On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-0389. On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-0446. On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-0448. On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-0455.
Sloviter, Greenberg and Cowen, Circuit Judges.
This case presents this court for the first time with the issue of the constitutionality of random and return-to-work drug and alcohol testing of public employees holding "safety sensitive" positions within the public transportation authority serving the Philadelphia metropolitan area.*fn1 The district court upheld the constitutionality of the random drug testing policy, but found the addition of return-to-work testing to be unconstitutional. The court enjoined commencement of random testing of those employees covered by the Railway Labor Act, pending settlement of the dispute through the conciliation procedures specified in the Act. Transport Workers' Union Local 234 v. Southeastern Pennsylvania Transportation Authority, 678 F. Supp. 543 (E.D. Pa. 1988).
The Unions argue that indiscriminate use of random drug tests to ferret out illegal drug use by public employees is irreconcilable with the guarantee against unreasonable government intrusion on individual privacy of the Fourth Amendment. We do not underestimate their concern that the public clamor about the nation's drug problem creates the risk that judgments may be distorted in evaluating the constitutionality of government measures taken to curb this crisis. Nonetheless, in light of this court's precedent sustaining drug testing in other occupations and in light of the record presented in this case where the public transportation authority has documented a serious drug problem among its employees, to which it has traced accidents causing injury to the public, we conclude that the random drug testing at issue here is not facially invalid under the Fourth Amendment.
We also uphold the district court's finding that the transportation authority failed to justify the reasonableness of its return-to-work drug testing policy. Finally, we uphold the injunction imposed on commencement of random testing of employees covered by the Railway Labor Act.
Background and Procedural History
Appellants/cross-appellees in this case ("the Unions") are the Transport Workers Union Local 234 ("TWU"), which represents approximately 5,700 of SEPTA's 6,500 employees, and five unions which represent SEPTA employees under section one of the Railway Labor Act ("RLA"), 45 U.S.C. § 151, Sixth (1982): the Brotherhood of Locomotive Engineers, Division 71; the Brotherhood of Locomotive Engineers; the Brotherhood of Railway, Airline and Steamship Clerks; the Brotherhood of Maintenance of Way Employees; and the Brotherhood of Railroad Signalmen ("the Railway Unions").
Appellees/cross-appellants the Southeastern Pennsylvania Transportation Authority and some of its officers and Board members (referred to collectively as "SEPTA" or "the Authority"), operate mass transportation facilities in the five-county Philadelphia metropolitan area. SEPTA is an agency of the Commonwealth of Pennsylvania, currently organized under the authority of the Pennsylvania Urban Mass Transportation Act of January 22, 1968, P.L. 42, No. 8, as amended, 55 Pa. Stat. Ann. §§ 600.101-600.407 (Purdon Supp. 1988). SEPTA operates subways railroads, buses, streetcars, and trackless trolleys, and maintains stations, depots, platforms, tracks, and other installations. In 1986, SEPTA accommodated more than 1.2 million passengers on its transit systems on an average week day.
On January 16, 1987, SEPTA publicly announced, without prior notice or consultation with the Unions, that it planned to begin administering random urinalysis tests to detect the presence of psychotropic drug metabolites and alcohol in employees' body systems. On January 21 and 26, 1987, the Unions filed complaints against SEPTA's plan in the United States District Court for the Eastern District of Pennsylvania, alleging that SEPTA's program violated their members' constitutional rights under the Fourth and Fourteenth Amendments.
The Railway Unions also alleged that SEPTA had violated section 6 of the RLA, 45 U.S.C. § 156 (1982), by unilaterally instituting a random drug testing policy without serving notice and exhausting the mediation and conciliation procedures mandated by the RLA before implementation of changes in working conditions or rules under a labor contract.
In early February 1987, SEPTA posted an additional order at its offices announcing that all employees returning to work after an absence from employment of over thirty days for any reason other than vacation would be required to submit to urinalysis testing. The Unions filed amended complaints alleging that SEPTA's return-to-work testing policy also violated the constitutional rights of their members.
After four days of hearings, the district court entered a preliminary injunction enjoining SEPTA from implementing its random drug and alcohol testing program. The court expressed various concerns about, inter alia, the plan's failure to include reliable confirmatory testing procedures, failure to use a less intrusive breathalyzer test to detect the presence of alcohol in employees' body systems, and the lack of justification of the scope of the job positions to be tested. It directed SEPTA to submit any further plan for random testing to it.
In July 1987, after SEPTA published the first draft of a revised drug and alcohol testing and education program which it had designed to respond to the district court's concerns, it moved to vacate the court's preliminary injunction. The case went to trial in September 1987, at which time both SEPTA and the Unions introduced extensive expert testimony about testing technology and the effects of drug use. SEPTA also presented evidence of the scope and severity of the drug problem affecting its workforce.
On September 25, 1987, the district court again delivered bench remarks criticizing various aspects of SEPTA's proposed program. SEPTA again made revisions in its proposal, and resubmitted it to the Unions and the court.
On January 19, 1988, the district court entered its final order and issued a memorandum opinion. The order dissolved the preliminary injunction against SEPTA and denied the Unions' request for a permanent injunction against the random testing component of SEPTA's drug and alcohol testing program, but granted a permanent injunction against implementation of SEPTA's return-to-work testing policy. The court also enjoined SEPTA from commencing random drug testing of workers represented by the Railway Unions, holding that unilateral implementation of such a policy gave rise to a "major dispute" within the meaning of 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 motion asking the court to amend its order to allow return-to-work testing, which the district court denied. This appeal and cross-appeal followed.
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 breathalyzer testing. Testing is limited to "operating engineers" in "safety sensitive" positions.*fn2
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 basis. Employees who are taking prescription medication must inform SEPTA's medical department of this fact. The department will make "fitness for duty" determinations with respect to these employees in consultation 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 Assistance 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 required 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. Employees 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 treatment and counseling after a positive result will be discharged.