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

Indeed, very argument the Jerves rejection of her dispositive 6 as a cember construction in favor of a looser of makes claim, her to have violated and thus find 2675(a)illustrates its flaws. Jerves 2675(a), Section we language of Section express the that she should be allowed to contends the district reverse nevertheless should because it had evi- maintain her lawsuit no her action because dismissal of court’s progress by the time little the denced had been made progress substantial her claim in Feb- conclusively denied NLSO conclusively the NLSO by the time action However, 2575(a) 1990. Section ruary of 14, February her claim on denied agen- litigant may a deem an provides that points to Jerves support argument, of her finally denied her claim once six cy to have Ad v. Veterans in the decision Celestine elapsed filing the of months have Cir.1984), (8th Hosp., 746 F.2d min. progress of in the suit is claim. If lack held that FTCA Eighth Circuit the where test, litigants generally would be be prior initiated been had action proceedings in free to commence district claim could any filing of administrative agency waiting for an court without act be maintained nevertheless six will on their claims because months his administrative had exhausted plaintiff always elapse substantial almost before progress had before substantial remedies Adoption in progress is made their suits. Third suit. The Circuit made in his been strip position would thus Section of Jerves’ v. conclusion Kubrick a similar reached 2675(a) proper its force. A of much of Cir.1978), (3d States, F.2d 1092 United Congress respect of enactments over subsequently decision which was a result. such counsels other, Court Supreme ruled unrelated, grounds. though entirely IV. Kubrick, 444 U.S. v. States United See comply with failed Jerves Because 352, 62 L.Ed.2d requirements claim administrative a doc adopted we never FTCA, correctly dis- the district court Third espoused by to that trine akin subject matter her for lack missed suit em Eighth We have instead Circuits. jurisdiction. claim re the administrative phasized that AFFIRMED. 2675(a) jurisdic of Section quirements strictly nature, thus must be tional See, Lo Meridian Int’l e.g., to. adhered States, 939 F.2d Inc. v. United

gistics, States, Cir.1991); (9th Burns v. United Cir.1985). (9th This is 722, 724 764 F.2d OF BROTHERHOOD INTERNATIONAL sov the FTCA waives so since particularly WORKERS, LOCAL ELECTRICAL must “Any such waiver ereign immunity. Petitioners, al., et of the United strictly favor construed be - States, v. United Ardestani States.” U.S.-, 116 L.Ed.2d REGULA NUCLEAR STATES UNITED 2675(a) ex- establishes Section & United States COMMISSION TORY filing of suit plicit prerequisites America, Respondents. court. in district against the Government No. 90-70647. the clari- exceptions. Given of no It admits Appeals, Court States United language, we “cannot statutory ty Ninth Circuit. to be sued which ‘enlarge that consent Government, Congress, under- through has 12, 1992. Feb. Argued and Submitted ” Hatchett, limit.’ carefully so taken 11, 1992. June Decided Air- Claremont (quoting F.2d at 898) (in quoting turn 420 F.2d craft, States, v. United Mann Cir.1968)). power plants to de-

all commercial implement duty fitness velop and (“FFD”) regulations speci- programs.1 The must include a program each FFD fied that program for workers random Carder, Nathan, Leonard, Na- N. Sanford “protected who have unescorted access Remar, Zuckerman, Ross, & than, Chin 10 C.F.R. of nuclear facilities.2 areas” Danzell, Cal., Oakland, and Tom Walnut reg- with 26.24 accordance § Cal., Creek, petitioners. for ulations, Com- the Pacific Gas Electric and Mullins, operates and the Diablo pany, of the Gen. which owns Office E. Charles Com’n, adopted power plant, a new Canyon nuclear Regulatory Counsel, U.S. Nuclear urine test- program requiring D.C., random respondents. Washington, FFD. employees to take ing Canyon for Diablo beginning January 1990. effect at the end of an Canyon is located Diablo guarded twenty-four eight-mile road that is NELSON, FLETCHER, D.W. Before: di- day. plant's facilities are hours a The FERNANDEZ, Judges. Circuit and increasingly three areas vided into with unprotected area The restricted access. OVERVIEW lots, training build- parking contains NELSON, Judge: Circuit D.W. offices, and ing, engineering construction International 1245 of the protected Petitioner Local The secondary and warehouses. (“Local Workers of Electrical the administra- plant Brotherhood of the contains area Regulatory 1245”) appeals building, the Nuclear building, and vari- tive the turbine exempt (“NRC”) warehouse, handling refusal security, fuel Commission’s ous and warehouse, em- clerical, and maintenance is restricted to this area buildings.3 Access pow- granted Diablo at the have been ployees who to individuals drug testing industry-wide employees from an must plant and er access” “unescorted test- argues that the control check- through a series of program. pass also applied ing entering. Finally, is unconstitutional the vital program points before they do not auxiliary and these plant contain areas of of the “vital areas” the re- buildings, house access which containment and do not highly supervised, other actor, generators, are and plant, cooling pumps, compromise that could Access to job equipment. duties perform safety-sensitive the decision of specified em- safety. We affirm is restricted plant these areas computer has failed to establish given special Local 1245 are ployees NRC. question are guards no groups of workers there key that cards. areas, em- positions. so an to vital not at the entrances could theoretical- keya card ployee without into the employee ly another PROCEDURAL AND follow FACTUAL areas. BACKGROUND approximately represents promulgated the NRC On June Canyon, with employees at Diablo clerical required regulations that

