant to Rule 37 of the Rules of this Court, the

Equal Employment Advisory Council (EEAC) respect-

fully moves this Court for leave to file the accompanying

brief amicus curiae in support of Monroe Auto Equip-

ment Company. Petitioner, whose written consent has

been provided to the Clerk of the Court. Respondent

International Union, United Automotive, Aerospace and

Agricultural Implement Workers of America (UAW),

Monroe Auto Equipment Company Unit of Local 878,

after being asked, has refused consent. In support of this

motion, EEAC, by the following, shows that its brief

brings relevant matter to the attention of this Court that

has not been (or will not be) presented by the parties.

1. EEAC is a voluntary association of employers

organized in 1976 to promote sound approaches to the

elimination of employment discrimination. Its member-

ship includes over 270 major U.S. corporations, as well

as several associations which themselves have hundreds

of corporate members. Its Board of Directors is com-

posed of experts in labor and equal employment oppor-

tunity. Their combined experience gives EEAC a unique

depth of understanding of the practical, as well as legal

aspects of employment-related policies and requirements.

2. As employers, most of EEAC’s members and their

constituents are government contractors who are required,

or strongly encouraged, by federal contracting agencies

to assure that employees working on government projects

are “drug free.” For example, Pub. L. No. 100-690, the

Drug-Free Workplace Act of 1988. requires every federal

contractor with a contract of $25,000 or more to achieve

and maintain a “drug-free workplace”—or risk the loss of

the federal contract. Further, numerous federal contract-

ing agencies expressly prohibit contractors from reinstat-

ing workers who test positive for the use of illegal drugs.

3. Due in part to government anti-drug use policies

reflected in statutes, regulations and other requirements,

most of EEAC’s members have adopted programs de-

signed to prohibit the possession, use or influence of con-

trolled substances on company premises or off company

premises where it could adversely affect an employee’s job

performance or jeopardize the safety of other employees,

the public or company property. Many have adopted pro-

cedures to test and/or search employees for the presence

of drugs, much like the program adopted by the employer

Yerein. When an employee tests positive or where drugs

‘rs discovered, many of EEAC’s members do not rein-

.te the worker, especially into a job that involves safety

or security risks either as a matter of law or as a matter

of policy.

4. Accordingly, many of EEAC’s members stand to

be affected by the rule of law this Court adopts in de-

ciding whether the Court of Appeals ruled incorrectly

when it enforced an arbitrator’s award reinstating an

employee in a safety sensitive position who tested posi-

tive for the use of illegal drugs on a workday and ad-

mitted often using illegai drugs. While EEAC’s members

firmly support the arbitration process and concur that

arbitration awards generally should be insulated from

judicial review, there are situations where, as here, an ar-

bitration award violates an explicit, well-defined and

dominant public policy, so that a court should refuse to

enforce it. United Paperworkers Int'l Union v. Misco,

Inc., 484 U.S. 29, 42 (1987). Applying Misco, the

Court of Appeals should have refused to enforce the

arbitrator's award in this case, because it violated the

explicit, well-defined and dominant public policy against

reinstating acknowledged illegal drug users in safety sen-

sitive positions.

5. Because of its broad interest in employment policy-

related issues since mid-1976, EEAC has been the

primary national organization representing the employer

community as amicus curiae in equal employment law

cases, filing over 320 amicus curiae briefs dealing with a

wide range of equal employment and other labor law

issues. As a part of this amicus curiae activity, EEAC

has filed briefs in a number of cases involving drug test-

ing by employers, including two cases decided by the

United States Supreme Court.’

6. EEAC also filed comments in response to Notices

of Proposed Rulemaking regarding drug testing issued

1 Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602 (1989

and National Treasury Employees Union v. Von Raab, 489 U.S. 656

(1989). In addition, EEAC filed a brief with the Supreme Court

in Burlington N.R.R. Co. v. Brotherhood of Locomotive Engr’s, 57

U.S.L.W. 3841 (June 26, 1989) (No. 87-1631), supporting a petition

for a writ of certiorari. The Court, however vacated and remanded

the Ninth Circuit’s decision in light of Skinner.

EEAC also filed amicus briefs, and participated in oral argument

before the National Labor Relations Board in several cases specifi-

cally involving drug testing in the collective bargaining context:

Johnson-Bateman Co., 295 NLRB No. 26 (1989); Star Tribune,

295 NLRB No. 63 (1989); GTE Hawaiian Tel. Co. Inc., 296 NLRB

No. 1 (1989).

by the Federal Aviation Administration, 53 Fed. Reg.

8368 (March 14, 1988); the Federal Railroad Adminis-

tration, 53 Fed. Reg. 16640 (May 10, 1988); the Fed-

eral Highway Administration, 53 Fed. Reg. 22268 (June

14, 1988); the Urban Mass Transportation Administra-

tion, 53 Fed. Reg. 25892 et seq. (July 8, 1988); the

Research and Special Programs Administration, /d.; the

Coast Guard, /d.; the Nuclear Regulatory Commission,

53 Fed. Reg. 36795 (Sept. 22, 1988); and the Depart-

ment of Defense, 53 Fed. Reg. 37763 (Sept. 28, 1988).

Significantly, the Department of Transportation cited

EEAC’s comments in issuing its final rule, and, in accord

with those comments, reversed its position on the issue of

federal preemption of state laws. 53 Fed. Reg. 47002,

et seq. (Nov. 21, 1988). Similarly, when the Nuclear

Regulatory Commission published its fitness-for-duty rule,

54 Fed. Reg. 24467 (June 7, 1989), the NRC relied

extensively upon EEAC’s comments.”

7. EEAC has participated in a number of cases in-

volving challenges to arbitration awards as violative of

public policy. For example, in a recent case, the Eleventh

Circuit agreed with the arguments advanced in EEAC’s

amicus brief that the district court properly set aside as

contrary to public policy an arbitrator’s award reinstating

an illegal drug-using employee to a safety sensitive job.

Georgia Power Co. v. IBEW, Local 84, 707 F. Supp.

531 (N.D. Ga. 1989), aff'd mem., 896 F.2d 507 (11th

Cir. 1990).°

2 See Fitness for Duty in the Nuclear Power Industry: Responses

to Public Comments, NUREG-1354 (May 1989).

3 EEAC has participated in other cases involving challenges to

arbitration awards as violative of public policy, including W.R.

