In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2322

ROBERT A. KRIEG and LOCAL NO. 3063

AMERICAN FEDERATION OF STATE,

COUNTY, AND MUNICIPAL EMPLOYEES,

Plaintiffs-Appellants,

v.

WAYNE SEYBOLD, JACK ANTROBUS,

and CITY OF MARION, INDIANA,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 04 C 430—William C. Lee, Judge.

____________

ARGUED JANUARY 17, 2007—DECIDED MARCH 21, 2007

____________

Before FLAUM, KANNE, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. On October 28, 2004, Jack

Antrobus, the Superintendent of Marion, Indiana’s

Streets and Public Works Department administered a

random drug test to all employees in the Streets and

Sanitation Department. Robert Krieg, a Streets and

Sanitation Department employee, refused to be tested, and

Antrobus ordered him to leave the building. On November

15, 2004, the City’s Board of Public Works voted to terminate Krieg’s employment. Krieg filed suit arguing that the
2 No. 06-2322

drug test violated his Fourth Amendment rights and that

the City terminated him without due process. The district court granted summary judgment to the City, and

Krieg appeals. For the following reasons, we affirm the

district court’s judgment.

I. BACKGROUND

The City of Marion, Indiana hired Robert Krieg as a

driver/laborer in its Streets and Sanitation Department

in 1985. During his employment, Krieg was a member of

American Federation of State, County and Municipal

Employees Local No. 3063 (“the Union”).

Prior to 2001, the Streets and Sanitation Department

gave its employees prior notice of any drug testing.

However, on October 28, 2002, the Union and the City

entered into a Collective Bargaining Agreement (“CBA”)

for 2003-2004, that provided as follows:

All Streets and Sanitation workers shall comply with

the City’s Drug and Alcohol Policy. Drug/Alcohol

Testing may be conducted on Streets and Sanitation

workers post-accident, upon reasonable suspicion or

randomly as per the current City policy. A minimum of

50% of the employees shall be tested at least once

a year.

The City’s Personnel Policies Handbook then in effect

provided that the department heads could drug test all

“safety-sensitive” employees, defined as “all positions

which require an employee to operate a commercial motor

vehicle and/or hold a commercial driver’s license.”

The CBA required all newly-hired employees in the

Streets and Sanitation Department to obtain a valid

Commercial Drivers License (“CDL”) within six months

of being hired. However, employees who were hired prior
No. 06-2322 3

1 In January 2000, there were forty employees in the Streets

and Sanitation Department, eight of whom did not have CDLs.

to September 10, 2000 were exempt from this requirement under a grandfather clause in the agreement.1

 Krieg

opted not to obtain a CDL, which prevented him from

operating several larger pieces of heavy equipment used by

other Streets and Sanitation Department employees.

Nevertheless, Krieg still operated a one-ton dump truck,

a dump truck with a plow, a front end loader, and a

backhoe as part of his regular job duties. He also regularly

patched holes in city streets, sealed cracks, plowed snow,

loaded salt or sand into City vehicles, and directed traffic.

Krieg was never involved in any accidents during his

employment.

In December 2002, Krieg submitted to an unannounced

drug test that came back positive for marijuana. The

Department suspended Krieg for thirty days and required

him to undergo drug counseling. Krieg filed a grievance

through the Union, arguing that as a non-CDL holder, the

City should not have subjected him to urinalysis without probable cause. The City eventually reinstated Krieg

after conceding that his testing was improper.

On June 7, 2004, after Wayne Seybold took over as the

City’s new Mayor, the City unilaterally adopted a new

Personnel Policy and Procedures Manual, which provided

for random, unannounced drug testing for “[e]mployees

in safety-sensitive positions.” The manual stated that “a

safety sensitive function is any duty related to the safe

operation of City equipment during any period in which

the City employee is actually performing, ready to perform,

or immediately available to perform any safety sensitive

functions.” The Manual also provided that any employee

“who refuses to comply with a request for testing shall be

removed from duty and their employment terminated.”
4 No. 06-2322

The Union filed a grievance and complained that the

City did not negotiate with it in implementing the new

personnel manual. The Union employees signed documents to indicate that they received the handbook, but

specifically withheld their signatures from any language

stating that by receiving the handbook they agreed to its

terms.

On October 28, 2004, Antrobus informed the Streets

and Sanitation Department employees, with the exception of Antrobus’s personal secretary, that they would be

subjected to a drug test administered that day. Krieg

refused to take the drug test. Antrobus warned Krieg

that he could be fired for refusing to submit to the urinalysis, but Krieg again refused. Antrobus told Krieg to leave

the building because he was no longer employed. Krieg

went to a telephone in the building and called his attorney.

