Petition for Writ of Certiorari — Southeastern Pennsylvania Transportation Authority v. Transport Workers' Union of Philadelphia, Local 234
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Supreme Court. U.S
FILED
\
MAR 6 iSbY
8 Bs. J4 8 6 JOSEPH F. SPANIOL, JR.
| CLERK
—_
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1988
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY. et al.
Petitioners.
TRANSPORT WORKERS’ UNION
OF PHILADELPHIA, LOCAL 234, et al.
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
John F. Smith, III
(Counsel of Record )
Richard S. Meyer
Hope A. Comisky
Barbra Shotel
DILWORTH, PAXSON, KALISH
& KAUFFMAN =
2600 The Fidelity Building
Philadelphia, PA 19109
(215) 875-7220
Attorneys for Petitioners
Southeastern Pennsylvania
Transportation Authority, et al.
Dated: March 8. 1989
PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA., PA. 19103 (215) 563-9000
QUESTIONS PRESENTED
(1) Whether an urban mass transportation author-
ity’s addition of random drug and alcohol testing to an
existing unchallenged policy of fitness for duty drug and
alcohol testing of safety-sensitive personnel constitutes a
major dispute under the Railway Labor Act.
(2) Whether an urban mass transportation author-
ity’s inclusion of a drug screen in routine return to work
physical examinations of safety-sensitive personnel con-
ducted in support of its fitness for duty standard violates
the Fourth Amendment to the United States Constitu-
tion.
PARTIES TO THE PROCEEDINGS BELOW AND RULE
28.1 STATEMENT
The proceedings below involved four actions which
were not consolidated into one action. The respective
parties and docket numbers in the court below are as
follows:
Petitioners include:
1. Southeastern Pennsylvania Transporta-
tion Authority in all of the cases which include
Nos. 88-1160, 88-1161, 88-1162, 88-1163, 88-
1206, 88-1207 and 88-1208; and
2. Louis F. Gould, Jr., Esquire, Individually
and in his official capacity as Chairman of the
Board of SEPTA; Robert J. Thompson, Individ-
ually and in his official capacity as Vice Chair-
man 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 in all of the cases which include Nos.
88-1160, 88-1161, 88-1162, 88-1163, 88-1206,
88-1207 and 88-1208.
Respondents include:
1. Transport Workers’ Union of Philadel-
phia, Local 234 in Nos. 88-1160 and 88-1206;
2. Transport Workers’ Union of America,
Local 2013 in No. 88-1161;
3. Brotherhood of Locomotive Engineers,
Division 71 and Brotherhood of Locomotive En-
gineers and Thomas C. Brennan in Nos. 88-
1162 and 88-1207; and
il
4. United Transportation Union, Brother-
hood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employ-
ees, Brotherhood of Maintenance of Way Em-
ployees, Brotherhood of Railroad Signalmen in
Nos. 88-1163 and 88-1208.
Petitioner Southeastern Pennsyivania Transporta-
tion Authority has no parent corporation(s), non-wholly-
owned subsidiaries or affiliates.
ili
i i i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................... i
PARTIES TO THE PROCEEDINGS BELOW AND
RULE 28.1 STATEMENT ..........ccscece. ii
TABLES OF AUTEEBORITEES 2. cccccccccccccccece Vii
RE AAI OE oe 1
Se eet cncnedeé dnennd baadite ddd 2
Re ary See babka Snide sdsdec cena’ 2
STATEMENT OF THE CAGE .... cc cccccsccccce 2
A. The SEPTA Transportation System...... 3
B. Drug And Alcohol Use By SEPTA Person-
nel And The Authority’s Response ...... 5
C. The Integrated Program................ 6
D. The Historical Development Of SEPTA’s
Fitness For Duty And Suspicion Based
Testing As It Relates To The Regional
Ras Konddsgbsepewaeadunde cee 8
E. Major v. Minor Disputes Under The Rail-
Uy RAE Oe ons ek cccdabscwnctascacs 10
F. The Proceedings Below Following Prom-
ulgation Of The Integrated Program..... 14
REASONS FOR GRANTING THE WRIT........ 16
I. THE DECISION OF THE THIRD CIRCUIT
THAT THE ADDITION OF RANDOM
TESTING TO AN EXISTING PROGRAM OF
FITNESS FOR DUTY DRUG AND ALCO-
HOL TESTING CONSTITUTES A “MAJOR
DISPUTE” CONFLICTS IN PRINCIPLE
WITH DECISIONS OF OTHER CIRCUITS
ON AN IMPORTANT QUESTION OF FED-
ERAL LAW.....: Saidanncccaccekduss caeae 16
TABLE OF CONTENTS — (Continued)
Page
A. The Decision Conflicts In Principle With
Decisions Of The Seventh And Eighth
CHB no oc dccavencecssscbecssscaeces 16
B. How A Refinement Of Existing Drug And
Alcohol Testing Is Categorized Under The
RLA Has A Profound Impact On The
Safety Of Urban Mass Transportation.... 19
Il. THE DECISION OF THE THIRD CIRCUIT
WITH RESPECT TO RETURN TO WORK
TESTING CONFLICTS IN PRINCIPLE
WITH OTHER CIRCUITS ON AN IMPOR-
TANT QUESTION OF FEDERAL LAW .... 22
A. In Not Recognizing That Return To Work
Testing Is Related Solely To A Routine
Fitness For Duty Determination, The
Third Circuit Has Created A Conflict In
Principle With Decisions Of The District
Of Columbia And Fifth Circuits......... 22
B. The Question Of The Constitutionality Of
Return To Work Testing Is Of Such Great
Importance That The Court Should Grant
Certiorari Even If There Were Not A Con-
flict In Principle In The Circuits ........ 24
ee fF) | PPT TTITCTT TT irre err 26
APP EEE nocd cnesbearccesdarvcaneneesecesvss A-1
Opinion of the U.S. Court of Appeals for the
Third Circuit dated December 28, 1988... A-1
Order of U.S. Court of Appeals for the Third
Circuit dated January 19, 1989 ......... A-31
Order of U.S. Court of Appeals for the Third
Circuit dated February 16, 1989........ A-32
TABLE OF CONTENTS — (Continued)
Page
Opinion of U.S. District Court, Eastern District
of Pennsylvania dated January 19, 1988 . A-33
Order of U.S. District Court, Eastern District of
Pennsylvania dated February 19, 1988... A-54
Order of U.S. District Court, Eastern District of
Pennsylvania dated March 1, 1988...... A-56
Statutory Provisions of the Railway Labor Act,
45 U.S.C. Section 152, First through
TS <Mht eae ee heh¥ 606 ds 6b eeccces A-58
43 U.S.C. Section 1$3........ccccccccce A-61
45 U.S.C. Section 155, First ........... A-73
4S UBL. Gectiom 156... ..6ccccccccccce A-74
vi
TABLE OF AUTHORITIES
Cases: Page
Air Line Pilots Ass'n., Int'l v. Trans World Airlines,
Inc., 713 F.2d 940 (2d Cir. 1983), aff'd in part
and rev'd in part on other grounds, sub nom.,
Trans World Airlines, Inc. v. Thurston, 469
US. B20 CUGBS). cccccccccccccccccccssccccce 12
Amalgamated Transit Union, Division 1279 v.
Cambria County Transit Authority, 691
F.Supp. 898 (W.D. Pa. 1988) ............++.- 23
Brotherhood of Locomotive Engineers v. Atchinson,
Topeka & Santa Fe Railway Co., 768 F.2d 914
(7th Cir. 19GS)... nc cccccccccccccccccccccccce 14
Brotherhood of Locomotive Engineers v. Burlington
Northern R.R., 838 F.2d 1087 (9th Cir. 1988),
petition for cert. filed , 57 U.S.L.W. 3017 (U.S.
April 1, 1988) (No. 87-1631).............. 12, 19
Brotherhood of Maintenance of Way Employees,
Lodge 16 v. Burlington Northern R.R., 802 F.2d
1016 (8th Cir. 1986).............. 12, 16, 17, 18
Brotherhood of R.R. Trainmen v. Jacksonville Co.,
394 U.S. 369, reh'g denied, 394 U.S. 1024
CREED g vacccccncccccccseseqestaccsccsosece 13
Brotherhood Railway Carmen v. Norfolk & Western
Railway, 745 F.2d 370 (6th Cir. 1984) ....... 12
Burlington Northern Railroad Co. v. Brotherhood of
Maintenance of Way Employees, 107 S.Ct.
BOG CAGBT) . cccccccccccccccscccccsccccccces 13
Consolidated Rail Corporation v. Railway Labor
Executives’ Ass'n., 845 F.2d 1187 (3d Cir.
1988), cert. granted, 109 S.Ct. 52 (1988).
SWetend sas sSRbeedeestelwerenewes ee 2, 3, 19, 20
Detroit & Toledo Shore Line R.R. v. United Trans-
portation Union, 396 U.S. 142 (1969)........ 12
Vii
TABLE OF AUTHORITIES — (Continued)
Cases: Page
Elgin, Joliet & Eastern Railway Co. v. Burnley, 325
U.S. 711 (1945), aff'd on rehearing, 327 U.S.
ee RE b cemanbasendceussedatndeausens 10-11
International Brotherhood of Electrical Workers v.
Washington Terminal Co., 473 F.2d 1156 (D.C.
Cir. 1972), cert. denied, 411 U.S. 906 (1973).. 12
International Brotherhood of Teamsters v. South-
west Airlines Co., 842 F.2d 794 (Sth Cir.
ny A Se ap ra an eR ap Oe 12, 13
Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987),
petition for cert. filed, sub nom. Jenkins v.
Jones, 57 U.S.L.W. 3017 (U.S. April 15, 1988)
Se EE tind oshedenedu é¥ee vadee 22, 23, 24
Maine Central R.R. v. United Transportation
Union, 787 F.2d 780 (1st Cir.), cert. denied,
ee ee co bccateseccavdtecncine 12
National Railway Labor Conference v. Interna-
tional Ass'n of Machinists & Aerospace Work-
ers, 830 F.2d 741 (7th Cir. 1987)............ 12
National Treasury Employees Union v. Von Raab,
816 F.2d 107 (Sth Cir. 1987), cert. granted, 108
ee oat eee 22, 23, 24
Northwest Airlines, Inc. v. Air Line Pilots Ass'n.
Intern., 808 F.2d 76 (D.C. Cir. 1987), cert.
denied, 108 S.Ct. 1751 (1988)............... 13
Railway Labor Executives’ Association v. Burnley,
839 F.2d 575 (9th Cir.), cert. granted, 108 S.Ct.
EE thtaacdadwasdie ctiekddnke ake 19-20
Railway Labor Executives’ Association v. Norfolk &
Western Railway Co., 833 F.2d 700 (7th Cir.
ED scchanetdussencnxuans 13, 14, 16-17, 18, 19
TABLE OF AUTHORITIES — (Continued)
Cases: Page
United Steelworkers of America v. Warrior and
Gulf Navigation Co., 363 U.S. 574 (1960).... 13
United Transportation Union v. Penn Central
Transportation Co., 372 F.Supp. 671 (E.D.Pa.
1973), aff'd, 50S F.2d 542 (3d Cir. 1974) ..... 11
Wrightsell v. City of Chicago, 678 F.Supp. 727
(N.D. Ill. 1988) .... 2.6. eee cece eee eeeeeee 23
STATUTES
2B U.S.C. $1254(1) 2... cece cece cc ccccccccccess 2
Railway Labor Act,
45 U.S.C. §151 ef Seq... . 6 ee cece eee eneees 2,4
OG UB GAGS occ cccccccccasccccceass 2, 11, 13
Ce ID cs cccanecicceccaciasannse 2, 13, 33
45 U.S.C. $155 .....ccccccccccsccccees 2, 13, 21
45 U.S.C. $156... cc ccccccccccccccccccces 2, 11
43 Pa. Stat. Ann. §1101.101 ef seq. ...----+++0+: 4
55 Pa. Cons. Stat. Ann. §600.11 ef seq.......--+-- 3
66 Pa. Stat. Ann. §2001 ef seq. ....- +--+ +e eeeeees 3
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1988
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY, ef al.
Petitioners,
V.
TRANSPORT WORKERS’ UNION
OF PHILADELPHIA, LOCAL 234, et al.
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Petitioners, Southeastern Pennsylvania Transporta-
tion Authority, et al., (SEPTA) respectfully pray that a
writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Third Circuit, entered i. the above-entitled proceeding
on December 28, 1988.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Third Circuit is reported at 863 F.2d 1110 (3d
Cir. 1988) and is reproduced in the Appendix hereto ai
A-1 to A-30.
The opinion of the District Court for the Eastern
District of Pennsylvania is reported at 678 F.Supp. 543
(E.D.Pa. 1988) and is reproduced in the Appendix at
A-33 to A-53.
2
JURISDICTION
The decision of the Court of Appeals was entered on
December 28, 1988. On January 19, 1989, the Court of
Appeals stayed the issuance of its mandate until Febru-
ary 17, 1989. A-31. On February 16, 1989, the Court of
Appeals extended the stay of issuance of the mandate
until March 9, 1989. A-32. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATUTE INVOLVED
Sections 2, 3, 5 and 6 of the Railway Labor Act, 45
U.S.C. 152, 153, 155 and 156 are set forth in pertinent
part in the Appendix at A-58 to A-75.
STATEMENT OF THE CASE
The Court has granted a Writ of Certiorari to the
United States Court of Appeals for the Third Circuit and
on February 28, 1989 heard argument in the matter of
Consolidated Rail Corporation v. Railway Labor Execu-
tives’ Association, 845 F.2d 1187 (3d Cir. 1988), cert.
granted, 109 S.Ct. 52 (1988). Conrail is one of the
nation’s largest freight rail carriers. The question posed
in that proceeding is whether Conrail’s inclusion of a
drug test in the urinalysis component of its fitness for
duty medical examinations constituted a “major dispu-
te” under the Railway Labor Act, 45 U.S.C. $151 et seq.
(RLA).
In the present case, one of the nation’s largest urban
mass transportation systems, Southeastern Pennsylva-
nia Transportation Authority (SEPTA), imperiled by an
extraordinary, proven pattern of drug and alcohol usage,
seeks a Writ of Certiorari on two closely related ques-
tions concerning fitness for duty drug and alcohol test-
ing. The case arises out of SEPTA’s efforts to apply a
long standing and well publicized fitness for duty stan-
dard to personnel in operator and other safety-sensitive
3
positions,! and in support thereof to conduct random?
and return to work drug and alcohol testing of such
personnel on an administrative basis, all as part of a
balanced, tripartite program of education, rehabilitation,
and testing.?
For the same reasons that led the Court to grant the
Writ of Certiorari in Conrail, the court should grant a
Writ in the present case. However, this case presents a
situation of even greater significance and risk to the
public than Conrail. SEPTA’s employees carry and are
entrusted with hundreds of thousands of human lives
each year, not inanimate objects of freight. The public’s
interest in safe mass transportation, as well as in a
determination of what responsible management can do
in the context of the Railway Labor Act, is of vital
importance. The issues involved in this petition should
not be left unresolved by the Court.
A. The SEPTA Transportation System.
SEPTA, a public agency, organized under 66 Pa.
Stat. Ann. §2001 et seq. (repealed) and 55 Pa. Con. Stat.
Ann. §600.11 et seq. owns and operates mass transpor-
tation facilities consisting of subways, buses, trolleys,
and high speed commuter rail lines in Bucks, Chester,
Delaware, Montgomery and Philadelphia counties in
1. e.g. engineer, bus person, subway/elevated train person,
signal maintainer and various inspectors.
2. “Random” in the context of this case means a computer
generated, scientifically random selection of employees to be tested,
which selection has been devised by a nationally recognized statis-
tical consultant to exclude any arbitrary, capricious or discrimina-
tory basis for selection of employees to be tested. A-24.
3. The testing component is not administered for disciplinary
purposes but is rather utilized to prevent personnel in the foregoing
safety-sensitive positions from endangering SEPTA’s passengers
and operators, routing them instead to rehabilitation programs.
4
Pennsylvania, New Castle County, Delaware and Mer-
cer County, New Jersey.* A-35 to A-36.
Operation of SEPTA’s high speed vehicles requires
the use of complex skills. Congested arteries, crowded
vehicles, difficult weather conditions and unruly passen-
gers are common. As acknowledged by the District
Court, “[v]jehicle operators must be attentive to their
work. Subway and train signal systems are complex and
demanding. Braking requires vigilance and sound judg-
ment”, and “[a] vehicle operator must have a clear mind
and the ability to react quickly and efficiently.” A-36.
Thus, even if one could operate a train down an open
track, the question remains whether, at a crucial instant,
the operator could discern a rapidly changing signal,
determine the necessary response, and execute that
response rapidly enough to avoid catastrophe. One of
respondents’ expert witnesses acknowledged that drug
users not “obviously impaired in performing routine
4. The Regional Rail Division (RRD) serves all the aforesaid
counties with a network of 13 commuter rail lines providing
approximately 78,000 passenger trips per day. The RRD employees
are represented by various railway brotherhoods including Brother-
hood of Locomotive Engineers (BLE), United Transportation Union
(UTU), Brotherhood of Railway, Airline and Steamship Clerks
(BRAC), Brotherhood of Maintenance of Way Employees (BMWE)
and Brotherhood of Railroad Signalmen (BRS). The relationships of
those unions and SEPTA are governed by the Railway Labor Act, 45
U.S.C. §151 et seq.