“fitness-for-duty” pro- disagree whether about parties The full 3. promulgated regulations after were The 1. equipment that plant contain tected proceedings. areas comment notice and operations. Local to safe essential protected area does simply states that those areas defined as areas” are "Protected equipment. The any safety-sensitive contain and to physical barriers plant surrounded contends, specificity, more much NRC without § 26.3. 10 C.F.R. is restricted. which access equipment that protected area contains facility are of a nuclear most sensitive areas The pertinent information provides areas,” additional generally con- designated as “vital provides "addi- conditions unusual event of radiologically sensi- other reactor and tain the conditions. cope those capacity” to with tional equipment. tive job ranging yon’s titles “Routine Plant program.5 par- Clerk” to “Clerical Assistant.” Both responded it considered Local agree majority ties that the vast of these request petition 1245’s to be both a for an only in work the administrative and a the NRC area, building protected within but that reconsider or amend its FFD rule. Accord- employees require ingly, some clerical access to the NRC also referred Local 1245’s plant.4 Although petition vital areas of the clerical petition to staff as a for rulemak- employees perform mainly ing secretarial and told Local 1245 that it needed to duties, alleges specific administrative the NRC file proposed amendments to the employees process some of these access rule. Local pursue 1245 chose not to security clearances and would be re- course of accordingly per- action and never quired plant’s emergency petition to staff the re- fected a for rulemaking. sponse center in the event of a nuclear In regard petition to the exemp- for an emergency. tion, both Local 1245 and Pacific Gas & represents

Local approximately 1245 also supplemental Electric filed information employees perform pursuant warehouse tra- request. Sep- NRC’s On 24, 1990, ditional warehouse functions such as re- tember hearing, and without a the ceiving, storing, categorizing, and disburs- NRC denied Local 1245’s for an ing. Local 1245 contends that their exemption, chiefly grounds work is on the that Lo- safety-related, part any because cal 1245 had not established that its em- safety-sensitive materials ployees received at the any significant differed in way by plant’s warehouse are also checked employees power similar at other quality department. control The plants NRC re- and that Local 1245 had not ad- sponds safety-sensitive that their any work is arguments vanced different from those any error in cataloging or rejected by dis- considered and at the bursing process could result in wrong time promulgated the rule. The NRC being plant system. material installed in a also noted that all workers with access to Although they disagree frequen- protected as to the plant areas of the poten- had the cy, parties agree both illegal warehousemen tial both distribute substances to occasionally least plant enter vital other employees and to threaten the areas of the to deliver materials and safety plant. appeal of the This followed.6 equipment. STANDARD OF

Between REVIEW 250 and 300 maintenance work- ers are also members Local 1245. These uphold We must the NRC decision employees repair maintain and the mechan- denying unless it was “arbi equipment ical and electric plant. of the discretion, trary, capricious, an abuse of or Local 1245 concedes that this work is con- otherwise not in accordance with law.” 5 necessity sidered and of 706(2)(A). scope U.S.C. of review § performed often within the vital areas of arbitrary capricious under the and standard plant. narrow we not substitute our 13, 1990, March judgment