Grace & Co. v. Local Union 759, 461 U.S. 757 (1983) (addressing

EEOC conciliation agreement that conflicted with seniority provi-

sions of collective bargaining agreement); and Chrysler v. Allied

Industrial Workers, 959 F.2d 685 (7th Cir. 1992), cert. denied, 113

S. Ct. 304 (1992) ‘urging the Court to review a lower court deci-

sion upholding an arbitration award reinstating an employee termi-

nated for sexual harassment).

a

8. Further, because of its interest in the issues asso-

ciated with substance abuse, EEAC, through a closely-

related foundation, sponsored the preparation of two

monographs concerning drugs in the workplace.‘

9. Thus, EEAC has an interest in, and a familiarity

with, the issues and policy concerns presented to the

Court in this case. EEAC seeks to assist the Court in |

this case by highlighting the impact its decision may have

beyond the instant case in the field of workplace drug

testing, use, possession and influence generally. Accord-

ingly this brief brings relevant matter to the attention of

the Court that has not already been brought to its atten-

tion by the parties. Because of its significant experience,

EEAC is uniquely situated to brief this Court on the

relevant concerns of the business community and the sig-

nificance of this case to employers.

WHEREFORE, for the reasons stated, the Equal Em-

ployment Advisory Council respectfully requests the

Court to allow it to participate as amicus curiae.

Respectfully submitted.

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

THOMAS W. REED

MCcCGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

April 14, 1993 * Counsel of Record

* See Winning the War on Drugs: The Role of Workplace Test-

ing, by G. Tysse & Garen E. Dodge (1989): and Drug and Alcohol

Abuse in the Workplace: A Guide to the Issues, by Stephen C.

Yohay & J. Michael Walsh, Ph.D. (1987). Both were published by

the National Foundation for the Study cf Employment Poliey

(Washington, D.C.).

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES |... ili

INTEREST OF THE AMICUS CURIAE ................... 1

STATEMENT OF THE CASE ..............0000000000000000000--- 1

SUMMARY OF REASONS FOR GRANTING THE

TET <siihdctesaueaiocaddunlpasesieedddecharee wiacec rene 5

REASONS FOR GRANTING THE WRIT .............. 6

I. BY UPHOLDING THE REINSTATEMENT

OF AN ACKNOWLEDGED USER OF IL-

LEGAL DRUGS TO A SAFETY SENSITIVE

POSITION IN CONTRAVENTION OF A

WELL-DEFINED, DOMINANT PUBLIC POL-

ICY, THE COURT OF APPEALS’ DECISION

THREATENS THE EFFECTIVENESS OF

EMPLOYER DRUG-ABUSE TESTING AND

PREVENTION PROGRAMS THROUGHOUT

THE NATION, THEREBY RAISING AN IM-

PORTANT ISSUE WARRANTING REVIEW

Pe I CIE siittininteheastininelsshickcntletatondntbniis 6

A. Under This Court’s Decisions in W.R. Grace

and Misco, a Court Should Vacate an Arbi-

trator’s Award That Violates an Explicit,

Well-defined and Dominant Public Policy

that the Court Ascertains by Reference to

the Laws and Legal Precedents... 6

B. The Court of Appeals Acted Contrary to

Public Policy by Holding That the Only

Time an Arbitrator’s Award Violates the

Explicit, Well-defined and Dominant Public

Policy Against Drugs in the Workplace Is

When an Arbitrator Reinstates an Employee

Who Was Found Actually to be Impaired on

Oe BN ickcccticuiae eee ee 7

il

TABLE OF CONTENTS—Continued

Page

C. The Court of Appeals Ignored the National

Anti-Drug Statutes, Regulations, Orders and

Court Decisions Establishing a National

Public Policy Against Drugs in the Work-

place Which Not Only Guards Against Re-

instating Employees Who Are Found to be

Actually Impaired on the Job, But Also

Guards Against Reinstating Acknowledged

Illegal Drug Using Employees in Safety

UREA FE OICIOTID canncccccccevccsseenssecnssecs -eeanianoue 10

1. Rafko’s Test Results of 242 ng/ml of

Marijuana Far Exceeded Federal Guide-

lines of 100 ng/ml (Which the Govern-

ment Has Proposed Dropping to 50

I i aet 11

2. Reinstatement of Employees Who Test

Positive for Illegal Drug Usage Is Pro-

hibited By Many Federal Regulations... 13

3. Other Federal Restrictions Establish a

Public Policy Supporting Anti-Drug

Abuse Policies Including the Drug-Free

SN iain 17

SP, URNA UN cn aah we ca pthenddldnctea ieitsads Giabcndhciel 20

iii

TABLE OF AUTHORITIES

CASES Page

Amalgamated Transit Union v. Skinner, 894 F.2d

1362 (D.C. Cir. 1990) aie sakaineaioaae 14

Bluestein v. Skinner, 908 F. od AB 1 (9th Cir.

1990), cert. denied, 111 S.Ct. 954 (1991) 000.00... 14

Brotherhood of Maint. of Way Employees v. Bur-

lington N.R.R. Co., 802 F.2d 1016 (8th Cir.

1986) ....... EERE B AS ORD PRIOR OMI INET SR TRS A 8

Delta Air Lines, Inc. v. Air Line Pilots Ass’n,

Int’l, 861 F.2d 665 (11th Cir. 1988), cert. denied,

ee ee EE eiccpencncsdicdstcecacboncussschannenesenkecls 11

Exxon Shipping Co. v. Exxon Seamen’s Union,

788 F. Supp. 829 (D.N.J. 1992) ................. ‘ 11

Erxon Shipping Co. v. Exxon Seamen’s Union,

801 F. Supp. 1379 (D.N.J. 1992) aa seecande 11

Georgia Power Co. v. IBEW, Local 84, 707 F.

Supp. 531 (N.D. Ga. 1989), aff'd mem., 896 F.2d

507 (11th Cir. 1990) 11,17,18

Iowa Elec. Light and Power Co. v. Local Union

204 of IBEW, 834 F.2d 1424 (8th Cir. 1987) 11

Oil Workers Local 4-228 v. Union Oil Co., 818 F.2d

437 (5th Cir. 1987) sachin cedgetonenaaes 11

Skinner v. Railway Labor Exec. Ass’n, 489 U. S.

