holding that, while a grievance settlement did not collaterally estop an employee’s 42 U.S.C. §1983 claim, it was binding upon the employee because a union “may validly consent to terms and conditions of employment, such as submission to drug testing, that implicate employees’ Fourth Amendment rights”
How later courts described this case
- holding that, while a grievance settlement did not collaterally estop an employee’s 42 U.S.C. §1983 claim, it was binding upon the employee because a union “may validly consent to terms and conditions of employment, such as submission to drug testing, that implicate employees’ Fourth Amendment rights”
- holding that “a public employees union acting as an exclusive bargaining agent may consent to drug testing on behalf of the employees it represents”
- holding that a union is authorized to consent to drug testing of public employees, thereby restricting the employees’ fourth amendment rights
- unions may compromise employees’ privacy claims, including objections to drug tests
Written by the judges who cited it.
The opinion
GREENBERG, Circuit Judge,
dissenting:
I respectfully dissent as I believe that this action is barred against SEPTA by the Eleventh Amendment. Initially, of course, I express my agreement with the majority that “it is appropriate to reach the Eleventh Amendment issue in this case.” Typescript at 10. But unlike the majority I believe that the Eleventh Amendment bars this action for two reasons. In my view, the dissent by Judge Rosenn in Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 664 (3d Cir.), cert. denied, 493 U.S. 850 , 110 S.Ct. 148 , 107 S.Ct. 107 (1989), in which four judges joined, was correct and the agency in that case, New Jersey Transit Rail Operations, Inc., was entitled to Eleventh Amendment immunity. I joined in that dissent and adhere to it. While I could not do this as a member of a panel because our internal operating procedures render Fitchik binding on subsequent panels, inasmuch as we sit in banc in this case I may reassert the dissenting position, for as an in banc court we are not bound by Fitchik .
In the majority opinion, Judge Alito compares New Jersey Transit with SEPTA, typescript 25 to 31, and concludes that its Eleventh Amendment argument is weaker than New Jersey Transit’s. Thus, since Fitchik is not to be overruled, he logically concludes that SEPTA is not protected by the Eleventh Amendment. In my view, limited to the factors that he set forth, SEPTA’s position is not sufficiently distinct from New Jersey Transit’s for Eleventh Amendment purposes, so that a different result should be reached here than in Fitchik . It thus follows that as I adhere to the dissent in Fitchik , I must dissent here.
In fact, however, I think that SEPTA’s position is stronger than New Jersey Transit’s. I acknowledge that determinations under the Eleventh Amendment are ultimately made under federal and not state law and that an agency can thus enjoy state sovereign immunity protection and yet not enjoy Eleventh Amendment immu *832 nity. But still as the majority acknowledges, typescript at 28, status under state law is significant for sovereign immunity purposes. I think that a fuller explication of SEPTA’s status under Pennsylvania law than the majority makes leads to a conclusion that it enjoys Eleventh Amendment immunity. While the majority cites 55 Pa. Stat.Ann. § 600.303(a) (1991 Supp.) for the point that SEPTA is “an agency and instrumentality” of the Commonwealth, it should also be pointed out that the same section indicates that it “shall exercise the public powers of the Commonwealth.” Furthermore, the Supreme Court of Pennsylvania has “no hesitation in concluding that SEPTA was intended to be considered an agency of the Commonwealth.” Feingold v. Southeastern Pa. Transp. Authority, 512 Pa. 567, 579 , 517 A.2d 1270, 1276 (1986); see also Marshall v. Port Authority, 524 Pa. 1 , 568 A.2d 931 (1990). Finally, our own opinions, though not conclusive on the issue, also point to Eleventh Amendment immunity in this case. See In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 864 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1584 , 113 L.Ed.2d 649 (1991); Toombs v. Manning, 835 F.2d 453 (3d Cir.1987). Thus, it seems clear to me that SEPTA’s position is stronger than New Jersey Transit’s, for in Fitchik we concluded that the agency’s “status under New Jersey statutes [was] ambiguous.” Fitchik, 873 F.2d at 663 . SEPTA’s status under Pennsylvania law is not. In the circumstances, I would remand for entry of judgment for SEPTA. 1 Judge Hutchinson joins in this dissenting opinion.
. Although Judge Rosenn did not sit in the in banc proceedings in this case, his concurrence filed with the panel opinion reflects the views I express here.