863 F.2d 1110 (3rd Cir. 1988), 88-1208, Transport Workers' Union of Philadelphia, Local 234 v. Southeastern Pennsylvania Transp. Authority

Docket Nº:Brotherhood of Railroad Signalmen, Appellants in No. 88-1208,
Citation:863 F.2d 1110
Party Name:4 Indiv.Empl.Rts.Cas. 1, TRANSPORT WORKERS' UNION OF PHILADELPHIA, LOCAL 234, Appellant in No. 88-1206, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant in No. 88-1160. TRANSPORT WORKERS UNION OF AMERICA, LOCAL 2013 v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Louis F. Gould, Jr., Esquire, Individually and in his offici
Case Date:December 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1110

863 F.2d 1110 (3rd Cir. 1988)

4 Indiv.Empl.Rts.Cas. 1,

TRANSPORT WORKERS' UNION OF PHILADELPHIA, LOCAL 234,

Appellant in No. 88-1206,

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Appellant in No. 88-1160.

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 2013

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

and

Louis F. Gould, Jr., Esquire, Individually and in his

official capacity as Chairman of the Board of SEPTA; Robert

J. Thompson, Individually and in his official capacity as

Vice Chairman of the Board of SEPTA; Brian W. Clymer;

Judith E. Harris, Esquire; Mary C. Harris, Thomas M.

Hayward, C.P.A.; Frank W. Jenkins, Esquire; Richard E.

Kutz, Esquire; David W. Marston, Esquire; James C. McHugh

and Franklin C. Wood, Individually and in their official

capacities as Members of the Board of SEPTA, Appellants.

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, DIVISION 71 and

Brotherhood of Locomotive Engineers and Thomas C.

Brennan, Appellants in No. 88-1207,

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

and

Louis F. Gould, Jr., Esquire, Individually and in his

official capacity as Chairman of the Board of SEPTA; Robert

J. Thompson, Individually and in his official capacity as

Vice Chairman of the Board of SEPTA; Brian W. Clymer;

Judith E. Harris, Esquire; Mary C. Harris; Thomas M.

Hayward, C.P.A.; Frank W. Jenkins, Esquire; Richard E.

Kutz, Esquire; David W. Marston, Esquire; James C. McHugh

and Franklin C. Wood, Individually and in their official

capacity as Members of the Board of SEPTA, Appellants in No.

88-1162.

UNITED TRANSPORTATION UNION, Brotherhood of Railway, Airline

and Steamship Clerks, Freight Handlers, Express and Station

Employees, Brotherhood of Maintenance of Way Employees,

Brotherhood of Railroad Signalmen, Appellants in No. 88-1208,

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Appellant in No. 88-1163.

Nos. 88-1160, 88-1206, 88-1161, 88-1162, 88-1207, 88-1163

and 88-1208.

United States Court of Appeals, Third Circuit

December 28, 1988

Argued Aug. 30, 1988.

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[Copyrighted Material Omitted]

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John F. Smith, III (argued), Richard S. Meyer (argued), Hope A. Comisky, James J. Rodgers, Barbra Shotel, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for Southeastern Pennsylvania Transp. Authority.

Michael Brodie (argued), Michael R. Kopac, III, Sacks, Basch, Brodie & Sacks, Philadelphia, Pa., for Transport Workers' Union of Philadelphia, Local 234.

Harold A. Ross (argued), Joseph E. Prekop, Ross & Kraushaar Co., L.P.A., Cleveland, Ohio, Cornelius C. O'Brien, Jr., Cornelius C. O'Brien, III, Cornelius C. O'Brien, Jr., P.C., Philadelphia, Pa., for Brotherhood of Locomotive Engineers, Division 71; Thomas C. Brennan; Brotherhood of Locomotive Engineers; United Transportation Union; Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees; Brotherhood of Maintenance of Way Employees; Brotherhood of Railroad Signalmen.

Before SLOVITER, GREENBERG and COWEN, Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

This case presents this court for the first time with the issue of the constitutionality of random and return-to-work drug and alcohol testing of public employees holding "safety sensitive" positions within the public transportation authority serving the Philadelphia metropolitan area. 1 The district court upheld the constitutionality of the random drug testing policy, but found the addition of return-to-work testing to be unconstitutional. The court enjoined commencement of random testing of those employees covered by the Railway Labor Act, pending settlement of the dispute through the conciliation procedures specified in the Act. Transport Workers' Union Local 234 v. Southeastern Pennsylvania Transportation Authority, 678 F.Supp. 543 (E.D.Pa.1988).

