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Significant decisions in labor cases.

Significant decisions in labor cases

Employee drug testing

The Supreme Court recently upheld Government mandated and authorized workplace drug testing against challenges that such testing violates the Fourth Amendment's prohibition against unreasonable searches and seizures. In its first two decisions on the propriety of drug testing, the Court held that employees may be tested for drug or alcohol use in situations where the Government's "compelling" interests in such tests outweigh employees' "minimal" privacy interests. Thus, "safety-sensitive" railroad workers may be forced to undergo testing when they are involved in certain accidents or rule violations, as may U.S. Customs Service workers who carry weapons or are involved in interdicting drugs.

In Skinner v. Railway Labor Executives' Association, (1) the railway group sought to enjoin Federal Railroad Administration regulations that require blood and urine testing of crew members involved in serious train accidents. (2) The group also challenged regulations that permit, but do not require, urine and breath testing of crew members involved in less serious accidents or rule violations. (3) While conceding that collecting or analyzing a blood, urine, or breath sample is a search to which the Fourth Amendment applies, (4) Justice Anthony Kennedy rejected the railway association's challenges. Writing for a seven-member majority, he stated that such a search is permissible if, depending on "all the circumstances surrounding the search and seizure and the nature of the search and seizure itself," it is "reasonable."(5)

Under the Fourth Amendment, a search is usually not reasonable unless it is conducted pursuant to a judicial warrant that is based upon probable cause.(6) Justice Kennedy's opinion creates an exception to this rule because "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."(7) According to Justice Kennedy, a warrant generally is required to ensure that the search is authorized by law and will be narrowly limited. However, because the Federal Railroad Administration's drug-testing regulations carefully circumscribe the circumstances under which testing may be performed and narrowly define their limits, he found that, on balance, a warrant would serve no useful purpose. This is particularly true, he said, because requiring a warrant would impose a significant burden on the employer.

Even more important is the Court's determination that an employer may compel a test even though it lacks probable cause or an individualized suspicion of drug or alcohol use. To reach this conclusion, the Court balanced the intrusion on employees' privacy, which it considered to be minimal, against the Government's interest in testing, which it considered to be compelling.

The Court found blood and breath tests to be minimally intrusive because they are routine in today's world and involve little risk, trauma, or pain. Urine tests were found to be somewhat more intrusive because excretory functions are "traditionally shielded by great privacy."(8) However, this additional intrusiveness is reduced, the Court said, by procedures requiring samples to be taken in a medical environment by nonemployer personnel who do not watch. Finally, the Court also emphasized railroad workers' reduced expectations of privacy due to employment in a highly regulated industry. The Government, on the other hand, was found to have a compelling interest because of its need to deter drug and alcohol use in an industry where even a "momentary lapse can have disastrous consequences"(9) and because the Government must learn the causes of railroad accidents.(10)

The same day that Railway Labor Executives' Association was decided, the Supreme Court upheld parts of a Customs Service drug-testing plan in National Treasury Employees Union v. Von Raab.(11) Under the plan, Customs Service employees are subject to urine testing for illegal drugs if they apply for promotions or transfers into other Customs Service jobs requiring them to be directly involved in drug interdiction, to carry firearms, or to handle classified material. Employees who are unable to offer a satisfactory explanation for a positive test result may be dismissed from their jobs.

Justice Kennedy, writing for a 5-4 majority of the Court, closely followed the reasoning in Railway Labor Executives' Association that neither a warrant nor individualized suspicion is constitutionally required before drug testing may be performed. Applying the "special needs" balancing test, he held that suspicionless urine testing of employees who are involved in drug interdiction or who carry weapons is reasonable and therefore permissible. He did not rule on the reasonableness of the part of the Customs Service plan that requires testing of employees who handle "classified material," because he could not determine whether testing is limited only to those who are likely to handle "truly sensitive information."(12) Therefore, this portion of the case was remanded to the lower court.

The Court held that drug interdiction personnel and employees who carry weapons have diminished expectations of privacy because they should reasonably expect their employer to inquire into their fitness for duty. At the same time, it held that the Government's interest is compelling because drug interdiction personnel are the "first line of defense against one of the greatest problems affecting the health and welfare of our population."(13) In addition, it found that those who use drugs endanger their fellow workers and are susceptible to bribery and poor job performance.(14) Like the train operators mentioned in Railway Labor Executives Association, employees who carry weapons perform jobs that become "fraught with . . . risks of injuries to others" if the employees' abilities are impaired, even momentarily, by drugs.(15)

Justice Antonin Scalia, who joined the majority in Railway Labor Executives' Association, dissented in National Treasury Employees Union. As he explained, the Federal Railroad Administration regulations at issue in Railway Labor Executives' Association are supported by ample evidence of substance abuse in the target class of employees.(16) Such evidence, he noted, is completely lacking in National Treasury Employees Union, where even the largely drug-free."(17) Similarly, he found speculative the Court's nexus between drug use and any injury to compelling public interests. Thus, he concluded, the "special needs" of the Customs Service for suspicionless testing do not outweigh employees' privacy interests.