602 (1989) ry eatad Ruecwaidiadcs 9

Teamsters v. Department of Transp., 932 F.2d

SI CE rts «IIR ocvencs Sateeereeckcdesnmreneeeurceadace 14

Union Pac. R.R. Co. v. United Transp. Union, 794

F. Supp. 891 (D. Neb. 1992) FEE SscaWO TA RAPER POSE 11

United Paperworkers Int’l Union v. Misco, Inc.,

484 U.S. 29 (1987) 5, 6,7, 10

S.D. Warren Co. v. United Paper Workers Int’l

Union, 815 F.2d 178 (1st Cir. 1987) . 11

W.R. Grace & Co. v. Local Union 759, 461 U. S. 157

| RRM PMN ees he EAs A IRS Ba oF 5, 6,7

STATUTES

Comprehensive Drug Abuse Prevention and Con-

trol Act, Pub. L. No. 91-513, 84 Stat. 1236, 21

Laks Ren, OF: O06. Sh Ui. SOE kine 19

iv

TABLE OF AUTHORITIES—Continued

Drug Abuse Prevention and Control Act, 104 Stat.

327, 21 U.S.C. § 801, et seq. 21 U.S.C. § 801(2)..

Drug-Free Workplace Act of 1988, Pub. L. No.

100-690, 41 U.S.C. § 701, et seq., 41 U.S.C.

ie EE gies iadaveuiiicoebedsitnshai aig dalgbnieildsnaialididiaatinaese ts xaniase ans

Labor Management Relations Act, 29 U.S.C. § 185

SII IIIT «sh cdredinint bila sacatetetdabdnaauaenilaehenamaiioneasaseees

Occupational Safety and Health Act of 1970, 29

nae a

Omnibus Transportation Employee Testing Act of

neal ceekiabainn

Small Business and Procurement Act, Pub. L. No.

98-577, 41 U.S.C. § 401, et seq. 41 U.S.C. § 418

OE) Ra Rs sels Ee IRA toate iy Dee Fite eR cea ET

FEDERAL RULES AND REGULATIONS

eae te te IE ssn cndchsieemenccaihnibatinatanngrsacarnasnacns

RS I alaeeaeieaansmsanieces

49 C.F.R. §§ 219.608 and .606 ....................000000 0.

rar pee a Oe TI eeenibeccsesecssenconinstaceonsaicenn

51 Fed. Reg. 32889 (Sept. 17, 1986) ........0.0..0 ce.

53 Fed. Reg. 37763 (Sept. 28, 1988) ............00000000000..

53 Fed. Reg. 47001 (Nov. 21, 1988) .........0000000.ce.

53 Fed. Reg. 47024 (Nov. 21, 1988) .......0000000000cccce..

53 Fed. Reg. 47084 (Nov. 21, 1988) ............ sdppaieananat

53 Fed. Reg. 47102 (Nov. 21, 1988) .........00000..e..

53 Fed. Reg. 471384 (Nov. 21, 1988) ..........0..0000o..

54 Fed. Reg. 24468 (June 7, 1989) 0.000.000...

56 Fed. Reg. 31030 (July 8, 1991) 2.000000...

56 Fed. Reg. 40806 (August 16,1991) 2.00.00... ee

57 Fed. Reg. 82652 (July 22, 1992) ................ oe

57 Fed. Reg. 69882 (Dec. 15, 1992)..........000000 0.

58 Fed. Reg. 6062 (Jan. 25, 1998) .....000000 ee.

Mandatory Guidelines for Federal Workplace Test-

ing Programs, 53 Fed. Reg. 11970 (April 11,

IR AOS TIS AIR OER SR EAR RR tl Pe If CLC

Notice and Interim Final Rules for 14 Depart-

ments and 24 Agencies, 54 Fed. Reg. 4945 (Jan.

Ry REE RENT SSS SEIT AeA BM olan Rie LM LO

Page

19

17

4

18

19

12

15

15

15

15

19

12

14

15

15

15

15

16

14

14

15

20

12

11

18

Vv

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page

H. Moskowitz, Adverse Effects of Alcohol and

Other Drugs on Human Performance, Alcohol,

Health and Research World, Vol. 9(4) 11-15

(Summer 1986) “ ee 8,9

aa?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1512

MONROE AUTO EQUIPMENT COMPANY,

a Delaware Corporation,

’ Petitioner,

INTERNATIONAL UNION, UNITED AUTOMOTIVE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW), MONROE

AUTO EQUIPMENT COMPANY UNIT OF LOCAL 878,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council (EEAC)

respectfully submits this brief amicus curiae, contingent

on the granting of the accompanying motion for leave.

The brief supports the petition for a writ of certiorari.

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set forth fully in

the preceding motion.

STATEMENT OF THE CASE

Monroe Auto Equipment Company (“Monroe”) em-

ployed David Rafko (“Rafko”) as a mechanic. Rafko’s

2

duties included installing experimental ride control mecha-

nisms—shock absorbers and struts—in cars and trucks.

In the installation of such mechanisms, Rafko operated

power tools and equipment. These vehicles were then test

driven at speeds often exceeding 50 m.p.h. on Michigan’s

public highways as well as Monroe’s grounds. Sometimes,

Rafko test drove these vehicles. Pet. App. B-2.’ Clearly,

Rafko was employed in a safety sensitive position.

Since 1985, Monroe has instituted an Alcohol and

Drug Abuse Program whereby employees are subject to

discharge for being under the influence of drugs or selling

or using drugs on company property or on company time.

Pet. App. C-3. In 1987, Monroe added to this policy

provisions allowing the company to test employees sus-

pected of being under the influence of drugs and pro-

hibiting off-the-job illegal drug use “which could adversely

affect an employee's job performance or which could

jeopardize the safety of other employees, the public, or

company equipment.” Pet. App. C-4. The policy defined

“under the influence” as follows:

“[U]nder the influence” means that a person is af-

fected by a drug or alcohol, or the combination

thereof, in a detectable manner. The symptoms of

influence are not necessarily confined to those con-

sistent with misbehavior, nor limited to obvious im-

pairment or physical or mental ability, such as

slurred speech or difficulty in maintaining balance.

A determination of influence may be established by

a_ professional opinion, [or] a_ scientifically valid

test. ...

Pet. App. A-3 (emphasis added).

On Thursday, October 5, 1989, a workday, Monroe

officials interviewed Rafko in conjunction with an internal

1 Citations to the Appendix to the Petition for a Writ of Cer-

tiorari are noted as Pet. App. . The opinion of the Court of

Appeals for the Sixth Circuit below, reported at 981 F.2d 261, is

reproduced as Pet. App. A-1 to A-18. The unreported opinion of

the district court is reproduced as Pet. App. B-1 to B-13. The arbi-

trator’s unreported decision and award are reproduced as Pet. App.

C-1 to C-23.

3

investigation concerning drug dealing on company prem-

ises. While Rafko denied drug dealing, he admitted using

marijuana the previous weekend and smoking two to

three marijuana cigarettes the night before. Pet. App.

C-11. That same day, Rafko consented to a drug test.

