Saved by the Settlement: How a Union Settlement Trumped an Unconstitutional Return-to-Work Drug Testing Program

Bolden v. Southeastern Pennsylvania Transportation Authority involved a dispute between Bolden, a custodian employed by the Southeastern Pennsylvania Transportation Authority (“SEPTA”) and represented by the Transport Workers Union of Philadelphia, Local 234 (“Local”).[1] Bolden was a maintenance custodian at SEPTA’s Fern Rock Depot from 1981 to 1986.[2] In August of 1986, Bolden was involved in an altercation with a SEPTA bus driver for which he was later discharged.[3] Local filed a grievance on behalf of Bolden which was denied and submitted to arbitration.[4] In June of 1987, the arbitration panel ordered that Bolden be reinstated.[5]

While the proceeding was ongoing, SEPTA implemented a new drug testing policy which called for random drug testing of certain employees.[6] The policy at issue in this case authorized drug testing of employees returning to work after certain absences, including disciplinary suspension or any absence of more than thirty days.[7] Since Bolden was absent for more than thirty days, he was directed to submit to a medical examination, including body fluids testing, before returning to work.[8] After testing positive for marijuana, Bolden was discharged again.[9]

Once again, Local filed a grievance in which it represented Bolden through three levels of grievance proceedings.[10] Prior to arbitration, SEPTA and Local reached a settlement of the grievance regarding Bolden’s discharge.[11] Under the settlement, Bolden was to receive full back pay for the second discharge but he was required to submit to a drug test before returning to work and to remain subject to testing for a period thereafter to ensure sobriety.[12] However, Bolden did not comply with these requirements and did not resume work as agreed.[13]

Bolden filed a complaint against SEPTA alleging that SEPTA violated his constitutional rights by subjecting him to an unreasonable search and seizure and by discharging him without a prior hearing.[14] SEPTA denied that the drug test was unconstitutional and asserted the affirmative defense of accord and satisfaction based on the settlement of the second grievance.[15] However, the jury found that SEPTA had violated Bolden’s right to be free from unreasonable searches and seizures.[16] SEPTA appealed and argued that Bolden’s drug test was reasonable because (1) his duties pose a substantial risk of harm to himself and others and (2) because of the terms of the valid settlement it reached with Local.[17]  

The first issue in the case on appeal was whether the drug test administered to Bolden was justified.[18] To resolve this question, the court of appeals balanced Bolden’s legitimate privacy expectations against the special need for testing asserted by SEPTA.[19] Relying on the rulings of previous cases, the court explained that employees subjected to suspicionless testing were found to have diminished privacy expectations due to pervasive governmental regulation of the jobs they performed.[20]

Here, the court highlighted the fact that Bolden’s job did not qualify as the type of position that is subject to pervasive governmental regulation.[21] SEPTA did not show that maintenance of custodians is pervasively regulated or that they had diminished privacy expectations for any other reason.[22] Also, SEPTA did not include maintenance custodians among the employees in “safety-sensitive” positions who are covered by its random-testing program.[23] Lastly, based on SEPTA’s job description for a maintenance custodian, the nature of a maintenance custodian’s work does not appear to involve any great risk of causing harm to other persons.[24] Therefore, SEPTA had no special need to subject Bolden to a drug test on any dangers presented by his job.[25] Absent sufficient consent or a special need or reasonable suspicion to test Bolden, the return to work testing program would have been unconstitutional.[26]

The second issue was the effect of the union’s consent to drug testing during the negotiation of a collective bargaining agreement or in resolving disputes about the meaning or application of an existing agreement on the employee’s Fourth Amendment right.[27] A union is the exclusive collective bargaining representative for all of the employees in the unit.[28] Therefore, the union, in entering into a collective bargaining agreement, may agree to terms and conditions of employment that are contractually binding on all of the employees.[29] In this case, Bolden’s union, acting as his exclusive bargaining agent, pressed a grievance on his behalf and entered a voluntary settlement under which Bolden was to be reinstated—on the condition that he submit to future drug testing.[30] The court concluded that Bolden was bound by the terms of the settlement despite the otherwise constitutionally impermissible testing program.[31]

Bolden establishes that a union may validly consent to terms and conditions of employment, such as submission to drug testing, that implicate employees’ Fourth Amendment rights. Therefore, because a union is the exclusive collective bargaining representative for the employee, the terms and conditions of employment are contractually binding on the employee as if he or she would have consented.

[1] Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807 (3d Cir. 1991). [2] Id. at 810. [3] Id.   [4] Id.  [5] Id.   [6] Bolden, 953 F.2d at 810. [7] Id. [8] Id. at 811. [9] Id.  [10] Id. [11] Bolden, 953 F.2d at 811. [12] Id. [13] Id. [14] Id. [15] Id. [16] Bolden, 953 F.2d at 812. [17] Id. [18] Id. at 822. [19] Id. [20] Id. at 823.[21] Bolden, 953 F.2d at 823. [22] Id. [23] Id. [24] Id. [25] Id. at 824.  [26] See, Bolden, 953 F.2d at 810 (indicating that, in order to avoid a determination that the program was an unconstitutional search “SEPTA must justify its return-to-work testing on the basis of some particularized suspicion. . . . [and] SEPTA has not shown that this aspect of its program is initially justified or that testing of all employees returning after an absence for whatever cause has any relationship to the articulated need for the program.”). [27] Id. at 824. [28] Id. at 825. [29] Id. [30] Id. [31] Bolden, 953 F.2d at 829.



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