The City Transit Division (CTD) provides approximately
789,000 passenger trips per day in a network of subway, bus, trolley
and trackless trolley car routes mostly within the City of Philadel-
phia. The CTD employees are represented primarily by Transport
Workers Union of Philadelphia, Local 234 (TWU). The relationship
of TWU and SEPTA is governed by the Pennsylvania Public
Employee Relations Act, 43 Pa. Stat. Ann. §1101.101 ef seq.
(PERA)
There is also a Suburban Transit Division (STD) serving the
western and northern suburbs of Philadelphia with a variety of
inter-urban trolley, streetcar and bus routes. The STD employees
are represented primarily by the UTU. The relationship between
UTU and SEPTA in the STD is also governed by PERA.
ed Re merece ter’ pete te ee
Abbebinsmannis? 60 lies) A
ae eat Fi 8 re 50
5
work tasks can display a lack of flexibility and inability to
respond to sudden changes or emergency situations”.
A-20.
The problem is exacerbated by the fact that bus and
train operators conduct their activities across a wide
geographic area in a multitude of separate vehicles.
Typically, they are alone or accompanied only by a
person who may be located in a separate compartment
and therefore do not operate under continuous supervi-
sory observation.
B. Drug And Alcohol Use By SEPTA Personnel And The
Authority’s Response.
Drug and alcohol use by SEPTA’s operating employ-
ces has presented an increasingly significant safety
problem. A-19. In six major accidents occurring in 1986
and 1987, collectively involving at least 89 injuries, the
operators of SEPTZ. vehicles at fault tested positive for
alcohol or drug metabolites. Of 262 employees tested
“for cause” between January 1985 and July 1987, 82
employees or 31% tested positive for drug metabolites or
alcohol. Twelve percent of the new hires given drug
tests within the same period produced positive results.
A-20. Moreover, almost one out of every ten employees
returning from extended absences (not including per-
sons reinstated following a disciplinary event) tested
positive. Of those employees who were tested prior to
returning after being reinstated following discipline, the
number of positives increased to 29%.
Following a series of drug-related accidents, on
January 16, 1987, SEPTA announced the addition of
random drug and alcohol testing to its existing fitness
for duty and suspicion based drug and alcohol testing.
This policy was set forth in Order No. 87-1 which states
in pertinent part:
In view of the critical nature of the Authority’s
Operation and_in furtherance of the Public Policy
ae
6
concerning alcohol/drug abuse in the workplace;
operating employees will be subject to urine and/or
blood screening tests to determine if they are in
compliance with the Authority’s rules governing
alcohol and/or drugs.
Screening will be without advance notice and will be
accomplished in accordance with accepted prac-
tices.
In addition, on February 3, 1987, SEPTA issued
Order No. 87-2 which amended its return to work
medical examination procedure to’ include drug and
alcohol screening in the case of absence due to physical
problems, rehabilitation for substance abuse, disciplin-
ary suspension or other absence from duty in excess of
30 days. A full set of regulations setting forth the testing
program issued soon thereafter.
Respondents immediately sought an injunction
against the random testing claiming it violated the
Fourth Amendment and that it raised a major dispute
under the RLA. A lengthy hearing followed in February
1987.5 Though recognizing merit in SEPTA’s efforts, on
February 19, 1987, the District Court preliminarily
enjoined the new testing and directed the parties to
discuss a revised program.
C. The Integrated Program.
Following an extended dialogue over the spring and
summer of 1987 between SEPTA and the respondents,
and various experts engaged by the parties, SEPTA
proposed a substantially modified program entitled “In-
tegrated Program of Education, Assistance and Testing
5. Order No. 87-2 concerning return to work testing was
issued during the course of the hearing. Its constitutionality also
was challenged by Respondents by means of an amended com-
plaint.
7
for Intoxicants and Controlled Substances.” (the Inte-
grated Program).
In addition to the random and return to work
testing, the Integrated Program contained substantial
educational and rehabilitative provisions. The Integrated
Program is based on the fitness for duty standard which
requires that while on duty or subject to duty, operators
and others in safety-sensitive positions must be drug and
alcohol free. This means that at the time of testing,
during the employee’s work day and on Authority prop-
erty, he or she is free of alcohol or drugs or their
metabolites in an amount sufficient to be identified as
positive under the announced standards.*®
In accordance with Order No. 87-1, the Integrated
Program provides for random testing of urine and
breath. Such testing may not commence sooner than
ninety days after notice that the Integrated Program is
going into effect is given to the employees, not sooner
than ninety days after the Integrated Program’s educa-
tional component is in place and not sooner than thirty
days after the Integrated Program’s employee assistance
component is in place. The employee assistance compo-
nent utilizes an outside provider selected after consulta-
tion with the respondent unions and offers substance
abuse treatment, rehabilitation and after care tailored to
the individual employee. Employees may also refer
themselves prior to any testing and voluntarily enter the
employee assistance component.
In addition to the random testing, the Integrated
Program provides, in accordance with Order No. 87-2,
that employees will be tested when they are about to
return to work from an absence of over thirty (30) days.
This testing would be done as part of the scheduled
6. The standards were established with advice from nationally
recognized consultants who have worked with the International
Brotherhood of Teamsters, Major League Baseball and the United
States Navy. m
8
medical examination routinely given to the employee
upon his or her return to work.
Stringent safeguards exist for confidentiality of test
results. The testing component, which requires confir-
mation by gas chromatography/mass spectrometry, is
governed by strict specifications, including rigorous
chain of custody provisions. Moreover, in the event of a
positive random test result, which is itself subject to a
careful review process, the employee is given an oppor-
tunity for rehabilitation under the employee assistance
‘component.’ A-9 to A-10.
D. The Historical Development Of SEPTA’s Fitness For
Duty And Suspicion Based Testing As It Relates To
The Regional Rail Division.
On January 1, 1983, SEPTA succeeded Conrail as
the operator of the commuter railway system in the
Philadelphia metropolitan area, which SEPTA reconsti-
tuted into what is now known as the Regional Rail
Division. As a result, SEPTA has collective bargaining
agreements governed by the Railway Labor Act with
respondents UTU, BRAC, BLE, BMWE and BRS. Each
of the rail labor agreements contains a provision for the
arbitration of grievances.
Each of the rail labor agreements also specifically
contains a section providing that:
The safe, efficient and economical operation of
SEPTA is a major concern to the public, SEPTA, the
employee and the Union.
and that all parties to the agreement:
7. Only an employee who refuses to enter or cannot success-
fully complete rehabilitation, is subject to discipline. This approach
was explicitly endorsed by the Director of the Rutgers University
Center of Alcohol Studies, an expert witness in this proceeding.
9
are charged with the responsibility of positively and
pO advising management concerning
means of . . . improving safety.
In addition, each of the rail labor agreements spe-
cifically contains a management functions clause which
States that:
All management functions and _ responsibilities
which SEPTA has not expressly modified or re-
stricted by a specific provision of this Agreement are
retained and vested exclusively in SEPTA.
The BLE and UTU contracts specifically provide for
periodic medical examinations.
SEPTA and its predecessor, Conrail, promulgated a
series of rules and statements of policy relating to the
preservation of fitness for duty, culminating in Order
Nos. 87-1 and 87-2 and the Integrated Program. The rail
labor respondents never previously contended that any
such ‘change in the rules regarding drugs and aicohol
raised a major dispute under the RLA, as they now
contend for the first time with respect to Order No. 87-1
and the Integrated Program.
Thus, for many years, SEPTA’s predecessor, Con-
rail, had in place Rule G which provided that:
The use of intoxicants, narcotics, amphetamines or
hallucinogens by employees subject to duty, or their
possession or use while on duty is prohibited.
Employees under medication before or while on
duty must be certain that such use will not affect the
safe performance of their duties.
Following the effective date of SEPTA’s first agree-
ment with BLE on July 1, 1983, it repromulgated Rule G
as Rule I which added a procedure for blood and/or urine
testing to what had been under Rule G a fitness for duty
standard enforced solely by supervisory observation. The
10
Brotherhoods voiced no contention that the promulga-
tion of Rule I presented a major dispute.
Thereafter, in 1985, SEPTA promulgated Order No.
85-1 which provided in pertinent part that:
Because of the unpredictable residual effects of
certain intoxicants and/or controlled substances the
presence of intaxicants or controlled substances in
employees ... is strictly prohibited and is a dis-
chargeable offense .. . Any employee suspected of
being in violation of this Order may be required to
take a blood/urinalysis or other toxicological test(s).
(Emphasis added). The Brotherhoods voiced no conten-
tion that the promulgation of Order No. 85-1 presented
a major dispute.
On July 10, 1986, SEPTA issued District Notice No.
3-25 providing that:
Effective immediately, any signal violation will re-
sult in body fluid testing and discipline up to and
including the discharge of negligent personnel.
The Brotherhoods raised no objection with respect to
that rule either. Further, members of certain of the
railroad crafts have for some time been tested for drugs
and alcohol during routine periodic physical examina-
tions, without objection by the respondents.
E. Major v. Minor Disputes Under The Railway Labor
Act.
This case involves an improper characterization of a
railway labor dispute by the Third Circuit, a character-
ization which is not only incorrect under this Court’s
decisions and in conflict with relevant circuit court
decisions, but which has serious consequences both for
mass transportation and for public policy. In Elgin, Joliet
& Eastern Railway Co. v. Burnley, 325 U.S. 711 (1945),
aff'd on rehearing, 327 U.S. 661 (1946), this Court held
—
11
that a “minor” dispute:
... contemplates the existence of a collective agree-
ment already concluded or, at any rate, a situation in
which no effort is made to bring about a formal
change in terms or to create a new one. The dispute
relates either to the meaning or proper application
of a particular provision with reference to a specific
situation ... the claim is to rights accrued, not
merely to have new ones created for the future.
325 U.S. at 723 (emphasis added). The Elgin court
classified as “major”:
disputes over the formation of collective agreements
or efforts to secure them. They arise where there is
no such agreement or where it is sought to change
the terms of one, and therefore the issue is not
whether an existing agreement controls the contro-
versy.
325 U.S. at 723 (emphasis added). The question thus is
whether a matter implicates a “change . . . in the work-
ing conditions . . . as embodied in agreements. 45 U.S.C.
§152, Seventh. A-60. If so, the matter is subject to
Section 6 of the RLA, 45 U.S.C. §156, and is a so-called
“major dispute”, A-74 to A-75; if not, the matter is
subject to Section 3, 45 U.S.C. §153, First (i) and is a
so-called “minor dispute”. A-65.
That determination turns on an assessment by the
court (in cases where the carrier and union clash over
that preliminary question) of whether the position of the
moving party can “arguably” be justified by the existing
agreement. United Transportation Union v. Penn Cen-
tral Transportation Co., 505 F.2d 542, 544 (3d Cir.
1974). If so, then no “change” in working conditions
“embodied in agreements” is involved, and the matter
goes to an arbitration board under Section 3, 45 U.S.C.
§153.8
Of course, the arbitrator may u!timately find that the matter
iS notWontractually justified in which case a “change” is involved,
and the moving party must either follow Section 6 or recede.
12
It is not necessary that the terms of a collective
bargaining agreement be set forth in a written docu-
ment; they can be inferred from habit and custom.
Detroit & Toledo Shore Line R.R. v. United Transpor-
tation Union, 396 U.S. 142, 153-154 (1969); Brother-
hood of Locomotive Engineers v. Burlington Northern
R.R., 838 F.2d 1087, 1091-1092 (9th Cir. 1988), peti-
tion for cert. filed, 57 U.S.L.W. 3017 (U.S. April 1,
1988) (No. 87-1631). Past practice, accepted or acqui-
esced in by a party, also becomes part of the agreement.
Maine Central R.R. v. United Transportation Union,
787 F.2d 780, 783 (1st Cir.), cert. denied, 479 U.S. 848
(1986). So long as the carrier's interpretation of the
agreement is not “frivolous” or “obviously insubstantial,”
the dispute must be deemed minor.®
That preliminary judicial assessment determines
whether the dispute is to be resolved peacefully or
instead by resort to economic self-help. Under the RLA,
9. See, e.g. International Brotherhood of Teamsters v. South-
west Airlines Co., 842 F.2d 794, 796 (Sth Cir. 1988) (“arguably
justified"); Brotherhood of Locomotive Engineers v. Burlington
Northern R.R., 838 F.2d 1087, 1111 (9th Cir. 1988) (“arguably
justified”), petition for cert. filed, S7 U.S.L.W. 3017 (U.S. April 1,
1988) (No. 87-1631); National Ry. Labor Conference v. Interna-
tional Ass'n of Machinists & Aerospace Workers, 830 F.2d 741, 746
(7th Cir. 1987) (minor unless claim is “frivolous” or “obviously
insubstantial”); Brotherhood of Maintenance of Way Employees,
Lodge 16 v. Burlington Northern R.R., 802 F.2d 1016, 1022 (8th
Cir. 1986) (“reasonably susceptible” to asserted interpretation);
Brotherhood Ry. Carmen v. Norfolk & Western Ry., 745 F.2d 370,
375 (6th Cir. 1984) (“arguably justified” or not “obviously insub-
stantial”); Air Line Pilots Ass'n, Int'l v. Trans World Airlines, Inc.,
713 F.2d 940, 948 (2d Cir. 1983) (not “obviously insubstantial”),
aff'd in part and rev'd in part on other grounds, sub nom., Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Interna-
tional Brotherhood of Electrical Workers v. Washington Terminal
Co., 473 F.2d 1156, 1173 (D.C. Cir. 1972) (“reasonably susceptible”
to carrier's contention), cert. denied, 411 U.S. 906 (1973). -
13
a question constituting a minor dispute is ultimately
subject to resolution by compulsory arbitration, 45
U.S.C. §152, Sixth and §153; on the other hand, a
matter deemed to constitute a major dispute, although
subject to a long panoply of procedures involving nego-
tiation, conciliation, fact finding and mediation, Broth-
erhood of R.R. Trainmen v. Jacksonville Co., 394 U.S.
369, 378-9, reh'g denied, 394 U.S. 1024 (1969), is
ultimately resolvable, in the absence of mutual agree-
ment either on the issue itself or on an ad hoc arbitration
of the issue,'® only by resort to the strike weapon.
Railway Labor Executives Association v. Norfolk &
Western Railway Co., 833 F.2d 700, 704 (7th Cir.
1987); International Brotherhood of Teamsters v.
Southwest Airlines Co., 842 F.2d 794 (Sth Cir. 1988).
The national labor policy unambiguously favors ar-
bitration as a means of resolving labor management
disputes. In United Steelworkers of America v. Warrior
and Gulf Navigation Co., 363 U.S. 574 (1960), this
Court expressly held thai unless it can be said with
positive assurance that a grievance arising between an
employer and a labor organization is not arbitrable, a
presumption of arbitrability applies.
The Railway Labor Act is no different. The same
presumption exists that arbitration is the favored mech-
anism, and therefore, that most disputes should be
characterized as minor and resolved within the arbitra-
tion mechanisms of the existing collective bargaining
agreements. See Northwest Airlines, Inc. v. Air Line
Pilots Ass'n., Intern., 808 F.2d 76 (D.C. Cir. 1987)
(airline safety dispute is arbitrable). Indeed,
10. Such an arbitration, unlike arbitration of a minor dispute,
is mot mandatory. Section 5, First, 45 U.S.C. §155, First. A-73 to
A-74. The dispute may also be resolved by Congress. Burlington
Northern Railroad Co. v. Brotherhood of Maintenance of Way
Employees, 107 S.Ct. 1841, 1846 (1987).
14
(t]he primary objectives of the RLA are to promote
stability in labor relations in the railroad industry
and prevent strikes. Because a major dispute can
escalate into a strike, if there is any doubt as to
whether a dispute is major or minor a court will
construe the dispute to be minor.
Railway Labor Executives’ Association v. Norfolk &
Western Railway Co., 833 F.2d 700, 704-705 (7th Cir.
1987)(citations omitted)(emphasis added). Thus, as the
Seventh Circuit explained earlier in Brotherhood of
Locomotive Engineers v. Atchinson, Topeka & Sante Fe
Railway Co., 768 F.2d 914, 920 (7th Cir. 1985):
Since the machinery for resolving major disputes is
conciliatory rather than binding, a major dispute
can escalate into a strike, which in the transporta-
tion industries — producers of a nonstorable service
— can be a calamity. So it is no surprise that, when
in doubt, the courts construe disputes as minor.
F. The Proceedings Below Following Promulgation Of
The Integrated Program.
After a second round of hearings in September
1987, the District Court held that the Fourth Amend-
ment did not preclude the random testing but did
foreclose the return to work testing. Accordingly, the
District Court vacated the injunction against random
testing as it applied to the City Transit Division and
Suburban Transit Division, but continued the injunc-
tion against return to work testing. A-52 to A-53. The
District Court also continued the injunction against the
imposition cf random testing in the Regional Rail Divi-
sion because it deemed such testing to be a major
dispute requiring the exhaustion of Section 6 proce-
dures under the Railway Labor Act. SEPTA filed a
motien to alter or amend the judgment and to amend the
findings of fact regarding the return to work holding.
