03-1574 | 6th Cir. | Sep 30, 2004
KENNEDY, Circuit Judge. The Plaintiffs, International
Jointly and Severally, (cid:45) Union, United Automobile, Aerospace, and Agricultural (cid:45) Defendants-Appellees. Implement Workers of America (UAW), and its affiliated (cid:45) Local 6000 (hereinafter referred to collectively as “UAW”), (cid:45) appeal from the district court’s judgment holding that a (cid:45) random drug testing program implemented for select (cid:78) Michigan civil service employees, including probation and parole officers, non-custodial employees in prisons, and Appeal from the United States District Court medical personnel who deliver medical or psychological for the Western District of Michigan at Lansing. services to persons in state custody, does not violate the No. 00-00021—David W. McKeague, District Judge. Fourth Amendment. The district court reached this conclusion as it found that the state established sufficient Argued: August 5, 2004 “special needs,” based upon substantial public safety concerns, which overrode the intrusion on the Fourth
Decided and Filed: September 30, 2004 Amendment rights of the employees subject to the drug Before: KENNEDY, SUTTON, and COOK, Circuit Judges. 1 No. 03-1574 International Union, et al. v. 3 4 International Union, et al. v. No. 03-1574 Winters, et al. Winters, et al. testing. [1] We agree with the district court’s conclusion, and Category 3: A position in which the incumbent, on a AFFIRM. regular basis, provides direct health care services to persons in the care or custody
BACKGROUND
of the state or one of its political subdivisions.
The UAW represents approximately 20,000 State of Michigan employees. Under the Michigan Constitution, the Category 4: A position in which the incumbent has Michigan Civil Service Commission has the power to regulate regular unsupervised access to and direct the terms and conditions of employment for the State’s civil contact with prisoners, probationers, and service. On May 20, 1999, the Commission adopted a parolees. random drug and alcohol testing program, essentially borrowing protocols and procedures issued by the United Category 5: A position in which the incumbent has States Department of Health and Human Services and unsupervised access to controlled Department of Transportation. The testing program was substances. incorporated into the 1999-2001 Collective Bargaining
The largest group of UAW represented employees now Agreement between the UAW and the State of Michigan. being tested consist of probation or parole officers and field Article 52 of the Agreement identifies seven categories of service assistants. These employees are subject to testing “test-designated positions” that are subject to testing. The either because they have law enforcement powers, are UAW represents 2,855 employees who occupy test- designated positions, all in the following four categories: [2]
required or permitted to carry a firearm while on duty, or have regular unsupervised access to and direct contact with
Category 2: A position in which the incumbent probationers or parolees. The UAW does not challenge the possesses law enforcement powers or is testing of those parole or probation officers who applied for required or permitted to carry a firearm and maintain their eligibility to carry firearms. Rather, it while on duty. challenges the testing of those employees who are subject to
testing only because they possess law enforcement powers or have access to and contact with probationers or parolees.
The next largest group subject to testing consists of non- [1] The parties subm itted the m atter to the district co urt for judgment custodial employees who work for the Department of
based on stipulated facts and briefs in lieu of trial. Corrections or the Department of Community Health within the perimeter of the state’s correctional facilities. [3] These [2] Although the UAW criticizes the district court for not examining
every “job,” the district court did not need to evaluate each individual position because the UAW agreed to a stipulation that each of the 2,855 [3] positions, occupied by employees it represents, requires duties, in varying These employees include Athletic and P rogram Coo rdinators, amounts, within one or more of the four challenged categories. Indeed, Chap lains, Priso n Co unselo rs, Rec reational T herap ists, Special Education the UA W mad e this stipulation and agreed to admit a representative Tea chers, Dietician/Nutritionists, State Transitional Professionals, samp le of position descriptions. Thus, the UAW waived the argument Employment Counselors, Com munication A ssistants, and General Office concerning the need to evaluate each job description. Assistants. No. 03-1574 International Union, et al. v. 5 6 International Union, et al. v. No. 03-1574
Winters, et al. Winters, et al. employees are subject to testing because they have regular 689 U.S. 656, 665 (1989). Because these intrusions are unsupervised access to and direct contact with prisoners. searches under the Fourth Amendment, we must therefore
