850 F.

2d 133
46 Empl. Prac. Dec. P 38,064, 57 USLW 2014,
3 Indiv.Empl.Rts.Cas. 699

POLICEMEN'S BENEVOLENT ASSOCIATION OF NEW

JERSEY, LOCAL 318
and Edmund Giordano, Individually, and as
President of the Policeman's Benevolent
Association of New Jersey, Local 318
v.
TOWNSHIP OF WASHINGTON (GLOUCESTER COUNTY),
a Municipal
Corporation Under the Laws of New Jersey, John Robertson,
Mayor, Leonard Simmons, Daniel Mangini, Margaret Smith,
Richard Marsella, and Virginia Weber, Council Members.
Appeal of TOWNSHIP OF WASHINGTON and John
Robertson, Mayor.
No. 87-5793.

United States Court of Appeals,

Third Circuit.
Argued May 3, 1988.
Decided June 21, 1988.
Rehearing and Rehearing In Banc Denied July 28, 1988.

Joseph A. Alacqua (argued), Turnersville, N.J., for appellants.

Ralph Henry Colflesh, Jr. (argued), Colflesh & Burris, Moorestown, N.J.,
for appellees.
James Katz, Tomar, Seliger, Simonoff, Adourian & O'Brien, Haddonfield,
N.J., for amicus curiae, American Civil Liberties Union of New Jersey.
Before GIBBONS, Chief Judge, and MANSMANN and COWEN, Circuit
Judges.
OPINION OF THE COURT

GIBBONS, Chief Judge:

The Township of Washington, New Jersey, appeals from a summary judgment

in favor of the plaintiffs, Policemen's Benevolent Association of New Jersey,
Local 318, and Edmund Giordano, a police officer, in a suit challenging on
Fourth Amendment grounds the Township's drug testing program for police
officers. The district court held that a drug testing program involving any
selection method other than individualized reasonable suspicion violated the
Fourth Amendment, and enjoined enforcement of the Township's random
testing and annual medical examination programs for police officers. 672
F.Supp. 779. We will reverse.

I.
2

The drug testing policy which the Township police officers challenge is
embodied in a document entitled Drug Testing Program of the Township of
Washington, adopted in November, 1986 and revised February 25, 1987. The
police officers' lawsuit was filed, however, on September 8, 1986, in response
to a memorandum from the Mayor of the Township to all department heads and
municipal employees announcing that the Township would begin a mandatory
drug testing program. That announcement, dated August 5, 1986, was
apparently made in response to the call on August 4, 1986 by President Ronald
Reagan for every level of government to take steps to assure a drug free work
place. The August 5, 1986 announcement contained no details of the proposed
plan. Nevertheless the complaint alleged that "no guidelines for the protection
of police employee's privacy were announced nor was there announced a
method of assuring that said test would accurately reflect the presence of
controlled dangerous substances in an employee's system." Complaint, Count I,
p 4. The proposed program was alleged to violate the First, Fourth, Fifth, Ninth
and Fourteenth Amendments of the United States Constitution, and Article I,
paragraphs 1, 2 and 7 of the New Jersey Constitution. Injunctive relief and
damages were requested solely on behalf of Township police officers.

The plaintiffs sought pendente lite relief, but since the complaint was obviously
premature an ex parte temporary restraining order was dissolved and a
preliminary injunction was denied. Thereafter the Township formulated and
revised the drug testing program. The plaintiffs then stipulated that they now
challenge the revised plan as unconstitutional in only three respects:A. Those
aspects which require random mandatory testing of employees represented by
Plaintiff [police officers];

4 Those aspects which would require testing as part of any pre-textual physical
B.
examination, i.e., any physical examination which is not a bona fide medical
examination given in the ordinary course of business and as a matter of the
Township's policy for its police officers;
5 Those aspects which would require testing of all employees in mass form as
C.
within the dispositive facts of Capua v. City of Plainfield [643 F.Supp. 1507
(D.N.J.1986) ].
6

