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AMALGAMATED TRANSIT UNION, DIV. 1279 v. CAMBRIA CT

July 19, 1988

AMALGAMATED TRANSIT UNION, DIVISION 1279, an unincorporated labor organization, Plaintiff,
v.
CAMBRIA COUNTY TRANSIT AUTHORITY, a municipal authority, Defendant



The opinion of the court was delivered by: DIAMOND

 HONORABLE GUSTAVE DIAMOND, UNITED STATES DISTRICT JUDGE.

 Plaintiffs, a union representing bus drivers and mechanics and the union's president, seek a preliminary injunction against mandatory drug and alcohol testing during annual physical examinations. For the following reasons, we hold that defendant's testing program does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures; therefore, we will deny plaintiffs' motion for a preliminary injunction.

 Facts

 Based upon the evidentiary hearing we held, the following narrative constitutes our findings of facts. See Fed.R.Civ.P. 52(a). Plaintiffs are the Amalgamated Transit Union, Division 1279 ("the Union"), and its president, Charles Cisco. Defendant, Cambria County Transit Authority ("the Authority") is a municipal authority which provides public transportation in Cambria County, Pennsylvania. The Union is the exclusive bargaining representative of all the Authority's bus drivers and mechanics. There are 47 drivers in the Authority and 21 mechanics.

 The Authority's buses operate mostly in urban areas. Bus routes run through crowded areas containing schools, hospitals, senior citizen centers, and public housing. Each bus carries up to 70 passengers. They travel at 25 to 30 miles per hour on city streets and 55 miles per hour on the highway. All drivers work alone. The driver having the first shift of the day will arrive at the garage, check in with the supervisor, inspect his bus, and start his route. Only one supervisor is on duty from 4:30 A.M. to 6:00 A.M. At six, a second supervisor joins him. At most, a supervisor may observe an individual driver ten minutes out of an eight hour shift. After the first shift, drivers switch while the bus is on the street, so a supervisor may not see some drivers at all.

 In 1983, a driver was removed from a bus after driving recklessly. He was drunk. The Authority suspended him, but allowed him to return to work after he successfully completed a treatment program. This driver has continued to work without incident.

 Since 1983, there have been no incidents of drug or alcohol related impairment on the job. A driver approached Harold Jenkins, executive director of the Authority, and confessed an alcohol problem and asked for help. The driver had been drinking a fifth of hard liquor each day. Nonetheless, he had never appeared to be intoxicated on the job, and, although the driver had an excessive rate of absenteeism, Mr. Jenkins considered him one of the Authority's best employees. The Authority put him through a detoxification and treatment program at its expense. He returned to work.

 Two other employees were arrested off-duty for driving under the influence. Neither was disciplined, and these employees have not caused any problems on the job.

 On May 14, 1987, the Authority enacted its first drug and alcohol testing policy. Plaintiff's Exhibit 1. This policy provided for testing of an employee only upon reasonable suspicion that he was using drugs or alcohol in a manner that posed a danger. A positive test would result in dismissal, as would refusal to take the test. No one was tested under this policy; the Authority never had reasonable suspicion to believe any employee was under the influence of drugs or alcohol.

 On January 28, 1988, the Authority adopted a new Drug and Alcohol Policy. *fn1" Plaintiff's Exhibit 2. This policy's purpose is to insure employee and passenger safety by fostering a work environment free of the effects of alcohol and controlled substances. Moreover, the policy aims to help those employees with a drug and alcohol dependency and to return them to productivity.

 The policy contemplates testing of urine and blood for drug and alcohol in several contexts. Testing may be required upon individualized reasonable suspicion. The Authority conducts a pre-employment drug and alcohol test and another test during a new employee's probationary period. If an employee enters a drug or alcohol dependency treatment program, he will be subject to three random tests for one year following the completion of his treatment.

 The Union does not challenge any of these tests. Rather, it confines its request for a preliminary injunction to the Authority's policy of taking and testing urine and blood samples for drugs and alcohol during each employee's required annual physical examination.

 Every employee must submit to a medical examination in the month of his anniversary with the Authority. Thus, the employee has notice from the day he starts work of when he will be tested. For at least twelve years, the Authority has required an annual examination, and every one of these examinations has involved the taking and testing of blood and urine. Not until this year, however, has that testing included probes for drugs and alcohol.

 Under the current Drug and Alcohol Policy, the employee reports to Lee Hospital with a testing requisition form from Dr. McQuillen, the Authority's doctor. A laboratory worker enters the employee's name next to a number in a log book kept under lock and key. The sample and the forms accompanying it bear that number only, not the employee's name. The employee then goes into a bathroom alone and, unobserved, fills a container with urine. A laboratory technician draws blood from the employee.

 Lee Hospital performs an EMIT screening test *fn2" on the blood and urine samples. *fn3" The test determines the presence of ten specified substances, and nothing else. See Defendant Exhibit D. This test will not reveal other personal information, such as whether the employee is pregnant. Among the substances which the test will reveal are alcohol, opiates, cocaine, and cannabinoids.

 If the EMIT test is negative, that is, if it does not reveal the presence of any of the specified substances, no further tests are performed, and that result is reported to Dr. McQuillen as final. If the result is positive, that is, if it detects the presence of one of the specified substances beyond a threshold level, Lee Hospital sends the samples, identified only by number, to Roche Laboratory for a GC/MS confirmatory test.

 Roche reports its results to Lee Hospital. If the GC/MS is positive, Lee Hospital conveys this to Dr. McQuillen. This is the first time anyone in the Authority learns of the test result. If the GC/MS is negative, Lee Hospital instructs Dr. McQuillen that the negative result is to be taken as conclusive. Lee Hospital retains a portion of all samples that test positive for 18 months. ...


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