review the State’s policy for reasonableness, “which is the A third group of test-designated positions consists of touchstone of the constitutionality of a governmental search.” Department of Corrections and Department of Community Board of Education v. Earls , 536 U.S. 822" date_filed="2002-06-27" court="SCOTUS" case_name="Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls">536 U.S. 822, 828 (2002). The Health employees who provide health care and psychological Earls Court noted that in “the criminal context, care to prisoners. These positions include nurses, reasonableness usually requires a showing of probable cause.” occupational therapists, psychologists and social workers. Id. However, the probable cause standard, the court further
noted, “‘is peculiarly related to criminal investigations’ and Finally, a fourth group consists of Department of may be unsuited to determining the reasonableness of Community Health, Department of Education, and administrative searches where the ‘Government seeks to Department of Military and Veterans Affairs employees who prevent the development of hazardous conditions.’” Id . provide health care and other services to residents at state (citing Von Raab , 489 U.S. at 667-68). Thus, “in certain hospitals for the mentally ill and developmentally disabled limited circumstances, the Government’s need to discover and to residents of veterans’ homes. These positions include such latent or hidden conditions, or to prevent their psychiatrists, psychologists, physicians, dentists, nurses, development, is sufficiently compelling to justify the therapists, and social workers. intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion.” Von Raab ,
After the district court denied UAW’s claim for declaratory 489 U.S. at 668. Therefore, the Court has recognized, a and injunctive relief and awarded judgment for the State, this search unsupported by individualized suspicion may appeal followed. Since the issue in this case concerns the nonetheless be reasonable when the government alleges reasonableness of a Fourth Amendment search, we review the “special needs,” beyond the normal need for law enforcement, district court’s decision de novo . Knox County Education that are both substantial – important enough to override the Ass’n v. Knox County Bd. of Education , 158 F.3d 361" date_filed="1998-09-29" court="6th Cir." case_name="Knox County Education Association v. Knox County Board of Education">158 F.3d 361, 371 individual’s privacy interest, and sufficiently vital to suppress (6th Cir. 1998). the normal requirements of individualized suspicion. Chandler v. Miller , 520 U.S. 305" date_filed="1997-04-15" court="SCOTUS" case_name="Chandler v. Miller">520 U.S. 305, 318 (1997).
ANALYSIS
In reviewing the reasonableness of a drug testing policy, the The Fourth Amendment to the United States Constitution Court has instructed that we weigh the extent of the intrusion protects “[t]he rights of the people to be secure in their upon the privacy interest of the individuals being tested persons, houses, papers, and effects, against unreasonable against the promotion of the government’s proffered special searches and seizures.” It is beyond dispute that government need in conducting the tests. Earls , 536 U.S. 822" date_filed="2002-06-27" court="SCOTUS" case_name="Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls">536 U.S. at 830. For ordered collection and testing of urine samples effects a instance, a program may be unconstitutional even if the search within the meaning of the Fourth Amendment as such intrusion upon the individual’s privacy rights were minimal, tests intrude upon reasonable expectations of privacy that if the government fails to establish a sufficient special need society has long recognized as reasonable. See Skinner v. justifying the intrusion without individualized suspicion. See Railway Labor Executives Association , 489 U.S. 602, 619 e.g. Chandler , 520 U.S. 305" date_filed="1997-04-15" court="SCOTUS" case_name="Chandler v. Miller">520 U.S. at 318-19. A drug testing program (1989); National Treasury Employees Union v. Von Raab , may also be unconstitutional, conversely, even if the No. 03-1574 International Union, et al. v. 7 8 International Union, et al. v. No. 03-1574 Winters, et al. Winters, et al. government establishes a sufficient special need, if the requiring the employee to carry a firearm. Id. at 660. The intrusion upon the individual’s privacy interest were Court concluded that there was a sufficient special need to excessive, for instance, because of an overly intrusive testing test these employees without individualized suspicion because procedure. In deciding whether the State’s testing program their work involved drug interdiction; they were required to here was justified by a sufficient special need that outweighed carry firearms; they could be subject to bribes or blackmail by the privacy interest of those being tested, it is helpful to the drug smugglers they were required to interdict; and they briefly review precedent in this area to see how the Supreme were not subject to the day-to-day scrutiny that is the norm in Court and our court have balanced these competing interests. the more traditional office environment. Id . at 668-71, 74.