Rafko tested positive for carboxy THC, a marijuana

metabolite, at a level of 242 nanograms per milliliter

(“ng/ml”). Accordingly, Monroe terminated Rafko’s

employment on October 12, 1989, for testing positive for

illegal drug use and for being under the influence of

illegal drugs when he was tested on October 5 in viola-

tion of Monroe’s policy. Pet. App. B-3.

The Union filed a grievance challenging Rafko’s dis-

missal. In arbitration, the Union stipulated that Rafko’s

drug tests were accurate. Pet. App. B-3. An expert wit-

ness testified that impairment from marijuana exists at

60-100 ng/ml of urinary carboxy THC and that Rafko’s

242 ng/ml THC level impaired his judgment and ability

to perform safely any integrated task, such as driving or

operating power tools. /d. ‘‘Rafko’s test result was far

above suggested levels both for being under the influence

and being impaired.” Pet. App. A-4. The expert con-

cluded that Rafko was working under the influence of

marijuana when he was tested on October 5. /d.

The arbitrator, however, ordered Rafko’s reinstatement

to a safety sensitive position despite the tact that he

admitted often using illegal drugs, he admitted using a

significant amount of illegal drugs the night before the

workday in question and he tested positive at a signifi-

cantly high level for the use of illegal drugs on a workday,

all of which were in violation of Monroe’s clearly estab-

lished policy prohibiting such drug use.

The arbitrator based his decision on the premise that

the drug use occurred off-premises and therefore was

addressed by that part of Monroe’s policy applicable to

off-the-job use. He then interpreted the policy to require

a showing by Monroe that Rafko’s off-duty use of mari-

juana “‘‘actually interfered’ with his job performance, de-

4

spite the company’s clear policy which required only a

showing by the company that an employee’s off-duty use

ot drugs “could” adversely affect his performance or

“could” jeopardize the safety of other employees, the

public, or the company. The arbitrator also ignored the

company policy whereby employees are subject to dis-

charge for being under the influence of drugs on com-

pany premises or company time and that symptoms of

“influence” are not necessarily confined to those consist-

ent with misbehavior, nor limited to obvious impairment

or physical or mental ability, but could be established by

a professional opinion (Dr. Hayden) or valid test (242

ng/ml of marijuana metabolite). Pet. App. C-21, 22.

The arbitrator concluded that Monroe failed to make

a showing that Rafko’s off-duty use of marijuana actually

interfered with his job performance and that there are

no clearly established standards for determining the de-

gree of being under the influence of marijuana. /d.

Monroe brought suit under Section 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, asking that

the arbitrator's award be vacated because it violated ‘an

explicit, well-defined and dominant public policy against

the employment of drug-using individuals in potentially

hazardous or dangerous positions.’’ On cross-motions for

summary judgment, the district court affirmed the arbitra-

tion award and ordered enforcement.

Both parties appealed to the Court of Appeals for the

Sixth Circuit. In a 2-1 decision, the Sixth Circuit affirmed

the district court’s decision stating that “Monroe did not

identify law or legal precedents which indicate that the

award violated a well-defined and dominant public pol-

icy.” Pet. App. A-15. In dissent, Judge Nelson pointed

out that drugs were in Rafko’s system while ‘ton the job.”

Because the undisputed evidence showed that he was

under the influence of marijuana while on company prem-

ises and company time, the dissent argued that the effect

on job performance “is simply irrelevant.” Pet. App.

A-18. Monroe has petitioned this court for a writ of

certiorari.

5

SUMMARY OF REASONS FOR GRANTING THE WRIT

The Court of Appeals failed to follow the clear direc-

tion of this Court in W.R. Grace & Co. v. Local Union

759, 461 U.S. 757 (1983), and United Paperworks Int’l

Union v. Misco, Inc., 484 U.S. 29 (1987), because it

affirmed a district court’s decision to uphold an arbitra-

tor’s award reinstating an employee in a safety sensitive

position who tested positive on a workday for the use of

illegal drugs and who admitted often using illegal drugs.

Such an award violates the explicit, well-defined and

dominant national policy against the reinstatement of

acknowledged illegal drug using employees in safety sensi-

tive positions. Moreover, because that national policy

affects thousands of employers throughout the country,

the Court of Appeals’ error raises an issue of nationwide

importance warranting review by this Court.

In affirming the district court’s decision, the Sixth Cir-

cuit has produced a result whereby the_jobs of acknowl-

edged illegal drug users are protected unless employers

can show the worker is ‘“‘actually impaired” on the job.

This result would occur even when, as here, an undisputed

drug test shows the actual presence of illegal drugs at

more than two and one-half times the generally accepted

level that the government uses to put into play its prohibi-

tory drug testing restrictions. Such a result incorrectly

presumes that illegal, drug-induced impairment will be

easily identifiable, and improperly requires employers to

bear the risks resulting from having drug-impaired work-

ers on the job.

Additionally, such a result ignores numerous national

antidrug statutes, regulations, orders and court decisions

establishing a national public policy against drugs in the

workplace which not only guards against the employment

of individuals in safety sensitive positions found to be

actually impaired or intoxicated on the job, but also

guards against the employment of individuals in safety

sensitive positions who test positive for the use of illegal

drugs and admit often using illegal drugs. Such a national

public policy can be ascertained from laws and legal

6

precedents such as the Mandatory Guidelines for Federal

Workplace Testing Programs (establishing an initial cut-

off level of 100 ng/ml for determining a positive result

for marijuana metabolites), the regulations of federal

agencies (prohibiting federal contractors from reinstating

workers who test positive for the use of drugs), and gen-

eral laws like the Drug-Free Workplace Act of 1988 (re-

quiring every federal contractor with a contract of

$25,000 or more to achieve and maintain a “drug-free

workplace” or risk the loss of the federal contract).