= ere Se re ee
eS
15
The District Court denied that motion. A-56 to A-57.
Both sides then appealed.
The Third Circuit, viewing “with amazement” the
respondent rail unions’ assertion that “[th]is case in-
volves an overreaction to an exaggerated hysteria con-
cerning the use of drugs and alcohol in our society,”
found that “[t]he enormity of the problem facing this
country because of drug use is sufficiently well estab-
lished to justify judicial notice.” A-19. It concluded that
there was adequate support for the District Court’s
findings that “drug use by SEPTA’s operating employees
present[ed] a significant safety problem and that the
Authority’s prior suspicion-based testing program
proved insufficient ‘to satisfy the needs of public
safety’ ”. A-19.
The Court of Appeals affirmed the District Court’s
decision in its entirety. In so doing, the Court of Appeals
created a paradoxical situation in which SEPTA could,
with the District Court’s imprimatur, commence ran-
dom drug and alcohol testing in the City Transit Division
and the Suburban Transit Division but couid not do so in
the Regional Rail Division. It created the additional
anomaly in the City and Suburban Transit Divisions that
random testing was to be permissible under the Fourth
Amendment but return to work testing (with notice and
as part of a scheduled medical examination) was not.
16
REASONS FOR GRANTING THE WRIT
I. THE DECISION OF THE THIRD CIRCUIT THAT
THE ADDITION OF RANDOM TESTING TO AN EX-
ISTING PROGRAM OF FITNESS FOR DUTY DRUG
AND ALCOHOL TESTING CONSTITUTES A “MAJOR
DISPUTE” CONFLICTS IN PRINCIPLE WITH DECTI-
SIONS OF OTHER CIRCUITS ON AN IMPORTANT
QUESTION OF FEDERAL LAW.
A. The Decision Conflicts In Principle With Decisions
Of The Seventh And Eighth Circuits.
The Third Circuit’s decision in this matter conflicts
in principle in two respects with the Seventh Circuit’s
decision in Railway Labor Executives’ Association v.
Norfolk & Western Railway Co., 833 F.2d 700 (7th Cir.
1987) and with the Eighth Circuit’s decision in Broth-
erhood of Maintenance of Way Employees, Lodge 16 v.
Burlington Northern R.R., 802 F.2d 1016 (8th Cir.
1986).
The Third Circuit misconceived SEPTA’s Integrated
Program as a modification of its disciplinary rules rather
than a refinement of the fitness for. duty standard. On
this mistaken premise, the Court held that the random
testing constituted such a significant departure from the
prior reasonable suspicion based testing engaged in by
SEPTA as to present a major dispute. Because SEPTA’s
random testing is to determine fitness for duty (and not
to uncover violations of rules), the Third Circuit’s deci-
sion conflicted in principle with those of the Seventh
and Eighth Circuits which held that the addition of a
drug screen to a medical examination intended to deter-
mine fitness for duty raises only a minor dispute.
In Norfolk & Western Railway, the carrier had a
long standing history of routine periodic medical exam-
inations. The railroad added to those examinations a
drug screen urinalysis as “an additional method of
insuring that employees are fit for their jobs.” 833 F.2d
17
at 706. The consequence of a positive result was that the ©
employee was given forty-five days within which to
demonstrate that his or her system was drug free by
providing a clean urine sample, or to participate in the
Carrier’s treatment program. If he or she failed to do so,
dismissal would follow. 833 F.2d at 708. Similarly, under
SEPTA’s program, an employee who tests positive may
choose to enter into a rehabilitation program and can be
dismissed only, ultimately, if he fails rehabilitation or
refuses to enter into rehabilitation.
In Burlington Northern, the court stated that:
it should come as no surprise to the parties that the
components of the work fitness medical examina-
tion will change with the times. Because BN and the
union are involved in a dispute over the scope of
BN’s actions designed “to ensure that all employees
are fit for duty” — actions which are arguably
justified — this dispute should be submitted to the
National Railroad Adjustment Board.
802 F.2d at 1024. Inasmuch as SEPTA proposes to test
on a random basis, its fitness for duty drug testing is in
fact less obtrusive than that of the Norfolk & Western or
Burlington Northern and should have been similarly
classified as a minor dispute.11 The Third Circuit’s
11. It is true that both the Seventh and Eighth Circuits in the
foregoing decisions inferentially expressed skepticism as to whether
the implementation of random testing would present only a minor
dispute. But, in both instances, the Courts discussed random
testing in the context of the enforcement of Rule G, the disciplinary
rule that prescribes termination in the event of a substance abuse
violation. Norfolk & Western, 833 F.2d at 707 fn. 6 and Burlington
Northern, 802 F.2d at 1022-1023. In SEPTA’s case, just as in that
of the Norfolk & Western and Burlington Northern, a violation of
Rule I (the successor to Rule G) would call for termination. But
because it is fitness for duty testing and not cause testing, the
Integrated Program does not require discipline, even in the face of
a positive test result, unless an employee refuses rehabilitation.
Accordingly, the doubts expressed by the Seventh and Eighth
18
decision to the contrary therefore conflicts in principle
with both Norfolk & Western and Burlington Northern.
The Third Circuit’s opinion also conflicts with Nor-
folk & Western, in terms of the weight to be accorded the
prior history of union acquiescence in SEPTA’s medical
fitness for duty testing. The Seventh Circuit found that
the Norfolk & Western conducted routine medical ex-
aminations to determine fitness for work for at least 20
years and that:
The unions have never objected to N&W’s require-
ment that all employees routinely undergo these
physical examinations and that all employees re-
turning from furloughs or other extended leaves of
absence pass a medical examination before they
return to work. Further, the unions have not previ-
ously objected to any specific test conducted as part
of these examinations.
833 F.2d at 705. These findings formed an essential
basis for the Seventh Circuit’s conclusion that the
addition of the drug screen to the routine examinations
presented only a minor dispute.
In the present case, however, notwithstanding that
the respondents had never previously objected to any of
the several stages of evolution in SEPTA’s testing, the
Third Circuit rejected SEPTA’s argument that this his-
tory disabled the respondents from arguing that the
random testing presents a major dispute. The Third
Circuit reasoned that such a rule is inappropriate be-
cause it would “deter unions from acquiescing or com-
promising on the drug testing question at pain of being
found to have agreed to a broader program.” A-28. Thus,
although it acknowledged that a drug testing program
can arguably be justified not only by the written agree-
ment but “from habit and custom,” A-26, the Third
NOTES (Continued)
Circuits with respect to random testing are not applicable in
SEPTA’s case.
19
Circuit nonetheless held that the respondents’ past
acquiescence in the development of the program was
not to be considered in determining whether the random
testing presented a major or minor dispute. This was not
only illogical but directly in conflict with the Seventh
Circuit’s opinion in Norfolk & Western.'2
B. How A Refinement Of Existing Drug And Alcohol
Testing Is Categorized Under The RLA Has A Pro-
found Impact On The Safety Of Urban Mass Trans-
portation. ce
The enormity of the problem facing this country
because of drug use, A-19, is compounded within the
transportation industry by the fact that large vehicles are
being operated at high speeds under complex
conditions.!3 For that reason, among others, this Court
has granted petitions for Writ of Certiorari in Consoli-
dated Rail Corporation v. Railway Labor Executives
Association and in Railway Labor Executives’
12. The Third Circuit’s observation that the District Court had
correctly found that the unions had never before acquiesced in
widespread testing or to any significant testing without individual-
ized suspicion was incorrect. The railroad brotherhoods acknowl-
edged in their brief to the Court of Appeals that there was already
drug testing being done in conjunction with the periodic medical
examinations required of members of the BLE and UTU.
13. As appropriately observed by Conrail in its petition for writ
of certiorari filed on June 29, 1988:
“The tragic consequences of drug and alcohol abuse in the
transportation industry are vividly recited both in the Depart-
ment of Tramsportation’s Notice of Proposed Rulemaking, 53
Fed. Reg. 16,640 (1988) (to be codified at 49 C.F.R. pts. 217,
219) (proposed May 10, 1988), and in the petitions for writs of
certiorari filed in Railway Labor Executives’ Ass'n v. Burnley,
839 F.2d 575 (9th Cir.), cert. granted, 108 S. Ct. 2033 (1988)
and Brotherhood of Locomotive Engineers v. Burlington R.R.,
838 F.2d 1087 (9th Cir. 1988), petition for cert. filed (U.S.
April 1, 1988) (No. 87-1631).”
20
Association v. Burnley.
The dilemma posed to the freight rail carriers by
drug and alcohol use in the foregoing cases is substan-
tial and real, but it pales in comparison to the extraordi-
nary danger to life and limb which such use presents to
the hundreds of thousands of persons who ride SEPTA
vehicles each day. Whatever the paramount public im-
portance of deciding whether the Federal Railroad Ad-
ministration Drug And Alcohol Testing regulations are
constitutional as in Burnley or whether the addition of a
drug and alcohol screen to a pre-existing periodic med-
ical examination constitutes a major dispute as in Con-
rail, the question presented here eclipses those ques-
tions in public importance.
The Court of Appeals approved the District Court’s
findings that drug use by SEPTA’s operating employees
presents a significant safety problem and that SEPTA’s
prior suspicion-based testing program proved insuffi-
cient “to satisfy the needs of public safety and mass
transit reliability”. A-44.
Significantly, the Court of Appeals also found that:
In light of the evidence connecting impairment with
drug use, it was appropriate for SEPTA to design its
program in an effort to detect drug users. It was not
required to limit its detection efforts to those em-
ployees whose then—current impairment could be
detected, particularly in light of the testimony by
experts offered by both the Unions and SEPTA that
current urine testing technologies do not permit the
detection or measurement of current impairment.
A-21. The Court of Appeals further acknowledged that a
carrier can not reliably detect use on a cause basis
because impairment is frequently latent. A-20 to A-21.
Yet, notwithstanding its concurrence in the concept of
21
use (rather than impairment) testing, the Court of
Appeals predicated its conclusion that the random test-
ing raised a major dispute upon its belief that “testing on
the basis of reasonable suspicion of drug use bears an
element of ‘cause’ not present in the case of random
testing.” A-27 to A-28. (emphasis added).
In so doing, the Court of Appeals exposed SEPTA
and the riding public to the possibility that random
testing, the need for which has already been demon-
Strated, might never come to pass in the Regional
Railroad Division, unless SEPTA is prepared first to
withstand a strike.
This is so because, if the implementation of random
testing implicates a major dispute, the only way SEPTA
can obtain the random testing in the Regional Rail
Division, in the absence of agreement by the respon-
dents, is to post new terms and conditions of employ-
ment, including the Integrated Program, after the RLA
Statutory “cooling off period”, which itself follows a long
period of negotiations and mediation, and thereby risk a
strike.!4 Section 5, First, 45 U.S.C. 155, First. A-73 to
A-74. Whether the imposition of random testing in the
Regional Rail Division, is a major or a minor dispute, a
question which affects all mass transit systems, is thus
clearly a federal question of substantial importance
which should be resolved by the Supreme Court.
14. Finding the question to be a minor dispute subject to
arbitration, of course, does not guarantee SEPTA would prevail in
such arbitration. But it does guarantee that SEPTA’s asserted right
to conduct random testing in its Regional Rail Division would be
resolved in the forum that the parties’ have contractually selected
and which the Railway Labor Act and national labor policy favor.
Moreover, such a conclusion still leaves to the respondents the right
to bargain over the random testing as a major dispute in the event
the arbitrator finds that it is not authorized by the current agree-
ments. In that case, SEPTA would have no choice but to follow the
Section 6 procedures. But an arbitrator, not a court, should decide
in the first instance whether the current contract encompasses the
random testing.
22
Il. THE DECISION OF THE THIRD CIRCUIT WITH
RESPECT TO RETURN TO WORK TESTING CON-
FLICTS IN PRINCIPLE WITH OTHER CIRCUITS
ON AN IMPORTANT QUESTION OF FEDERAL
LAW.
A. In Not Recognizing That Return To Work Testing
Is Related Solely To A Routine Fitness For Duty
Determination, The Third Circuit Has Created A
Conflict In Principle With Decisions Of The Dis-
trict Of Columbia And Fifth Circuits.
It is well-established and accepted that a medical
examination is routinely performed by SEPTA’s Medical
Department at the time an employee returns to work
from a prolonged (more than thirty (30) day) absence.
The purpose of this examination is to establish the
employee’s fitness for duty. Although the observation of
an employee during-the examination by a physician
might disclose a manifest alcohol or drug problem, a
drug and alcohol screen is nevertheless required, since,
as the district court correctly found, “[m]Jany drugs have
delayed, residual or chronic effects not ascertainable
through behavioral observation.” A-46. For that very
reason the medical examination conducted by SEPTA
has historically included the collection and analysis of a
variety of body fluids. The Court of Appeals nevertheless
affirmed the District Court’s injunction against the
return to work testing provided for in SEPTA’s Inte-
grated Program.
The Third Circuit’s decision conflicts in principle
with the decision of the District of Columbia Circuit in
Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987),
petition for cert. filed, sub nom. Jenkins v. Jones, 57
U.S.L.W. 3017 (U.S. April 15, 1988)(No. 87-1706) and
with the decision of the Fifth Circuit in National Trea-
sury Employees Union v. Von Raab, 816 F.2d 170 (Sth
Cir. 1987), cert. granted, 108 S.Ct. 1072 (1988). This
23
Court granted the petition for Writ of Certiorari in Von
Raab and heard oral argument in that case on November
2, 1988.
In Jones, the court held that it was not unreason-
able, in light of the relevant safety considerations, to
require drug testing as part of a routine medical exam-
ination for school bus attendants. SEPTA’s return to
work testing is manifestly related to a fitness for duty
determination and is thus analytically the same as the
school district’s routine medical examinations. The
safety considerations present in the operation of a sys-
tem of mass transportation in the metropolitan Philadel-
phia area are no less compelling. To deprive SEPTA of
the ability to conduct a drug and alcohol screen in the
course of its routine return to work physical examina-
tions is contrary to the rationale and holding of Jones and
improperly endangers SEPTA’s passengers and, indeed,
SEPTA’s employees themselves. See also Wrightsell v.
City of Chicago, 678 F.Supp. 727, 733-34 (N.D. Ill.
1988) (Testing “as part of a regular medical examination
required after return from thirty (30) days or more of
leave” approved, the addition of a drug screen to uri-
nalysis is a “minimal intrusion”, and because it is
conducted under specified circumstances, the likelihood
of abuse or harassment is reduced.); Amalgamated
Transit Union, Division 1279 v. Cambria County Tran-
sit Authority, 691 F.Supp. 898, 904 (W.D.Pa. 1988)
(“[T]lesting as part of a regular medical examination
works a minimal intrusion on the plaintiff’s Fourth
Amendment privacy interests” and “a routine medical
examination takes place in a manner likely to allay
anxieties.”).
In Von Raab, the court held that the United States
Custom Service Program requiring a drug screening by
urinalysis of employees seeking transfer to certain jobs
was reasonabie because of the government’s interest in
employing individuals for key positions in drug enforce-
ment who were not drug users. 816 F.2d at 172-173.
24
Although Von Raab did not address drug testing in a
transportation setting, the Customs Service’s drug test-
ing program, like that of the School District in Jones and
here in SEPTA, was based on fitness for duty. Even
though the Commissioner described the Service as
“largely drug free”, 816 F.2d at 173, the court found that
the testing, as “a condition of assignment”, was justified
because of the nature and responsibilities of the jobs at
issue and to assure both the integrity of the Customs
Service and the absence of possible moral risk in the
applicants’ performance. 816 F.2d at 179. Certainly,
SEPTA’s obligations to the public in operating a safe
mass transportation system are at least equal in impor-
tance to those of the Custom Service in enforcing the
drug laws. Thus, the Third Circuit’s affirmance of the
injunction against return to work testing is contrary to
the rationale and holding of Von Raab as well as Jones.
This conflict presents a serious dilemma for those
who are charged with the operation of transportation
systems, and particularly the operation of mass transpor-
tation systems such as SEPTA, where serious drug and
alcohol problems have occurred, accidents have re-
sulted, and a carefully designed program with preven-
tion and rehabilitation as its primary goals has been
implemented, only to have one of its principal tools
enjoined. The Court should grant certiorari in order to
resolve the conflict in principle and provide guidance to
those responsible for these vast safety-sensitive opera-
tions.
B. The Question of The Constitutionality Of Return To
Work Testing Is Of Such Great Importance That The
Court Should Grant Certiorari Even If There Were
Not A Conflict In Principle In The Circuits.
The Third Circuit inconsistently sustained SEPTA’s
right as a matter of Constitutional law to conduct the
testing for drug and alcohol use on a random basis, but
25
not in the course of routine return to work physical
examinations. The issue presented by the Court of
Appeals’ affirmance of the injunction against return to
work testing is of such great public importance that the
Court should grant certiorari, even if there were not a
conflict between the circuits.
The issue is certainly of great moment to the pu lic
in the Delaware Valley, which uses SEPTA’s mass
transportation system for over 300,000,000 passenger
trips per year. But it is of no less moment to travelers
everywhere who are dependent upon the safe and effi-
cient operation of vehicles of mass transportation, all of
whom are riding with implicit trust in the fitness for
duty of the operators of those vehicles.
