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New Jersey Transit PBA Local 304 v. New Jersey Transit Corp.

September 25, 1997

NEW JERSEY TRANSIT PBA LOCAL 304, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT CORPORATION, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 290 N.J. Super. 406 (1996).

The opinion of the Court was delivered by Poritz, C.j. Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in Chief Justice Poritz's opinion.

The opinion of the court was delivered by: Poritz

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

New Jersey Transit PBA Local 304 v. New Jersey Transit (A-130-96)

Argued April 28, 1997 -- Decided September 25, 1997

PORITZ, C.J., writing for a unanimous Court.

Plaintiff challenges the constitutionality of the random drug testing provisions applicable to NJ Transit police officers.

Defendant, NJ Transit, is a public corporation within the Department of Transportation responsible for acquiring, operating, and improving public transportation facilities in New Jersey. Defendant's enabling legislation states that it is authorized to comply with federal statutes and regulations and to qualify for and receive all forms of financial assistance available under federal law. At the present time, defendant receives substantial federal funding from the Federal Transit Administration (FTA) which, by the end of fiscal year 1996, had contracted to provide approximately $1 billion in current and future assistance to defendant.

Plaintiff is the majority representative of approximately one hundred twenty-five transit police officers under the rank of captain. Six officers are assigned to ride on the Agency's trains; the others perform patrol and investigatory police duties and functions similar to those performed by municipal and county police officers. The majority are assigned to patrol defendant's main terminals in Newark, Hoboken and Atlantic city, and carry out their responsibilities among heavy concentrations of transit riders.

In 1991 congress enacted the Omnibus Transportation Employee Testing Act of 1991 (Act), to address alcohol and drug testing of workers in safety-sensitive positions throughout the transportation industry. The Act directs the issuance of rules requiring mass transit operators receiving federal funds to conduct pre-employment, random, and post-accident testing for drug and alcohol use by employees responsible for safety-sensitive functions. Congress expressly provided that failure to institute the specified drug and alcohol testing programs would result in ineligibility for federal funding. Regulations issued by the FTA under the Act provide for random drug and alcohol testing of covered employees, defined as those employees who perform safety-sensitive functions that include, among other things, carrying a firearm for security purposes.

For purposes of complying with the FTA regulations, defendant instituted a comprehensive drug-and-alcohol-free workplace policy that became effective January 1, 1995. The policy requires that employees who perform safety-sensitive functions be subject to random drug testing. Because transit police officers carry firearms for security purposes, they perform a safety-sensitive function and are subject to random testing.

Defendant's policy establishes procedures to ensure integrity in collecting, transferring, and testing specimens. Specimens are handled by a trained medical technician or licensed medical professional only. Unless defendant has reason to believe that the donor may adulterate the sample, individual privacy must be permitted during collection. Two urine samples are obtained - a primary specimen and a split specimen. The primary specimen is tested at a laboratory certified under the Department of Health and Human Services' for federal workplace drug testing. Test results are not deemed positive until they are reviewed and certified by a licensed physician with knowledge of substance abuse disorders. If the primary specimen tests positive, the employee has 72 hours in which to exercise his or her option to have the split specimen tested by a different certified laboratory.

Positive test results are reported to the appropriate management official and the employee. Records of testing results are maintained in a secure location with controlled access. Results may be released on request of the employee, to the employer in a lawsuit or grievance initiated by the employee, or to a federal or state agency with regulatory authority over defendant. In addition, in accordance with the Attorney General's Guidelines, positive results are included in a central registry maintained by the State Police to be accessed only through court order or as part of a confidential investigation; and reported to the county prosecutor. A transit officer who tests positive for illegal drugs must be dismissed.

In 1995, plaintiff filed a complaint alleging that defendant's random drug and alcohol testing of transit officers constituted an illegal search in violation of Article I, Paragraph 7 of the New Jersey Constitution. As a defense, defendant asserted that the Act preempted state action inconsistent with the required testing programs. The trial court found that preemption did not apply because defendant is not required to accept federal funding, but concluded that random drug testing of transit police officers was permissible under the New Jersey Constitution.

The Appellate Division affirmed in a unanimous opinion. It adopted the "special needs" balancing test used by the United States Supreme Court in recent decisions. The Appellate Division found that requiring a warrant or individualized suspicion would be impractical, and that the government's interest in preventing the great harm that could occur before signs of impairment become noticeable outweighed the privacy interests of transit police officers. This Court granted certification.

HELD : Random drug testing of NJ Transit's police force is constitutional under Article 1, Paragraph 7 of the New Jersey Constitution.