Stipulation dated May 18, 1987. Thus the plaintiffs withdrew any challenge to
the plan on the basis of lack of assurance of privacy, or lack of assurance of
accuracy.1

The plan calls for both testing on reasonable suspicion and random testing. The
effect of the stipulation is to withdraw any challenge to the requirement of drug
testing based on reasonable suspicion. The plan also requires all employees to
undergo an annual medical examination, which includes urinalysis. The effect
of the stipulation is to challenge the annual medical examination requirement
for police officers only to the extent that it is a pretext for obtaining body fluids
for drug testing. The reference in the stipulation to Capua v. City of Plainfield,
643 F.Supp. 1507 (D.N.J.1986), is to the holding in that case that a universal
mass urinalysis of fire department employees of the City of Plainfield was
unconstitutional.2 The stipulation also excludes any challenge to the plan as
applied to applicants for jobs as policemen. Thus the area of dispute was by
stipulation narrowed to two questions: (1) whether a police department may
require that police officers submit to random selection for urinalysis which will
detect drug use; and (2) whether a police department may require that all police
officers submit to an annual urinalysis which will detect drug use.

The parties filed cross-motions for summary judgment. The district court,
relying solely on the Fourth Amendment, answered both questions negatively
and granted the plaintiffs a summary judgment, enjoining Washington
Township "from requiring police officers to submit samples of their urine to be
tested for the presence of illegal drugs, except when there exists an
individualized, reasonable suspicion based on objective facts and reasonable
inferences drawn therefrom, that a particular police officer has engaged in the
use of illegal drugs."

II.
9

This court addressed the problem of state-imposed compulsory drug testing as a

condition of certain types of employment in Shoemaker v. Handel, 795 F.2d

1136 (3d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986).
That case upheld, against a Fourth Amendment search and seizure challenge,
requirement that jockeys employed in the New Jersey horse racing industry
submit to universal daily breathalyzer and random urinalysis testing.
Recognizing that both the universal breathalyzer test and random urinalysis
involved seizures within the meaning of the Fourth Amendment, we held that
in a highly regulated industry such as horse racing the administrative search
exception to the Fourth Amendment warrant requirement applied. That
exception applied because the state had a strong interest in conducting an
unannounced search, and because pervasive regulation in the industry reduced
justifiable expectations of privacy. 795 F.2d at 1142. Because the Racing
Commission's discretion was sufficiently circumscribed by the universal
breathalyzer and random selection urinalysis requirements, we rejected the
contention that the searches in question involved the exercise of standardless
discretion. Id. at 1143.
10

The Washington Township Plan, as interpreted by the district court, involves

both types of selection dealt with in Shoemaker. The plan's provision for
random selection for urinalysis contains essentially the same procedural and
privacy protections which we upheld in Shoemaker. The universal annual
urinalysis for all police officers is the equivalent of the universal daily
breathalyzer test for jockeys. Thus Shoemaker controls on the two issues
presented in this appeal, unless we hold that the Washington Township Police
Department is not a highly regulated industry to which the administrative search
exception applies. The dispositive questions are (1) whether the state has a
strong interest in determining whether police officers are using illegal
substances, and (2) whether the pervasive regulation of the police industry
reduced the justifiable privacy expectations of those officers.

11

The district court opined, and we agree, that "[t]he need to ensure that the
Township's police are drug-free is an important one. Important public safety
concerns are associated with a police officer's duties." Despite the recognition
of this strong public interest, however, the district court concluded that police
officers had expectations of privacy which mandated that urinalysis be required
only upon individualized reasonable suspicion of illegal drug use. Our review of
this legal conclusion is plenary.