REASONS FOR GRANTING THE WRIT

I. BY UPHOLDING THE REINSTATEMENT OF AN

ACKNOWLEDGED USER OF ILLEGAL DRUGS TO

A SAFETY SENSITIVE POSITION IN CONTRA-

VENTION OF A WELL-DEFINED, DOMINANT

PUBLIC POLICY, THE COURT OF APPEALS’ DE-

CISION THREATENS THE EFFECTIVENESS OF

EMPLOYER DRUG-ABUSE TESTING AND PRE-

VENTION PROGRAMS THROUGHOUT THE NaA-

TION, THEREBY RAISING AN IMPORTANT IS-

SUE WARRANTING REVIEW BY THIS COURT

A. Under This Court’s Decisions in W.R. Grace and

Misco, a Court Should Vacate an Arbitrator’s

Award That Violates an Explicit, Well-defined and

Dominant Public Policy that the Court Ascertains

by Reference to the Laws and Legal Precedents

A court is prohibited from enforcing a_ bargaining

agreement that is “contrary to public policy.” United

Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 42

(1987) (citing W.R. Grace & Co. v. Local Union 759,

461 U.S. 757, 766 (1983)). As the Court noted in Misco

and W.R. Grace, such a doctrine derives from the more

general legal doctrine that a court must not enforce con-

tracts that violate the law or some other policy. Jd. A

district court may refuse to enforce an arbitrator’s inter-

pretation of a contract as long as such a refusal to en-

force is:

limited to situations where the contract as interpreted

would violate ‘some explicit public policy’ that is

eee

7

‘well defined and dominant, and is to be ascertained

by reference to the laws and legal precedents and

not from general consideration of supposed public

interests.’

Misco, 484 U.S. at 43 (quoting W.R. Grace, 461 USS.

at 766). Indeed, it should be noted that the question of

whether such a public policy exists is “ultimately one for

resolution by the courts.” Jd.

B. The Court of Appeals Acted Contrary to Public

Policy By Holding That the Only Time an Arbitra-

tor’s Award Violates the Explicit, Well-defined and

Dominant Public Policy Against Drugs in the Work-

place Is When the Arbitrator Reinstates an Em-

ployee Who Was Found Actually to be Impaired or

Intoxicated on the Job

The Sixth Circuit held that Monroe did not identify

law or legal precedents which indicate that reinstating

Rafko violated a well-defined and dominant public policy

because Monroe did not prove that Rafko was actually

impaired or intoxicated while performing his duties. Pet.

App. A-15. The Sixth Circuit based its holding on the

faulty reasoning of the arbitrator that since there allegedly

is no established legal standard defining whether someone

is under the influence of marijuana, no one can be deter-

mined to be under the influence of marijuana absent some

physical manifestation even when such usage greatly

exceeds federal testing levels. By upholding the arbi-

trator’s order of reinstatement, the Sixth Circuit for all

practical purposes has protected the jobs of acknowledged

illegal drug users unless employers can show the worker

is “actually impaired” on the job.

There are three basic problems with such a result. First.

it presumes that illegal drug-induced impairment, in the

same manner as alcohol-induced impairment, generally

will be easily identifiable. The result suggests that if im-

pairment cannot be observed readily, then impairment

does not exist, even though drug use has been established.

Federal Judge Richard Arnold of the Eighth Circuit ar-

ticulated the problem with relying exclusively on observed

8

impairment in his opinion in Brotherhood of Maint. of

Way Employees v. Burlington N.R.R. Co.:

{TJhe use or abuse of marijuana and other illegal

drugs frequently does not produce an externally ob-

vious state of impairment... . It is the insidious

nature of these substances that too often the user’s

faculties are impaired and the damage done through

a serious error on his part before he realizes that

he is impaired and without any outward sign of his

impairment that could lead a supervisor or other

person to intervene.

802 F.2d 1016, 1020 (8th Cir. 1986). In other words,

drug-induced impairment may not be observed readily

and may not manifest itself until the damage has been

done.

Second, it is beside the point whether a drug test, in

and of itself. can conclusively demonstrate current im-

pairment. A confirmed, positive result does allow the

employer rationally to conclude that there has been recent

drug use that creates the possibility of current impair-

ment, as well as a risk of future impairment—perhaps

while on the job—as a result of subsequent use. Espe-

cially in a safety sensitive job, employers need the ability

to determine that, given reliable evidence of recent illicit

drug use, they should not have to assume the risk that

an individual is impaired or might repeat past behavior

and become impaired while on the job.

Third, and most important, the decision below ignores

the adverse, potentially serious, consequences of impair-

ment on the job that can result from an employee’s drug

use, and effectively prevents employers from taking steps

to minimize those adverse consequences.

It is well established that drugs can create cognitive,

perceptual, and judgmental problems; deficiencies in hand-

eye and fine motor coordination; as well as other neuro-

muscular and psychomotor dysfunctions. See H. Mosko-

witz, Adverse Effects of Alcohol and Other Drugs on

Human Performance, Alcohol, Health and Research

ee |

9

World, Vol. 9(4) 11-15 (Summer 1986). If employees

believe they can use drugs on the job and will not be

caught unless they are observed in an obvious state of

impairment—a difficult judgment for a supervisor or a

fellow employee to make—then human nature strongly

suggests that on-the-job drug use will continue. If it does,

then it creates a potentially serious accident waiting to

happen. Thus, the deterrent effect of drug testing is crit-

ical. If employees recognize that evidence of drug use

by means of a drug test can jeopardize their jobs, they

should be much less likely to use drugs. The result is

a safer and more productive workplace.

In upholding the Federal Railroad Administration’s

regulation (Rule G), requiring mandatory post-accident

drug testing in the Skinner case, Supreme Court Justice

Anthony Kennedy discussed the importance of the deter-

rent effect of drug testing:

While no procedure can identify all impaired em-

ployees with ease and perfect accuracy, the FRA

regulations supply an effective means of deterring

employees engaged in safety-sensitive tasks from

using controlled substances or alcohol in the first

place. [Citation omitted.] The railroad industry’s

experience with Rule G persuasively shows, and com-

mon sense confirms, that the customary dismissal

sanction that threatens employees who use drugs or

alcohol while on duty cannot serve as an effective

deterrent unless violators know that they are likely

to be discovered. By ensuring that employees in

safety-sensitive positions know they will be tested

upon the occurrence of a triggering event, the timing

of which no employee can predict with certainty, the

regulations significantly increase the deterrent effect

of the administrative penalties associated with the

prohibited conduct, [citation omitted] concomitantly

increasing the likelihood that employees will forgo

using drugs or alcohol while subject to being called

for duty.

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

629-30 (1989).

10

Not only is the decision below violative of these prin-

ciples but, as shown below, the decision also conflicts

with the national public policy against drugs in the work-

place which guards against the employment of individuals

in safety sensitive positions found to be actually impaired

or intoxicated and guards against the employment of ac-

knowledged illegal drug using employees.