While establishing a basic framework for analyzing drug-testing cases under the Fourth Amendment, the preceding two important decisions provide little guidance for deciding whether any particular testing scheme will withstand constitutional scrutiny. Instead, the Court's "special needs" balancing leaves the job of resolving such issues to the lower courts on a case-by-case basis. Many cases are likely to arise from challenges to Federal agencies' drug-testing plans under Executive Order 12564, which calls for a drug-free Federal workplace. Together with decisions already rendered in cases where employees have challenged agency testing plans, these new cases will generate a substantial body of case law in the near future.(18)

Civil rights

Litigation of discrimination complaints is frequently complex, lengthy, and expensive. To resolve such suits, parties often enter into court-approved settlements, known as "consent decrees." The finality with which such decrees may be viewed has been called into question by the Supreme Court in Martin v. Wilks.(19) Under this decision, actions taken pursuant to consent decrees may now be challenged by persons or groups which were not a party to the original proceeding.

In 1974, seven black plaintiffs filed suit under Title VII of the Civil Rights Act of 1964,(20) alleging that the hiring and promotion practices of the City of Birmingham, AL, and the county personnel board unlawfully discriminated against them on the basis of race. In 1981, after a trial was held, but before the court entered judgment, the parties settled the case by entering into court-approved consent decrees. Among other things, these decrees included goals for hiring and promoting black firefighters.(21) Later, a group of white firefighters filed a second suit under Title VII, alleging that city and county employment actions taken as a result of the decrees amounted to unlawful "reverse discrimination." The defendants sought to have this suit dismissed, arguing that the plaintiffs' knowing failure to intervene in a timely manner in the first proceeding precluded them from attacking the decrees in a second proceeding. The Supreme Court disagreed in Martin.

According to Chief Justice William H. Rehnquist, who wrote for the 5-4 majority, "a judgment or decree among parties to a lawsuit resolves issues as among them, but it does not concluded the rights of strangers to those proceedings."(22) Under the Federal Rules of Civil Procedure, he held, the white firefighters could not be bound by the consent decrees because they had not been joined as parties to the first proceeding.(23) Thus, the Court held that a different outcome can occur in such cases, but only if the Federal Rules of Civil Procedure are changed.

As a result of the Court's decision in Martin, the white firefighters are free to challenge the consent decrees in the second proceeding. However, the legal standard governing this or any similar challenge is not settled because the Court did not address the issue. According to the court of appeals, though, challenged consent decrees should be measured by the same standard used to judge the propriety of voluntary affirmative action plans.(24) By that standard, challenged consent decrees would have to meet a two-part test in order to be valid under Title VII.(25) First, they would have to be justified by an underrepresentation of minority workers that reflects a "manifest imbalance" in the relevant job categories. Second, they could not "unnecessarily trammel" the rights of nonminorities or create an absolute bar to their advancement.(26)

The impact of Martin could be substantial. Not only will consent decrees be subject to challenge in new legal proceedings, but previously litigated final court orders and judgments may be as well.(27) In addition, conciliated agreements, which do not result from litigation, may be challenged. At a minimum, Martin has created considerable uncertainty about the extent to which good-faith actions taken by parties as a result of consent decrees, court orders or judgments, or conciliated agreements may subject such parties to further litigation.

Union affairs

Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act grants union members the right to express freely their views about union candidates and business.(28) In Sheet Metal Workers v. Lynn,(29) the Supreme Court held that this free-speech right protects an elected union business agent from being removed from his or her position for speaking out against a union proposal to raise dues. This decision resolves an important question left unanswered by the Court's 1982 decision in Finnegan v. Leu.(30)

In Finnegan, the Court allowed a newly elected union president to replace unelected business agents who had not supported his candidacy with business agents who had. The Court held that the president's actions furthered the Labor-Management Reporting and Disclosure Act's "overriding objective," which was "to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections."(31) Using similar logic, the Court found in Lynn that democratic union governance would be equally frustrated if elected business agents - as opposed to business agents who are appointed by elected union officials - could be removed for exercising free-speech rights. In either case, Lynn held, the key is whether union members have been denied their choice of representative. If they have, the Labor-Management Reporting and Disclosure Act protects business agents against removal from their positions.(32)


