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TRANSPORT WORKERS' UNION OF PHILADELPHIA

January 19, 1988

Transport Workers' Union of Philadelphia, Local 234
v.
Southeastern Pennsylvania Transportation Authority; Transport Workers' Union of America Local 2013 v. Southeastern Pennsylvania Transportation Authority; Brotherhood of Locomotive Engineers, Division 71, et al v. Southeastern Pennsylvania Transportation Authority, et al. United Transportation Union, et al. v. Southeastern Pennsylvania Transportation Authority



The opinion of the court was delivered by: LUDWIG

 EDMUND V. LUDWIG, J.

 In these consolidated actions, upon the application of plaintiffs *fn1" and upon hearing, defendant Southeastern Pennsylvania Transportation Authority (SEPTA) was preliminarily enjoined, on February 9, 1987, from implementing a random drug testing program of its employees 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 evidentiary hearings occurred during which SEPTA made further 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 accompanying 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.

 3. So-called "return to work" testing, as proposed, will be enjoined as constitutionally unjustified.

 4. As to the Railroad Brotherhood plaintiffs, *fn2" random testing will be enjoined because the proposal 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.

 I.

 Transport Workers' Union of Philadelphia, Local 234 (TWU), together with its affiliated International Union, represents 5,700 of SEPTA's 6,500 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 Public Employe Relations Act, 43 Pa.S.A. § 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 organized under the Metropolitan Transportation Act of 1965, 66 P.S. § 2001, et seq. (repealed) and the Pennsylvania Urban Mass Transportation Law, as amended, 55 Pa.S.A. § 600.101 et seq. (Purdon Supp. 1987). *fn3"

 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 judgment. 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 police 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 undisputed. For over 30 years, the collective bargaining agreements between SEPTA and TWU have provided that an employee who reports to work or who becomes 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 intoxicants or controlled substances," "a which described such possession as "a dischargeable offense." *fn4" 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 passenger 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 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 management'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 educational prevention; treatment and rehabilitation; and monitoring and deterrence. The third element is embodied in unscheduled random testing. *fn5" Order No. 87-2, promulgated February 3, 1987, provided that an employee 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, asserting that 87-1 violates the Fourth Amendment prohibition 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. *fn6" 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 a radical alteration of past policies. The United Transportation 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 ...


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