The proper extent of an operator’s rights is also of
great public significance. Do those rights preclude drug
and alcohol testing during a scheduled medical exami-
nation upon return to work to confirm fitness for duty?
Do those rights preclude such testing where drug and
alcohol use has been demonstrated to constitute a clear
and present danger to the traveling public? Do those
rights preclude such tests where actual test results show
positive findings in one out of ten non-disciplinary
returnee cases despite the fact that the tests are sched-
uled and the employee can control the actual timing of
his or her test? Do those rights preclude such tests
where they are conducted not for punitive purposes, but
rather for a rehabilitative purpose as part of an inte-
grated program of education, employee assistance, and
testing?
SEPTA strongly believes that the operator’s rights
do not and cannot preclude such testing and that the
Third Circuit was therefore in error. The Court should
thus grant certiorari for the further purpose of determin-
ing the proper manner by which such interest and
duties on the one hand, and employee rights on the
other hand, should be balanced against one another.
26
CONCLUSION
For each of the foregoing reasons, SEPTA respect-
fully urges the Court to grant this Petition for a Writ of
Certiorari.
Respectfully submitted,
DILWORTH, PAXSON, KALISH
& KAUFFMAN
(s/ John F. Smith, W200
JOHN F. SMITH, Ul
(Counsel of Record)
RICHARD S. MEYER
HOPE A. COMISKY
BARBRA SHOTEL
2600 The Fidelity building
Philadelphia, PA 19109
(215) 875-7220
Attorneys for Petitioners
Southeastern Pennsylvania
Transportation Authority, et al.
Dated March 8, 1989
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
lO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
eS ee
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 88-1160 and 88-1206
TRANSPORT WORKERS’ UNION OF
PHILADELPHIA, LOCAL 234,
Appellant in No. 88-1206
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Appellant in No. 88-1160
On Appeal from the United States
District Court for the
~ Eastern District of Pennsylvania
(D.C. Civil No. 87-0389}
NO. 88-1161
TRANSPORT WORKERS UNION
OF AMERICA, LOCAL 2013
:
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.
A-1
A-2
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
On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civil No. 87-0446)
NOS. 88-1162 and 88-1207
BROTHERHOOD OF LOCOMOTIVE ENGINEERS,
DIVISION 71 and BROTHERHOOD OF
LOCOMOTIVE ENGINEERS and
THOMAS C. BRENNAN,
Appellants in No. 88-1207
Vv.
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
On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civil No. 87-0448)
NOS. 88-1163 and 88-1208
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, A
Appellants in No. 88-1208
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Appellant in No. 88-1163
On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civil No. 87-0455)
Argued August 30, 1988
Before: SLOVITER, GREENBERG and
COWEN, Circuit Judges
(Opinion filed December 28, 1988)
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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 19109
Attorneys for Southeastern Pennsylvania
Transportation Authority
Michael Brodie (Argued)
Michael R. Kopac, III
Sacks, Basch, Brodie & Sacks
Philadelphia, PA 19106
Attorneys for Transport Workers’ Union of
Philadelphia, Local 234
Harold A. Ross(Argued)
Joseph E. Prekop
Ross & Kraushaar Co., L.P.A.
Cleveland, OH 44113
Cornelius C. O’Brien, Jr.
Cornelius C. O’Brien, III
Cornelius C. O’Brien, Jr., P.C.
Philadelphia, PA 19103
Attorneys for Brotherhood of Locomotive Engi-
neers, Division 71; Thomas C. Brennan; Brother-
hood of Locomotive Engineers; United Transpor-
tation Union; Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express and
Station Employees; Brotherhood of Maintenance
of Way Employees; Brotherhood of Railroad
Signalmen
A-5
OPINION OF THE COURT
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 metro-
politan area.! The district court upheld the constitution-
ality 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 concilia-
tion procedures specified in the Act. Transport Workers’
Union Local 234 v. Southeastern Pennsylvania Trans-
portation Authority, 678 F. Supp. 543 (E.D. Pa. 1988).
The Unions argue that indiscriminate use of ran-
dom drug tests to ferret out illegal drug use by public
employees is irreconcilable with the guarantee against
unreasonable government intrusion on individual pri-
vacy of the Fourth Amendment. We do not underesti-
mate their concern that the public clamor about the
nation’s drug problem creates the risk that judgments
may be distorted in evaluating the constitutionality of
government measures taken to curb this crisis. None-
theless, 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
-
1. Two cases presently before the Supreme Court present
facets of the issue of drug testing by public employers. See Railway
Executives Ass'n v. Burnley, 839 F.2d 575 (9th Cir.), cert. granted,
108 S. Ct. 2033 (1988) (post-accident testing of railroad workers);
National Treasury Employees Union v. Von Raab, 816 F.2d 170
(Sth Cir. 1987), cert. granted, 108 S. Ct. 1073 (1988) (testing in
conjunction with voluntary request for transfer or promotion).
Neither of these cases, however, directly presents the issue of
random testing raised by the appeals before us.
A-6
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 reasonable-
ness 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 rep-
resent SEPTA employees under section one of the
Railway Labor Act (“RLA”), 45 U.S.C. § 151, Sixth
(1982); the Brotherhood of Locomotive Engineers, Di-
vision 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 Penn-
sylvania Transportation Authority and some of its offic-
ers and Board members (referred to collectively as
“SEPTA” or “the Authority”), operate mass transporta-
tion facilities in the five-county Philadelphia metropoli-
tan 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. §§600.101-600.407 (Purdon Supp. 1988).
SEPTA operates subways, railroads, buses, streetcars,
ee ee ee eee ee ee ee ore ee ee eee eee
A-7
and trackless trolleys, and maintains stations, depots,
platforms, tracks, and other installations. In 1986,
SEPTA accommodated more than 1.2 million passen-
gers 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 metab-
olites and alcohol in employees’ body systems. On Jan-
uary 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. §156 (1982), by
unilaterally instituting a random drug testing policy
without serving notice and exhausting the mediation
and conciliation procedures mandated by the RLA be-
fore 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 return-
ing to work after wp, xbsence 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 imple-
menting 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 justification of the scope of the
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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 prelim-
inary 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 revi-
sions 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 SEP-
TA’s return-to-work testing policy. The court also en-
joined 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 section 6 of
the RLA and thus required SEPTA to exhaust the
mediation and conciliation procedures specified in that
Act. Finally, the court ordered that any final revisions of
SEPTA’s drug and alcohol testing program be submitted
for review prior to implementation, SEPTA filed a mo-
tion asking the court to amend its order to allow return-
to-work testing, which the district court denied. This
appeal and cross-appeal followed.
:
7
|
A-9
The final random testing proposal approved by the
district court subjects approximately 2,600 workers to
random urinalysis testing over a one-year period, and
approximately 5,400 workers per year to random brea-
thalyzer testing. Testing is limited to “operating engi-
neers” in “safety senstive” positions.
Under the breathalyzer testing program for alcohol,
an employee will be considered to test positive if two
successive tests yield blood alcohol levels of .04 percent
or higher. Under the urinalysis test designed to detect
drug metabolites, initial screening will be conducted by
an EMIT immunoassay. Positive results obtained by this
screening method will be subject to confirmation testing
by gas chromatography/mass spectrometry (GC/MS).
The parties have stipulated that this two-step procedure
is reliable. Employees may also request an additional
confirmatory test at their own expense if they wish.
Detailed specifications assure chain of custody and
proper laboratory controls. SEPTA will not voluntarily
disclose test results to law enforcement officials, and
results will be kept confidential within the medical
department, being disclosed only on a need-to-know
2. Specifically, the following positions are covered:
1) Engineer, Bus Person, Surface Train Person, Subway-
Elevated Trainperson
2) Construction Equipment Operators
3) Superintendents of Operations, Towerpersons, Train Dis-
patchers, and Power Dispatchers
4) Signal Maintainers
5) Power Distribution Maintainers
6) Vehicle, Mechanical, Track and Structural Inspectors
7) Welders im
8) Sworn SEPTA police officers
9) Any employee authorized to carry a firearm on duty
10) Instructors and supervisors of the foregoing.
The district court disallowed classification of “Conductors and
Passenger Attendants” as operating engineers unless it could be
shown that these were safety sensitive positions. 678 F. Supp. at
552.
A-10
basis. Employees who are taking prescription medica-
tion must inform SEPTA’s medical department of this
fact. The department will make “fitness for duty” deter-
minations with respect to these employees in consulta-
tion with the physician prescribing the medication.
Random testing is scheduled to begin ninety days
after SEPTA institutes an educational campaign and
thirty days after it begins to offer an Employee Assis-
tance Program (“EAP”) administered by an outside
provider. All employees whose urine or breathalyzer
tests produce positive results will be given a “not fit for
duty” classification, removed from their jobs, and re-
quired as a condition of retaining their employment with
SEPTA to enter an EAP for counseling and treatment.
After successful completion of treatment, employees will
be assigned to an alternative job for an observation
period of up to ninety days during which they may be
tested at any time. 678 F. Supp. at 547. After employees
are returned to their prior positions, they are subject to
follow-up tests on an unannounced basis for twelve
months and on a scheduled basis for up to two years
thereafter.
As an alternative to mandatory treatment following a
positive test result, employees may voluntarily refer
themselves to the EAP before being tested. Employees
who voluntarily enter treatment will be removed from
duty until completion of treatment and assigned to
alternative duty for ninety days thereafter, for which
they will be paid at that job’s wage rate. They will be
subject to unannounced follow-up testing for six months
and scheduled testing for one year thereafter. Employ-
ees who voluntarily refer themselves to the EAP are
given one additional chance to obtain treatment if their
urine produces a positive result after treatment.
Employees who refuse to be tested, receive positive
test results after treatment, or refuse to undergo treat-
ment and counseling after a positive result will be
discharged.
A-11
II.
Analysis
A.
The Legal Framework
1. General Fourth Amendment Principles
There is no dispute that, as a government agency,
SEPTA is bound by the strictures of the Fourth Amend-
ment. Contrary to the argument put forth by SEPTA in
this appeal, it is by now well settled that government
drug testing of employees constitutes a search or seizure
for purposes of the Fourth Amendment. Railway Labor
Executives’ Ass'n v. Burnley, 839 F.2d 575, 580 (9th
Cir.). cert. granted, 108 S. Ct. 2033 (1988); Everett v.
Napper, 833 F.2d 1507, 1511 (11th Cir. 1987); Jones v.
McKenzie, 833 F.2d 335, 338 (D.C. Cir. 1987); National
Treasury Employees Union v. Von Raab, 816 F.2d 170,
176 (Sth Cir. 1987), cert. granted, 108 S. Ct. 1072
(1988); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th
Cir. 1987); Shoemaker v. Handel, 795 F.2d 1136, 1141
(3d Cir.), cert. denied, 479 U.S. 986 (1986). The same
principle is applicable to a compelled breathalyzer test
for alcohol. See, e.g., Burnley, 839 F.2d at 580; Shoe-
maker, 795 F.2d at 1141-42.
The Fourth Amendment guarantees the right of the
people against “unreasonable search and seizure.” Ex-
cept in certain carefully defined classes of cases,
searches without consent or a valid search warrant are
unreasonable. O’Connor v. Ortega, 480 U.S. 709, 720
(1987) (plurality opinion) (quoting Mancusi v. DeForte,
392 U.S. 364, 370 (1968)). In a certain narrow class of
exceptions, however, where “special needs, beyond the
normal need for law enforcement, make the warrant and
probable cause requirement impracticable,” New Jersey
v. T.L.0., 469 U.S. 325, 351 (1985) (Blackmun, J.,
concurring), a search may be reasonable even though it
A-12
is not conducted pursuant to a probable cause determi-
nation. Jd. at 340; see also O’Connor v. Ortega, 480 U.S.
at 725.
In such circumstances, intrusions on employees’
constitutionally protected privacy interests must be eval-
uated by “the standard of reasonableness under all the
circumstances.” Jd. at 725-26. Such an evaluation in-
volves “balanc[ing] the nature and quality of the intru-
sion on the individual’s Fourth Amendment interests
against the importance of the governmental interests
alleged to justify the intrusion,’ ” Jd. at 719 (quoting U.S.
v. Place, 462 U.S. 696, 703 (1983)).
2. Administrative Searches
The Unions argue that under--the constitutional
equation used to determine if body fluid testing is
reasonable, there must always be particularized or indi-
vidualized suspicion. In essence, they argue that ran-
dom testing for drugs or alcohol is never permissible
under the Fourth Amendment. The difficulty with their
argument is that this circuit has already rejected pre-
cisely such a contention, and we are bound to those
holdings.
In two prior cases, we applied “the administrative
search exception to the Fourth Amendment warrant
requirement” to uphold drug testing without individual-
ized suspicion of employees in “highly regulated indu-
stries.” Policeman's Benevolent Ass'n. Local 318 v.
Township of Washington, 850 F.2d 133, 135 (3d Cir.
1988); Shoemaker v. Handel, 795 F.2d 1136, 1142-43
(3d Cir.). cert. denied, 479 U.S. 986 (1986).
The administrative search exception has been used
to permit legislatively authorized warrantless inspec-
tions of commercial property in cases in which the
government interest in conducting the search would be
frustrated by requiring prior notice. See Donovan v.
Dewey, 452 U.S. 594, 598-603 (1981). Cases applying
A-13
the administrative search exception generally involve
statutory schemes aimed at ensuring safety or other
“substantial” government interests. See, e.g., New York
v. Burger, 107 S.Ct. 2636, 2646-47 (1987) (upholding
warrantless inspection of automobile junkyards where
state had substantial interest in reducing growing prob-
lem of motor vehicle theft associated with this industry);
Donovan v. Dewey, 452 U.S. at 603 (permitting warrant-
less safety inspections of mines); United States v. Bis-
well, 406 U.S. 311, 316-17 (1972) (approving warrant-
less searches pursuant to gun control legislation); see
also Colonnade Catering Corp. v. United States, 397
U.S. 72, 76-77 (1970) (approving congressional scheme
of warrantless searches and seizures in liquor industry
in light of long history of regulation of this industry).
In Shoemaker, this court made a substantial leap
beyond the application of the administrative search
exception to commercial property by applying that ex-
ception to uphold random urine testing of jockeys man-
dated by the New Jersey Racing Commission under its
statutory power to regulate horse racing in that state. We
stated that “while there are distinctions between
searches of premises and searches of persons, in the
intensely-regulated field of horse racing, where the
persons engaged in the regulated activity are the prin-
cipal regulatory concern, the distinctions are not so
significant that warrantiess testing for alcohol and drug
use can be said to be constitutionally unreasonable.” 795
F.2d at 1142. Thereafter, in Policeman's Benevolent
Association, 850 F.2d at 141, we categorized a town-
ship’s random drug testing program for police officers as
an administrative search and upheld the program
against a facial challenge. We explained that a drug
testing program will come within the administrative
search exception if it is (1) based on a strong state
interest in determining whether employees are using
illegal substances; and (2) directed at an industry that is
A-14
pervasively regulated in such a manner that employees’
justifiable privacy expectations are diminished. /d. at
136.
The Unions do not argue that SEPTA’s arug testing
program fails to meet the first prerequisite for adminis-
trative searches since they concede that protection of the
public safety is an important government interest. The
Unions argue, however, that the administrative search
exception is inapplicable because there is no basis for
finding a diminished expectation of personal privacy
from the prior government regulation of the transporta-
tion industry.
We agree that the regulations to which SEPTA
points differ from those governing jockeys in New Jersey
and police conduct in Washington Township. Because
the police officers in Policeman’s Benevolent Associa-
tion, 850 F.2d at 138-41, were part of a “quasi-military”
organization, they were subject to extensive personal
regulations, including conduct rules for their private
lives, a rule requiring off-duty carrying of = firearm, and
the requirement of constant readiness for duty. Al-
though the jockeys in Shoemaker, 795 F.2d at 1141-42,
did not have the “awesome . . . power” to arrest and
detain citizens that distinguishes police officers, Police-
man’s Benevolent Ass’n, 850 F.2d at 141, there is
intense regulation of horse racing in New Jersey, includ-
ing the licensing of all employees in the industry, which
is designed to instill confidence in the integrity of the
horse racing industry. This led us to reason that because
the Racing Commission “historically . . . exercised its
rulemaking authority in ways that have reduced the
justifiable privacy expectations of persons engaged in
the horse-racing industry,” jockeys who accepted a state
license did so with knowledge that the Commission
would exercise its power to conduct warrantless
searches. Shoemaker, 795 F.2d at 1142.
Although the enabling legislation cited by SEPTA
establishes that public transportation in Pennsylvania is
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a highly regulated industry, see 55 Pa. Stat. Ann.
§§600.101 — 600.407 (Purdon Supp. 1988), SEPTA
does not argue that its regulations, like those involved in
our prior cases, implicated the private conduct of the
workers themselves. Thus, contrary to SEPTA’s argu-
ment, the regulatory scheme on which SEPTA relies is
not equivalent to the extensive personal regulation in-
volved in Policeman’s Benevolent Association or even
the lesser regulation in Shoemaker. Hence, the Com-
monwealth’s regulation of the transportation industry in
and of itself has not been shown to effect a comparable
diminution of employees’ expectations of personal
privacy. Therefore, the testing in this case cannot be
upheld as an administrative search.