Antrobus again ordered Krieg to leave the building and

threatened to call the police. Antrobus called the police,

and Krieg waited for them outside of the building by his

car. While they were waiting for the police, Krieg asked

Antrobus if he was fired. Krieg testified that Antrobus

said yes. Antrobus testified that he said, “I have to take

you to the Board of Works. They will make the decision.”

When the police arrived, they told Krieg to leave the

premises, and he left.

The following day, Steve Johnson, the Union steward,

filed an official grievance on Krieg’s behalf, alleging

“disparaging treatment of Robert Krieg and any and all

applicable violations of the contract” and requesting

reinstatement. Antrobus rejected the request for reinstatement. On November 1, 2004, Darren Reese, the City’s

Human Resources Director, sent Krieg a letter stating

that because Krieg refused to submit to the mandatory

drug screen, Reese intended to recommend Krieg’s termination to the Board of Public Works (“the Board”) at its

November 15 meeting.
No. 06-2322 5

On November 15, 2004, the Board held its regularly

scheduled meeting, which Antrobus and Johnson both

attended. At his attorney’s advice, Krieg did not attend the

meeting. He concedes, however, that he had an opportunity to attend the meeting, present evidence, and have an

attorney or a union representative represent him. After

hearing statements about the incident, the Board voted

to terminate Krieg’s employment.

On November 17, 2004, Krieg and the Union filed a

complaint in district court under 42 U.S.C. § 1983, alleging

violations of the Fourth and Fourteenth Amendments. On

December 1, 2005, both parties filed motions for summary

judgment. On April 3, 2006, the district court denied

Krieg’s motion and granted summary judgment in favor

of the City. Krieg and the Union now appeal.

II. DISCUSSION

First, Krieg claims that the City’s drug testing policy as

applied to non-CDL employees violates the Fourth Amendment. Second, Krieg alleges that he was terminated in

violation of his due process rights. This Court reviews de

novo the district court’s grant of summary judgment to the

City. Employers Mut. Cas. Co. v. Skoutaris, 453 F.3d 915,

923 (7th Cir. 2006). Summary judgment is proper if the

“pleadings, depositions, answer to interrogatories, and

admissions on file together with the affidavits, if any, show

that there is no genuine issues as to any material fact

and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Because this case

involves cross-motions for summary judgment, the Court

must construe all inferences in favor of the party against

whom the motion was granted. Employers Mut. Cas. Co.,

453 F.3d at 923. Accordingly, we review the record in the

light most favorable to Krieg, drawing all reasonable

inferences from those facts in his favor, and reversing if
6 No. 06-2322

we find a genuine issue concerning any fact that might

affect the outcome of the case. Id.

A. Waiver

As a preliminary matter, the City contends that Krieg

cannot challenge the constitutionality of the drug testing

policy because the Union consented to drug testing in the

2003-2004 CBA. The CBA permitted drug testing under

“the current policy,” which allowed the City to test all

“safety sensitive” employees. The policy stated, “In accordance with [Department of Transportation]/[Federal

Highway Administration] regulations, included in this

classification of safety-sensitive positions are all positions

which require an employee to operate a commercial motor

vehicle and/or hold a commercial driver’s license.” Krieg

maintains that because he did not possess a CDL and he

did not drive “commercial motor vehicles” as defined by

federal law, he did not consent to drug testing under the

2003-2004 CBA.

The Federal Omnibus Transportation Employee Testing

Act of 1991 defines a “commercial motor vehicle” as a

vehicle that:

A) has a gross vehicle weight rating or gross vehicle

weight of at least 26,001 pounds, whichever is greater,

or a lesser gross vehicle weight rating or gross vehicle

weight the Secretary of Transportation prescribes

by regulations, but not less than a gross vehicle

weight rating of 10,001 pounds;

B) is designed to transport at least 16 passengers

including the driver; or

C) is used to transport material found by the Secretary

to be hazardous . . . .
No. 06-2322 7

49 U.S.C. § 3101(4). The City acknowledges that Krieg did

not operate “commercial motor vehicles” as defined above,

but contends that the term as used in its drug testing

policy was not restricted to the federal definition. The City

maintains that “commercial motor vehicle” should be

interpreted broadly to encompass the types of vehicles

that Krieg regularly operated. We disagree.

Although the CBA does not define the term “commercial

motor vehicle,” the City’s policy clearly refers to federal

law in defining safety sensitive positions. The opening

clause of the sentence states that the definition of safety

sensitive employees, i.e., individuals who operate commercial motor vehicles, must be “in accordance with

[Department of Transportation]/[Federal Highway Administration] regulations.” This suggests that the Union did

not consent to the drug testing of non-CDL holders. In any

event, waiver of a constitutional right must be clear and

unmistakable, Chaney v. Suburban Bus. Div. of Regional

Transp., 52 F.3d 623, 630 (7th Cir. 1995) (waiver will not

be assumed by a CBA where it is not explicit), and it is not

under these facts.