In Chandler , the Court concluded that the state failed to In Earls , the Court concluded that a school may test proffer a special need that would overcome the general students for drugs who participate in extracurricular activities prohibition against suspicionless searches. 520 U.S. 305" date_filed="1997-04-15" court="SCOTUS" case_name="Chandler v. Miller">520 U.S. at 322. since the school’s ‘special need’ to “prevent and deter” the The special need in Chandler failed because the state’s use of drugs by students, where the school is responsible for interest was found to be merely symbolic, not special. Id. In maintaining the discipline, health, and safety of those Chandler , the State of Georgia required all candidates who students, outweighs the student’s limited privacy interest. sought to qualify for nomination or election to a state office 536 U.S. 822" date_filed="2002-06-27" court="SCOTUS" case_name="Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls">536 U.S. at 834, 836. In reaching this conclusion, the Court to certify that they had tested negative for drugs. Id. at 309. first considered “the nature of the privacy interest allegedly In defense of the policy, Georgia asserted that the use of compromised by the drug testing.” Id . at 830. The Court drugs is incompatible with holding state office since the use noted that a “student’s privacy interest is limited in a public of drugs calls into question an official’s judgment and school environment.” Id. The Court further noted that a jeopardizes the discharge of public functions. Id. at 318-19. student’s expectation of privacy is even further diminished if Notably lacking from Georgia’s defense, the Court noted, was the student participates in extracurricular activities, since such any indication of a concrete danger that would arise by failing activities are typically heavily regulated. Id .; Cf. Veronica to test these candidates, thus demanding departure from the School Dist. 47J v. Action , 515 U.S. 646" date_filed="1995-06-26" court="SCOTUS" case_name="Vernonia School District 47J v. Acton">515 U.S. 646, 657 (“Somewhat individualized suspicion requirement. Id . Rather, the court like adults who choose to participate in a closely regulated opined, since state officials are subject to day-to-day scrutiny, industry, students who voluntarily participate in school do not perform safety sensitive tasks, and are not alleged to athletics have reason to expect intrusions upon normal rights have a drug problem, “[w]hat is left ... is the image the State and privileges, including privacy”). After considering the seeks to project.” This need, the Court concluded, is nature of the privacy interest, the Court next considered the symbolic, not special. Id. at 321-22. character of the intrusion imposed by the drug test. Id . at 832.
Under the policy, the Court noted, a faculty monitor waits In Von Raab , by contrast, the Court found that the outside a closed restroom stall for the student to produce a government not only offered a sufficient special need but also sample. Id. The Court considered this method of collection that the special need outweighed the intrusion upon the to be at most a negligible intrusion upon the student’s privacy privacy rights of the employees subject to the testing. 489 interest. Id. Given the student’s decreased expectation of U.S. at 677. In that case, the Customs Service implemented privacy and the minimally intrusive nature of the procedure, a program that made drug tests a condition of promotion or the Court concluded that the invasion upon the student’s transfer to positions directly involving drug interdiction or
privacy was not significant. Id. at 834. Next, the Court No. 03-1574 International Union, et al. v. 9 10 International Union, et al. v. No. 03-1574 Winters, et al. Winters, et al. Impasse Panel. [4] In recommending that the Civil Service considered the special need proffered by the state. Id. It concluded that, despite the absence of an “identifiable drug Commission adopt the drug testing program proposed by the abuse problem among ... [the students] subject to the testing,” State, the Panel stated as follows: the need to prevent and deter the use of drugs among the Employees in “test-designated” positions who abuse students who participate in extracurricular activities to be alcohol and drugs represent a significantly greater threat sufficiently vital to suppress the requirements of to the health and safety of themselves and others than do individualized suspicion. Id. at 836. Finally, the Court found employees in nontest-designated positions. Employees the drug testing program to be constitutional as it concluded in “test-designated” positions may be required to react to that the school’s special need outweighed the minimal unusual or dangerous circumstances. intrusion upon the student’s privacy interest. Id. at 836-38. On balance, the Impasse Panel finds that ... drug use by
This Circuit has also had the opportunity to consider classified employees occupying “test-designated” whether a proffered special need was sufficiently vital and positions can impair judgment and behavior so substantial to permit drug testing of employees without significantly that serious injury or death may result. individualized suspicion. In Knox County , a school board adopted a drug testing program that required the testing of