Contrary to the way the parties have read our cases,
the standard for sustaining administrative searches does
not represent an independent line of Fourth Amend-
ment analysis. Our reference to administrative searches
as an “exception” was as an exception to the warrant
requirement. As the plurality opinion in O’Connor v.
Ortega makes clear, although “the appropriate standard
for administrative searches is not probable cause in its
traditional meaning,” administrative searches are
merely one illustration of the application of the reason-
ableness standard arising out of the “careful balancing
of governmental and private interests.” 480 U.S. at
722-23. Thus, while we cannot uphold SEPTA’s random
drug and alcohol testing policy as an administrative
search because of the absence of evidence of regulation
3. SEPTA has not relied on the Federal Railroad Administra-
tion (FRA) regulations that authorize metropolitan passenger rail-
roads to conduct post-accident, for-cause, and pre-employment
drug and alcohol tests of employees, 49 C.F.R. §219.1-.505 (1987).
We do not have before us the relevance, if any, of the most recent
regulations of the FRA authorizing random drug testing of trans-
portation workers, see 53 Fed. Reg. 47, 102 (1988) (to be codified at
49 CFR Parts 217 and 219), which were not in effect at the time of
either the trial or the oral argument before us.
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directed to the employees affected, we proceed to con-
sider it under the more inclusive analysis of “reason-
ableness under all the circumstances” articulated by the
Supreme Court in recent cases.
3. The Balancing Test
When justification for a warrantless search con-
ducted without probable cause is sought on the basis of
the balancing of the government interest and the indi-
vidual’s privacy expections, we must apply a two-part
test. Courts must look, first, to whether the search was
“justified at its inception,” and, second, to whether the
search as actually conducted “was reasonably related in
scope to the circumstances which justified the interfer-
ence in the first place,” New Jersey v. T.L.O., 469 U.S. at
341 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).
Obviously, any erosion of the probable cause stan-
dard of the Fourth Amendment must be scrutinized
with great care because the “overriding function of the
Fourth Amendment is to protect personal privacy and
dignity against unwarranted intrusion by the State.’ ”
Winston v. Lee, 470 U.S. 753, 760 (1985) (quoting
Schmerber v. California, 384 U.S. 757, 767 (1966)).
Individuals cannot be said to relinquish all expectations
of privacy simply because they participate in spheres
that are regulated by government. See Delaware v.
Prouse, 440 U.S. 648, 663 (1979) (“[PJeople are not
shorn of all Fourth Amendment protection . . . when
they step from the sidewalks into their automobiles.”).
“The reasonableness of a warrantless search .. . will
depend upon the specific enforcement needs and pri-
vacy guarantees of each statute.” Marshall v. Barlow’s,
Inc., 436 U.S. 307, 321 (1978).
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B.
Application of the Law to this Case
We note at the outset that the constitutional issue
presented for our review in this case is a narrow one. We
are presently called upon to rule on the constitutionality
of SEPTA’s random and return-to-work drug and alcohol
testing policies as described on the face of its final
revised proposal; the application of these policies in
practice is not before us for review at this time.* Our
review of the district court’s application of constitutional
law under the Fourth Amendment is plenary.
1. The Constitutionality of SEPTA’s Random Testing Pro-
gram
a. The “Initial Justification” for Random Testing
Even within the narrow category of cases in which
the Court has found that “special needs” justify relaxing
the probable cause requirement for searches, it has
generally required “individualized suspicion.” See, e.g.,
Terry v. Ohio, 392 U.S. 1, 21 & n. 18 (1968) (police “pat
down” searches for concealed weapons do not require
probable cause but do require “specific articulable facts,
.. . together with rational inferences from those facts,
[that] reasonably warrant that intrusion”). However, the
Court has held that the suspicion prerequisite is not an
“irreducible requirement” and that under certain limited
circumstances, the balance of interests between the
4. We thus do not consider the extent to which employees
sanctioned as a result of positive test results retain the right to
utilize the grievance and arbitration mechanisms specified under
collective bargaining agreements.
S. Although the Railway Unions’ brief argues that this court
should hold that SEPTA’s drug testing program is invalid under
Pennsylvania’s Constitution, this issue was apparently not pre-
sented to the district court and thus has not been preserved for
appeal. Transcript of Orai Argument at 37.
A-18
government’s need to conduct the search and the degree
of intrusion on the individual may justify dispensing
with the individualized suspicion requirement. See, e.g.,
United States v. Martinez-Fuerte, 428 U.S. 543, 561-62
(1976) (upholding constitutionality of brief vehicle stops
at fixed checkpoints to question occupants without
individualized suspicion).
We agree with the Unions that the intrusion on
individuals’ privacy caused by drug testing is more than
minimal, involving an order to perform the highly pri-
vate activity of urination, an order considered by some to
be “offensive to personal dignity,” Patchogue-Medford
Congress of Teachers v. Board of Educ., 70 N.Y.2d 57,
68, 517 N.Y.S.2d 456, 461, 510 N.E.2d 325, 330 (1987);
see also Capua v. City of Plainfield, 643 F. Supp. 1507,
1511 (D.N.J. 1986).
We do not believe that this ipso facto renders the
search unreasonable. Although in its most recent cases
discussing the reasonableness standard for Fourth
Amendment search purposes, the Supreme Court did
not decide whether individualized suspicion is an essen-
tial element, see O’Connor v. Ortega, 480 U.S. at 726;
New Jersey v. T.L.O., 469 U.S. at 342 n.8, this court held
it was not when upholding drug testing in Shoemaker
and Policeman's Benevolent Association as an adminis-
trative search. For comparable reasons, we conclude
that under the balancing required by the reasonableness
analysis, if the state’s interest is substantial enough it
may override even the intrusive searches required for
urinalysis. A fortiori, the less intrusive search by breath-
alyzer testing would be sustained.
Of course, the more intrusive the search, the more
substantial the governmental interest that must be
shown to make the requisite balance. The state interest
asserted here, that of guaranteeing the safety of the
public, has been accepted in other contexts as justifying
drug testing without particularized suspicion. See, e.g.,
Jones v. McKenzie, 833 F.2d at 340 (routine drug testing
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of bus drivers and attendants entrusted with safety of
handicapped school children justified by “significant
and compelling governmental interest”); Rushton v.
Nebraska Pub. Power Dist., 844 F.2d 562, 567 (8th Cir.
1988) (individualized suspicion not required for drug
testing in nuclear power industry). Contra Burnley, 839
F.2d at 587-88 (invalidating post-accident drug testing
of railroad employees).
As stated in O’Connor v. Ortega, 480 U.S. at 724, “in
many cases, public employees are entrusted with tre-
mendous responsibility, and the consequences of their
misconduct .. . [to] the public interest can be severe.”
The government interest in protecting public safety,
often of large groups of persons traveling by mass
transit, is patently of a higher order than simply main-
taining the “efficient and rr »«-r operation of the work-
place,” found sufficient by the plurality to justify limited
searches of the desk and personal files of an employee in
O’Connor. See 480 U.S. at 723.
We view with amazement the opening sentence in
the Railway Unions’ brief that “[t]his case involves an
overreaction to an exaggerated hysteria conserning the
use of drugs and alcohol in our society.” Brief of Certain
Plaintiffs-Appellants-Cross-Appellees at 1. The enormity
of the problem facing this country because of drug use is
sufficiently well established to justify judicial notice.
Of course, it was SEPTA’s burden to show drug use
by its operating employees that poses a danger to the
safe operation of its vehicles. The district court made
findings that drug use by SEPTA’s operating employees
presents a significant safety problem and that the
Authority’s prior suspicion-based testing program
proved insufficient “to satisfy the needs of public safety.”
678 F. Supp. at 549. Compare Lovvorn v. City of
Chattanooga, 846 F.2d 1539, 1541, 1547 (6th Cir. 1988)
(random drug testing of fire fighters unconstitutional
where “[t]here has been no Statistical or objective evi-
dence thatthe performance of any member of the
A-20
department... has been affected by the use of drugs”)
with Jones v. McKenzie, 833 F.2d at 336 (upholding
constitutionality of routine drug tests of school bus
drivers and attendants following “repeated incidents of
bizarre or dangerous drug-related behavior by drivers
and attendants while on duty”).
There is adequate support for the district court’s
findings. SEPTA established that in six major accidents
occurring in 1986 and 1987, collectively involving at
least 89 injuries to persons, the operators of vehicles at
fault tested positive for alcohol or drug metabolites. App.
at 1017. The operator at fault in another accident
refused to submit to a test. Further, of 262 employees
tested “for cause” between January 1985 and July 1987,
82 employees (thirty-one percent) tested positive for
drug metabolites or alcohol. App. at 1166. Twelve per-
cent of the “new hires” given drug tests within the same
period produced positive results (116 of 1,004 tested).
App. at 1165. The Unions do not argue that these are
Statistically insignificant figures. Instead, they argue
that the presence of metabolites, particularly of mari-
juana metabolites, does not demonstrate present impair-
ment and, in the case of employees “at fault,” does not
demonstrate causation of the accident.
Although there is no evidence of direct correlation
between the presence of drug metabolites and impair-
ment at the time of testing, users are frequently able to
mask their impairment so that it is not apparent. App. at
347. Also, SEPTA produced testimony establishing that
use of drugs in itself results in significant impairment.
There was testimony that long after all traces of drugs
have left the system, there are significant delayed and
chronic impairment effects.
As Union witness Dr. John P. Morgan acknowl-
edged, individuals whose drug use does not render them
obviously impaired in performing routine work tasks can
display a lack of flexibility and inability to respond to
sudden changes or emergency situations. App. at 771.
A-21
The acute effects of marijuana include distortion of
judgment and loss of good judgment, a decrease in
alertness and caution, impairment of visual, auditory
and space perception, and loss of propriety of responses,
such as ability to steer. App. at 373. Cocaine ingestion
typically causes aggressiveness, overreaction, and mis-
perception. Jd. at 378. According to SEPTA expert
witness Robert J. Pandina, residual impairment effects
of marijuana and cocaine include irritability, agitation,
lack of alertness and awareness, and memory deficits.
App. at 356. After the stimulative effects of cocaine have
worn off, users’ functioning becomes depressed and
slower, and judgment remains impaired. App. at 378.
Other delayed impairment effects occur during the
period in which individuais are experiencing withdrawal
from a drug on which they have become physically
dependent. App. at 782, Morgan Testimony. Chronic
users will experience long-term effects including a de-
sire to increase the dose of drug taken, which will in turn
increase the probability of impairment. App. at 360,
Pandina Testimony.
While the Unions downplay the statistical evidence
of marijuana use, a SEPTA witness testified that the
impairment effects of marijuana as measured by the
ability to perform certain tasks, such as simulated driv-
ing, include statistically significant effects on perfor-
mance lasting for as long as twelve hours after use in
some individuals. App. at 523.
In light of the evidence connecting impairment with
drug use, it was appropriate for SEPTA to design its
program in an effort to detect drug users. It was not
required to limit its detection efforts to those employees
whose then-current impairment could be detected, par-
ticularly in light of the testimony by experts offered by
both the Unions and SEPTA that current urine testing
technologies do not permit the detection or measure-
ment of current impairment. See App. at 540, 548, 747,
780, 354-55.
A-22
The Unions next argue that SEPTA’s program
should be rejected because there are less restrictive
means to deal with the drug problem of transit employ-
ees. The Court has made clear that the least restrictive
means analysis applied in cases implicating the First
Amendment is not applicable to cases arising under the
Fourth Amendment. Colorado v. Bertine, 479 U.S. 367,
373-74 (1987) (quoting Jllinois v. Lafayette, 462 U.S.
640, 647 (1983)); Bell v. Wolfish, 441 U.S. 520, 559 n.40
(1979) (quoting United States v. Martinez-Fuerte, 428
U.S. 543, 556-57 n.12 (1976)). Of course, a factor
relevant to the inquiry into the reasonableness of the
search at its inception would be whether less intrusive
but equally effective means to the same goal are avail-
able. There has been no such showing here. In light of
the district court’s finding that “[mjany drugs have
delayed, residual or chronic effects not ascertainable
through behavioral observation,” 678 F.Supp. at 550,
and that SEPTA’s operating employees often work in
circumstances which preclude close supervision, mak-
ing it infeasible to monitor performance or detect signs
of drug-induced impairment by direct observation, the
Unions have not shown that there is any less intrusive
but equally effective means of detecting employee drug
use. /d.
Finaliy, the Unions’ argument that SEPTA can rely
on its already existing policy of testing for drug use after
accidents “chargeable” to driver fault® does not effec-
tively address the public interest in detecting employees
6. SEPTA’s admitted failure to administer a drug test after
every chargeable accident is disturbing but we cannot evaluate on
this record the validity of its explanation that its failure to test stems
from disputes with the Unions as to how an accident should be
classified. Transcript of Oral Argument at 40-43. We cannot avoid
noting that the district court expressed its frustration at the sorry
state of labor relations among the parties to this case. See 678 F.
Supp. at 548 n. 12.
A-23
in safety sensitive positions with drug problems before
accidents occur.
The safety justification for SEPTA’s drug testing
policy, SEPTA’s documentation of drug use problem
among its workforce, the evidence of the deleterious
effect of drug use, and SEPTA’s showing of positive tests
for drugs or alcohol by operating personnel at fault in
accidents are sufficient bases for us to conclude that the
random testing policy is constitutionally justified at its
inception.
b. The Relationship of the Search to the Need
The Supreme Court has held that even when the
search program is designed with important public safety
considerations in mind, to survive the required Fourth
Amendment balancing there must be sufficient safe-
guards to protect against abuse of official discretion in
deciding whom and how to search and the search must
be sufficiently productive to qualify as a reasonable law
enforcement practice. Delaware v. Prouse, 440 U.S. 648,
655, 660, 662 (1979).
The testing policy that developed as a consequence
of the district court’s supervision of this case is limited to
employees whose job performance implicates public
safety. Even the non-operating personnel included, such
as Signal operators and repair persons, perform func-
tions closely connected to the public safety and their
classification as “safety sensitive” is justified.
SEPTA’s random drug testing program is also rea-
sonable with respect to the type of testing conducted.
Following the district court’s instructions, SEPTA sub-
stituted less intrusive testing where possible, such as
breathalyzer tests to detect blood alcohol levels. Al-
though urine testing can be used to reveal private
information other than drug use, see National Treasury
Employees Union v. Von Raab, 816 F.2d 170, 175-76
(Sth Cir. 1987), cert. granted, 108 S. Ct. 1072 (1988)
A-24
(testing may disclose pregnancy and certain psycholog-
ical and physical illnesses), no allegation has been made
that SEPTA’s plan contemplates use of body fluid sam-
ples to detect such information. We are satisfied that, as
described, the plan contains sufficient safeguards, in the
form of confidentiality, chain of custody, verification,
and random selection procedures, to protect against
abuse of discretion by implementing officials. Any im-
proper use of the personal information obtainable
through SEPTA’s testing program must await a chal-
lenge to the program as applied.
As noted above, one of the Unions’ principal chal-
lenges to the reasonableness of SEPTA’s random drug
testing policy is based on their contention that the mere
presence of drug metabolites in an employee’s urine is
not indicative of on-the-job impairment. However, as the
district court explained, the expert psychologist who
designed SEPTA’s revised program testified that
SEPTA’s drug testing was aimed at detecting chronic
abusers rather than on-the-job impairment. 678 F.
Supp. at 548. The district court was satisfied that a
sufficient nexus existed between this rationale for test-
ing and the information gleaned through the use of
urine tests. As we concluded above, since the evidence
shows that chronic users present a threat to the safety of
the transit system, we do not regard it as fatal that the
tests are designed to uncover drug users rather than
impairment.
It follows that SEPTA has satisfied the second prong
of the “reasonableness under all the circumstances”
standard, and that its program for random testing for
drugs and alcohol satisfies the rigorous inquiry required
under that standard.
2. Return-to-Work Testing
As we noted above, the district court found that the
component of SEPTA’s proposed drug testing program
A-25
which imposed body fluid testing on all employees who
returned to work following absences for 30 days for any
cause such as illness, on the job injury, leave of absence,
reinstatement from discipline, or other absence (other
than vacation), failed constitutional muster. The court
found such testing was not justified at its inception
because the required physical examination would iden-
tify employees who were clearly not fit for duty. See 678
F. Supp. at 551. Since those employees were also
subject to the extensive random testing program and
SEPTA had not shown that return-to-work testing was
an “integral part” of a carefully considered program
designed to meet a substantial need, it had failed to meet
its burden to justify the need for such testing. Jd.
Return-to-work testing must be justified either as
part of a truly random testing program which does not
single out a specified group or on the basis of particu-
larized suspicion. Since the random testing which we
are sustaining will include employees returning to work,
SEPTA must justify its return-to-work testing on the
basis of some particularized suspicion. It has, however,
failed to present any evidence that the employees return-
ing to work present some unique risk directly related to
drug or alcohol use. Thus, SEPTA has not shown that
this aspect of its program is initially justified or that
testing of all employees returning after an absence for
whatever cause has any relationship to the articulated
need for the program. We will therefore not disturb the
court’s injunction against return-to-work testing.
ITI.
