Holding Back Claims of Insufficient Reasonable Suspicion Under Collective Bargaining

Dykes v. Southeastern Pennsylvania Transportation Authority involved Dykes, a bus driver employed by the Southeastern Pennsylvania Transportation Authority (“SEPTA”) and represented by the Transport Workers Union of Philadelphia, Local 234 (“Local”).[1] On July 13, 1993, Dykes drove a SEPTA bus along his regular route.[2] At some point during the trip, SEPTA supervisors boarded the bus, and asked Dykes to submit to body fluid tests designed to detect the presence of drugs and alcohol.[3] Dykes refused to submit to those tests, and, as a result, he was fired.[4] After Dykes’ discharge, Local pursued three levels of grievance procedures.[5] At each stage it was determined that the tests requested were based on sufficient reasonable suspicion.[6] Therefore, Dykes’ discharge was upheld.[7]

Following these procedures, Dykes filed suit against SEPTA and Local for depriving him of his Fourth Amendment right to be free from unreasonable searches and seizures.[8] Specifically, Dykes alleged that his constitutional rights were violated when SEPTA supervisors asked him to submit to body fluid testing in the absence of reasonable suspicion.[9]  Both SEPTA and Local moved to dismiss the case.[10] In SEPTA’s motion to dismiss it attached a copy of its collective bargaining agreement (“CBA”) which (1) governs when alcohol and drug testing of SEPTA employees based upon reasonable suspicion may be undertaken and (2) defines what constitutes reasonable suspicion.[11] The district court dismissed Dykes’ suit and he subsequently appealed.[12]

The CBA provided that SEPTA may require an employee to submit to drug and alcohol testing on a reasonable suspicion basis.[13] Testing would be done where a supervisor trained in the detection of drug and alcohol use could articulate and substantiate specific behavioral performance or contemporaneous physical indicators of probable drug or alcohol use.[14] Such indicators include behavior or actions which differ from normal behavior or actions under those circumstances, inappropriate or disoriented behavior, and incidents involving serious violations of safety or operating rules and practices.[15]

During his appeal, Dykes alleged that SEPTA’s policy was not followed and that SEPTA sought to have him submit to testing in the absence of reasonable suspicion.[16] The Court of Appeals evaluated whether SEPTA had reasonable suspicion upon which to test Dykes.[17] The court held that drug testing of public employees may raise search seizure issues but that the Fourth Amendment applies only to unreasonable searches and seizures.[18] The Court noted that what is reasonable “depends on all of the circumstances surrounding the search or seizure and the nature of the search and seizure itself.”[19] Courts evaluating cases involving  allegations of unreasonable searches and seizures are required to balance the nature and quality of the intrusion on the individual’s Fourth Amendment privacy interests against the importance of the governmental interest alleged to justify the intrusion.[20] In this case, Dykes operated a transit bus and SEPTA had a legitimate interest in developing and administering a drug and alcohol testing program.[21]

The court went on to compare Dykes’ case to that of Bolden v. SEPTA where a custodian was discharged after an altercation with a SEPTA bus driver.[22] In Bolden, Local represented Bolden in the grievance proceedings.[23] After the proceedings, Local entered a settlement with SEPTA regarding Bolden’s discharge where he would be required to submit to body fluids testing.[24]  Bolden was later reinstated in his job and was asked to submit to drug testing upon his return to work.[25] After testing positive for marijuana, Bolden was discharged again and proceeded to file suit against SEPTA and Local.[26]

In Bolden, the Court of Appeals concluded that the grievance settlement was binding upon Bolden because “a union such as Bolden’s may validly consent to terms and conditions of employment, such as submissions to drug testing, that implicate employees’ Fourth Amendment rights.”[27] The court also held that certain factual questions may be conclusively determined through collective bargaining, even where the resolution of these questions could have been important implications under the Fourth Amendment.[28] The takeaway from Bolden is that even where a drug testing policy has been held to be constitutionally infirm, a public employee may not pursue a civil rights suit based upon that infirmity where his union and his employer agree to operate under that policy.[29]

Relying on Bolden, the court in Dykes stated that whether reasonable suspicion exists is a question of fact that must be determined during the grievance process and that the finding is binding on upon the reviewing court.[30] Because the question of reasonable suspicion was already resolved against Dykes in all steps of the grievance process, the court found that the proposed search was reasonable.[31] The court concluded that because there was reasonable suspicion underlying SEPTA’s request that Dykes submit to testing, SEPTA complied with the terms of its testing policy.[32] Therefore, the allegations were not sufficient to support a Fourth Amendment violation.[33]

In sum, the Dykes case establishes first that a union, while representing an employee, can enter a collective bargaining agreement and consent to the terms on the employee’s behalf. As a result, the terms are binding on the employee as if the employee had consented to the terms. Second, questions of fact, such as “reasonable suspicion,” can be conclusively determined through collective bargaining. Finally, if the fact-finding authority determines that there was reasonable suspicion, that finding will be binding on the reviewing court.

[1] Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564 (3d Cir. 1995) (Local 234 is a labor organization which was Dykes’ exclusive representative for purposes of collective bargaining and pursuing grievances). [2] Id. at 1565-66. [3] Id. [4] Id. [5] Id. [6] Dykes, 68 F.3d at 1566. [7] Id. [8] Id.  [9] Id.  [10] Id. [11] Dykes, 68 F.3d at 1566-67. [12] Id. [13] Id. at 1567, n.4. [14] Id. [15] Id. [16] Dykes, 68 F.3d at 1568.  [17] Id. [18] Id. [19] Id. [20] Id. [21] Dykes, 68 F.3d at 1568. [22] Id. [23] Id. [24] Id. [25] Id. at 1569. [26] Dykes, 68 F.3d at 1569. [27] Id. [28] Id. [29] Id. [30] Id. at 1569. [31] Dykes, 68 F.3d at 1570. [32] Id. [33] Id.



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