We cannot merely accept a state’s invocation of special employees who applied for, promoted to, or transferred to, needs, but rather must engage in a context-specific inquiry, safety sensitive positions, including teachers. 158 F.3d at examining closely the interests advanced by the state. The 363. We concluded that the school board’s proffered need to largest group subject to testing consists of the parole or ensure the safety and security of the children under its care probation officers and field service assistants. They are was sufficiently vital to overcome the traditional requirements subject to testing because they have law enforcement powers of individualized suspicion. Id . at 374-79. After noting that and because they have regular access to parolees or teachers and other employees who work in a school have a probationers. Probation and parole officers spend a diminished expectation of privacy because they work in a significant amount of time supervising clients away from the heavily regulated industry, we held that the school board’s office and away from supervision by their superiors. special need in ensuring the safety and security of the children Moreover, they are often required to take urinalysis drug test under its care outweighed the intrusion upon the employees’ samples from their clients in the field, over 20 percent of privacy interest. Id. at 384. whom have tested positive for unlawful drug use. Since they are responsible for supervising probationers and paroles, With these cases as a guide, we now evaluate the special public safety would be put in jeopardy, the state argues, if needs proffered by the State. In adopting the drug testing program, the Michigan Civil Service Commission followed the recommendations of the Employment Relations Board No. 03-1574 International Union, et al. v. 11 12 International Union, et al. v. No. 03-1574
Winters, et al. Winters, et al. they performed this duty while under the influence of drugs direct patient care responsibilities in state facilities and have or alcohol. access to medications, including controlled substances. An
employee involved in substance abuse might succumb to the The second largest group consists of non-custodial temptation to take wrongful advantage of his or her access to employees who work in the perimeter of a correctional these controlled substances. As with the health care providers facility. The State contends that there is a special need to test who provide care to prisoners, there is a risk of harm to the these employees because they have unsupervised access to patient if a care giving employee is under the influence of and direct contact with prisoners, 80 percent of whom have a drugs or alcohol. history of drug and alcohol abuse. Moreover, the introduction of alcohol and drugs into correctional facilities, which The Plaintiff argues that the State’s justification for the prisoners could obtain possession of, presents a severe threat drug testing program does not arise to a “special need,” to security and to the safety of correctional employees and permitting the testing of employees without individualized prisoners, since the use of drugs by prisoners can lead to suspicion. It contends that, since there was no pre-existing disruptive behavior. In addition, employees who are involved drug problem among the employees here, the drug testing in substance abuse may be vulnerable to influence by others program may only constitute a “special need” if it fits under who would bring drugs into the prison. And finally, the criteria established in Von Raab, since in that case the employees under the influence of drugs or alcohol suffer from Court upheld a drug testing program even though there was impaired judgment, which could adversely impact security no pre-existing drug problem among the employees subject to within the facility as well as the safety of other employees and testing. The Plaintiff notes that the Chandler Court identified prisoners. four factors that it felt were decisive in determining that the
customs agents in Von Raab could be tested even though Another group of test-designated positions consists of there was no existing drug problem among them: 1) drug employees who provide health care and psychological care to interdiction had become the Customs Bureau’s primary prisoners. As with the non-custodial employees, these enforcement mission; 2) the employees subject to testing had employees have unsupervised access to and direct contact access to vast sources of contraband; 3) the agents had been with prisoners, which raises the concern of the introduction of targets of bribery; and 4) it was not feasible to subject the drugs or alcohol into a correctional facility, which would pose custom agents to day-to-day scrutiny. After noting these a severe threat to the security and safety of the employees and factors, the Plaintiff concludes that the State has failed to prisoners therein. In addition, these employees have access show a special need as these factors do not apply at all or only to medications, including controlled substances. Finally, if
minimally apply to the test-designated categories. these employees were under the influence of drugs or alcohol, the health and safety of the patients these employees provided The Plaintiff errs in arguing that, since there is no pervasive health care to could be put in jeopardy. pre-existing drug problem among the test-designated