The RLA Injunction
SEPTA’s challenge to the district court’s injunction
of the testing policy as applied to those employees
covered by the RLA must be rejected on the basis of our
recent decision in Railway Labor Executives’ Associa-
tion v. Conrail, 845 F.2d 1187 (3d Cir.), cert. granted,
A-26
109 S. Ct. 52 (1988). This case does not lose its status as
controlling precedent because the Supreme Court has
agreed to review the decision.
In Conrail, we held that the unilateral addition of
drug testing to employee medical examinations gave rise
to a “major” dispute under the RLA, entitling the parties
to an injunction maintaining the status quo while they
pursued the notice, mediation, and conciliation proce-
dures mandated under sections 5 and 6 of the RLA, 45
U.S.C. §§155, 156, 845 F.2d at 1194.
A labor dispute over implementation of a drug
testing program that “can ‘arguably’ be justified by the
existing agreement,” or “from habit and custom,” is
classifiable as a minor one and the proposed change may
be implemented unilaterally. Jd. at 1190-91 (citations
omitted). In Conrail, we rejected the company’s argu-
ment that no significant departure from past practices
was involved in its addition of drug screening, which it
had previously administered only “for cause,” to urine
tests for other substances routinely administered during
periodic and return-to-work medical exams. Jd. at 1194.
We found that there were significant differences be-
tween the company’s new and old practice, both because
the company had switched from testing on the basis of
particularized suspicion to testing without cause, and
because it had substituted its previous disciplinary rule
directed against employees discovered to be drug-
impaired on the job with a new rule mandating dis-
charge of employees with positive drug test results
regardless of a finding of impairment. Jd. at 1193-94.
Here, SEPTA’s institution of random drug testing
differs significantly from prior practice. For several
decades, SEPTA’s collective bargaining agreements
have provided that an employee would be discharged for
reporting to work under the influence of intoxicating
liquors or drugs. In late 1983, SEPTA began to require
urinalysis testing of workers suspected of violating this
rule. When the first four employees with positive results
Ee
A-27
for marijuana metabolites were discharged, arbitrators
who heard the resulting grievances reinstated the em-
ployees on the ground that the presence of marijuana
metabolites in the employees’ urine did not establish
that they were impaired at the time of the urinalysis test.
To meet this objection, SEPTA announced in Sep-
tember 1985 that henceforth it would consider the
presence of traces of certain intoxicants or controlled
substances in the body fluids of employees on duty,
reporting to duty, or off-duty but subject to duty to be a
dischargeable offense per se. Any employee suspected of
being in violation of this rule would be subject to drug
testing.
In 1985, SEPTA began testing employees for drug
and alcohol use on promotion or transfer to certain
positions. SEPTA also began administering drug tests to
employees committing “chargeable accidents,” i.e., ac-
cidents with respect to which the employee had been
determined to be solely at fault. In July 1986, SEPTA
extended this policy to require body fluid testing for any
signal violation.
SEPTA argues that the Railway Unions’ acquies-
cence, without requesting section 6 notice, in SEPTA’s
implementation of post-accident, suspicion-based, and
transfer and promotion drug testing constitutes a waiver
of their right to object to the “incremental” addition of
random and return-to-work drug testing. Reply Brief of
Appellees-Cross-Appellants at 11. This argument ig-
nores the significant difference between drug testing
predicated on requests for transfer or promotion, which
carries an element of voluntariness, and random testing,
which does not. See National Treasury Employees
Union v. Von Raab, 816 F.2d 170, 177 (Sth Cir. 1987),
cert. granted, 108 S. Ct. 1072 (1988) (employees tested
on transfer “only as a result of a process that they choose
to set in motion”). Moreover, testing on the basis of
reasonable suspicion of drug use bears an element of
A-28
“cause” not present in the case of random testing. See
Division 241, Amalgamated Transit Union v. Suscy,
538 F.2d 1264, 1267 (7th Cir.), cert. denied, 429 U.S.
1029 (1976) (“probable cause” exists for post-accident
and suspicion-based testing). Thus, SEPTA’s addition of
random testing to its previous policies constitutes at
least as significant a change in working conditions and
rules as did the addition of drug screening to routine
medical examinations in Conrail.
SEPTA argues that because the Unions agreed to
some types of workplace testing, they waived their right
to object to any drug testing rolicy. We reject such a rule
because it would deter unions from acquiescing or
compromising on the drug testing question at pain of
being found to have agreed to a yet broader program.
The district court found “no evidence that the unions
agreed to or acquiesced in widespread testing or to any
significant testing without individualized suspicion.”
678 F. Supp. at 551. This finding is amply supported by
the record.
SEPTA also argues that it reserved its right to
modify its drug testing policies through a “management
functions” clause, contained in all of its collective bar-
gaining agreements, which provides that SEPTA retains
“[{a]ll management functions and responsibilities which
SEPTA has not expressly modified or restricted by a
specific provision of this Agreement.” App. at 1191,
1204, 1218, 1228, 1287. We agree with the court’s
ruling in International Brotherhood of Teamsters v.
Southwest Airlines Co., 842 F.2d 794, 804 (Sth Cir.),
reh’g en banc granted, 853 F.2d 283 (1988), that such
broad management rights clauses cannot serve to ex-
empt management from the RLA prohibition against
unilateral institution of changes in rules and working
conditions.
SEPTA’s addition of broad random testing to its
previous policies thus constitutes a major dispute for the
purposes of the RLA, and the district court rightfully
A-29
enjoined SEPTA from implementing random testing of
employees covered by the RLA pending exhaustion of
the mediation and conciliation procedures required un-
der that Act.
IV.
Conclusion
We are aware that our decision sustaining a random
drug and alcohol testing program under the reasonable-
ness standard recently enunciated by the Supreme
Court can be viewed as a further erosion of government
workers’ important Fourth Amendment rights. We be-
lieve, however, that implicit in the balancing that under-
lies application of the reasonableness test is the recog-
nition that there are some public interests that carry
sufficient weight to justify even a more than minimal
privacy intrusion. Public health and public safety con-
cerns have traditionally been considered to be of the
highest magnitude of public interest considerations. The
effects of drugs on transit workers in safety sensitive
positions as established in this record lead us to con-
clude that random testing by SEPTA is a reasonable
response. We venture no opinion on the validity of such
testing in other situations, and emphasize that our
decision is confined to the case presently before us.
For the reasons set forth in more detail above, we
will uphold the random drug and breathalyzer testing in
SEPTA’s program. We agree with the district court’s
conclusion that the return-to-work testing does not
satisfy the first prong of the reasonableness test, since it
has not been shown to be reasonable at its inception. We
also have concluded that under the precedent of our
Conrail opinion, random drug and alcohol testing can-
not be unilaterally imposed on those workers covered by
the RLA because that statute requires different proce-
dures for major disputes.
A-30
We will therefore affirm the district court’s order in
all respects. Each party to bear its own costs.
A True Copy:
Teste:
Clerk of the United States Court of
Appeals for the Third Circuit
(A.O. U.S. Courts. G.M.C. Printing, Phila., Pa. 215-568 4264)
wisi iy vee eh
A-31
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 88-1160/61/62/63 and 88-1206/07/08
TRANSPORT WORKERS’ UNION OF
PHILADELPHIA, LOCAL 234
VS.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
Pursuant to Rule 41(b) of the Federal Rules of
Appellate Procedure, it is ORDERED that issuance of
the certified judgment in lieu of formal mandate in the
above cause be, and it is hereby stayed until February
17, 1989.
/s/ DOLORES K. SLOVITER
Circuit Judge
Dated: Jan 19, 1989
A-32
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 88-1160/61/62/63 and 88-1206/07/08
TRANSPORT WORKERS’ UNION
PHILADELPHIA, LOCAL 234, ef al.
vs.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
Pursuant to Rule 41(b) of the Federal Rules of
Appellate Procedure, it is ORDERED that issuance of
the certified judgment in lieu of formal mandate in the
above cause be, and it is hereby further stayed until
March 9, 1989.
/s/ DOLORES K. SLOVITER
Circuit Judge
Dated: Feb 16, 1989
A-33
TRANSPORT WORKERS’ UNION OF
PHILADELPHIA, LOCAL 234
. ¥.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY.
TRANSPORT WORKERS’ UNION OF
AMERICA LOCAL 2013
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY.
BROTHERHOOD OF LOCOMOTIVE
ENGINEERS, DIVISION 71, et al.
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION
AUTHORITY, et al.
UNITED TRANSPORTATION
UNION, et al.
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY.
Civ. A. Nos. 81-0389, 87-0446,
87-0448 and 87-0455.
United States District Court,
E.D. Pennsylvania.
Jan. 19, 1988.
Michael Brodie, Philadelphia, Pa., for Transport
Workers’ Union of Philadelphia, Local 234.
Jonathan K. Walters, Kirschner, Walters & Willig,
Philadelphia, Pa., for Transport Workers’ Union of
America Local 2013.
a ca
A-34
Clinton J. Miller, III, United Transp. Union, Harold
A. Ross, Ross & Kraushaar, Co., L.P.A., Cleveland, Ohio,
and Cornelius C. O’Brien, III, O’Brien & Davis, Phila-
delphia, Pa., for United Transp. Union.
Mitchell Kraus, Broth. of Ry., Airline, and Steam-
ship Clerks, Rockville, Md., for Broth. of Ry., Airline,
and Steamship Clerks.
John F. Smith, III, Richard S. Meyer, Dilworth,
Paxson, Kalish & Kauffman, Philadelphia, Pa., for
Southeastern Pennsylvania Transp. Authority.
MEMORANDUM
LUDWIG, District Judge.
In these consolidated actions, upon the application
of plaintiffs! and upon hearing, defendant Southeastern
Pennsylvania Transportation Authority (SEPTA) was
preliminarily enjoined, on February 9, 1987, from im-
plementing a random drug testing program of its em-
ployees under SEPTA Order No. 87-1. Fed.R.Civ.P.
65(a). Thereafter, SEPTA modified its proposed program
and moved to vacate the injunction. Additional evident-
iary hearings occurred during which SEPTA made fur-
ther changes in the program. The parties agreed to an
adjudication for permanent injunctive relief. Fed.R.
Civ.P. 65(a)(2).
The following decision is entered, and an accompa-
nying order will be filed:
1. The preliminary injunction is now dissolved.
2. Plaintiffs’ request to enjoin random testing
as unconstitutional is denied, and subject to certain
conditions, random testing will be permitted.
1. Plaintiffs are six unions and the chairman of a local chapter
of the Brotherhood of Locomotive Engineers. Fact Stip. 7 1-8.
Se ee ee OE
A-35
3. So-called “return to work” testing, as pro-
posed, will be enjoined as constitutionally unjusti-
fied.
4. As to the Railroad Brotherhood plaintiffs,?
random testing will be enjoined-because the pro-
posal invoked a “major dispute” under Section 6 of
the Railway Labor Act, 45 U.S.C.A. § 151 et seq.
(West 1986), and, consequently, notice, collective
bargaining, and mediation are prerequisite.
4
Transport Workers’ Union of Philadelphia, Local
234 (TWU), together with its affiliated International
Union, represents 5,700 of SEPTA’s 6,509 employees.
The balance are members of the five other plaintiff
unions, under Section 151 of the Railway Labor Act, 45
U.S.C.A. § 151, Sixth. United Transportation Union,
Local 1594, also represents bus and trolley operators of
SEPTA’s Red Arrow division under Pennsylvania’s Pub-
lic Employe Relations Act, 43 P.S. § 1101 et seq. (Purdon
Supp. 1987). SEPTA is an agency and instrumentality of
the Commonwealth of Pennsylvania, under a certificate
of incorporation dated February 7, 1964, and is orga-
nized under the Metropolitan Transportation Act of
1965, 66 P.S. § 2001, et seq. (repealed) and the Penn-
sylvania Urban Mass Transportation Law, as amended,
55 P.S. § 600.101 et seq. (Purdon Supp. 1987).3
By Act of Assembly, SEPTA is empowered to own
and operate transportation facilities in the Philadelphia
five-county metropolitan area. Its present operations
include the City Transit Division; the Suburban Transit
2. These are the United Transportation Union, Brotherhood of
Locomotive Engineers, Brotherhood of Railway, Airline and Steam-
ship Clerks, Brotherhood of Maintenance of Way Employees, and
Brotherhood of Railroad Signalmen.
3. The members of SEPTA’s board of directors are named as
individual defendants and in their official capacities.
A-36
Division (Red Arrow-Delaware County); the Frontier
Division (Montgomery County); and the Regional Rail-
road Division, which provides commuter rail service
between the city and suburban counties. The City
Transit Division operates the Broad Street and Market
Street subways, the Frankford Elevated, and many bus,
streetcar and trackless trolley routes in Philadelphia.
SEPTA also maintains numerous stations, depots, plat-
forms, tracks, shops and other installations. Employ-
ment terms and conditions are set forth in collective
bargaining agreements with plaintiff unions.
SEPTA’s operational area covers about 2,200 square
miles. The City Transit Division accommodates some
798,000 passenger trips daily; the Suburban Transit
Division, 66,000; the Regional Rail Division, 78,000. In
1986, more than 350 million passenger rides occurred
on SEPTA vehicles. On an average weekday in 1986, the
number exceeded 1.2 million. City buses and trolleys
reach speeds up to 50 miles per hour; trains as high as
95 miles per hour; other high speed vehicles, 60 miles
per hour. Vehicle operators must be attentive to their
work. Subway and train signal systems are complex and
demanding. Braking requires vigilance and sound judg-
ment. Some special risk factors that can affect train
operation are grade crossings and trespassers on rights
of way. Bad weather, unruly passengers, and crowded
vehicles are problems generally. A vehicle operator must
have a clear mind and the ability to react quickly and
efficiently. New operators must be trained. Support staff
inspect and maintain essential equipment. SEPTA po-
lice carry firearms.
The unions agree that consumption of alcohol or
controlled substances can render an employee unfit for
work. The need to protect the safety of passengers,
pedestrians, motorists, and other employees is undis-
puted. For over 30 years, the collective bargaining
agreements between SEPTA and TWU have provided
that an employee who reports to work or who becomes
A-37
under the influence of intoxicating liquor or drugs will
be discharged.
On September 20, 1985 SEPTA promulgated Order
No. 85-1, which called for urine or blood testing of
employees suspected of being in “possession of intoxi-
cants or controlled substances,” and which described
such possession as “a dischargeable offense.”* It also
issued Order No. 85-2, which permitted “a troubled
employee [one with an alcohol or drug problem] to
maintain an employment relationship and have ... [a]
reasonable leave of absence to obtain treatment.”
In 1986, in at least three accidents, SEPTA passen-
ger vehicle operators appeared to have been impaired by
drugs or alcohol. In a train collision December 10, 1987,
an engineer and a conductor were tested positive for
cocaine. Tests of two conductors also were positive for
marijuana. Forty-two people were injured. In a fourth
accident in 1986, the operator refused testing. In 1987,
three accidents also appear to have been cocaine or
marijuana related as shown by post-accident testing.
Between January, 1985 and July, 1987, a total of 14
percent, or nearly one seventh, of the drug and alcohol
tests taken pursuant to 85-1 were positive. The problem
4. Rule 1 in effect in the Regional Railroad Division from
January 1, 1983 to October 27, 1985 stated in part:
The use of intoxicants, narcotics, amphetamines or hallu-
cinogens by employees subject to duty or their possession or
use while on duty is prohibited. Employees suspected of being
under the influence in violation of this rule may be required to
take a blood and/or a urinalysis test. Employees who refuse to
take these tests or who are found to be under the influence as
- a result of tests will be subject to disciplinary procedures which
may result in dismissal from the Authority’s service.
Thereafter, on October 27, 1985, SEPTA issued RRD
Special Instruction 1001-A2 which provided that members of the
railroad unions “may be required to provide a urine sample after
certain accidents and incidents or at the time the company reason-
ably suspects [an employee is] under the influence of, or impaired
by drugs while on duty.”
A-38
of substance abuse is societal. It is inescapable that the
undue use of drugs or alcohol by the operator of a motor
vehicle can be hazardous and potentially injurious, if not
life-threatening. Where mass transit is concerned, the
risk can involve large numbers of people.
SEPTA’s decision to embark on unscheduled —
“surprise” — testing of its employees arose from man-
agement’s belief that cause or suspicion testing was
ineffective to reduce on-the-job impairment. Patterned
on other programs, SEPTA Order No. 87-1, issued
January 21, 1987, was designed to interrelate educa-
tional prevention; treatment and rehabilitation; and
monitoring and deterrence. The third element is embod-
ied in unscheduled random testing.5 Order No. 87-2,
promulgated February 3, 1987, provided that an em-
ployee returning to work after a 30-day absence was
subject to body fluid testing for drugs or alcohol.
In opposition to the testing, plaintiffs filed these
actions and immediately sought injunctive relief, assert-
ing that 87-1 violates the Fourth Amendment prohibi-
tion against unreasonable searches and seizures. They
also contend that testing of employees returning to work
after a 30-day hiatus under 87-2 is not constitutionally
justifiable and that the entire program, as proposed,
abridges the employee’s confidentiality rights, and is
overly broad, punitive, and inappropriate. The Rail
Brotherhoods maintain that the issues raised by 87-1
and 87-2 constitute a “major dispute” under the Railway
Labor Act. If so, the Act requires notice and exhaustion
of negotiation and mediation procedures before a change
in the labor contract can be effectuated. 45 U.S.C.A.
