I Didn’t Know Where To Go For My Drug Test

USCG vs. THEODORE BRUCE EDENSTROM
Decision and Order, January 12, 2017
ALJ George J. Jordan 

Sometimes it is hard to reconcile one ALJ decision, such as DICKERSON, when it seems that the rules regarding the Coast Guard’s burden of proof are interpreted very loosely, to the advantage of the Coast Guard, with another ALJ decision, such as this one, in which the technical details of a rule are strictly and very narrowly enforced, to the ultimate advantage of the mariner. This case is an example of the latter, and one way to see the distinction is to realize that court-made rules such as burden of going forward or burden of proof, can be and sometimes are bent, but specifically articulated regulations or procedures are rarely treated that way.

The Coast Guard permits a marine employer to comply with the requirement [46 CFR sec. 16.240] to randomly test its employees for drugs by randomly selecting either individuals from its entire pool of employees, or by the “whole boat” method, meaning that the boat or vessel itself is randomly selected from among the pool of all other vessels in the fleet. See USCG v. KYLE ALLEN PFENNING, Decision & Order dated June 22, 2015 (Jordan, ALJ). Selection must be statistically random; and the most frequent mistake that employers make is that once the random selection is made, the person or “whole boat” must be put back into the pool and continue to be subject to future random selection again next time. Many mariners who tested positive have gotten off over the years because their employer mishandled the random selection process, by the simple act of removing the selectee from the pool for the next selection. 

In this case, the mariner was the master of a tow boat whose boat was selected under the “whole boat” method. The boat owner sent respondent a message telling him to hold the crew on board “tomorrow” when the boat came into home port. The respondent was then told to send his crew to the office, and he did so, but didn’t go himself. Respondent didn’t know where the testing facility was, but another crew member who also didn’t know, went to the office and asked. The company shore captain, seeing that respondent had not reported to the office, texted him “Call me ASAP” and “Call Zandell”. Respondent called and was told to come to the office. Respondent went to the office and met the shore captain, where they talked about health insurance. The shore captain forgot to tell respondent to report for a drug test, and respondent did not ask, even though it was certain that he knew. The Coast Guard charged respondent with misconduct for refusing to take an employer-ordered random drug test. 

The ALJ began by noting that what constitutes proper notification is an issue that has rarely arisen in Coast Guard proceedings. Noting that the issue has more often arisen in FAA proceedings, the ALJ looked to the FAA for precedent, as both the FAA and the Coast Guard use the same drug testing procedures. Citing several FAA and Federal appeals of FAA decisions, the ALJ concluded that “proper notification of a random drug test requires an employer to tell an employee not only that he or she has been selected for testing, but also the details regarding the location of the test and the time for reporting to the testing facility.” In this case, the tow boat master had not been told where the testing facility was, and although the other crew members all did know [except for the one who asked], respondent did not know because he was a new employee. The ALJ then cited to a Coast Guard publication, “Marine Employers [sic] Drug Testing Guideline” , which specifically states that the marine employer should inform the employee the name, address and telephone number of the collection facility. Here, respondent’s employer did not comply with the notification requirement, and accordingly, the ALJ found the Coast Guard’s case not proven. The Coast Guard did not appeal. 

COMMENT AND EVALUATION

Regardless of how easily an ALJ may find a Coast Guard burden met [see USCG v. DICKERSON], it is usually the case that ALJ’s will be careful to uphold the written regulations governing the procedures. See App. Dec. 2688 (HENSLEY) (2010) (“In the interest of justice and the integrity of the entire drug testing system, it is important that the procedures in 49 CFR Part 40 be followed to maintain the drug testing system”). EDENSTROM is a good case to add to the list of technical deficiencies which, if not met, will be sufficient to defeat the Coast Guard drug charge. See, e.g., the following cases: App. Dec. 2692 (GREEN) (2011) (Failure of Coast Guard to introduce scientific evidence of “Randomness”); App. Dec. 2685 (MATT) (2010) (Mariner leaving facility prior to commencement of test); App Dec. 2631 (SENGEL) (2002) (Unqualified collectors; failure to collect social security numbers; improperly requiring mariner to certify samples before taken; improper certification of signature on control form); App. Dec. 2621 (PERIMAN) (2001) (False testimony about lab director’s credentials; misinformation given to mariner about right to re-test split sample; premature disposal of sample precluding further testing); and App. Dec. 2614 (WALLENSTEIN) (2000) (improperly labelling specimens; leaving specimens unattended while pursuing mariner who failed to sign form; unresolved and conflicting testimony about chain of custody).

The curious twist to the EDENSTROM case is that the respondent knew that the reason for the message he received was that a random drug test was coming, and apparently he also informed his entire crew about it beforehand. The Coast Guard is always very careful about ensuring that government-mandated drugs tests are carried out strictly according to regulations because of the constitutional implications of self-incrimination resulting from state action. Employer-mandated drug tests do not trigger constitutional protections but, even without that incentive, and even with the deliberate thwarting of the test aim by the mariner in this case, ALJs still do tend to be cautious about finding against a mariner when doing so would violate an established regulation or procedure.