employees, the drug testing program here may only be The final group subject to testing consists of those justified if it accords with the factors that justified the drug employees who provide health care to residents at state testing program in Von Raab . We cannot, as the Plaintiff hospitals for the mentally ill and developmentally disabled proposes, superimpose the four, context-specific factors and to residents of veterans’ homes. These employees have outlined in Von Raab concerning customs agents onto the No. 03-1574 International Union, et al. v. 13 14 International Union, et al. v. No. 03-1574
Winters, et al. Winters, et al. facts here, which involve jobs that lay in an entirely different Plaintiff argues that Earls does not support the imposition of context, to determine if the state has proffered a special need the drug testing program because there is no evidence of a that is sufficiently vital to suppress the requirements of general drug problem among civil service employees, the individualized suspicion. It is obvious that the specific employees may not opt out of the testing, and the testing may factors outlined in Von Raab would not all or even mostly result in discipline. The Plaintiff’s argument fails, however, apply to another context since they were specifically distilled not only because it attempts to apply the context specific from the situation facing customs agents. If those factors factors announced in Earls to the unique context presented in were the test for determining whether a special need existed this case, but also because it mischaracterizes the Court’s when there is no evidence of a pre-existing problem, then it holding. Marks does not apply to Earls since Justice Breyer would likely be difficult to find any special needs outside concurred in the Court’s opinion, not merely in the judgment. those faced by the Customs Bureau. Instead, we must Justice Thomas’ opinion of the Court not only provides the consider the state civil service employees in this case who are holding but also supports the proposition that a state may subject to testing in their own unique context. Knox , 158 have a special need to deter and prevent drug use among a F.3d at 374 (“Just as the Customs agents in Von Raab must be specific group despite the absence of a particularized or considered in their own unique context, so too must the nature pervasive drug problem among the group. of the work and positions of school teachers and After considering the drug testing program in its own administrators be viewed as unique.”)
unique context, we conclude that the State has offered Although in Earls , like Von Raab , there was no evidence of “special needs” that are sufficiently vital to overcome the a particularized or pervasive drug problem among those traditional requirements of individualized suspicion. subject to testing, the Plaintiff nonetheless contends that Earls Although there is no evidence of a particularized or pervasive does not support the constitutionality of the drug testing drug abuse problem among the test-designated employees, it program at issue here. The Plaintiff argues, on the basis of is well established that the existence of a pronounced drug Marks v. United States , 430 U.S. 188, 193 (1977) [5] , that
problem is not an essential element to the finding of a special Justice Breyer’s concurrence provides the Court’s holding. In need. Knox , 158 F.3d 361" date_filed="1998-09-29" court="6th Cir." case_name="Knox County Education Association v. Knox County Board of Education">158 F.3d at 374; See also Earls , 536 U.S. 822" date_filed="2002-06-27" court="SCOTUS" case_name="Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls">536 U.S. at 835; his concurrence, Justice Breyer emphasizes some underlying Von Raab , 489 U.S. at 674-75. Rather, the need to deter and considerations to his conclusion that no Fourth Amendment prevent a substantial harm provides the necessary immediacy violation occurred in Earls . Earls , 536 U.S. 822" date_filed="2002-06-27" court="SCOTUS" case_name="Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls">536 U.S. at 838. He noted for the imposition of a drug testing program. Earls , 536 U.S. that there is a documented national drug problem among high at 836. As the Earls Court noted, it would make little sense school students, that students could opt out of the drug testing to require the test designated group to begin using drugs program by not participating in extracurricular activities, and before the state was allowed to institute a program designed that the testing program was not disciplinary in nature. The to deter its use. Id . Moreover, unlike Chandler , in the instant
case there exists the potential for substantial harm that the state is entitled to attempt to prevent. It is certainly true that employees who either have 1) law enforcement duties, 2) [5] The Marks Court noted: “When a fragmented Court de cides a case direct and unsupervised contact with prisoners, 80 percent of
and no single rationale explaining the result enjoys the assent of five whom have a history of drug abuse, or 3) a responsibility to justices, the holding of the Court may be viewed as the position taken by deliver health care or psychological services to persons in those Mem bers who conc urred in the jud gment on the narro west gro und.” No. 03-1574 International Union, et al. v. 15 16 International Union, et al. v. No. 03-1574
Winters, et al. Winters, et al. state custody, would pose a significant potential threat to the Next, we consider the character of the intrusion. The health and safety of themselves and others if they use drugs degree of intrusion caused by collecting a urine sample or were under the influence of drugs while on duty. “depends upon the manner in which production of the urine