§156. SEPTA has not given notice. Its view is that 87-1
and 87-2 are evolutionary outgrowths of 85-1 and are not
5. On January 23, 1987 urine tests of 13 randomly selected
employees proved negative. This was the only day on which 87-1
was implemented. Thereafter, SEPTA agreed to await the outcome
of these actions.
6. Plaintiffs filed amended complaints challenging 87-2.
A-39
a radical alteration of past policies. The United Trans-
portation Union, Local 1594, also claims that it is
entitled to protective procedures under Section 1101.-
701 of the Pennsylvania Public Employe Relations Act.
SEPTA was preliminarily enjoined from proceeding
with 87-1 and 87-2 because the program, as evidenced,
was excessively intrusive and did not carry out its
objectives. A Fourth Amendment violation appeared,
therefore, to be likely. Also, under the Railway Labor
Act, an ultimate finding of a “major dispute” was pre-
dictable. Bench opinion, February 9, 1987.
Il.
On July 27, 1987 after months of consultation with
experts and union representatives, SEPTA proposed a
revised program and filed a petition to vacate the pre-
liminary injunction.” Extensive testimony was given by
toxicologists, pharmacologists, physicians, psychologists
and others in defense and in criticism of the proposal.
Areas of debate were the accuracy of the testing proce-
dures, the positive thresholds, the incidence of testing,
including the categories of employees subject to testing,
the inclusion of prescription medication, the definition
of fitness for duty, the type and the function of the
employee assistance program, the effect of passive inha-
lation, the role of SEPTA’s medical department, and
SEPTA’s administration of 85-1 and 85-2 during the past
two years.®
As set forth in the revised proposal, the purpose of
the program is to enforce a fitness for duty standard.
7. Thereafter, SEPTA continued to make revisions in response
to concerns expressed by the unions and by the court.
8. With the parties’ consent, a court-appointed independent
expert—a psychiatrist with expertise in pharmacology-—was re-
tained. This expert reviewed the testing proposal and the testimony
of the parties’ experts and consulted with the parties and the court.
A-40
This standard is applied to a class known as “operating
employees” and is defined as the absence from one’s
system of alcohol, drugs and drug metabolites above
specified thresholds. About 4,400 SEPTA employees
come within this classification.? Breath testing is to be
used for alcohol detection and is to be administered
under forensically acceptable conditions. A positive re-
sult requires two successive minimum levels of .04
percent. For drugs, the testing modality is urinalysis.
The specimen is to be given inside a private, partitioned
bathroom stall. There are detailed specifications to as-
sure chain of custody, proper laboratory control, and
scientific testing. After initial screening, a positive result
is subject to a confirmation procedure by gas chromato-
graphy/mass spectrometry, which is considered to be the
most accurate technology available. See Williams vw.
Secretary of Navy, 787 F.2d 552, 555 (Fed.Cir.1986).
In the educational, or preventative phase, of the
program, SEPTA employees will be informed about the
harmful effects of drug and alcohol abuse, the availabil-
ity of treatment, and SEPTA’s employee and enforee-
ment policies. In July, 1987 SEPTA sent its employees
the revised program. Regular mailings and educational
presentations will be made. Random testing will not be
begun until 90 days after the program goes into effect
9. The following positions are specifically enumerated:
1. Engineer, Bus Person, Surface Train Person, Subway-
Elevated Trainperson.
2. Conductors and Passenger Attendants
3. Construction Equipment Operators
4. Superintendents of Operations, Towerpersons, Train
Dispatchers, and Power Dispatchers
5S. Signal Maintainers
6. Power Distribution Maintainers
7. Vehicle, Mechanical, Track and Structural Inspectors
8. Welders
9. Sworn SEPTA police officers
0. Any employees authorized to carry a firearm on duty
1. Instructors and supervisors of the foregoing.
A-41
and no earlier than 30 days after the proposed employee
assistance program is operational.
The employee assistance program wil! utilize an
outside provider as opposed to in-house services. Its
purpose is to offer substance abuse treatment and reha-
bilitation. If the employee voluntarily self-refers having
not had a positive test result, he can obtain a second
period of treatment. While in treatment, employees are
to receive unused sick pay. A post-treatment 90-day
period of alternative job assignment will occur, and the
employee will be subject to unannounced testing.'°
Upon two positive tests, the employee is dischargeable.
An employee who tests positive on a random screening
or on return to work has one opportunity for self-referral
and must not test positive again. Such employee is also
subject to unannounced follow up testing for 12 months
and scheduled testing for two years thereafter. If treat-
ment is refused, the employee will be discharged. Em-
ployment assistance information will be given to SEP-
TA’s medical department, which is to maintain it as
confidential. No disclosure will be made to law enforce-
ment authorities, and availability within the medical
department is to be limited to “need-to-know.”
Return to work testing applies to “operating emplo-
yees” who return to work after a 30-day absence. The
reason for the absence is immaterial."!
The selection of employees to be randomly tested
will be made pursuant to a protocol developed by a
statistician and will be computerized. 2,600 of the 4,400
operating employees will be tested for drugs and alcohol
10. The pay scale will be for the alternative assignment.
il. Testing of “operating employees” who are transferred
within SEPTA was also mentioned at the hearings. In October,
1987, TWU filed a second amended complaint claiming damages
for employees tested under the return to work provisions of 87-2 and
challenging other body fluid testing that occurs without reasonable
suspicion. It is agreed that the only issues to be adjudicated here
concern random and return to work testing under 87-1 and 87-2.
A-42
each year — 33 percent once, 10 percent twice, and two
percent more frequently. About 5,400 random breath
alcohol tests will also be given. Using this statistical
design, each operating employee will be at testing risk
every day, although the chances of being tested more
than twice a year will be small. The total cost of the
program for the first two years will be $3 million and
should diminish thereafter.
Operating employees taking prescription medication
will be required to obtain approval from SEPTA’s medi-
cal department before reporting to work. A fitness for
duty determination will be made in consultation with the
prescribing physician and a medical consultant. The
prescription will be confidential information.
As finally revised, the program contemplates estab-
lishment of an advisory committee of labor representa-
tives to review the program semi-annually and to consult
with SEPTA management as to any important
changes—such as enlargement of the class of operating
employees, a change in the employee assistance pro-
vider or testing analysis laboratory.
The basic design of the program was formulated by
a psychologist who is the director of Rutgers University
Center of Alcohol Studies. He testified that he success-
fully developed similar programs for the United States
Navy and professional sports. In his opinion, an effective
program requires a balanced combination of education,
treatment, deterrence and enforcement. The testing is
aimed at detecting chronic abusers, not actual impair-
ment. The reason is two-fold: On the one hand, actual
impairment is hard to measure using present technol;
ogy. On the other, if testing were pre-scheduled and
announced in advance, many abusers would be able to
stay drug-free during the testing period. A positive result
establishes relatively recent intake in a pharmacologi-
cally active amount. Tr. Sept. 9, 1987, at 21. In his
opinion, the testing must be at random, unannounced,
and done daily in order to act as an effective deterrent.
— A-43
Although problems remain}? with the revised pro-
gram, it is not so intrusive or unreasonable as to fail to
withstand constitutional scrutiny. Given the experierice
in other settings, the program appears to be logically
related to its purposes. After a suitable trial period,
improvements can be made and deficiencies can be
corrected. Plaintiffs are not foreclosed from instituting a
specific challenge at a later date. See American Federa-
tion of Government Employees, AFL-CIO v. Dole, 670
F.Supp. 445, 449 (D.D.C.1987). By repeated revision of
the original program, SEPTA has shown some willing-
ness to accept recommendations and to accommodate
other points of view.
With much force, the unions argue that the program
is largely experimental; that a less intrusive program
could be tried first; that the proposal is a substantial
departure in policy that is unlikely to be accepted by
SEPTA’s already discontented employees; that the pro-
gram would be much more effective if SEPTA were
willing to share control of it with labor; and that rigid
administration, as has occurred in the past, will produce
arbitrary and unjust results. Making due allowance for
that position, the reasons for permitting random testing
to proceed are the evidence of a drug problem among
SEPTA’s employees and the now well recognized pres-
ence of substance abuse in our society; the public
interest in having a mass transportation system operated
as safely and efficiently as practicable; the knowledge of
12. See Bench Remarks, September 25, 1987. Since then a
number of criticisms were rectified, but, in ny view, a much better
program could have been proposed if SEPTA had abandoned its
traditional approach to labor-management iss. ¢s. The constitution-
ality of substance testing by a public employer must rest on the
public’s needs, not the employer’s. The best chance of success with
such a program is to have the cooperation of labor, which requires
that management share—just as a matter of enlightened self-
interest—some of its decision-making and administra:.. powers.
This SEPTA has agreed to do only in small measure.
A-44
operating employees of the safety critical nature of their
jobs; the employees’ corresponding diminishéd expecta-
tion of privacy in the performance of their duties: the
probable efficacy of the program; the various measures
to minimize the intrusiveness of the searches; and
SEPTA’s testimonial pledge to implement the program
fairly and sensitively.
Il.
[1] Because it is a state agep d instrumentality,
the Fourth Amendment applies to SEPTA, through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643,
81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Compulsory
urinalysis and chemical breath testing have been held to
be searches and seizures within the meaning of the
Fourth Amendment. E.g., National Federetion of Fed-
eral Employees v. Weinberger, 818 F.2d 935, 942
(D.C.Cir.1987) (citing cases). To comply constitution-
ally, searches must be reasonable. New Jersey v. TLO,
469 U.S. 325, 337, 105 S.Ct. 733, 741, 83 L.Ed.2d 720
(1985). Although a warrant and probable cause or some
quantum of individualized suspicion bear on the reason-
ableness issue, the Fourth Amendment does not require
an irreducible minimum of individualization. United
States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 96
S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976). Sometimes,
the balancing of interests attenuates an individualized
approach. E.g., National Treasury Employees Union v.
Von Raab, 816 F.2d 170, 176-77 (Sth Cir.1987).
The evidence demonstrates that SEPTA’s suspicion-
testing program has not been enough to Satisfy the
needs of public safety and mass transit reliability. In
turn, employees in operational positions cannot reason-
ably expect SEPTA to ignore its responsibility to do all
possible to ensure public confidence in its services. Von
Raab, 816 F.2d at 180; Shoemaker v. Handel, 795 F.2d
1136, 1142 (3d Cir.), cert. denied, ae sug SOF
a a a le ts Bh Oe
‘ha Fe OP ee a Pe ae AW ei, et le tate [eg
A-45
S.Ct. 577, 93 L.Ed.2d 580 (1986). In these circum-
stances, the constitutionality of the program depends on
a “balancing of the need for the particular search against
the invasion of personal rights that the search entails.”
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884,
60 L.Ed.2d 447 (1979). McDonell v. Hunter, 809 F.2d
1302, 1305 (8th Cir.1987). See O’Connor v. Ortega,
____ ~ US. __, 107 S.Ct. 1492, 1501-03, 94 L.Ed.2d
714 (1987) (plurality opinion) (public employers have
overriding administrative interest different from law
enforcement so that intrusions on privacy of government
employees in investigating work related misconduct
should be assessed by reasonableness standard and
totality of circumstances).
SEPTA’s interests in the safety of its passengers and
in the public’s reposing confidence in its system are of
paramount importance. Division 241, Amalgamated
Transit Union v. Suscy, 538 F.2d 1264, 1267 (7th Cir.)
cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d
632 (1976). “Government has a vital interest in making
certain that its employees, particularly those whose
impairment endangers their co-workers or the public,
are free of drugs.” Capua v. City of Plainfield, 643
F.Supp. 1507, 1511 (D.N.J.1986). It is perhaps stronger
than New Jersey’s interest in “assuring the public of the
integrity of the persons engaged in the horse racing
industry.” Shoemaker, 795 F.2d at 1142 (that interest
and jockey’s reduced expectation of privacy held to
justify program of random breath testing and uri-
nalysis). As with all public employers, SEPTA is re-
quired by law to administer its work properly and
efficiently. O’Connor, U.S. at , 107 S.Ct. at
1501-03.
The well known effects of alcohol and drug abuse,
together with the two-year record of positive test results
and accidents and injuries since 85-1, sufficiently show
that public safety and public confidence problems exist
in SEPTA’s operations. Although the percentage of
A-46
employees who chronically abuse alcohol and drugs may
not be large, SEPTA is obligated, legally, ethically and as
a matter of good management, to take steps to reduce
the problem to a minimum. Jones v. McKenzie, 833 F.2d
335, 340 (D.C.Cir.1987). Needless serious personal in-
juries and deaths caused by alcohol or drug related
accidents are the unacceptable alternative. SEPTA must
continually explore a variety of programs with its em-
ployees and its equipment to improve the safety of its
operations. Moreover, SEPTA should be encouraged to
take remedial measures and to design new personnel
programs if reasonable and minimally intrusive. See Von
Raab, 816 F.2d at 179 (not unreasonable to address a
potential drug problem even in the absence of evidence
of prior drug related accidents or individualized suspi-
cion that a particular employee has a drug or alcohol
problem). Ail of SEPTA’s operating employees must be
acutely aware that the public questions the system’s
safety and reliability, including th: presence of alcohol
and drug abuse.
Reliance on suspicion testing appears, therefore, to
be inadequate. Many drugs have delayed, residual or
chronic effects not ascertainable through behavioral
observation. Tr. Feb. 5, 1987, at 311-316. Numerous
SEPTA employees operate without close supervision.
Even obvious impairment can go undetected. Recurrent
notice testing will detect only those who cannot tempo-
rarily abstain. Considering our present knowledge and
experience, a program of frequent random testing may
be the best means of assuring that SEPTA employees
will not be impaired and of gaining public acceptance
and support. Shoemaker, 795 F.2d at 1142. It may be the
only way to deal with the problem of substance abuse in
a highly regulated and safety critical industry affected
with the public interest. McDonell, 809 F.2d at 1308.
A-47
Drug screening by urinalysis is, concededly, a seri-
ous infringement of an individual’s reasonable expecta-
tion of privacy.13 As revised, the SEPTA program mark-
edly reduces its intrusiveness. Union consultation is
contemplated. Alcohol testing, conducted by breath-
alyzer, is less intrusive than urinalysis or blood testing.
Urinalysis, properly administered, is not as intrusive as a
strip search or a blood test. McDonell, 809 F.2d at 1308;
Von Raab, 816 F.2d at 177. Advance notice reduces the
intrusive nature of a search. Weinberger, 818 F.2d at
943; Shoemaker, 795 F.2d at 1142; Capua, 643 F.Supp.
at 1515 (surprise early morning urinalysis of city fire
fighters unconstitutional).!4
13. “One does not reasonably expect to discharge urine under
circumstances making it available to others to collect and analyze in
order to discover the personal physiological secrets it holds.” McDo-
nell v. Hunier, 612 F.Supp. 1122, 1127 (S.D.Iowa 1985), aff’d as
modified, 809 F.2d 1302 (8th Cir. 1987). Urine testing may disclose
whether the employee is under treatment for an illness and the
presence of nonprescription substances such as blood. “There are
few activities in our society more personal or private than the
passing of urine.” Von Raab, 816 F.2d at 175.
14. A growing number of decisions have concluded that non-
suspicion mandatory urinalysis by a public employer is unconstitu-
tional. See, e.g., Policemen’s Benevolent Assoc., Local 318 v. Town-
ship of Washington, 672 F.Supp. 779 (D.N.J. 1987) (police
officers); Taylor v. O’Grady, 669 F.Supp. 1422 (N.D.IIl. 1987)
(correctional employees); Feliciano v. City of Cleveland, 661
F.Supp. 578 (N.D.Ohio 1987) (police academy candidates); Amer-
ican Federation of Government Employees v. Weinberger, 651
F.Supp. 726 (S.D.Ga. 1986) (civilian police employed by Depart-
ment of Defense); Lovvorn v. City of Chattanooga, 647 F.Supp. 875
(E.D.Tenn. 1986) (firefighters); Caruso v. Ward, 133 Misc.2d 544,
506 N.Y.S.2d 789 (Sup.Ct. 1986), aff'd, 131 A.D.2d 214, 520
N.Y.S.2d 551 (App.Div. 1987) (members of organized crime control
bureau); Patchogue-Medford Congress of Teachers v. Board of
Education, 119 A.D.2d 35, 50S N.Y.S.2d 888 (App. Div. 1986),
aff'd, 70 N.Y.2d 57, 510 N.E.2d 325, 517 N.Y.S.2d 456 (1987)
(public school teachers). Many of these cases distinguish Shoe-
maker and other nonsuspicion testing decisions based on insuffi-
cient showing of need, or of reduced expectations of privacy, or
A-48
As noted, collection personnel do not observe the
employee during urination, which takes place in a
private restroom stall. See Mullholland v. Department of
Army, 660 F.Supp. 1565, 1569 & 1576 (E.D.Va. 1987).
A high degree of confidentiality is to be maintained.