The Unions argue that indiscriminate use of random drug tests to ferret out illegal drug use by public employees is irreconcilable with the guarantee against unreasonable government intrusion on individual privacy of the Fourth Amendment. We do not underestimate their concern that the public clamor about the nation's drug problem creates the risk that judgments may be distorted in evaluating the constitutionality

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of government measures taken to curb this crisis. Nonetheless, in light of this court's precedent sustaining drug testing in other occupations and in light of the record presented in this case where the public transportation authority has documented a serious drug problem among its employees, to which it has traced accidents causing injury to the public, we conclude that the random drug testing at issue here is not facially invalid under the Fourth Amendment.

We also uphold the district court's finding that the transportation authority failed to justify the reasonableness of its return-to-work drug testing policy. Finally, we uphold the injunction imposed on commencement of random testing of employees covered by the Railway Labor Act.

I.

Background and Procedural History

Appellants/cross-appellees in this case ("the Unions") are the Transport Workers Union Local 234 ("TWU"), which represents approximately 5,700 of SEPTA's 6,500 employees, and five unions which represent SEPTA employees under section one of the Railway Labor Act ("RLA"), 45 U.S.C. Sec. 151, Sixth (1982): the Brotherhood of Locomotive Engineers, Division 71; the Brotherhood of Locomotive Engineers; the Brotherhood of Railway, Airline and Steamship Clerks; the Brotherhood of Maintenance of Way Employees; and the Brotherhood of Railroad Signalmen ("the Railway Unions").

Appellees/cross-appellants, the Southeastern Pennsylvania Transportation Authority and some of its officers and Board members (referred to collectively as "SEPTA" or "the Authority"), operate mass transportation facilities in the five-county Philadelphia metropolitan area. SEPTA is an agency of the Commonwealth of Pennsylvania, currently organized under the authority of the Pennsylvania Urban Mass Transportation Act of January 22, 1968, P.L. 42, No. 8, as amended, 55 Pa.Stat.Ann. Secs. 600.101-600.407 (Purdon Supp.1988). SEPTA operates subways, railroads, buses, streetcars, and trackless trolleys, and maintains stations, depots, platforms, tracks, and other installations. In 1986, SEPTA accommodated more than 1.2 million passengers on its transit systems on an average week day.

On January 16, 1987, SEPTA publicly announced, without prior notice or consultation with the Unions, that it planned to begin administering random urinalysis tests to detect the presence of psychotropic drug metabolites and alcohol in employees' body systems. On January 21 and 26, 1987, the Unions filed complaints against SEPTA's plan in the United States District Court for the Eastern District of Pennsylvania, alleging that SEPTA's program violated their members' constitutional rights under the Fourth and Fourteenth Amendments.

The Railway Unions also alleged that SEPTA had violated section 6 of the RLA, 45 U.S.C. Sec. 156 (1982), by unilaterally instituting a random drug testing policy without serving notice and exhausting the mediation and conciliation procedures mandated by the RLA before implementation of changes in working conditions or rules under a labor contract.

In early February 1987, SEPTA posted an additional order at its offices announcing that all employees returning to work after an absence from employment of over thirty days for any reason other than vacation would be required to submit to urinalysis testing. The Unions filed amended complaints alleging that SEPTA's return-to-work testing policy also violated the constitutional rights of their members.

After four days of hearings, the district court entered a preliminary injunction enjoining SEPTA from implementing its random drug and alcohol testing program. The court expressed various concerns about, inter alia, the plan's failure to include reliable confirmatory testing procedures, failure to use a less intrusive breathalyzer test to detect the presence of alcohol in employees' body systems, and the lack of

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justification of the scope of the job positions to be tested. It directed SEPTA to submit any further plan for random testing to it.

In July 1987, after SEPTA published the first draft of a revised drug and alcohol testing and education program which it had designed to respond to the district court's concerns, it moved to vacate the court's preliminary injunction. The case went to trial in September 1987, at which time both SEPTA and the Unions introduced extensive expert testimony about testing technology and the effects of drug use. SEPTA also presented evidence of the scope and severity of the drug problem affecting its workforce.

On September 25, 1987, the district court again delivered bench remarks criticizing various aspects of SEPTA's proposed program. SEPTA again made revisions in its proposal, and resubmitted it to the Unions and the court.

On January 19, 1988, the district court entered its final order and issued a memorandum opinion. The order dissolved the preliminary injunction against SEPTA and denied the Unions' request for a permanent injunction against the random testing component of SEPTA's drug and alcohol testing program, but granted a permanent injunction against implementation of SEPTA's return-to-work testing policy. The court also enjoined SEPTA from commencing random drug testing of workers represented by the Railway Unions, holding that unilateral implementation of such a policy gave rise to a "major dispute" within the meaning of...

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