sample is monitored.” Earls , 536 U.S. at 832 (quoting Having concluded that the state has asserted sufficient Veronica , 515 U.S. 646" date_filed="1995-06-26" court="SCOTUS" case_name="Vernonia School District 47J v. Acton">515 U.S. at 658). The procedure for collecting a special needs, based on substantial, and not merely urine sample under the drug testing policy at issue here hypothetical, public safety concerns, to justify the testing of requires that individual privacy be preserved unless there are employees without individualized suspicion, we next consider grounds to suspect tampering. The policy provides that while whether the State’s interest in the drug testing outweighs the the “specimen collector may be outside the bathroom or employees’ reasonable expectations of privacy. It is well restroom in the near proximity, the employee closes (and established that an individual who participates in a heavily
locks, if he/she chooses) the door and has full privacy while regulated industry or activity has a diminished expectation of urinating.” This procedure is even less intrusive than the privacy. Skinner v. Ry. Labor Executives’ Ass’n , 489 U.S. monitoring sustained in Veronica as “negligible.” Veronica , 602, 627 (noting that railroad employees have a diminished 515 U.S. 646" date_filed="1995-06-26" court="SCOTUS" case_name="Vernonia School District 47J v. Acton">515 U.S. at 658 (holding the intrusion to be “negligible” even expectation of privacy because they participate in a though male students were required to produce samples at a pervasively regulated industry); See Veronica , 515 U.S. at urinal along a wall while observed from behind). 657 (analogizing student-athletes to employees in closely regulated industry, who “have reason to expect intrusions The Plaintiff argues, however, that since the drug tests are upon normal rights and privileges, including privacy”); See conducted on a random and continuous basis, rather than on also, Earls , 536 U.S. 822" date_filed="2002-06-27" court="SCOTUS" case_name="Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls">536 U.S. at 832 (applying the same reasoning to the occurrence of a triggering event such as a promotion, the students who participate in extracurricular activities); Knox invasion of privacy is “qualitatively more intrusive” because County , 158 F.3d at 379 (finding that teachers’ legitimate the employees are subjected to “unrelenting scrutiny” and expectation of privacy is diminished by their participation in repeated “unsettling shows of authority.” The fact that the a heavily regulated industry). The employees who are subject drug tests are conducted on a random and continuous basis to testing work either in law enforcement (parole and does not change our calculus that the drug testing program is probation officers), the medical profession (nurses, not highly intrusive. First, since only fifteen percent of the occupational therapists, etc.), or inside a prison (teachers, affected workforce is tested each year, an individual chaplains, dieticians, etc.). It is certainly true that parole and employee can expect to be tested only once every seven years probation officers, who are charged with supervision of on average. Moreover, to the extent the random and felony offenders, participate in a heavily regulated field. continuous drug tests are more intrusive, this is offset by the Similarly, those employees who provide healthcare and other fact that such tests are also more efficacious than one time services to prisoners and patients of state run facilities are tests at achieving their intended result: to deter and prevent also subject to comprehensive regulations. Finally, drug use to protect public safety and health. As the Court employees who work within prisons obviously work in a highly regulated context. Therefore, since these employees work in highly regulated fields, we conclude that they have a diminished expectation of privacy. No. 03-1574 International Union, et al. v. 17
Winters, et al. noted in Skinner [6] , “[b]y ensuring that employees ... will be tested [at a time] which no employee can predict with certainty, the [drug testing policy] significantly increase[s] the deterrent effect of the ... penalties associated with the prohibited conduct.” 489 U.S. at 630.
Since we conclude that the State has offered sufficiently vital special needs, based on substantial public safety concerns, to overcome the traditional requirements of individualized suspicion, and that these special needs outweigh the employees diminished expectations of privacy, we AFFIRM the district court’s holding that the program does not violate the Fourth Amendment to the United States Constitution. therefo re conduc ted randomly.
NOTES
[4] W hen the UAW and the State were unable to agree on a drug testing provision for the Collective Bargaining Agreement, a request was made for Impasse Panel assistance pursuant to the civil service rules governing collective bargaining. T he Impasse Panel was composed of three members app ointed by the Civil Service Commission.
[6] Although the policy in Skinner provides that drug tests will be conducted upon the occurrence of an accident, since no one can predict with certainty the occu rrence of an accident (unlike the timing of a decision to apply for a promotio n), drug tests under the policy are