“The need for protection against governmental intrusion
diminishes if the investigation is neither designed nor
likely to be used to bring criminal charges against the
person investigated.” Von Raab, 816 F.2d at 179. See
O’Connor, U.S. at ___, 107 S.Ct. at 1501; Shoe-
maker, 795 F.2d at 1140 (test results kept confidential
from enforcement agencies). There are provisions allow-
ing an employee whose test is positive to challenge the
result. See Banks v. Federal Aviation Admin., 687 F.2d
92, 95 (Sth Cir.1982). The detailed chain of custody
provisions virtually eliminate the possibility that a sam-
ple will be incorrectly identified. Rushton v. Nebraska
Public Power Dist., 653 F.Supp. 1510, 1526 (D.Neb.
1987).
The program contains a strong rehabilitative com-
ponent, and an ameliorative distinction is made between
a voluntary self-referral and an employee whose unfit-
ness is raised by a test result. Though the incidence of
testing may be unduly large, the protocol was intended
to maximize its deterrent value, an essential part of the
integrated program. Tr. Feb. 5, 1987, at 284. Von Raab,
816 F.2d at 180. With time, its volume can be reduced.
Morcover, the plan approved by this Circuit, in Shoe-
maker, authorized the testing of the same jockey three
times in one week. Shoemaker, 795 F.2d at 1140. Here,
by comparison, only two percent of the operating em-
ployees will be tested more than twice a year.
NOTES (Continued)
because of a high degree of intrusiveness. None involves a work
environment as demonstrably safety sensitive as SEPTA’s, compel-
ling evidence of a current drug and alcohol problem unlikely to be
solved by less aggressive measures, and a program as carefully
drawn as SEPTA’s.
ed DCT ee Gea eee eee ei
A-49
The random screening protocol assures that selec-
tion for testing is at random and eliminates any exercise
of discretion by SEPTA management. Specific and def-
inite standards for determining a positive test result are
set forth, and the testing is to be conducted by an
accredited independent laboratory. Specific procedures
for sample collection are included in the program. These
safeguards are sufficient to protect the employees’ rea-
sonable expectations of privacy from the exercise of
discretion by SEPTA management in deciding of whom,
when and in what manner to conduct the search.
Delaware v. Prouse, 440 U.S. 648, 655 & 663, 99 S.Ct.
1391, 1396-97 & 1401, 59 L.Ed.2d 660 (1979); Von
Raab, 816 F.2d at 177; Shoemaker, 795 F.2d at 1143.
[2] However, the considerations that justify random
testing in an integrated program do not pertain to return
to work testing. That aspect of SEPTA’s proposal is
unwarranted constitutionally absent some reasonable
suspicion or programmatic basis. With random testing
in place, the need for return to work testing would
substantially be eliminated. Employees who return to
work will immediately be subject to daily random test-
ing. The physical examination conducted upon return to
work should be sufficient to identify employees clearly
not fit for duty. SEPTA has not met its burden of
justifying return to work as an occasion for testing.
Weinberger, 818 F.2d at 943 (citing TLO, 469 US. at
341-42, 105 S.Ct. at 743-44.) The indiscriminate scope
of this policy includes those who have been ill, on leave
of absence — or any employee who has not been at work
for 30 days. There was no evidence suggesting that
return to work testing was an integral part of the revised
program.
IV.
[3] The collective bargaining relationships that ex-
ist between SEPTA and the railroad unions are governed
A-50
by the Railway Labor Act. 45 U.S.C.A. § 151 et seq. “In
general, if a proposed practice by a rail carrier is a clear
departure from the collective-bargaining agreement, a
dispute over the practice is treated as a major dispute
under the Railway Labor Act, and the carrier may not
proceed without first negotiating with the employee’s
representative.” Brotherhood of Maintenance of Way
Employees, Lodge 16 v. Burlington Northern R.R., 802
F.2d 1016, 1017 (8th Cir. 1986).
Under the collective bargaining agreements in ef-
fect when SEPTA issued 87-1,15 an employee’s use or
possession of drugs and alcohol on the job was prohib-
ited. Those suspected of drug use were subject to urine
testing. See supra note 4 (Rule I and Rule 100I-A2).
Under 85-1, off-duty employees who were subject to
duty and suspected of being under the influence could
be tested. See supra page 545. In addition, body fluid
testing occurred upon signal rule violations and upon
employee transfers or promotions to safety important
jobs. Random testing did not take place. There is no
evidence that the unions agreed to or acquiesced in
widespread testing or to any significant testing without
individualized suspicion.
The unions’ acquiescence in suspicion-based, post-
violation, transfer and promotion testing cannot be in-
terpreted as an authorization or even foreshadowing of
87-1. Brotherhood of Maintenance of Way Employees,
Lodge 16, 802 F.2d at 1023. Only “long standing prac-
tices” can be considered part of a collective bargaining
agreement in determining whether a proposed change is
“arguably justified” by the parties’ agreement. Switch-
men’s Union v. Southern Pacific Co., 398 F.2d 443, 447
(9th Cir. 1968).
15. Return to work testing would also appear to be covered by
the “major dispute” rule, but this issue is not dealt with in view of
the determination that such testing is constitutionally impermissi-
ble.
A-51
SEPTA proposes to test 45 percent of its operating
employees at least once each year. The incidence, focus,
rationale for, and employee impact of such testing is
substantially different from 85-1, and it obviously will
affect the working relationship of the parties. The pro-
posal cannot be “arguably justified” by the terms of prior
agreements or the parties’ prior practice. The unions are
correct that the proposed program constitutes a “major
dispute,” precipitating the notice and administrative
requirements of 45 U.S.C.A. § 156. Brotherhood of
Locomotive Eng’rs. v. Burlington Northern R.R., 620
F.Supp. 163, 170-172 (D.Mont. 1985), appeal pending,
No. 85-4138 (9th Cir. argued July 8, 1986). See Railway
Labor Executives v. Norfolk & Western Ry., 833 F.2d
700, 707 n. 6 (7th Cir. 1987). The status quo rule of
Section 156, which is the centerpiece of the Act, is
intended to encourage resolution through mediation
and, if necessary, arbitration. Detroit & Toledo Shoreline
R.R. v. United Transp. Union, 396 U.S. 12, 148-51, 90
S.Ct. 294, 298-99, 24 L.Ed.2d 325 (1969). See Brother-
hood of Maintenance of Way Employees, Lodge 16, 802
F.2d at 1021.
The railway unions, for these reasons, are entitled to
an injunction preserving the status quo.
V.
[4] Local 1594 of the UTU represents the bus and
trolley operators of SEPTA’s Red Arrow division under
the Pennsylvania Public Employe Relations Act, 43 P.S.
§ 1101 et seq. Under 43 P.S. § 1101.701, public employ-
ers must bargain in good faith with the representative of
their employees over wages, hours and other terms and
conditions of employment. Local 1594 requests an in-
junction requiring SEPTA to fulfill that statutory duty
before implementing the program. However, a failure to
bargain in good faith is an unfair labor practice under 43
P.S. § 1101.1201. Under 43 P.S. § 1101.1301, exclusive
A-52
jurisdiction to prevent unfair labor practices is given to
the Pennsylvania Labor Relations Board. See Philadel-
phia Federation of Teachers v. Board of Education, 24
Pa.D. & C.3d 211, 214-15 (1981). Federal courts lack
subject matter jurisdiction over unfair labor practice
claims that come within the board’s jurisdictional pur-
view. Sellers v. Local 1598, Dist. Council 88, AFSCME,
600 F.Supp. 1205, 1212-13 (E.D.Pa. 1984), aff’d, 810
F.2d 1164 (3d Cir. 1987). Local 1594’s request for
injunctive relief must be denied for lack of jurisdiction.
An order follows.
ORDER
AND NOW, this 19th day of January, 1988 it is
ordered:
1. The preliminary injunction entered Febru-
ary 9, 1987 is dissolvec,
2. The request of plaintiffs Transport Workers’
Union of Philadelphia, Lecal 234 and Transport
Workers’ Union of America, Local 2013 for a per-
manent injunction of SEPTA order no. 87-1, as
revised, is denied, subject to the following:
a. “Operating Employees” shall not include
“Conductors and Passenger Attendants” unless
it is established that these are safety sensitive
positions.
b. SEPTA order no. 87-1, as finally revised,
shall be submitted to this court for review before
it is promulgated, and random testing shall not
be begun until after court review occurs.
c. This court shall retain jurisdiction to
supervise the implementation of 87-1.
3. The request of all plaintiffs for a permanent
injunction of SEPTA order no. 87-2 is granted.
A-53
4. The request of the Railroad Brotherhood
plaintiffs for a permanent injunction of SEPTA
order no. 87-1, as finally revised, is granted until
such time as SEPTA complies with Section 156 of
the Railway Labor Act, 45 U.S.C. § 151 et seq.
5. The request of the plaintiff Local 1594 of the
United Transportation Union for a permanent in-
junction of SEPTA orders nos. 87-1 and 87-2 be-
cause of SEPTA’s alleged noncompliance with the
Pennsylvania Public Employe Relations Act is
denied.
A-54
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TRANSPORT WORKERS’ UNION OF
PHILADELPHIA, LOCAL 234
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
TRANSPORT WORKERS’ UNION OF
AMERICA LOCAL 2013
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
BROTHERHOOD OF LOCOMOTIVE
ENGINEERS, DIVISION 71, et ai
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY, et ai
UNITED TRANSPORTATION UNION, et at -
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
: CIVIL ACTION
NO. 87-0389
: CIVIL ACTION
NO. 87-0446
> CIVIL ACTION
NO. 87-0448
CIVIL ACTION
NO. 87-0455
A-55
ORDER
AND NOW, this 19th day of February, 1988, it is
hereby ordered and decreed that Southeastern Pennsyl-
vania Transportation Authority (“SEPTA”) may promul-
gate its Integrated Program of Education, Assistance,
and Testing for Intoxicants and Controlled Substances
— As Revised (and as further modified and submitted to
the Court for review on January 28, 1988) (“Integrated
Program”). It is hereby further ordered and decreed that
SEPTA may begin random testing under the Integrated
Program upon accomplishing the following steps:
1. Notification of all affected employees of the
existence of the Integrated Program.
2. Constituting the Advisory Committee.
3. Meeting with the Advisory Committee con-
cerning the selection of the Employe Assistance
Program Referral Agency and Providers.
4. Implementation of the Revised Employe As-
sistance Program (which implementation shall pre-
cede the implementation of random testing by at
least 10 days).
SEPTA shall notify plaintiffs at the time of accomplish-
ing each of these steps.
/s/ E. LUDWIG
Edmund V. Ludwig, J.
A-56
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TRANSPORT WORKERS’ UNION OF >: CIVIL ACTION
PHILADELPHIA, LOCAL 234
Vv.
SOUTHEASTERN PENNSYLVANIA : NO. 87-0389
TRANSPORTATION AUTHORITY
TRANSPORT WORKERS’ UNION OF : CIVIL ACTION
AMERICA LOCAL 2013
V.
SOUTHEASTERN PENNSYLVANIA : NO. 87-0446
TRANSPORTATION AUTHORITY .
BROTHERHOOD OF LOCOMOTIVE : CIVIL ACTION
ENGINEERS, DIVISION 71, et al
vi
SOUTHEASTERN PENNSYLVANIA : NO. 87-0448
TRANSPORTATION AUTHORITY
UNITED TRANSPORTATION UNION, : CIVIL ACTION
et al. :
Vv.
SOUTHEASTERN PENNSYLVANIA ; NO. 87-0455
TRANSPORTATION AUTHORITY
A-57
ORDER
AND NOW, this day of Februarv, 1988, it is
hereby ordered and decreed that the Motion of South-
eastern Pennsylvania Transportation Authority To Alter
Or Amend Judgment And To Amend Findings Of Fact is
hereby granted. Paragraph 3 of the Order entered by the
Court on January 20, 1988 is hereby deleted, for the
reasons set forth in the revised Memorandum issued this
date.
BY THE COURT:
/s/ Denied — E. LUDWIG
J.
Entered: 3-1-88
ORDER OF COURT
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STATUTORY PROVISIONS OF THE
RAILWAY LABOR ACT
§152. General duties
First duty of carriers and employees to settle
disputes. It shall be the duty of all carriers, their officers,
agents, and employees to exert every reasonable effort to
make and maintain agreements concerning rates of pay,
rules, and working conditions, and to settle all disputes,
whether arising out of the application of such agree-
ments or otherwise, in order to avoid any interruption to
commerce or to the operation of any carrier growing out
of any dispute between the carrier and the employees
thereof.
Second. Consideration of disputes by representa-
tives. All disputes between a carrier or carriers and its or
their employees shall be considered, and, if possible,
decided, with all expedition, in conference between
representatives designated and authorized so to confer,
respectively, by the carrier or carriers and by the em-
ployees thereof interested in the dispute.
Third. Designation of representatives. Represen-
tatives, for the purpose of this Act shall be designated by
the respective parties without interference, influence, or
coercion by either party over the designation of repre-
sentatives by the other; and neither party shall in any
way interfere with, influence, or coerce the other in its
choice of representatives. Representatives of employees
for the purposes of this Act need not be persons in the
employ of the carrier, and no carrier shall, by interfer-
ence, influence, or coercion seek in any manner to
prevent the designation by its employees as their repre-
sentatives of those who or which are not employees of
the carrier.
Fourth. Organization and collective bargaining;
freedom from interference by carrier; assistance in
organizing or maintaining organization by carrier
forbidden; deduction of dues from wages forbidden.
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Employees shall have the right to organize and bargain
collectively through representatives of their own choos-
ing. The majority of any craft or class of employees shall
have the right to determine who shall be the represen-
tative of the craft or class for the purposes of this Act. No
carrier, its officers or agents, shall deny or in any way
question the right of its employees to join, organize, or
assist in organizing the labor organization of their
choice, and it shall be unlawful for any carrier to
interfere in any way with the organization of its employ-
ees, or to use the funds of the carrier in maintaining or
assisting or contributing to any labor organization, labor
representative, or other agency of collective bargaining,
or in performing any work therefor, or to influence or
coerce employees in an effort to induce them to join or
remain or not to join or remain members of any labor
organization, or to deduct from the wages of employees
any dues, fees, assessments, OF other contributions
payable to labor organizations, or to collect or to assist in
the collection of any such dues, fees, assessments, or
other contributions: Provided, That nothing in this Act
shall be construed to prohibit a carrier from permitting
an employee, individually, or local representatives of
employees from conferring with management during
working hours without loss of time, or to prohibit a
carrier from furnishing free transportation to its employ-
ees while engaged in the business of a labor organiza-
tion.
Fifth. Agreements to join or not to join labor
organizations forbidden. No carrier, its officers, or
agents shall require any person seeking employment to
sign any contract or agreement promising to join or not
to join a labor organization; and if any such contract has
been enforced prior to the effective date of this Act
[enacted May 20, 1926], then such carrier shall notify
the employees by an appropriate order that such con-
tract has been discarded and is no longer binding on
them in any way.
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Sixth. Conference of representatives; time; place;
private agreements. In case of a dispute between a
Carrier or carriers and its or their employees, arising out
of grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working
conditions, it shall be the duty of the designated repre-
sentative or representatives of such carrier or carriers
and of such employees, within ten days after the receipt
of notice of a desire on the part of either party to confer
in respect to such dispute, to specify a time and place at
which such conference shall be held: Provided, (1) That
the place so specified shall be situated upon the line of
the carrier involved or as otherwise mutually agreed
upon; and (2) that the time so specified shall allow the
designated conferees reasonable opportunity to reach
such place of conference, but shall not exceed twenty
days from the receipt of such notice: And provided
further, That nothing in this Act shall be construed to
supersede the provisions of any agreement (as to con-
ferences) then in effect between the parties.
Seventh. Change in pay, rules or working condi-
tions contrary to agreement or to section 156 forbid-
den. No carrier, its officers or agents shall change the
rates of pay, rules, or working conditions of its employ-
ees, as a Class as embodied in agreements except in the
manner prescribed in such agreements or in section 6 of
this Act [45 USCS§156].
Eighth. Notices of manner of settlement of dis-
putes; posting. Every carrier shall notify its employees
by printed notices in such form and posted at such times
and places as shall be specified by the Mediation Board
that all disputes between the carrier and its employees
will be handled in accordance with the requirements of
this Act, and in such notices there shall be printed
verbatim, in large type, the third, fourth, and fifth
paragraphs of this section. The provisions of said para-
graphs are hereby made a part of the contract of employ-
ment between the carrier and each employee, and shall
A-61
be held binding upon the parties, regardless of any other
express or implied agreements between them.
[The remining paragraphs of §152 are omitted].
§153. National Railroad Adjustment Board
First. Establishment; composition; powers and
duties; divisions; hearings and awards; judicial re-
view. There is hereby established a Board, to be known
as the “National Railroad Adjustment Board”, the mem-
bers of which shall be selected within thirty days after
approval of this Act [enacted June 21, 1934], and it is
hereby provided —
(a) That the said Adjustment Board shall consist
of thirty-four members, seventeen of whom shall be
selected by the carriers and seventeen by such labor
organizations of the employees, national in scope, as
have been or may be organized in accordance with
the provisions of section 2 of this Act [45 USCS
§§151a, 152].
(b) The carriers, acting each through its boards
of directors or its receiver or receivers, trustee or
trustees or through an officer or officers designated
for that purpose by such board, trustee or trustee
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