Bolden v. Southeastern Pennsylvania Transportation Authority

NYGAARD, Circuit Judge,

concurring in part and dissenting in part.

I concur in the court’s opinion except for Part V and its conclusion. I agree with the majority that Bolden’s silent submission to the drug test did not constitute voluntary consent, yet I cannot join its opinion that Bolden’s rights were nonetheless waived by the Transportation Workers’ Union Local 234 (TWU) with the grievance settlement. As a matter of law, a union cannot waive the Fourth Amendment rights of its members in a grievance settlement. It occurs to me that this individual right is enshrined in our Constitution just so the SEP-TAs and TWUs. cannot collectively compromise them.

I disagree with the majority’s holding that a union has “actual authority” to waive its members’ Fourth Amendment rights bound only by the fair representation doctrine. It seems that the fair representation doctrine, a creature of labor law1, is now to become the new standard for constitutional waiver of Fourth Amendment rights in the public employment sector. I cannot accept this notion. This sweeping assertion divests all public sector employees of their Fourth Amendment rights and strains to make legitimate that which clearly is not.

The majority’s reasoning seems to be this: (1) the union is the exclusive bargaining representative for its members under Pennsylvania labor law; (2) hence, it can enter into collective bargaining agreements that effectively restrict Fourth Amendment rights that unionized employees would otherwise enjoy because such agreements permit, among other things, work-related searches and seizures; (3) that being so, there is no apparent reason why a union cannot likewise, in the course of negotiating a grievance settlement, waive its member’s constitutional right to be free from unreasonable tests for drugs; and (4) a union member who wishes to challenge such a waiver must first show that the union breached its duty of fair representation, else he is “contractually bound” to the rights waiver.

I start with this fundamental premise: Before the grievance settlement was made, Bolden had a constitutional right not to be *833tested for drugs.2 See Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (collecting and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable). Under the majority’s reasoning this right was waived by TWU just as TWU and other unions “commonly restrict rights that the employees would otherwise enjoy under the Fourth Amendment” and set the “[tjerms and conditions of employment embodied in collective bargaining agreements with public employers.”

This reasoning confuses the distinction between a reasonable and an unreasonable search or seizure. The distinction is crucial since it determines whether there is a Fourth Amendment right or not. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (“The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.”) (emphasis in original).

Indeed, the majority thinks terms and conditions of employment embodied in collective bargaining agreements with public employers commonly restrict “rights” that unionized public employees would otherwise enjoy under the Fourth Amendment. The majority apparently believes that because some reasonable directives may be negotiated in collective bargaining agreements, a union may, in the context of a grievance settlement, concede to the employer rights it could not reasonably have demanded.

I disagree. By choosing to belong to a union, Bolden cannot be said to have delegated complete authority to compromise a right that is the very touch-stone of the Bill of Rights and consecrated by generations of constitutional jurisprudence. Although a union can negotiate the terms and conditions of employment referred to by the majority, they are not Fourth Amendment issues. By accepting work conditions, employees can expect certain restrictions on their movements for safety and efficiency reasons. But these restrictions are not unreasonable “seizures” under the Fourth Amendment. See INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984) (“when people are at work their freedom to move about has been meaningfully restricted ... by the workers’ voluntary obligations to their employers”). See also Skinner, 109 S.Ct. at 1418 (“the expectations of privacy by covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety”); O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) (public sector employees have Fourth Amendment protection in their possessions and work stations if there is a reasonable expectation of privacy).

No one would contend, for example, that posting security cameras in highly sensitive areas of a work place constitutes an unconstitutional “search” within the meaning of the Fourth Amendment. It follows that the “rights” properly restricted by collective bargaining agreements do not have constitutional dimensions, but rather are in the nature of contractual entitlements. Like any other privately created rights and obligations, customary conditions of employment may be negotiated by a union on behalf of its members without Fourth Amendment barriers.