1. Generally, under either the United States or New Jersey Constitutions, searches or seizures conducted without a warrant based on probable cause are considered per se unreasonable. Traditional exceptions to the warrant requirement have been based on a showing either of probable cause or of reasonable individualized suspicion to believe that the person to be searched has violated the law. In certain limited circumstances, however, searches conducted without probable cause or reasonable individualized suspicion have been upheld. In 1989, in two cases decided the same day, the United States Supreme Court considered suspicionless drug testing of certain private railroad workers (Skinner) and certain United States Customs employees (Von Raab). These cases, along with others decided in 1995 and 1997, provide a framework for review of governmental drug testing under the Fourth Amendment of the United States Constitution. Under these cases, a suspicionless search may be permissible when the search serves special needs beyond the normal need for law enforcement. Once the government claims a special need, courts must undertake a context-specific inquiry, examining the competing private and public interests advanced by the parties. The inquiry requires a court to assess the practicality of the warrant and probable-cause requirements in the particular context. (pp. 14-21)

2. The Supreme Court found that the individuals subject to testing in Skinner (railroad employees) had a diminished expectation of privacy because they worked in a highly regulated industry; and that those in Von Raab worked in an agency with a unique mission (Customs) and could reasonably expect effective inquiry into their fitness. In Von Raab, the court sustained the testing of employees carrying firearms even if they were not engaged directly in the interdiction of drugs, stating that the public should not bear the risk that those with impaired perception and judgment will be promoted to positions where they may need to employ deadly force. Post-Skinner/Von Raab cases that have considered challenges to random drug testing programs under the Fourth Amendment and parallel state constitutional provisions have generally upheld the testing of armed police officers as consistent with the Supreme Court's decisions.

(pp. 22-31)

3. Plaintiff argues that the special needs analysis is not compatible with Article 1, Paragraph 7 of the New Jersey Constitution. This Court has, in certain circumstances, found the State Constitution to afford greater protection against unreasonable searches and seizures than its federal counterpart. The Court finds in this case, however, that the special needs balancing test is consonant with the protections afforded by Article I, Paragraph 7 of the New Jersey Constitution and adopts this approach in considering defendant's drug testing program. This approach enables a court to take into account the complex factors relevant in each case and to balance those factors in such a manner as to ensure that the right against unreasonable searches and seizures is adequately protected. (pp. 31-35)

4. Transit officers ride the rails and perform patrol and investigatory police duties at terminals and locations throughout the State. They perform these duties independently, and are not subject to the kind of day-to-day scrutiny that is the norm in more traditional office environments. Requiring defendant to comply with the individualized suspicion standard would be impractical and would compromise defendant's safety objectives. Because the testing policy is designed to promote public safety and not to serve law enforcement needs, defendant's substantial interest in protecting its employees and the public presents a special need that may justify privacy intrusions absent individualized suspicion. (pp. 35-36)

5. The next step is to undertake a context-specific inquiry examining closely the competing private and public interests advanced by the parties. Urine testing is certainly an intrusion on privacy both during collection of the sample and when the sample is tested. Defendant's testing procedures, however, are designed to address these privacy concerns and minimize the intrusion on the employee's privacy. They require that the urine sample be collected in a manner that ensures modesty and privacy of employees. Samples are tested by a certified laboratory; results must be verified by a licensed physician; employees have the right to have another test performed by a different laboratory; and results may be revealed only in limited situations. The Court finds that NJ Transit's drug testing program, as designed, limits the intrusion on transit officers' privacy interests. The government's interest in conducting random drug testing of transit officers who carry firearms for security purposes is substantial. Given the nature of their responsibilities, transit officers, unlike private citizens or government employees in general, should expect an effective inquiry into their fitness and probity. If armed transit officers perform their duties under the influence of drugs, the potential for harmful consequences is considerable. (pp. 36-44)

The judgment of the Appellate Division is AFFIRMED.

JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in CHIEF JUSTICE PORTIZ'S opinion.

The opinion of the Court was delivered by

PORITZ, C.J.

To comply with regulations promulgated by the Federal Transit Administration ("FTA"), defendant, New Jersey Transit Corporation ("NJ Transit" or "Agency"), adopted a drug and alcohol testing policy that includes random testing of employees responsible for safety-sensitive functions. Plaintiff New Jersey Transit PBA Local 304 ("PBA" or "plaintiff"), challenged the constitutionality of the random testing provisions applicable to NJ Transit police officers. The Law Division granted summary judgment in favor of NJ Transit, and the Appellate Division affirmed. 290 N.J. Super. 406 (1996). We granted certification, 147 N.J. 259 (1996), to consider whether mandatory random drug testing of transit police officers who carry firearms for security purposes violates the officers' right to be free from unreasonable searches and seizures as guaranteed by Article 1, Paragraph 7 of the New Jersey Constitution. We now affirm.