12

Washington Township maintains a police department pursuant to authority

delegated to it by N.J.Stat.Ann. Sec. 40A:14-118 (West Supp.1987), which
provides:

The governing body of any municipality, by ordinance, may create and establish, as
13

an executive and enforcement function of municipal government, a police force,

whether as a department or as a division, bureau or other agency thereof, and
provide for the maintenance, regulation and control thereof. Any such advance
ordinance shall, in a manner consistent with the form of government adopted by the
municipality and with general law, provide for a line of authority relating to the
police function and for the adoption and promulgation by the appropriate authority
of rules and regulations for the government of the force and for the discipline of its
members. The ordinance may provide for the appointment of a chief of police and
such members, officers and personnel as shall be deemed necessary, the
determination of their terms of office, the fixing of their compensation and the
prescription of their powers, functions and duties, all as the governing body shall
deem necessary for the effective government of the force. Any such ordinance, or
rules and regulations, shall provide that the chief of police, if such position is
established, shall be the head of the police force and that he shall be directly
responsible to the appropriate authority for the efficiency and routine day to day
operations thereof, and that he shall, pursuant to policies established by the
appropriate authority:
14

a. Administer and enforce rules and regulations and special emergency

directives for the disposition and discipline of the force and its officers and
personnel;

15

b. Have, exercise, and discharge the functions, powers and duties of the force;

16

c. Prescribe the duties and assignments of all subordinates and other personnel;

17

d. Delegate such of his authority as he may deem necessary for the efficient
operation of the force to be exercised under his direction and supervision; and

18

e. Report at least monthly to the appropriate authority in such form as shall be

prescribed by such authority on the operation of the force during the preceding
month, and make such other reports as may be requested by such authority.

19

As used in this section, "appropriate authority" means the mayor, manager, or

such other appropriate executive or administrative officer, such as a full-time
director of public safety, or the governing body or any designated committee or
member thereof, or any municipal board or commission established by
ordinance for such purposes, as shall be provided by ordinance in a manner
consistent with the degree of separation of executive and administrative powers
from the legislative powers provided for in the charter or form of government
either adopted by the municipality or under which the governing body operates.

20

Except as provided herein, the municipal governing body and individual

members thereof shall act in all matters relating to the police function in the
municipality as a body, or through the appropriate authority if other than the
governing body.

21

Nothing herein contained shall prevent the appointment by the governing body
of committees or commissions to conduct investigations of the operation of the
police force, and the delegation to such committees or commissions of such
powers of inquiry as the governing body deems necessary or to conduct such
hearing or investigation authorized by law. Nothing herein contained shall
prevent the appropriate authority, or any executive or administrative officer
charged with the general administrative responsibilities within the municipality,
from examining at any time the operations of the police force or the
performance of any officer or member thereof. In addition, nothing herein
contained shall infringe on or limit the power or duty of the appropriate
authority to act to provide for the health, safety or welfare of the municipality
in an emergency situation through special emergency directives.

22

In one form or another the power to adopt regulations for the organization and
discipline of a police force has been conferred on New Jersey municipalities
since at least 1884. See, e.g., Hermann v. Town of Guttenberg, 86 N.J.L. 681,
94 A. 308 (1914). See also N.J.Stat.Ann. Sec. 40:48-1 (West Supp.1987)
(general and regulatory powers of municipalities).

23

The broad grant of regulatory authority to Washington Township in the matter

of the government and discipline of its police force is subject to "general law,"
which includes an extensive body of state statutory law. Among other things the
state regulates hours of service, N.J.Stat.Ann. Secs. 40A:14-108, 40A:14-132,
minimum salaries, Secs. 40A:14-110, 40A:14-131, age, Sec. 40A:14-127, days
of employment and days off, Sec. 40A:14-133, emergency service and
compensation for such service, Sec. 40A:14-134, and suspension and removal,
Secs. 40A:14-156, 40A:14-147--14-151. State law confers on full-time
municipal police officers the full power of arrest for any crime committed in
their presence in the territorial limits of New Jersey. Sec. 40A:14-152.1. Police
officers exercising police powers outside the territorial limits of the
municipality which employs them are granted the same statutory immunity
from suit as they have within that community. Sec. 40A:14-152.2. State law
mandates attendance at and regulates the content of training courses for
municipal policemen. 52:17B-66--17B-77.3; N.J.Admin.Code tit. 13, Secs. 11.1--1-11.12. Under the common law New Jersey police officers are considered
to be municipal officers as distinguished from other municipal employees, and
thus, except as modified by legislation, subject to the "no work no pay rule,"