C. The Court of Appeals Ignored the National Anti-

Drug Statutes, Regulations, Orders and Court

Decisions Establishing a National Public Policy

Against Drugs in the Workplace Which Not Only

Guards Against Reinstating Employees Who Are

Found to be Actually Impaired on the Job, But Also

Guards Against Reinstating Acknowledged Illegal

Drug Using Employees in Safety Sensitive Positions

The Court of Appeals erroneously held that the only

time an arbitrator’s award violates the explicit, well-

defined and dominant public policy against drugs in the

workplace is when an arbitrator reinstates an employee

who was found to be actually impaired on the job. By

so holding, the Court of Appeals ignored the national

anti-drug statutes, regulations, orders and court decisions

establishing an explicit, well defined and dominant public

policy against drugs in the workplace. These policy state-

ments not only guard against reinstating employees who

are found to be actually impaired on the job, but also

guard against reinstating acknowledged illegal drug using

employees in safety sensitive positions. The Sixth Cir-

cuit thus has failed to ascertain “by reference to the laws

and legal precedents” whether the arbitrator’s award “cre-

ated any explicit conflict with other ‘laws and legal prece-

dents.” Misco, 484 U.S. at 43 (quoting W.R. Grace,

461 U.S. at 766). Indeed, as Judge Nelson opined in

his dissent from the Sixth Circuit’s majority opinion, “the

brand of industrial justice dispensed . . . is out of har-

mony, to say the least, with the well-defined public policy

reflected in the nation’s drug laws.” Pet. App. A-18.

Even the arbitrator admitted that “[i]llegal drugs are a

scourge on society and it is undebatable that their use

11

and distribution can not be tolerated in the workplace.”

Pet. App. C-20.

The landscape of the American workplace has changed

dramatically over the course of the last decade. Health

and safety issues have commanded increased attention,

especially with respect to substance abuse on the job.

Indeed, numerous federal courts have recognized a dom-

inant public policy against drug use, possession or influ-

ence in the workplace.” Additionally, over the past sev-

eral years, a formidable array of national statutes, regu-

lations, and executive orders have established a national

policy that no longer tolerates workplace drug use, pos-

session or influence.

1. Rafko’s Test Results of 242 ng/ml of marijuana

Far Exceeded Federal Guidelines of 100 ng/ml

(Which the Government Has Proposed Dropping

to 50 ng/ml)

Pursuant to Presidential Executive Order 12564, the

U.S. Department of Health and Human Services (HHS)

issued Mandatory Guidelines establishing technical pro-

cedures that must be followed by federal agencies for

drug testing of their own employees. Mandatory Guide-

lines for Federal Workplace Testing Programs, 53 Fed.

Reg. 11970 (April 11, 1988). These Mandatory Guide-

lines promulgate that “any agency may require a con-

tractor to test its own employees following the procedures

in the Guidelines by making the requirement a term or

condition of the contract.” Jd. at 11975 © 21.

* See, e.g., Georgia Power Co. v. IBEW, Local 84, 707 F. Supp.

531 (N.D. Ga. 1989), aff'd mem., 896 F.2d 507 (11th Cir. 1990);

Oil Workers Local 4-228 v. Union Oil Co., 818 F.2d 437, 442 (5th

Cir. 1987); S.D. Warren Co. v. United Paper Workers Int'l

Union, 815 F.2d 178, 186 (1st Cir. 1987): Delta Air Lines, Inc. v.

Air Line Pilots Ass’n, Int’l, 861 F.2d 665 (11th Cir. 1988), cert.

denied, 493 U.S. 871 (1989); Iowa Elec. Light and Power Co. v.

Local Union 204 of IBEW, 834 F.2d 1424 (8th Cir. 1987); Union

Pac. R.R. Co. v. United Transp. Union, 794 F. Supp. 891, 894 (D.

Neb. 1992); Exxon Shipping Co. v. Exxon Seamen’s Union, 801 F.

Supp. 1379, 1388 (D.N.J. 1992) (“Exxon I’); Exxon Shipping Co.

v. Exxon Seamen’s Union, 788 F. Supp. 829, 843 (D.N.J. 1992)

(“Exxon IT’).

12

Recently, the Department of Health and Human Serv-

ices (HHS), has published proposed revisions to these

Guidelines. See 58 Fed. Reg. 6062 (Jan. 25, 1993).

These proposed revisions are technical in nature, reflect-

ing the technological advances that have improved the

accuracy and reliability of drug testing. In one of the

most significant proposed changes, the initial cutoff level

for establishing a positive result for marijuana metabolites

is lowered from 100 ng/ml to 50 ng/ml. 7d. at 6063.

Many private sector drug testing programs use a lower

cutoff level than 100 ng/ml, contending that the Guideline

cutoff of 100 ng/ml was not supported by scientific evi-

dence. The proposed change is a recognition of this argu-

ment. Significantly, Rafko’s tested level was 2.42 times

higher than the standard accepted by the federal govern-

ment to establish a “positive result.” Now, the federal

government is proposing to lower the standard from 100

to 50. Id.

The Guidelines have been incorporated, with only

minor modifications, into the drug testing requirements

applicable to private employers regulated by the Depart-

ment of Defense, Transportation, Energy, and the Nuclear

Regulatory Commission.

In fact, federal agencies have considered the work-

place use, possession or influence of illegal drugs to be

such a compelling violation of our national policy that

these agencies have invoked unusual procedures to re-

spond. For example, the Department of Defense (DOD)

bypassed the traditional “notice of proposed rulemaking”

(NPRM) process, and instead used its “interim rule”

procedures in adopting new rules for its contractors. 53

Fed. Reg. 37763, 37764 (Sept. 28, 1988).°

8 Such interim rule procedures are authorized only “if urgent and

compelling circumstances” make the NPRM process impracticable.

41 U.S.C. § 418(b)(d). Indeed, the interim rules themselves note

that they are “necessary to implement policy ... in keeping with

Federal goals to eliminate the use of illegal drugs and provide for a

drug-free work force.” 53 Fed. Reg. at 37764 (Sept. 28, 1988).

Under the DOD’s interim regulations, DOD contractors are re-

quired to include a “drug-free workforce” clause in “(a) [a]ll con-

13

2. Reinstatement of Employees Who test Positive

for Illegal Drug Usage Is Prohibited By Many

Federal Regulations

By affirming the arbitrator’s reinstatement of an ad-

mitted illegal drug user, the Sixth Circuit acted contrary

to a clear public policy prohibiting such reinstatement.

Significantly, the DOD rule discussed above prohibits cov-

ered employers from permitting an “employee to remain

on duty . . . who is found to use illegal drugs until such

time as the contractor . . . determines that the employee

may perform in such a position.” Jd. at 37765.

In 1989, the DOD issued a list of Questions and An-

swers designed to provide guidance to covered contractors

until the final regulations were published in the Federal

Register. One Question and Answer reiterates the regu-

lation (with minor changes) as follows:

Q: What happens to an employee who tesis posi-

tive?