On Local 1245 filed a agency. for that of the Motor requesting letter with the NRC its Manufacturing Vehicle Ass’n v. State exempted Co., 29, members be from Diablo Can- Farm Mutual Auto Ins. alleges drug testing program. 4. The NRC Although some clerical the random require plant’s even access to the control room temporary restraining initially grant- order was perform in order to their duties. ed, the district court later determined that it did order, jurisdiction, not have dissolved the permit exemptions 5. The rules NRC's transferred the matter to the Ninth Circuit. The endanger property "will not life or or the com- plaintiffs’ request denied the Ninth Circuit security.” mon defense or § C.F.R. 26.6. emergency plaintiffs eventually relief and the 29, 1989, voluntary 6. On December several individual Dia- filed a motion for a dismissal of the Canyon employees against 9, blo filed suit appeal, granted Pacific which was on October seeking injunctive against Gas & Electric relief government’s L.Ed.2d 443 interests to de application termine whether drug testing program to these em

NRC’s ployees evaluating is constitutional. DISCUSSION privacy employ interests of Local 1245’s years, many of past few In the ees, guide analy considerations our “[t]wo regarding the con questions the threshold (1) sis: whether as a result of other circum stitutionality have been sett industry already in this stances First, “drug testing performed by led.7 expectation privacy; have a diminished compulsion employers under private (2) particular testing pro whether govern government regulation constitutes gram privacy.” minimizes the intrusion of subject to constitutional re mental action Skinner, v. F.2d Skinner, strictions.” Bluestein denied, (9th Cir.1990). Local 1245 con Cir.1990), - employment their -, 112 cedes that virtue of Second, regulated industry,8 employ urinalysis extensively L.Ed.2d 1042 subject to the restric- power plants constitutes a search have a dimin ees of nuclear Amendment. National tions of the Fourth See Rushton privacy. expectation ished Raab, Employees Union v. Von Treasury District, Power v. Nebraska Public 844 1384, 1390, 656, 665, 103 109 489 U.S. Moreover, 562, (8th Cir.1988). 566 F.2d Railway Skinner v. (1989); L.Ed.2d 685 challenge pro 1245 mounts Local no Executives, 489 U.S. 602, 616-18, Labor conducting drug in tests. cedures used the 1412-13, L.Ed.2d 639 109 S.Ct. question the The critical is thus whether Third, usual Fourth Amend- “the government’s asserted interests rise proba- of a warrant and requirements ment testing justify level to sufficient in necessarily apply the cause do not ble employees. these Bluestein, F.2d testing drug context.” governmental inter- asserted The NRC Rather, search “serves when a at 455. reliability public safety in and in the ests needs, beyond the special governmental denying in integrity its workforce enforcement, it is nec- normal law need for exemption, for an but 1245’s privacy the individual’s essary to balance public safety rationale only in- the the Government’s it advances expectations rationale, impracti- whether it is to this terests to determine this court.9 As before require a or some level of power cal to warrant nuclear emphasizes that NRC suspicion particular individualized inflict cata- potential industry has the Raab, 665-66, at context.” Von Indeed, society. courts harm on strophic at 1390. industry used the nuclear repeatedly have workplace that “could of a example as priva- must balance the Accordingly, we harm that catastrophic social such produce of Local 1245’s members cy interests limited, closely matter, ly are observed preliminary we note that the NRC As a plant. while inside argued initially was not entitled that Local 1245 proceeding of the constitu- to seek review in this pur wisely decided to refrain NRC 9. The regulation applied its tionality of the FFD suing integrity rationale of the workforce its that we NRC conceded workers. The has since uniformly appeal. This rationale has almost constitutional consider Local 1245’s can indeed rejected by as insufficient the courts been reviewing application of challenges when See, e.g., Tay testing justify drug employees. Co. regulation. Edison See Commonwealth (7th Cir. O’Grady, 888 F.2d lor v. Cir.1987) ("indi- NRC, integrity 1989) ("A generalized interest in the brought challenges when the to the rule rect however, is, enough to over not the workforce particular are applied individual to a rule issue."); Harmon privacy interests at come the jurisdiction."). within the court’s (D.C.Cir.1989) Thornburgh, 878 F.2d v. (noting rationale integrity force of the work denied, Raab), support requires back- in Von example, NRC extensive found no 8. For L.Ed.2d 949 employees granted unescorted U.S. ground checks of access, power plants is severe- nuclear access to Raab, no risk whatever is tolerable.” drug-impaired Von move a coworker from the 684, 109 (Scalia, J., nature, speculative S.Ct. at 1400 scene. Because of their dissenting). arguments entirely per- NRC also asserts that all these latter are not persons have unescorted deny govern- access to the suasive. We do not protected power plant strong areas of a ment has a interest in random test- potential endanger ing public industry employees have the safe of nuclear who are ty, jobs safety- However, even if their positions. own are not permitted government's related and even if not blanket inclusion of all work- to enter the in protected may vital areas. ers areas in some cases be overkill. arguments