and the residency rule applicable to public officers. See Township of

Springfield v. Pedersen, 73 N.J. 1, 5-6, 372 A.2d 286, 288 (1977); Trainor v.
City of Newark, 145 N.J.Super. 466, 473-74, 368 A.2d 381, 385
(App.Div.1976), certif. denied, 74 N.J. 255, 377 A.2d 661 (1977).
24

Acting pursuant to the authority delegated by the legislature, the governing

body of Washington Township has adopted detailed regulations for the
government and discipline of its police force, of which we take judicial notice.
Fed.R.Evid. 201(b), (f). Those in effect at the time the challenged plan was
adopted were enacted pursuant to Washington Township Ordinance No. 391974 and Resolution No. 105-1974. The ordinance authorized the Township
Committee "from time [to time] to make and establish, amend or repeal, by
resolution or ordinance, such rules and regulations, not inconsistent with the
laws of this state or the ordinances of the township, for the government and
control of the members of the Police Department, as may be deemed expedient
and proper to carry out the objects of this ordinance and with the view to
making the Police Department and all the officers and members thereof
efficient, vigilant, prompt and useful to the township." Ordinance No. 39-1974,
Sec. 19-4. The powers and duties of police officers are specified in section 195. These include the power and duty

25 keep order in all public places of this township; to prevent, restrain and suppress
to
any riot, row, disturbance, disorderly assembly or breach of the peace ..., to restrain
vagrants, mendicants and street bargainers; and to require any persons unnecessarily
congregated upon the sidewalks or corners of the street to disperse, and if they
refuse, to arrest them....
26

Section 19-5 also provides that members of the Police Department shall devote
full time and attention to the service of the Department, and although hours are
allotted for the performance of regular tours of duty, "officers are considered at
all times available for duty and must act promptly at any time their services are
required, except when on authorized leave or in the event of disability." The
ordinance cross-references to Department Rules and Regulations, the current
version of which was adopted by Resolution No. 105-1974. This 72 page
manual in a forward states:

27 success of a police department in the performance of its duties is largely

The
measured by the degree of support and cooperation it receives from the people of the
community which it serves. It is of paramount importance that we secure the
confidence, respect, and approbation of the public. The cultivation of such desirable
attitudes is dependent upon proper performance of duty by all the members of the
department.

28

Chapters 1 and 2 of the regulations set forth the organizational structure of the
Department, which in broad terms may be described as quasi-military. Chapter
3 sets forth General Rules and Regulations; Chapter 4, Personnel Regulations;
and Chapter 5, Disciplinary Regulations. Among the General Rules and
Regulations, those particularly relevant to the question whether police officers
may have lowered expectations of privacy because they have chosen to enter a
highly regulated industry include:

29

"3:1.1 Standard of Conduct. Members and employees shall conduct their private
and professional lives in such a manner as to avoid bringing the department into
disrepute.

***
30
***
31
32

"3:1.6 Duty Responsibilities. Members of the department are always subject to

duty although periodically relieved of its routine performance. They shall, at all
times, respond to the lawful orders of superior officers and other proper
authorities as well as calls for police assistance from citizens. Proper police
action must be taken whenever required. The administrative delegation of the
enforcement of certain laws and ordinances to particular units of the department
does not relieve members of other units from the responsibility of taking
prompt, effective police action within the scope of those laws and ordinances
when the occasion so requires. Members assigned to special duties are not
relieved from taking proper action outside the scope of their specialized
assignment when necessary.