B. Fourth Amendment

Krieg challenges the constitutionality of the City’s drug

testing policy as applied to non-CDL employees. Drug

testing is a search within the meaning of the Fourth

Amendment because it intrudes upon an individual’s

expectation of privacy. Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 652 (1995). As a general rule, drug testing

must be based upon individualized suspicion or wrongdoing to be considered reasonable. Chandler v. Miller, 520

U.S. 305, 313 (1997). However, the Supreme Court has

held that random drug testing is constitutionally permissible when it “serves special governmental needs . . . .” Nat’l

Treasury Employees Union v. Von Raab, 489 U.S. 656, 665
8 No. 06-2322

(1989). The Court has explained that when such a special

need exists, courts should “balance the individual’s privacy

expectations against the government’s interests to determine whether it is impractical to require a warrant or

some level of individualized suspicion in the particular

context.” Id.

1. Special Need

The Supreme Court has held that a special need exists

when the government employee subjected to random drug

testing holds a “safety sensitive” position. Skinner, 489

U.S. at 630. To determine whether an employee occupies

a safety sensitive position, courts must inquire whether

the employee’s duties were “fraught with such risks of

injury to others that even a momentary lapse of attention

[could] have disastrous consequences.” Id. at 628.

Courts have widely permitted random drug testing of

public employees who work with large, mobile equipment.

Random drug testing is permitted in the aviation industry,

including testing of air traffic controllers, aircraft maintenance personnel, flight crew members, and flight attendants. See, e.g., Bluestein v. Dept. of Transp., 908 F.2d 451,

457 (9th Cir. 1990). Courts have also upheld random drug

testing for employees in the rail, highway, and water

transportation industries; including railroad safety

inspectors, highway and motor carrier safety specialists,

and lock and dam operators. See, e.g., Am. Fed’n of Gov’t

Employees v. Skinner, 885 F.2d 884, 892 (D.C. Cir. 1989).

A number of courts have also upheld drug testing of heavy

equipment operators, such as forklift operators, tractor

operators, engineering operators and crane operators

because of the threat to other persons in the area. See, e.g.,

Am. Fed. of Gov’t Employees v. Cheney, No. C-88-3823-

DLJ, 1992 WL 403388 *13 (N.D. Cal. Aug. 14, 1992); Plane

v. United States, 796 F. Supp. 1070, 1075-77 (W.D. Mich.
No. 06-2322 9

1992); Middlebrooks v. Wayne County, 521 N.W.2d 774,

779 (Mich. 1994).

At the same time, courts have recognized an outer limit

on the nature of the safety threat that justifies random

drug testing. See e.g., Burka v. N.Y. City Transit Auth.,

751 F. Supp. 441, 443-44 (S.D.N.Y. 1990) (holding that

elevator operators, carpenters, masons, plumbers, sign

painters, and power distribution maintainers are not in

safety sensitive positions); Nat’l Treasury Employees Union

v. Watkins, 722 F. Supp. 766, 770 (D. D.C. 1989) (granting

a preliminary injunction against random drug testing of

Department of Energy employees whose job duties included driving cars and vans with documents); Nat’l

Treasury Employees Union v. Lyng, 706 F. Supp. 934, 947

(D.D.C. 1988) (granting a preliminary injunction to

Department of Agriculture employees who drove a daily

shuttle bus, a mail van, and passenger cars).

After reviewing the record, we hold that Krieg performed a safety sensitive job. Krieg testified that he

regularly operated a one-ton dump truck, a dump truck

with a plow, a front end loader, and a backhoe. These large

vehicles and equipment present a substantial risk of

injury to others if operated by an employee under the

influence of drugs or alcohol. Moreover, they are significantly larger and more difficult to operate than the vans

or passenger cars operated by the plaintiffs in either

Watkins or Lyng. Additionally, Krieg did not operate

these vehicles in rural areas away from traffic and pedestrians. Rather, he operated them in the City near other

vehicles and pedestrians. Consequently, any reasonable

jury would conclude that Krieg’s job duties were “fraught

with such risks of injury to others that even a momentary

lapse of attention [could] have disastrous consequences.”

Skinner, 489 U.S. at 628.
10 No. 06-2322

2. Balancing Test

After we determine that a special need exists, the Court

engages in a balancing test between the “intrusion on the

individual’s Fourth Amendment interests” and the

search’s “promotion of legitimate governmental interest.”

Vernonia, 515 U.S. at 653. This Court considers the

following factors: 1) the nature of the privacy interest upon

which the search intrudes, 2) the character of the intrusion on the individuals’ privacy interest, 3) the nature and

immediacy of the governmental concern at issue, and

4) the efficacy of the particular means used to address

the problem. Joy v. Penn-Harris-Madison Sch. Corp., 212

F.3d 1052, 1059 (7th Cir. 2000).