I

- A -

NJ Transit is a public corporation within the Department of Transportation responsible for acquiring, operating, and improving public transportation facilities in New Jersey. N.J.S.A. 27:25-2, -4a, -5, -10. By its enabling legislation, the Agency is authorized to "comply with federal statutes, rules and regulations, and qualify for and receive all forms of financial assistance available under federal law to assure the continuance of, or for the support or improvement of public transportation." N.J.S.A. 27:25-5g. At the present time, NJ Transit receives substantial federal funding from the FTA which, by the end of fiscal year 1996, had contracted to provide approximately $1 billion in current and future assistance to the Agency.

The NJ Transit Police Department was established within the Agency to provide police and security protection to all NJ Transit locations and services. N.J.S.A. 27:25-15.1a. Transit police officers "have general authority, without limitation, to exercise police powers and duties . . . in all criminal and traffic matters at all times throughout the state." Ibid. They must comply with policies established by the Attorney General, ibid., and must satisfy "requirements established by the Police Training Commission," N.J.S.A. 27:25-15.1c. As officers of a state police force, they are permitted to carry firearms, see N.J.S.A. 2C:39-6a(7)(a), and to use deadly force in certain circumstances, N.J.S.A. 2C:3-3, -7.

Plaintiff is the majority representative of approximately one hundred twenty-five transit police officers under the rank of captain. Six of the officers were assigned to ride on the Agency's trains as of April 1995; the others perform patrol and investigatory police duties and functions similar to those performed by municipal and county police officers. The majority are assigned to patrol NJ Transit's main terminals in Newark, Hoboken and Atlantic City, and carry out their responsibilities among heavy concentrations of transit riders. The remaining officers are assigned to patrol smaller train stations and railroad rights-of-way throughout the state.

-B-

In 1991 Congress enacted the Omnibus Transportation Employee Testing Act of 1991 ("Act" or "Federal Act"), Pub. L. 102-143, 105 Stat. 952 (1991) (codified as amended in scattered sections of 49 U.S.C.A.), to address alcohol and drug testing of workers in safety-sensitive positions throughout the transportation industry. Relevant here, the Act as amended directs the Secretary of Transportation to issue rules requiring mass transit operators receiving federal funds to conduct pre-employment, reasonable suspicion, random, and post-accident testing for drug and alcohol use by employees responsible for safety-sensitive functions. 49 U.S.C.A. § 5331(b). As considered appropriate by the Secretary and provided in the rules, employees determined "to have used or been impaired by alcohol when on duty" or "to have used a controlled substance, whether or not on duty," unless allowed for medical reasons, may be disqualified for a specified period or dismissed from their employment. Id. § 5331(c)(1). Congress expressly provided that failure to institute the specified drug and alcohol testing programs would result in ineligibility for federal funding. Id. § 5331(g).

The anti-drug and alcohol misuse policies applicable to mass transit operators are set forth in regulations issued under the Act. See 49 C.F.R. pts. 653, 654 (1997); see also id. pt. 40 (setting forth procedures to be followed for drug and alcohol testing). The regulations are designed "to deter and detect the use of prohibited drugs by covered employees," id. § 653.3, and "to help prevent accidents and injuries resulting from the misuse of alcohol by employees who perform safety-sensitive functions," id. § 654.1. More specifically, the regulations provide for random drug and alcohol testing of "covered employees," id.

§§ 653.47, 654.35, defined as those employees who perform safety-sensitive functions including, among other things, "carrying a firearm for security purposes," id. §§ 653.7, 654.7. Employees who refuse to participate in the testing program are required to cease performing safety-sensitive functions. Id. §§ 653.35(a), 654.29.

-C-

For the purpose of complying with the FTA regulations, NJ Transit instituted a comprehensive drug and alcohol-free workplace policy that became effective January 1, 1995. NJ Transit's policy consists of a Core Policy and two Addenda. See NJ TRANSIT Corporate-Wide Policy, Drug and Alcohol-Free Workplace Core Policy (January 1, 1995); Drug and Alcohol-Free Workplace Policy - Addendum I (January 1, 1995) (requirements applicable to employees who perform safety-sensitive functions); Drug and Alcohol-Free Workplace Policy - Addendum II (January 1, 1995) (requirements applicable to employees who perform rail-covered services). The purpose and goals of the Core Policy are described in Sections I and II:

The purpose of this policy is to ensure that NJ TRANSIT operates in the safest and most efficient manner possible and to promote the safety and welfare of our employees and customers by creating a drug and alcohol-free workplace and ensuring that our employees are free from the effects of drugs and alcohol.

NJ TRANSIT'S goal to achieve a drug and alcohol-free workplace shall be accomplished through the implementation of a comprehensive anti-drug and alcohol program based on deterrence, detection, assistance and enforcement. The program objectives in support of this goal are to prevent drug and alcohol abuse, to assist employees ...


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