***
33
***
34
35

"3:1.26 Debts--Incurring and Payment

36

"(D) Members and employees shall pay all just debts and legal liabilities
incurred by them.

37

"3:1.27 Intercession--Soliciting. Members and employees shall not solicit

anyone to intercede with the Chief of Police, Mayor, or members of the
Township Committee in relation to promotion assignments, disposition of
pending charges, or findings in a department trial or other related matter.

***
38
***
39
40

"3:1.28 Persons and Places of Bad Reputation. Member [sic] and employees
shall not frequent places of bad reputation, nor associate with persons of bad
reputation, except as may be required in the course of police duty.

41

"3:1.19 Withholding Information. Members and employees shall not, at any

time, withhold any information concerning criminal activity.

***
42
***
43
44

"3:1-30 Reporting Violations of Laws, Ordinances, Rules or Orders. Members

and employees knowing of other members or employees violating laws,
ordinances, or rules of the department, or disobeying orders, shall report same
in writing to the Chief of Police through official channels. If the member or
employee believes the information is of such gravity that it must be brought to
the immediate personal attention of the Chief of Police, official channels may
be bypassed.

45

"3:2.2 Alcoholic Beverages and Drugs.

46

"(A) No member or employee of the department will appear for or be on duty

under the influence of liquor or drugs or be unfit for duty because of their
excessive use.

47

"(B) Members or employees of the department shall not drink any kind of
intoxicating beverage while on duty or take any drugs not duly prescribed and
necessary for health at any time.

48

"(C) Employees of the department shall refrain from drinking intoxicating

beverages for a period of at least four (4) hours before going on duty.

49

"(D) No member of the department shall, at any time when in uniform, except
in the performance of duty, enter any place in which intoxicating liquor is
served.

50

"(E) Intoxicating beverages may not be consumed at any police station.

51

"(F) Members and employees shall not bring into or keep any intoxicating
liquor or drugs on department premises except when necessary in the
performance of a police task. Liquor or drugs brought into department premises
in the furtherance of a police task shall be properly identified and stored
according to department policy.

***
52
***
53
54

"3:2.5 Physical Fitness For Duty. Members shall maintain good physical
condition so that they can handle the strenuous physical contacts often required
of a law enforcement officer.

55

"3:2.6 Loitering. Members on duty or in uniform shall not enter theatres or

other public places except to perform a police task. Loitering and unnecessary
conversation in such locations are forbidden. Members and employees off duty
and not on any official standby shall not loiter in police department areas.

56

"3:2.7 Smoking While On Duty. Members shall not smoke on duty while in
direct contact with the public nor when in uniform in public view, except that
smoking is permitted in public view at mealtimes and while patrolling in police
automobiles at which times it shall be as inconspicuous as possible.

***
57
***
58
59

"3:3.1 Regulation Uniforms Required. All members shall maintain regulation

uniforms. Uniforms shall be kept neat, clean, and well-pressed at all times.

60

"3:3.2 Manner of Dress On Duty. Normally members will wear the duty
uniform on a tour of duty; however, commanding officers may prescribe other
clothing as required by the nature of the duty which a particular member is
assigned. Employees will wear and maintain an employee uniform when so
directed by the Chief of Police.

61

"3:3.3 Wearing or Carrying Badge or I.D. Card. A member, when in uniform,

shall wear the regulation badge on the outside of the outermost garment over
the left breast and always in sight. When not in uniform or off duty, he shall
carry his badge or I.D. Card in his pocket.

62

"3:3.4 Wearing of Name Badge. A member, when in uniform, shall wear the
regulation name badge on his uniform shirt or dress jacket, whichever is
outermost, in accordance with department instructions.