A: Contractors shall adopt appropriate person-

nel procedures to deal with employees who are found

to be using drugs illegally. Employees in sensitive

positions may not continue to remain on duty insofar

as concerns the DOD contract until the contractor, in

accordance with contractor-established procedures,

determines the employee may return to work in the

sensitive position. (Emphasis added.)

Clearly, therefore, ‘positive law” prohibits DOD contrac-

tors from reinstating workers who test positive for the use

of illegal drugs.

tracts involving access to classified information; [and] (b) [a]ny

other contract when the contracting officer determines that inclusion

of the clause is necessary for reasons of national security or for the

purpose of protecting the health or safety of those using or affected

by the product . . .” except in the case of contracts for “commercial”

products. 53 Fed. Reg. 37763, 37764 (Sept. 28, 1988). The interim

rule states that DOD contractors must “institute and maintain a

program for achieving the objective of a drug-free work force.”

including supervisory training to spot drug use, provisions for

employee self-referrals, and “testing on a controlled and carefully

monitored basis.” The regulations went into effect on October 31,

1988, for solicitations and contracts issued on or after that date.

14

Similarly, six separate agencies of the Department of

Transportation (DOT)—The Federal Railroad Adminis-

tration (FRA), the Federal Highway Administration

(FHWA),* the Federal Aviation Administration (FAA),’

the Research and Special Programs Administration

(RSPA),° the Coast Guard,’ and the Urban Mass Trans-

poration Administration (UMTA)*—all issued drug test-

ing requirements applicable to private sector employ-

ers under their jurisdiction. 53 Fed. Reg. 47001, ef seq.

(November 21, 1988). Each of the DOT agency testing

regulations have features which are unique to the sector

being regulated, yet all require:

* pre-employment testing for safety-sensitive posi-

tions;

* employee testing for safety-sensitive positions; peri-

odically; for reasonable cause; after a serious acci-

dent; and on a random basis;

an employer’s written anti-drug policy;

employee and supervisory training;

employee assistance programs; and

* preemption of inconsistent state and local laws

(except UMTA).

*The Ninth Circuit rejected five separate lawsuits challenging

the FHWA regulations and upheld “a massive drug testing program

that will touch the lives of literally millions of citizens.” Teamsters

v. Department of Transp., 932 F.2d 1292 (9th Cir. 1991). Recently,

the FHWA published a final rule requiring employers subject to the

FHWA’s existing drug testing regulations to begin implementing

random and post-accident testing for covered commercial motor

vehicle drivers. 56 Fed. Reg. 40806 (August 16, 1991).

5 The FAA regulations were upheld against constitutional chal-

lenge in Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), cert.

denied, 111 S.Ct. 954 (1991).

® Upheld in IBEW, Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir.

1990) (random and other “suspicionable” testing not prohibited by

the Fourth Amendment).

T See, 56 Fed. Reg. 31030 (July 8, 1991).

8 Regulations were enjoined in Amalgamated Transit Union v.

Skinner, 894 F.2d 1862 (D.C. Cir. 1990).

a

15

More importantly, nearly all of these DOT regulations

prohibit the immediate reinstatement of employees who

test positive for the use of illegal drugs. For example,

the FAA rule states that a certificate holder or operator

may not “use any person to perform” if that person has

failed a test (or has refused to submit to a test) until that

person has received a recommendation to “return to duty”

from a medical review officer. 14 C.F.R. § 135.249(c).

See 53 Fed. Reg. 47024, 47061 (Nov. 21, 1988). Sim-

ilarly, the RSPA rules prohibit an operator from know-

ingly using an employee who fails a drug test or who

refuses to take a drug test unless authorized by a medi-

cal review officer. 49 C.F.R. § 199.9. See 53 Fed. Reg.

47084, 47097 (Nov. 21, 1988). Likewise, the FHWA

rule states that “a driver shall be disqualified . . . for a

period of 1 year for a positive test of controlled substance

use when the driver has been involved in a fatal accident”

or for “a refusal to give a urine sample when the driver

has been involved in a fatal accident.” 49 C.F.R.

§ 391.117(b), (a). See 53 Fed. Reg. 47134, 47154

(Nov. 21, 1988).

The FRA regulations are even more stringent: a

worker who refuses to provide a sample is disqualified

from service for nine months, and an employee who tests

positive must be suspended and removed from service

until he tests negative, is evaluated by an EAP counselor,

and completes a counseling or treatment course. Even

then, he is subject to follow-up testing without notice for

60 months after his return to service. 49 C.F.R.

S§ 219.603 and .605. See 53 Fed. Reg. 47102, 47129

(Nov. 21, 1988).

Further, the U.S. Department of Energy (DOE) has

published a final rule requiring DOE contractors to im-

plement mandatory drug testing for applicants and em-

ployees in “testing designated positions.” 57 Fed. Reg.

32652 (July 22, 1992). The rules, which went into effect

on August 21, 1992, also obligates prime contractors to

require their subcontractors to comply with the rule as a

condition for award of the subcontract. The final rule

16

requires DOE contractors and subcontractors to imple-

ment a substance abuse program, including drug testing

of applicants and employees in testing for designated po-

sitions (for example, health, safety, and/or security sen-

sitive jobs), at sites owned or controlled by DOE and

operated under the authority of the Atomic Energy Act.

Besides mandatory drug testing, minimum requirements

include prohibition on the use, possession, sale, distribu-

tion, or manufacture of illegal drugs; education and train-

ing of employees; employee assistance; and removal, dis-

cipline, treatment, and rehabilitation of employees. The

rule is closely modeled after the DOE’s program covering

its own employees. Covered contractors must submit a

written copy of their program to DOE as a condition of

the contract. The rule requires the immediate removal

from a testing designated position of any employee who

tests positive for illegal drug use.

The Nuclear Regulatory commission (NRC) issued its

final “fitness-for-duty” regulations for licensees authorized

to construct or operate nuclear power reactors. 54 Fed.

Reg. 24468 (June 7, 1989). The rules require NRC

licensees to establish and implement written policies and

procedures designed to meet the NRC fitness-for-duty

rule.*® Within the scope of this program, licensees must

test for substance abuse in the following circumstances:

(1) within 60 days prior to granting unescorted access

to protected areas; (2) on a random testing rate estab-

lished at 100 percent per year; (3) for cause, after cer-

tain accidents, or when credible information is received

that an individual is abusing a substance; and (4) as a

follow-up to verify continued abstention. Again imme-

diate reinstatement is not permitted.

