Amalgamated Tran. U., 1277 v. Sunline Tran. Agcy.

• Decision Date: 07 July 1987
• Docket Number: No. CV 86-8270 RG(Gx).,CV 86-8270 RG(Gx).
• Citation: 663 F. Supp. 1560
• Court: U.S. District Court — Central District of California
• Parties: AMALGAMATED TRANSIT UNION, LOCAL 1277, AFL-CIO, an unincorporated association, Plaintiff, v. SUNLINE TRANSIT AGENCY, a public corporation, Defendant.

663 F. Supp. 1560

AMALGAMATED TRANSIT UNION, LOCAL 1277, AFL-CIO, an unincorporated association, Plaintiff, v. SUNLINE TRANSIT AGENCY, a public corporation, Defendant.

No. CV 86-8270 RG(Gx).

United States District Court, C.D. California.

July 7, 1987.

COPYRIGHT MATERIAL OMITTED

Glen Rothner, member of Reich, Adell & Crost, Los Angeles, Cal., Joseph Freitas, Jr., Lynn C. Rossman, Neyhart, Anderson, Nussbaum Reilly & Freitas, San Francisco, Cal., for Amalgamated Transit Union, Local 1277.

Ronald J. Klepetar, Rexon, Freedman, Klepetar & Thomas, A Professional Corp., Los Angeles, Cal., for defendant.

OPINION AND ORDER

GADBOIS, District Judge.

Plaintiff Amalgamated Transit Union, Local 1277 ("ATU" or "the Union") requests this court to preliminarily enjoin defendant Sun Line Transit Agency ("STA" or "the Agency") from instituting a random, mandatory alcohol and drug testing program. STA, a public corporation that provides mass transit in Palm Springs, California, employs forty bus drivers and ten maintenance workers ("public employees" or "employees"). The Union is the exclusive bargaining representative of the Agency's employees.

On December 18, 1986, this court issued a temporary restraining order enjoining STA from instituting its program. On February 23, 1987, the court heard oral argument and took the Union's motion for a preliminary injunction under submission.

The Union's motion is granted. The court holds that STA's program violates the Fourth Amendment's prohibition against unreasonable searches and seizures insofar as it is wholly random and is not based on a reasonable suspicion that the employee is under the influence of alcohol or drugs.

I. BACKGROUND

The record does not disclose a single documented case of alcohol or drug abuse by a public employee, nor does STA allege such use has resulted in a bus accident. Despite this lack of evidence of abuse, the Agency enacted a "Substance Impairment Policy" in September 1986. The Policy includes alcohol and drug testing—including random testing—of employees. Shortly after STA implemented the Policy, the Union asked the Agency to stop testing until it could file a grievance. The current Collective Bargaining Agreement ("CBA") allows for non-binding arbitration of "a grievance ... with respect to the interpretation or application of any term of the CBA." Declaration of Ronald J. Kleptar ("Kleptar Declaration"), May 7, 1987 at 2.¹

The Agency continued to test the public employees, under Union protest, between September and November 1986. It did not discipline any employees during this period for alcohol or drug abuse. STA then discontinued testing to consider the Union's grievance. Before the grievance procedure provided under the CBA was completed, however, the Agency told ATU that it would resume testing.

The Union then filed a complaint for "injunctive and declaratory relief against the imposition of a sweeping, random drug testing program on its public employees which violate (sic) the United States Constitution." Verified Complaint for Injunctive and Declaratory Relief from Violations of Constitutional and Statutory Rights ("Complaint") at 1. The complaint alleged violations of the Fourth Amendment's proscription against unreasonable searches and seizures, the Fourteenth Amendment's Due Process Clause, the Fifth Amendment's Self-Incrimination Clause and the right to privacy. This court issued a temporary restraining order against the Agency in December 1986 based on allegations made in the complaint.

A. The Collective Bargaining Agreement

Article 12 of the CBA, which expires on March 31, 1990, provides for discipline and grievance procedures. Under this provision, STA may "discharge, suspend or render other appropriate discipline for just cause." Just cause "shall include but not be limited to ... drinking or being under the influence of alcohol or drugs while on SunLine property or during working hours and the possession of alcohol or illegal drugs while on SunLine property or during working hours...." Kleptar Declaration at 7.