***
63
***
64
65

"3:3.8 Carrying Equipment Off Duty. When off duty, each member will carry
or have in his immediate possession, his badge, department revolver, or a pistol
or revolver of not less than .32 caliber as authorized by the department, and the
identification card. This rule shall not apply when members are engaged in
sports and activities of such a nature as to make it impractical.

66

"3:3.9 Civilian Clothing--Manner of Dress. Male members and employees

permitted to wear civilian clothing during a tour of duty shall wear either a
business suit or sport coat and slacks. A dress-type shirt with tie shall be worn.
Commanding officers may prescribe other types of clothing when necessary to
meet a particular police objective. Female members and employees permitted to
wear civilian clothing shall conform to standards normally worn by office
personnel in private business firms, unless otherwise directed.

***
67
***
68
69

"3:3.12 Personal Appearance. Every member and employee of the department,

while on duty, must at all times be neat and clean in person, his clothes clean
and pressed, and his uniform in conformity with the rules and regulations. He
shall, as often as necessary, examine and clean his equipment and keep it
always in good serviceable condition. Male members and employees shall
conform to the following additional standards of appearance:

70

"(A) Hair shall be evenly trimmed at all times while on duty. The hair shall at
no point extend downward over the shirt collar in normal posture.

71

"(B) Sideburns shall not extend below the bottom of the ear. The maximum
width at the bottom of the sideburns shall not exceed 1 3/4 inch.

72

"(C) A clean-shaven appearance is required except that mustaches are

permitted. Mustaches shall be neatly trimmed and shall not extend more than

1/2 inch beyond the corners of the mouth nor more than 1/4 inch below the
corners of the mouth. Remainder of the face shall be clean shaven.
73

"(D) Beards shall not be permitted.

74

"(E) Personnel with a medical condition which precludes shaving shall be

required to present a written statement, signed by a medical doctor, verifying
such condition.

***
75
***
76
77

"3:8.3 Use of Derogatory Terms. Members and employees shall:

78

"(A) Neither speak disparagingly of any race or minority group nor refer to
them in insolent or insulting terms of speech, whether prisoners or otherwise.

79

"(B) Neither use uncomplimentary terms of speech when referring to any

prisoner or other person nor willfully antagonize any person with whom he
comes in contact.

***
80
***
81
82

"3:10.1 Conduct Toward the Public. Members and employees shall be

courteous and orderly in their dealings with the public. They shall perform their
duties quietly, avoiding harsh, violent, profane, or insolent language and shall
always remain calm regardless of provocation. Upon request, they are required
to supply their names and badge numbers in a courteous manner. They shall
attend to requests from the public quickly and accurately, avoiding unnecessary
referral to other parts of the department.

83

"3:10.2 Impartial Attitude. All members, even though charged with vigorous
and unrelenting enforcement of the law, must remain completely impartial
toward all persons coming to the attention of the department. Violations of the
law are against the people of the state and not against the individual officer. All
citizens are guaranteed equal protection under law. Exhibiting partiality for or
against a person because of race, creed, or influence is conduct unbecoming an
officer. Similarly, unwarranted interference in the private business of others

when not in the interests of justice is conduct unbecoming an officer.

84

"3:10.3 Disparaging Nationality, Race, or Creed. Courtesy and civility toward

the public is required of all members of the department. Members shall not use
words which humiliate, disparage, demean, degrade, ridicule, or insult a person
because of his race, creed, color, national origin, or ancestry.

***
85
*86* *"3:10.8 Commercial Testimonials. Members and employees shall not permit
their names or photographs to be used to endorse any product or service which is in
any way connected with law enforcement without the permission of the Chief of
Police. They shall not, without the permission of the Chief of Police, allow their
names or photographs to be used in any commercial testimonial which alludes to
their positions or employment with the department.
87

"3:10.9 Public Appearance Requests. All requests for public speeches,

demonstrations, and the like, will be routed to the Chief of Police for approval
and processing. Members and employees directly approached for this purpose
shall suggest that the party submit his request to the Chief of Police.