The NRC three advances If Local 1245 were able to establish that First, support of this assertion. engage the clerical workers did in any suggests smuggle that workers could safety-sensitive work and had no access to drugs facility. into the theory We find this areas, plant’s the balance of inter- justify testing insufficient to in the nuclear might ests well be different. it power industry. accepted Cases that have apparent that at least some of the cleri- generally this rationale have involved cal at Diablo do enter prison guards. See, e.g., Taylor, may the vital areas of the have Although prison guards 888 F.2d at 1197. safety-related Moreover, responsibilities. ready or even customs officials appears it group that this of clerical work- supply access to both a of and a demand ers with access to vital areas is not a static drugs, possibility seems far more one; composition group could power plant. remote a nuclear vary assignments because of task or work- Second, argues drug- the NRC court, shifts. On the record before this impaired engage workers could in deliber impossible for us to ascertain whether ate or accidental actions that could threat group there is some of clerical workers for safety systems. en example, As an actual testing whom inappropriate. would be We operator the NRC cites a crane at Diablo suspect many clerical fairly workers cannot although he was not under who— having safety-sensitive be classified as drugs the influence of at the time— However, jobs. light inability of our line, power knocked over a causing power a distinguish between those clerical workers outage plant’s in one safety systems. pose public safety a real threat to hypothetical Another example even more not, those unwilling who do we are to re- directly germane to this case is that of a verse the NRC’s denial of an drug-impaired roaming freely worker this time.10 through room, plant’s control a situa obviously fraught tion danger with the that the case of the warehouse em In accidentally us, worker will interfere ployees, with ap from the record before safety system. a argu pears The NRC’s third many engaged are in work that is possibility drug-impaired ment is the that a sufficiently safety-sensitive up to warrant ability worker could interfere holding with the of a exemption. the NRC’s denial of an clearly worker in safety-sensitive position These apparently actually han operate plant. maintain the To re safety-sensitive dle material and often en example, turn to the control room an em ter the vital plant areas of the to make ployee could become distracted from his deliveries. argues Local 1245 the fact responsibilities by pressing need to re- employ- work hours of warehouse drug per 10. The two cases that have considered test- seven hours chance of their month and the ing power industry although actually causing in the nuclear small. The drug accident was — Supreme Washington Supreme upheld testing decided before the Court’s deci- Court upheld programs, emphasizing prospective pipefitters plumbers sions—also for at a Rushton, potential power plant. Washington the vast harm. for Alverado Eighth drug Supply, F.2d at Circuit found that Pub. Power 111 Wash.2d 759 P.2d constitutional, (1988), engineers denied, of two was even though only the men visited the six to 104 L.Ed.2d 153 proof employ- regarding ees are not limited is cisión of the NRC them is af- engaged ees are firmed.12 rejected argu- we this work. CONCLUSION drug testing involving flight