Under the first factor, the Court must consider the

nature of Krieg’s privacy interest. Krieg argues that he did

not have a diminished expectation of privacy because he

chose not to obtain a CDL. Courts have held, however, that

employees subjected to drug testing in the past have a

diminished expectation of privacy. See, e.g., Int’l Bhd. of

Teamsters v. Dept. of Transp., 932 F.2d 1292, 1302 (9th

Cir. 1991). Neither party disputes the fact that Krieg had

previously submitted to drug testing throughout his

employment with the Department. Indeed, he tested

positive for marijuana in December 2002. Accordingly,

Krieg had a diminished expectation of privacy.

The second factor requires the Court to assess the

character of the intrusion on Krieg’s privacy. Krieg asserts

that the intrusion was severe because although the City

set forth specific testing requirements, Antrobus did not

follow those procedures. The City’s policy provided that

random, suspicionless drug testing would be “spread

throughout the year” and that the City would utilize a

“scientifically valid method” for selecting employees to be

tested to “ensure that each covered employee will have

an equal chance of being selected each time selections
No. 06-2322 11

are made.” Krieg contends that testing every employee

in the Streets and Sanitation Department violated the

policy. Despite Krieg’s protestations, Antrobus did follow

the City’s policy. The drug test was random because

Antrobus chose a random date on which to administer it,

and everyone in the department had the same likelihood of

being selected for testing.

Krieg concedes that the City has a compelling interest

in ensuring that its employees who regularly drive large

equipment around the City are not impaired by drugs or

alcohol. However, he argues that the government’s concern is not immediate because the City did not establish

a history of drug-related accidents by non-CDL holders.

However, the Supreme Court “has not required a particularized or pervasive drug problem before allowing the

government to conduct suspicionless drug testing.” Bd. of

Ed of Ind. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 835

(2002).

Finally, as to the efficacy of the means, Krieg maintains

that in the absence of a history of drug-related accidents,

the City was required to demonstrate that it could not

address the problem by observing Department employees

for suspicious behavior. Although Von Raab noted the

difficulty of subjecting customs officials to day-to-day

scrutiny, neither the Supreme Court nor this Court has

ever held that this showing is a requirement of imposing random drug tests. 489 U.S. at 674.

After balancing the applicable factors, we conclude that

the City has shown a governmental interest sufficient to

justify submitting Krieg to random, suspicionless drug

testing.

B. Due Process

Krieg next contends that the City deprived him of his

job without due process of law. A plaintiff alleging a due
12 No. 06-2322

process violation must demonstrate 1) that he had a

property interest and 2) that he was deprived of this

interest without due process of law. Bishop v. Wood, 426

U.S. 341, 343 (1976). Krieg bears the burden of proving

that he had a property interest in his job arising out of a

state statute, state or municipal regulations, or a contract

with a public entity. Ulichny v. Merton Cmty. Sch. Dist.,

249 F.3d 686, 700 (7th Cir. 2001). Krieg argues that the

CBA provided him with a property interest in his job for

2003-2004.

The Supreme Court, the Seventh Circuit, and Indiana

courts have all held that a collective bargaining agreement does not create an employment contract except in

rare cases. See J.I. Case Co. v. NLRB, 321 U.S. 332, 334-35

(1944) (holding that the result of a collective bargaining

agreement is not “a contract of employment except in

rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from

it alone”); Young v. N. Drury Lane Prods., Inc., 80 F.3d

203, 206 (7th Cir. 1996) (stating that “a labor agreement is

not a contract of employment; employees are hired separately and individually”); Ritter v. Stanton, 745 N.E.2d

828, 841 (Ind. Ct. App. 2001) (stating that “although

collective bargaining agreements can be considered

contracts relating to employment, they do not necessarily

create a ‘contract of employment’ within the strict meaning of the term”). Accordingly, without some specific

promise of employment, the CBA did not provide Krieg

with a property interest.

Krieg maintains that the CBA’s just cause provision

gave him a property interest. The clause is located in the

section that governs seniority and states, “The seniority

of an employee shall terminate . . . [w]hen he/she is

discharged for just cause.” That provision does not state

that employees may be discharged only for just cause.

Rather, it merely indicates that those employees dis-
No. 06-2322 13

charged for just cause lose their seniority. Because there

is no clause stating that employees may be discharged

only for just cause, Krieg was an at-will employee who

did not have a property interest in his job. The district

court correctly granted summary judgment in the City’s

favor.

III. CONCLUSION

 For the above stated reasons, we AFFIRM the district

court’s judgment.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-21-07