Clearly, therefore, many companies are prohibited by

law from reinstating workers who test positive for the use

of illegal drugs or who admit using illegal drugs. Rein-

10 Contractors and vendor personnel performing certain activities

for a licensee must be subject either to the licensee’s program or to

a written program reviewed and approved by the license.

17

statement of these workers by an arbitrator would not

only violate public policy, but federal law as well.

3. Other Federal Restrictions Establish a Public

Policy Supporting Anti-Drug Abuse Policies, In-

cluding the Drug-Free Workplace Act

A number of other general laws further compel the

conclusion that there now exists a well-defined and dom-

inant public policy against drugs in the workplace.”

These general laws put increasing pressure on private

employers to assure that their employees are drug free.

A clear example of this general policy against drugs

in the workplace is the Anti-Drug Abuse Act, which went

into effect on March 18, 1989. As part of this compre-

hensive omnibus law, Congress adopted the Drug-Free

Workplace Act of 1988, a law that applies directly to

most of the companies that comprise the amicus EEAC.

The Drug-Free Workplace Act requires covered federal

contractors (with contracts of $25,000 or more) and

grantees to certify to the applicable contracting agency

that they are providing a “drug-free workplace.” 41 U.S.C.

S$ 701, et seq., Pub. L. No. 100-690. To comply with

the act, private employers with federal contracts must:

(1) publish a statement notifying their employees

that the unlawful manufacture, distribution, dis-

pensation, possession or use of a controlled sub-

stance is prohibited in the workplace;

(2) give employees a copy of this statement;

(3) notify their employees that their continued em-

ployment is conditional upon compliance with

the policies outlined in the statement, and that

they have the obligation to inform the con-

tractor of any conviction of a workplace drug

11 Additional discussion of the national anti-drug policy is set out

in some detail in Georgia Power Co. v. IBEW, Local 84, 707 F. Supp.

531, 536-38 (N.D. Ga. 1989), aff'd mem., 896 F.2d 507 (11th Cir.

1990) (arbitrator’s award reinstating illegal drug user to position

requiring operation and supervision of potentially hazardous electri-

cal equipment and machinery was contrary to public policy).

18

crime—such as the possession of drugs on coin-

pany premises;

(4) notifying the contracting agency within 10 days

of receiving notice of an employee’s workplace-

related drug conviction to establish a drug-free

awareness program to inform their employees

about the dangers of drug abuse in the work-

place;

(5) Impose some type of sanction upon an employee

who has been convicted of a workplace drug

crime;

(6) Establish a “drug-free awareness program” to

inform workers about the dangers of workplace

drug abuse, and the penalties for drug abuse

violations; and

(7) Make a “good faith effort” to continue to main-

tain a drug free workplace.

Contractors who fail to comply with the act are subject to

possible contract termination suspension or debarment.

Indeed, contractors are at risk of suspension or debar-

ment where a “number” of employees are convicted of

on-the-job drug violations. See Drug-Free Workplace Re-

quirements; Notice and Interim Final Rules for 14 De-

partments and 24 Agencies, 54 Fed. Reg. 4945, 4968

(Jan. 31, 1989).

President Reagan, on September 15, 1986, signed Ex-

ecutive Order 12564, thereby establishing a “Drug-Free

Federal Workplace.” The Executive Order calls for drug

testing of federal employees in sensitive positions and of

other employees reasonably suspected of drug use. The

Executive Order notes:

12 The district court in Georgia Power noted that “[t]he people

have also recognized the strong need to maintain safe work environ-

ments. To this end, Congress has enacted the Occupational Safety

and Health Act.” 707 F. Supp. at 538. See 29 U.S.C. § 651 et seq.

That law requires employers to “furnish to each of his employees

employment and a place of employment which are free from recog-

nized hazards that are causing or likely to cause death or serious

physical harm to his employees.” Id.

19

The use of illegal drugs, on or off duty, by Federal

employees is inconsistent not only with the law-

abiding behavior expected of all citizens, but also

with the special trust placed in such employees as

servants of the public; Federal employees who use

illegal drugs, on or off duty, tend to be less pro-

ductive, less reliable, and prone to greater absentee-

ism than their fellow employees who do not use

illegal drugs; [t]he use of illegal drugs, on or off

duty, by Federal employees impairs the efficiency of

Federal departments and agencies, undermines public

confidence in them, and makes it more difficult for

other employees who do not use illegal drugs to per-

form their jobs effectively. The use of illegal drugs,

on or off duty, by Federal employees also can pose

a serious health and safety threat to members of the

public and to other federal employees;

51 Fed. Reg. 32889 (Sept. 17. 1986) (emphasis added).

Additionally, as part of the Omnibus Transportation

Employee Testing Act of 1991, Pub. L. No. 102-143, the

Department of Transportation recently published a Notice

13 The Order also declares,

Drug use is having serious adverse effects upon a significant

proportion of the national work force and results in billions of

dollars of local productivity each year; the Federal government,

as an employer, is concerned with the well-being of its em-

ployees, the successful accomplishment of agency missions, and

the need to maintain employee productivity; the Federal gov-

ernment, as the largest employer in the Nation, can and should

show the way towards achieving druq free workplaces through

a program designed to offer drug users a helping hand and, at

the same time, demonstrating to drug users and potential drug

users that drugs will not be tolerated in the Federal work-

place;

Executive Order 12564 (emphasis added).

Congress also has enacted the Controlled Substances Act as part

of the Comprehensive Drug Abuse Prevention and Control Act,

Pub. L. No. 91-513, 84 Stat. 1236. Through this act, the people

have declared, “[tjhe illegal importation, manufacture, distribution

and possession and improper use of controlled substances have a

substantial and detrimental effect on the health and general welfare

of the American people.” 21 U.S.C. § 801(2).

20

of Proposed Rulemaking (NPRM) that would require

mandatory alcohol testing for some seven million workers

in the transportation industry, many of whom are em-

ployed by private sector companies. 57 Fed. Reg. 59382

(Dec. 15, 1992). The proposal would modify DOT's

existing drug testing regulations to pe a to changes

required by P.L. 102-143, including expansion of cover-

age and modernizing drug testing procedures.

By upholding the reinstatement order in this case in

disregard of these national policy concerns, the Court of

Appeals not only erred, but adopted a rule of law that

threatens employers throughout the country with con-

flicting obligations that can only hamper and deter their

elforts to eliminate illegal drugs from the workplace.

CONCLUSION

For the foregoing reasons, EEAC respectfully submits

that the petition for a writ of certiorari should be granted.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

THOMAS W. REED

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

April 14, 1993 * Counsel of Record