inment case Bluestein, 908 F.2d at 457 attendants. The decision of the NRC is AFFIRMED. (“The decisions, however, duty time do not proposition impairment stand for the FERNANDEZ, Judge, Circuit with whom safety performance public of ... is never a Judge Circuit joins, FLETCHER consideration.”). Local 1245 has failed to concurring: establish a discrete record as to certain This case demonstrates the wisdom warehousemen that would entitle some of by the shown founders of this nation when exemptions. them to upon adoption insisted Amendment, despite Fourth the claims of Finally, we believe that many that the explicit guar- declaration of drug testing of the maintenance antees unnecessary and undesirable. clearly 1245 con constitutional.11 Local Federalist, (A. See The No. 84 at 531-36 workers, respon cedes that these who are Hamilton) (B.F. 1961). Wright ed. It also undisputably repairs sible for just slippery slippery demonstrates how equipment, engaged safety- indeed slope stepped upon we have has become. argues instead sensitive work. Perhaps because I slid down that features, design Canyon’s that Diablo re slope judiciary, with the rest of the I can dundancy safety systems, extensive accept and do reasoning most of the con- training procedures, and the doubleeheck majority opinion. tained in the agree, I ing of all maintenance work makes the also, sufficiently that it is clear that main- drug testing program unnecessary. How tenance subjected workers can be ever, in a case as we noted indignity mandatory drug testing. How- involving pipeline heavy su “[t]he ever, I believe the went too far when pervision of ... does not ... ne workers it decided that all clerical workers must gate the need for other mechanisms to rights have their Fourth Amendment sacri- prevent accidents.” 913 F.2d at ficed on the altar of our fears. rejected n. Rushton court well, concluding same Since federal courts have entered upon enterprise balancing priva- safety that extra measures were not made superfluous simply cy because the nuclear of workers the “need” for test- designed ing, was to withstand an im more and more citizens have become Rushton, paired operator. subject trip 844 F.2d at 565. escorted bath- workers,1 engaged example, Because maintenance workers are room. For railroad cus- work, workers,2 anyone security a undeniably safety-sensitive in the de toms with be found arbi- 11. The NRC contends that Local 1245 did not that the NRC’s decision should exemption an for maintenance workers trary capricious and because was not based accordingly before the NRC and that Local 1245 This contention is on substantial evidence. may appeal. reject on not raise this issue We explained specifically merit. The NRC without why argument. original Local 1245’s letter re grant exemption and its it refused to quested employees represented by an for all Diablo decision, considering especially the closeness of group Local a to clerical was a reason- the issue as able, which includes maintenance workers. More controversial, IBEW, if one. See over, supplemental provided in the materials 1457; Bluestein, F.2d at 457. at NRC, included declarations from expressly argued maintenance workers in Assoc., Railway Labor Executives 1. Skinner testing program its cover letter that the 1402, 103 L.Ed.2d 639 protective unnecessary because extensive mea already ap place. sures were Local 1245’s peal regarding properly maintenance workers is before this court. Treasury Employees Union v. Von 2. National Raab, 103 L.Ed.2d belated, a non-consti- 12. Local 1245 also makes tutional in the conclusion of its brief Still, drip- drivers,4 the constant gas pipeline American workers. clearance,3 truck ping exceptions on the rock those prosecutors of workers,5 personnel,6 airline rights help cannot but have an effect. offenses,7 officers with correctional earnestly argument makes contact,8 advanced jockeys,9 and Each regular prisoner plausible. That is next one seem more information10 the handling sensitive workers ru- explanatory true since the subjects particularly proper all found be have been each evokes from the course, minations that case it is true that we testing. Of up language help the offer if courts chill we knew would feel cold a argu- argument. The categories government’s next were in some of these workers regarding clerical of the NRC work- their duties. ments drugs performing while that. ers demonstrate however, true, the courts It is also testing workers from excluded some have of those workers Many if not most timorous spite of the desire of programs, secretarial, typ which are tasks basic everyone who can be to test bureaucrats information, collecting ing, filing, payroll So, perhaps held that courts have found. tracking injuries, preparing payrolls, accountants, clerks lawyers, typists, some carrying mail. How in the world can those tested, even messengers cannot be pow result in a nuclear disaster at a tasks agency can be.11 people where other Well, drug- says that a plant? er people some suggested that We have might smuggle drugs into the taking clerk pro- gas pipelines also be work about people plant and distribute them to other testing, jobs if their are not tected from proper jobs majority are vital. The whose 1245, 913 safety