88

Among the Personnel Regulations one, bearing particularly on the police

officer's diminished lowered expectations of privacy, reads:

89 (G) He shall submit to and pass such physical examination as may be

4:1.1
prescribed by the Chief of Police with the approval of the Township Committee.
90

(H) He shall submit to and pass such written, oral, psychiatric, physiological, or
performance evaluation tests as are prescribed by the Chief of Police with the
approval of the Township Committee.

91

These statutes and regulations speak for themselves. They establish that the
police industry is probably the most highly regulated, with respect to
performance of its employees, of any industry in New Jersey. When compared
with the history of regulation held in Shoemaker to be sufficient for application
of the administrative search exception, the occupation of police officer is far
more intensely regulated. The Washington Township police officers are
members of quasi-military organizations, called upon for duty at all times,
armed at almost all times, and exercising the most awesome and dangerous
power that a democratic state possesses with respect to its residents--the power
to use lawful force to arrest and detain them. The need in a democratic society
for public confidence, respect and approbation of the public officials on whom

the state confers that awesome power is significantly greater than the state's
need to instill confidence in the integrity of the horse racing industry. The
plaintiffs' efforts to distinguish Shoemaker are unavailing. That case controls,
and requires the reversal of the summary judgment in their favor. Plaintiffs'
remaining arguments simply dispute the Shoemaker precedent. This panel is
not free, however, to disregard it.3
III.
92

The parties are in agreement that there are no material issues of disputed fact.
On the present record the Township is entitled to a judgment in its favor on the
plaintiffs' Fourth Amendment claim. The district court did not address the
plaintiffs' contention that the plan also violated Article I, paragraphs 1, 2 and 7
of the New Jersey Constitution. We express no view on the question whether
the New Jersey Constitutional provisions on which the plaintiffs rely would
afford greater protection from random or universal mandatory urinalysis of
police officers than does the Fourth Amendment.4 The judgment appealed from
will be reversed and the case remanded for further proceedings consistent with
this opinion.

The plan contains detailed safeguards for maintaining the privacy of the testing
and test results, and for assuring accuracy of the test results

The Capua court held (1) that the Plainfield plan contained no procedural
protection or confidentiality guarantees, and (2) that the fire department was not
a highly regulated industry. 643 F.Supp. at 1519, 1521. In this case the
Washington Township Plan is not challenged on the first Capua ground

Other courts have followed it. See, e.g., National Treasury Employees Union v.
Von Raab, 816 F.2d 170, 179-80 (5th Cir.1987) (analogizing Customs Service
to highly regulated industry), cert. granted, 108 S.Ct. 1072 (1988); McDonnell
v. Hunter, 809 F.2d 1302, 1308 (8th Cir.1987) (correctional officers); Rushton
v. Nebraska Pub. Power Dist., 653 F.Supp. 1510, 1524-25 (D.Neb.1987)
(nuclear power plant employees). But see, e.g., Railway Labor Executive's
Ass'n v. Burnley, 839 F.2d 575, 585 (9th Cir.1988) (distinguishing Shoemaker
); American Fed'n of Gov't Employees v. Weinberger, 651 F.Supp. 726, 734-35
(S.D.Ga.1986) (distinguishing and criticizing Shoemaker ); Fraternal Order of
Police, Newark Lodge No. 12 v. City of Newark, 216 N.J.Super. 461, 469, 524
A.2d 430, 434-35 (App.Div.1987) (distinguished Shoemaker, but did not reach
federal constitutional issue); Caruso v. Ward, 133 Misc.2d 544, 506 N.Y.S.2d
789, 798 (N.Y.Sup.Ct.1986) (distinguishing Shoemaker ), aff'd, 131 A.D.2d

214, 520 N.Y.S.2d 551 (N.Y.App.Div.1987)

4

See Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 216
N.J.Super. 461, 477, 524 A.2d 430, 438-39 (App.Div.1987)