Transport Workers' Union of Philadelphia, Local 234 v. Southeastern Pennsylvania Transp. Authority
| Decision Date | 01 September 1989 |
| Docket Number | No. 88-1162,No. 88-1163,No. 88-1206,88-1163 and 88-1208,No. 88-1160,No. 88-1208,No. 88-1207,88-1207,88-1162,88-1206,Nos. 88-1160,88-1161,88-1160,88-1208,88-1163,s. 88-1160 |
| Citation | 884 F.2d 709 |
| Parties | 132 L.R.R.M. (BNA) 2331, 112 Lab.Cas. P 11,439, 6 Indiv.Empl.Rts.Cas. 510, 1989 O.S.H.D. (CCH) P 28,654 TRANSPORT WORKERS' UNION OF PHILADELPHIA, LOCAL 234, Appellant in, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant inTRANSPORT 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, 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 inUNITED 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, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
Before SLOVITER, GREENBERG and COWEN, Circuit Judges.
We consider this case on remand from the Supreme Court in light of two cases it decided last term in the rapidly developing area of constitutional and statutory law regarding employee drug testing. In our opinion in Transport Workers' Union of Philadelphia v. Southeastern Pennsylvania Transportation Authority (SEPTA), 863 F.2d 1110 (3d Cir.1988), we upheld SEPTA's program for random drug and alcohol testing of operating employees holding safety sensitive positions within SEPTA's mass transit system, but struck down return-to-work testing as insufficiently justified. The final design of SEPTA's random testing program had been developed after extensive review and modification by the district court, see id. at 1113-14, and we concluded that this program met the "reasonableness" standard enunciated by the Supreme Court in its recent case law under the Fourth Amendment, id. at 1124. One of the affected unions, the United Transportation Union (UTU), filed a petition for a writ of certiorari from this portion of our holding.
In a separate part of our opinion, we concluded that SEPTA's institution of a random drug and alcohol testing program for employees covered by the Railway Labor Act (RLA), 45 U.S.C. Sec. 151 et. seq. (1982), violated the employer's duties under sections 5 and 6 the RLA, 45 U.S.C. Secs. 155 & 156, to submit to the extensive notice, mediation and conciliation procedures required for resolution of "major" disputes. 863 F.2d at 1122. We therefore upheld the district court's issuance of a "status quo" injunction against SEPTA. In so holding, we found dispositive our precedent in Railway Labor Executives' Association v. Consolidated Rail Corp., 845 F.2d 1187 (3d Cir.1988). SEPTA filed a petition for a writ of certiorari.
On June 26, 1989, the Court granted the UTU's petition for certiorari, vacated our judgment, and remanded for reconsideration in light of Skinner v. Railway Labor Executives' Association, --- U.S. ----, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). See --- U.S. ----, 109 S.Ct. 3209, 106 L.Ed.2d 560. On the same day the Court also granted SEPTA's petition for a writ of certiorari and remanded for further consideration in light of its opinion in Consolidated Rail Corp. v. Railway Labor Executives' Association, --- U.S. ----, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989), reversing our opinion on which we had relied. See --- U.S. ----, 109 S.Ct. 3208, 106 L.Ed.2d 560.
We have solicited the views of the parties and we will now consider in turn the effect of the Court's opinions in Skinner and Consolidated Rail on our prior judgment. 1
In Skinner, the Court considered the permissibility under the Fourth Amendment of regulations promulgated by the Federal Railroad Administration mandating blood and urine tests for alcohol and drugs of employees involved in major train accidents and authorizing breath and urine tests of employees found to have violated safety rules.
The Court acknowledged that it "usually required 'some quantum of individualized suspicion' before concluding that a search is reasonable," but held that individualized suspicion need not be present in certain limited circumstances where sufficiently weighty interests of the government outweighed employees' privacy interests. Id. 109 S.Ct. at 1417 (citation omitted). With respect to the degree of intrusion on the workers' legitimate expectations of privacy, the Court acknowledged that "some of the privacy interests implicated by the toxicological testing at issue reasonably might be viewed as significant in other contexts," but found that employees' justified expectations of privacy were diminished in light of "logic and history" in the railroad employment context. Id. at 1419. It found, Id.
In a companion case decided the same day, the Court upheld on similar grounds the "automatic" testing of applicants for transfer or promotion to certain customs positions. National Treasury Employees Union v. Von Raab, --- U.S. ----, 109 S.Ct. 1384, 1393, 103 L.Ed.2d 685 (1989). The Court vacated the portion of the lower court's order which upheld testing of customs employees applying for positions in which they would handle classified information because it appeared that this testing program might be overbroad with respect to the job positions covered. In spite of the lack of evidence of any drug use problem among customs employees, however, the Court found constitutionally permissible the testing of all employees seeking promotion or transfer to positions in which they would either be directly involved in drug interdiction or would carry firearms "[i]n light of the extraordinary safety and national security hazards" created...
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