related. Ah, ly rejects says that chimaera. Moreover, the Seventh Cir- F.2d at 1462. NRC, secretary maybe drug impaired a but administrative and cuit has observed that a area and distract will wander into pose any personnel who do not back office begin pushing Of or buttons. someone safety or other interests of great threat to course, any the same could be said in situa exempt, even if government are person func tion where a with a non-vital Dimeo, 943 the armed forces. work for possibly come into contact with tion could Circuit has also F.2d at 685. Seventh Perhaps a vital function. person who has “generalized interest that a held inmates prison worker with no access to sup- integrity force” will not of the work get access once or could interfere could testing program. Taylor, 888 F.2d port a guard. Taylor, 888 F.2d at with a But cf. addition, prison even in a set- at 1199. perhaps a non-frontline customs 1199. Or no such of em- ting there can be a frontline worker could interfere with regular come into con- ployees who neither worker, him evil. But or induce to do cf. opportunities smug- nor have tact with Raab, 489 U.S. at Von gle drugs to the inmates. Id. person in perhaps 1397. Or a back office harm Thus, the armed forces could run amok and it must be said that courts Dimeo, F.2d entirely security. 943 yet not insouciant national But have become cf. rights Finally, any prosecutor, Amendment of at 685. almost the Fourth about Harmon, AFGE, (9th Cheney, v. F.2d at 944 F.2d 503 7. 878 492. 3. Thornburgh, Cir.1991). Harmon v. F.2d 878 Cf. denied, (D.C.Cir.1989), cert. 8. 493 U.S. 493 O'Grady, Taylor v. F.2d Cir. 1189 (1990). 107 L.Ed.2d 949 1988). 4. International Teamsters v. Griffin, Brotherhood (7th Cir.1991) Dimeo v. F.2d 679 9. of DOT, (9th Cir.1991). (en banc). 932 F.2d 1292 Skinner, 10. Department Navy Egan, 1245 v. 5. 518, 527-28, 818, 824, (9th Cir.1990). 98 L.Ed.2d 918 Skinner, (9th Cir. Bluestein v. F.2d 451 - 11. Von Raab, 1397; denied, U.S.-, 1990), 489 U.S. at 109 S.Ct. at Harmon, 878 F.2d at 492-93. 112 L.Ed.2d classifications, engage in a I manager prepared could would be more to clerk or Department of the portions regulations induced disturbance strike down the of the Harmon, F.2d at 492- sweep Justice. But broadly. suspect which do too I cf. implicitly courts at least 93. Other significant portion. would be a As the Yet it is rejected those kinds of scenarios. stands, quite record it would impossible be NRC, possibility kind of just that doubt, shape proper order. No to cast net in its earnest desire its petitioner specific failure of the to be more justifi- widely possible, argued as has as as was its protect driven zealous desire to testing of clerical workers at cation for the however, doing, all of its members. In so agree I that so Canyon. do not Diablo it has committed an error akin to the error ephemeral argument justification it to the ascribes NRC—it has tried to enough. accomplish too much.12 vein, if says In the NRC a similar Thus, given the state of the record be- occur, clerical disaster does some workers us, majority’s fore determination that perform may have some tasks to that are uphold we must the determination of the they importance would “staff” nothing regarding NRC that it should do center, emergency response whatever the clerical at this surely workers time is It seems to me that it does that means. same, incidentally, correct. The is true of enough require mean that all of the not workers, although the warehouse on this testing at subjected workers be clerical record it is even less clear that all times. entitled to relief. reasons, agree with these I cannot For sum, I accept am unable to the NRC’s opinion portion majority of the which including that its reasons for all gives finds merit the reasons the NRC testing regulation clerical in its workers all clerical for its desire to test They are sufficient. are not. The same my sough jeremiads add and I must some of well be true the ware- developments have watched of others who hand, house workers. On the other See, dismay. e.g., in this area with Von petitioner’s presentation of its case to Raab, 680-87, 109 S.Ct. at impossible NRC was so unfocused that it is J., Dimeo, (Scalia, dissenting); 1398-1402 separate categories of workers who J., (Wood, dissenting). 943 F.2d at 686 categories should not be covered I, nevertheless, Having said all of this those who should be. opinion majority concur of the Therefore, agree por- I do not with the weighty mundane but still reasons. rather majority’s tion of discussion which al- court, it the record before this On to use a net with mesh so lows the NRC possible many clerical to ascertain whether many catch should be fine that will truly positions do hold workers go pass through allowed to free. How- Merely testing appropriate. make would record, ever, I con- given the state of this does not labeling people as clerical workers cur. IBEW, Lo lead to an obvious result. See petitioner Had cal 913 F.2d at 1462. in such a

presented case to the NRC its making neces

way as to allow among

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

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 11, 1992

Citation: 966 F.2d 521

Docket Number: 90-70647

Court Abbreviation: 9th Cir.