On appeal from the Superior Court, Law Division, Burlington County.
O'Brien, Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.
[240 NJSuper Page 11] We hold that the drug testing of public employees physically involved in the opening and closing of bridges which cross the Delaware River may be conducted as part of an annual physical examination. Our holding is based on the totality of circumstances presented, including the nature of the work performed by the employees to be tested, the non-random nature of the test, and the fact that the test is to be conducted as part of the employee's annual physical examination. We further conclude, however, that the procedures for the conduct
of such examinations are subject to negotiation between the employer and employee. Accordingly, we remand for further proceedings.
In complaints filed in both the Federal District Court and the Law Division, all plaintiffs sought to overturn the dismissal of plaintiffs Robin R. Heller and Vincent DiNucci by defendant Burlington County Bridge Commission (hereinafter "defendant" or "the Commission") on the ground that the drug testing procedure to which they had been subjected was illegal. The federal action was dismissed by consent, "without prejudice to reinstatement should the state court decline, for any reason, to hear and adjudicate all issues as alleged in the complaint."
In the State complaint, plaintiffs alleged, among other things, that the drug tests violated the individual-employee plaintiffs' rights under the First, Fourth, Fifth and Ninth Amendments to the Federal Constitution and Article I paras. 1, 2 and 7 of the State Constitution; impaired their rights as public employees to negotiate terms and conditions of employment, and violated New Jersey's Law Against Discrimination and specifically N.J.S.A. 10:5-4.1. In addition to demanding reinstatement, plaintiffs sought to enjoin defendants from performing drug tests on other employees. In their answer defendants asserted (1) they "had probable cause to believe that [Heller and DiNucci] were using drugs and [were] under the influence of drugs during their regular daily work routines"; (2) plaintiffs' duties implicated the public's safety; (3) plaintiffs consented to drug testing; and (4) plaintiffs waived their rights to object to the testing by virtue of their failure to object to it at their disciplinary hearing.
Cross motions for summary judgment were filed, and on June 15, 1988 the motion judge invalidated the drug tests on constitutional grounds and ordered that plaintiffs be reinstated.
The facts are not substantially in dispute, and we adopt the essential fact-finding embodied in the motion judge's written opinion:
The [defendant] Burlington County Bridge Commission is a public agency operating under N.J.S.A. 27:19-26 et seq. . . .
The International Federation of Professional and Technical Engineers, AFL-CIO, Local 194A (herein "Local" or "Local 194A") represents the permanent employees of the Commission who are assigned to the Tacony Palmyra and Burlington Bristol Bridges. The Local and the Commission have executed a collective bargaining agreement which is silent as to any physical examination requirements. However, all job applicants, before employment, and all bascule*fn1 and lift-span operators, annually, have been subjected to physical examinations. The examinations, which included urine testing for other than drug use, were undertaken at the Zurbrugg Memorial Hospital. In 1986 the Hospital recommended annual drug screening by urinalysis for all bascule and lift-span operators, a procedure then being used in connection with pre-employment examinations. This recommendation was sent to the Commission's Personnel Administratrix who accepted it after obtaining approval from the Commission's Executive Director. No formal action was taken by the Commission itself.
[Plaintiffs] Robin R. Heller and Vincent DiNucci are commission employees and members of the Local. Heller's employment commenced on September 17, 1976; he was promoted to bascule operator on March 17, 1986. DeNucci's employment commenced on January 28, 1975; he was promoted to lift-span operator on December 1, 1981. Both employees were identified as drug users on the basis of results obtained from drug tests performed during their May 22, 1986 annual examination and were suspended for that reason on May 29, 1986, which date became effective for termination purposes after the employees were given a hearing.
Bascule and lift-span operators control the raising and lowering of the Commission's bridges, permitting the passage of ships moving up and down the Delaware River. Their job is important, not only to the safety of ships, but also to the safety of motorists and pedestrians crossing the bridges.
Heller and DiNucci were not aware of the required drug screening procedure until they presented themselves to the Occupational Health Co-Care Unit at Zurbrugg where they were advised of the drug test, and asked to sign a written consent form. Heller offered no resistance, asked no questions, signed the form and submitted to the urinalysis. DiNucci inquired as to the reason for the screen and was advised to call the Commission's Personnel Administratrix for an answer. He ignored that opportunity, signed the form and submitted to the
test. Heller's urinalysis revealed the presence of amphetamine, methamphetamine, morphine and marijuana, DiNucci's, the presence of marijuana. The Hospital rendered no opinion as to whether the drug usages were recent or otherwise.
The Commission's Executive Director, having learned of the test results, suspended both Heller and DiNucci without pay pending their submission to requested blood tests which they did not take. On June 17, 1986 the Commission met, considered the suspensions and, by letter dated June 20, 1986, advised both men that a hearing would be held, followed by final disciplinary action. The hearing took place on September 4, 1986; a letter from the Executive Director dated October 23, 1986 terminated Heller and DiNucci's employment, effective May 29, 1986.
The September 4, 1986 hearing was conducted by a Bridge Commissioner. He received several documents in evidence and heard testimony from the Commission's Personnel Administratrix, its Executive Director and the doctor in charge of the laboratory which performed the drug tests. The Commissioner's opinion underlined the significant safety responsibilities of bascule and lift-span operators. He noted the doctor's opinion that both employees would be impaired, not only while drugs were being used but also over periods of time subsequent to such use. The Commissioner found the employees activity to be "a violation of the criminal laws of the State of New Jersey, with possible catastrophic effects on the health, safety and welfare of the public." He therefore recommended that both Heller and DiNucci be terminated from employment.
The motion judge concluded that drug testing can survive constitutional attack only if grounded in a "reasonable individualized suspicion," based on reason to believe that the employees had been working while drug impaired. Defendants do not now justify the testing on that basis; rather, they insist that the judge was wrong to impose such a precondition, and urge that their program be sustained without the need to show particularized suspicion. They stress the reasonableness of the testing, given their need to protect the public safety, and contend that their mandated program must be sustained under case law upholding "administrative searches" in highly regulated industries.
The motion judge began with the undisputed premise that a urine test is a search and seizure in the constitutional sense, and we agree. ...