(1) Skinner v. Railway Labor Executives' Association, 109 S. Ct. 1402 (1989). (2) 49 CFR [sub-section] 219.201 (1987). (3) 49 CFR [sub-section] 219.301 (1987). (4) The Fourth Amendment applies only to searchers by the Government and its agents. In the situation at issue, the searchers are performed by a private employer. Nevertheless, the Court found that the Fourth Amendment applies. When the employer performs testing that is mandated by the Government, it is acting as an instrument or agent of the Government. Even when it performs discretionary testing, it is doing so with the Government's encouragement, endorsement, and limited participation. Thus, the Government is sufficiently involved to implicate the Fourth Amendment. It is important to note that the propriety of drug testing plans not subject to the Fourth Amendment may be governed by Federal or State law. For example, [sub-section] 8(a)(5) of the National Labor Relations Act, 29 U.S.C. [sub-section] 158(a)(5) (1982), requires a private employer to bargain with its union before it implements a drug-testing plan for current employees, notwithstanding a broad management-rights clause in an existing collective bargaining agreement. See Johnson-Bateman, 295 N.L.R.B. No. 26, 1988-89 NLRB Dec. (CCH) [sub-section] 16,236 (June 15, 1989). (5) Skinner v. Railway Labor Executives' Association, 109 S. Ct. at 1414. (6) Id. (7) Id. (8) Id. at 1418. (9) Id. at 1419. (10) Justice Stevens, in a concurring opinion, concluded that the Government's interest in determining the causes of accidents is the only basis upon which the challenged regulations may stand. He found unpersuasive the argument that alcohol and drug testing serves as a deterrent. In his view, employees not deterred by the potentially fatal consequences of operating a train under the influence of alcohol or drugs would not likely be deterred by the less onerous prospect of alcohol or drug testing. Id. at 1422 (Justice Stevens, concurring). (11) National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989). (12) The Court did not define how employees who handle "truly sensitive information" differ from those who handle classified material, other than to indicate that they are less numerous. (13) National Treasury Employees Union v. Von Raab, 109 S. Ct. at 1392. (14) Justice Kennedy does not require the Customs Service to explain why, in light of such dangers, its plan does not require testing of persons who are not merely applicants, but are already employed in such positions. It could be argued that if the Customs Service's interests are as compelling as the Court found, then employees, as well as applicants, should be tested. See National Treasury Employees Union v. Von Raab, 816 F. 2d 170, 184 (5th Cir. 1987) (J. Hill, dissenting). (15) National Treasury Employees Union v. Von Raab, 109 S. Ct. at 1393. (16) See Skinner v. Railway Labor Executives' Association, 109 S. Ct. at 1407 n. 1. (17) National Treasury Employees Union v. Von Raab, 109 S. Ct. at 1387. (18) For example, since March 21, 1989, when the Supreme Court issued its decisions in Skinner and the Treasury Union case, at least two courts of appeals have ruled on the propriety of agencies' random drug-testing schemes. See Thomson v. Marsh, No. 878 F. 2d 1431 (4th Cir. 1989), upholding the Army's plan to test civilian workers at a chemical weapons plant; and Harmon v. Thornburgh, No. 878 F. 2d 484 (D.C. Cir. 1989), prohibiting random testing of attorneys who conduct grand jury proceedings or who are assigned to prosecute criminal cases, but allowing testing of workers with access to top secret documents. (19) Martin v. Wilks, 109 S. Ct. 2180 (1989). (20) Current version at 42 U.S.C. [sub-section] 2000e (1982). (21) United States v. Jefferson County, 28 Fair Empl. Prac. Cas. (BNA) 1834 (N.D. Ala. 1981). (22) Martin, 109 S. Ct. at 2184. (23) The court indicated that under the Federal Rules of Civil Procedure, the white firefighters might have been joined as parties either through the "permissive" joinder provisions of Rule 24 or the "mandatory" joinder provisions of Rule 19. (24) See In Empl. Lit., 833 F. 2d 1492; 1500 (11th Cir 1987). (25) Consent decrees involving public employers may also be challenged under the Fourteenth Amendment, which, generally speaking, does not apply to private employers. If the validity of such decrees is to be measured against the standard used to judge the validity of affirmative action plans under the Fourteenth Amendment, public employers will be forced to show that their decrees are the result of identifiable discrimination and are narrowly tailored to remedy it. See City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989). (26) In the first reported case decided post-Martin, a Federal district court applied this two-part test and upheld the challenged consent decree. See Henry v. City of Gadsden, 715 F. Supp. 1065 (N.D. Ala. 1989). In the summary of its ruling, the court expressed an apparent lack of enthusiasm for such collateral attacks: "Since the challenged consent decree passes the two-prong test . . . with flying colors, the attack fails - and it fails miserably." Id. at 293. (27) See Martin, 109 S. Ct. at 2200 n. 30 (Justice Stevens, dissenting). (28) 29 U.S.C. [sub-section] 411(a)(2) (1982). (29) Sheet Metal Workers v. Lynn. 109 S. Ct. 639 (1989). (30) Finnegan v. Leu, 456 U.S. 431 (1982). (31) Id. at 441. (32) The court also held that it makes no difference that the elected business agent was removed, not by an elected official, but rather by a trustee who had been appointed by the International's general president to direct the affairs of the financially troubled local. The Court reasoned that the trustee was not empowered to order a dues increase without the approval of the local's members and so could not control debate on the issue by removing the business agent.
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Author:Hukill, Craig
Publication:Monthly Labor Review
Date:Nov 1, 1989
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