Article 12 also provides a three-step grievance procedure, which applies when an employee is discharged, suspended or disciplined for "being under the influence of alcohol or drugs." See Memorandum of Understanding Between STA and ATU Division 1277, Exhibit A to Complaint at Article 12, Section 2a. According to the procedure, the employee must first attempt to resolve his dispute with his immediate supervisor. The employee may request Union assistance. Id. Second, if the supervisor does not resolve the dispute within ten days, the employee must present his grievance, in writing and through the Union, to STA's General Manager. The General Manager has ten days to meet with the employee and provide a written answer. Id. at Section 2(b).

Finally, if the General Manager does not resolve the dispute, the matter is submitted to "the Board of Arbitration" ("the Board"). The Board consists of an arbitrator chosen by the Agency, one chosen by the Union, and one chosen by both. The Board then "renders a nonbinding recommendation to the Agency's Board of Directors within thirty ... days of the date the matter is submitted to the Board." Kleptar Declaration at 6. The Board renders a binding decision only for employment discharge cases. Id.

B. STA's Substance Impairment Policy

The Agency promulgated the Substance Impairment Policy in September 1986. It provides for four types of mandatory alcohol and drug testing: (1) at the pre-employment physical; (2) at a bi-annual medical examination, required for bus drivers under California law to obtain a Class II driver's license; (3) testing based on reasonable suspicion; and (4) random testing. See Exhibit A at 2-3. This court considers only mandatory, random testing.²

In the Policy, STA describes its goals in implementing chemical testing as: "promoting high standards of responsibility to the public, a safe environment in which to work, and reliable performance." Id. at 1. STA also stated that it instituted mandatory, random testing in response to fatal accidents involving other companies such as the Los Angeles Rapid Transit District. Memorandum of Points and Authorities in Opposition to Preliminary Injunction ("Opposition") at 4-5.

The Policy outlines a detailed testing procedure. See Exhibit A at 5-7. First, STA randomly selects an employee, who is given travel directions to a laboratory and a sealed envelope containing a Chain of Custody ("C of C") form. The C of C form contains a control number, used only by STA's Personnel Department to identify the employee. The employee is given an Agency car to drive to the laboratory.

At the lab, the employee uses a private restroom and gives a urine sample to a technician. The employee then completes the C of C form. The employee is required to list on the form any drugs taken in the previous two weeks, including prescription and over-the-counter medications. See Exhibit A at 8. The technician checks over the C of C form and seals the sample. The employee then returns to work, and a courier takes the urine sample to another lab where the first test is performed.

All tests are completed on the same sample, although the employee can request that an independent test be completed. The first test is an "EMIT" test, which STA claims is ninety-five percent accurate. According to the Policy, a second, or "reflex" test is completed only if the EMIT test is positive. If the reflex test is positive, the technician "analyzes the positive and compares it against the Chain of Custody form." Exhibit A at 6. If an over-the-counter or prescribed drug could have triggered a positive result, no further testing is completed.

If, however, a positive result on the reflex test indicates that the employee used a drug that was not disclosed on the C of C form or an an illegal drug, a third, or "thin-layer chromatography" test is completed on the sample at the Mayo Clinic in Rochester, Minn. The Policy states that this test "is the most accurate urine test available." Id.

If an employee receives positive results on the first two tests, he is "counseled." If a legal drug caused the positive results, the counselor tells the employee whether the legal drug could affect his job performance. An employee so counseled is then placed in a pool, with employees who have received similar positive results. These employees are subject to more frequent random tests.

If an illegal drug or a legal drug that could affect performance caused the positive results, the employee must undergo further "counseling" or "rehabilitation." Rehabilitation consists of six visits to a treatment center. The employee is on an unpaid leave while undergoing treatment, and STA's Personnel Department is apprised of his progress. A "rehabilitated" employee is reinstated, but this status is available only once. The Policy states that a rehabilitated employee who receives any further positive results will be immediately fired. Id. at 7. An employee who refuses to submit to testing will presumably be fired, although the Policy is silent on this point.

II. STANDARD FOR PRELIMINARY INJUNCTION

To obtain a preliminary injunction, plaintiff must show "either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Benda v. Grand Lodge, 584 F.2d 308, 314-15 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979) (quoting William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975)).

These are not two distinct tests, however, but "merely extremes of a single continuum." Benda, 584 F.2d at 315. Thus, the more the balance of hardships weighs in favor of the moving party, the less a showing of success on the merits must be made. Benda, 584 F.2d at 315; Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th...