The majority also contends that unions possess the authority to consent to periodic, invasive medical examinations (for instance, blood tests or urinalysis to detect disease), which are often important for the protection of co-workers, the employer, and the public, as well as the union employees themselves. Majority Opinion 827. I too have no doubt unions may negotiate and, if collectively ratified by its membership, agree to such tests, including drug tests in some circumstances, not because the union has omnipotent authority under labor law, but because such medical incursions into individual liberty are reasonable under the circumstances and hence do not violate the Fourth Amendment. See Skinner, 109 *834S.Ct. at 1418-19 (post-accident drug testing without individualized suspicion is reasonable because of strong governmental interest ensuring public safety); Policemen’s Benevolent Ass’n v. Township of Wash., 850 F.2d 133 (3d Cir.1988) (drug testing of police officers during annual job physical is valid); Jones v. McKenzie, 833 F.2d 335, 341 (D.C.Cir.1987) (drug testing of bus drivers and attendants of handicapped school children “conducted as part of a routine, reasonably required, employment-related medical examination”), vacated sub nom. Jenkins v. Jones, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989), replaced, 878 F.2d 1476 (D.C.Cir.1989) (affirming and modifying its earlier decision); Amalgamated Transit Union Div. 1279 v. Cambria County Transit Auth., 691 F.Supp. 898 (W.D.Pa.1988) (upholding drug testing of certain employees during annual physical); Burka v. New York City Transit Auth., 680 F.Supp. 590 (S.D.N.Y.1988) (same); Wrightsell v. City of Chicago, 678 F.Supp. 727, 734 (N.D.Ill.1988) (drug testing as part of “routine, employment-related medical examinations” valid). Since a reasonable search or seizure does not violate the Fourth Amendment, reasonable drug tests are proper subjects for negotiation in collective bargaining.

Yet, if for example a union consented to drug testing of all its members (regardless of individualized suspicion, an employee’s job function, nature of the employer’s industry, triggering facts or exigent circumstances), such testing, if without consent by individual union members, would not be reasonable, employment-related physical examinations. Indiscriminate drug testing, entailing invasive blood drawing or other bodily intrusions, is not rendered reasonable for Fourth Amendment purposes by a collective bargaining agreement. The Fourth Amendment bars such drug testing absent a valid individual consent or waiver. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (requiring consent by the individual); Illinois v. Rodriguez, — U.S. -, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990) (recognizing as valid Fourth Amendment waiver consent given by third party, but only if the government actor is reasonably mistaken that such third party possessed the right waived and was thus authorized to give consent to search).

The Supreme Court has made clear that random, indiscriminate and discretionary drug testing policies administered without regard to job function, nature of industry, triggering facts, exigent circumstances, or other facts that make for “reasonable” testing violate the Fourth Amendment. See Skinner, 109 S.Ct. at 1414. Recently we invalidated SEPTA’s return-to-work drug testing policy because “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.” Transport Workers’ Local 234 v. SEPTA, 863 F.2d 1110, 1122 (3d Cir.1988), vacated, 492 U.S. 902, 109 S.Ct. 3208, 3209, 106 L.Ed.2d 560 (1989), reaffirmed, 884 F.2d 709 (3d Cir.1989) (SEPTA). If federal or state regulations and statutes cannot force employees to be tested in the absence of reasonable circumstances, there is no principled reason to find, as the majority does, that a union whose authority derives from statutes has actual authority to waive the constitutional rights of its members by “contractually” binding them to unreasonable searches and seizures.

The rigorous, independent inquiry into whether there has been an unreasonable search or seizure under the Fourth Amendment, or a voluntary consent or waiver to a search, should not be reduced to legal doctrines and theories governing collective bargaining. The majority seems to believe that the scope and nature of Fourth Amendment rights would depend on the legal framework of labor law, especially the “fair representation” doctrine. I reject that importation into Fourth Amendment jurisprudence. The contours of the Fourth Amendment cannot be molded by a union to its utilitarian concept of fairness.

I suspect the majority’s conclusions are driven by “slippery slope” considerations: specifically, that federal courts might be inundated with suits by disgruntled public *835sector employees alleging that their collective bargaining, arbitration and settlement proceedings did not adequately protect their constitutional rights. The majority writes: “If individual public employees may litigate such questions despite the resolution reached through collective bargaining, the utility of collective bargaining with respect to drug testing in the public section would be greatly diminished.” Majority Opinion 828. But if “the utility of collective bargaining” is bought at the expense of individual rights, it is bought with too high a price.

Indeed, in similar circumstances, the Supreme Court has said so. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 1023, 39 L.Ed.2d 147 (1974) (“The court of appeals also thought that to permit a later resort to the judicial forum would undermine substantially the employer’s incentive to arbitrate and would ‘sound the death knell for arbitration clauses in labor contracts.’ Again, we disagree.”). Moreover, I fear the solution here espoused by the majority has not been carefully weighed and the evils that follow will surely exceed those it seeks to cure. I believe disputes as to whether government in its capacity as an employer violated the Fourth Amendment should not be resolved by union grievance and arbitration proceedings: They are best resolved in federal courts. See 94 S.Ct. at 1024 (“the resolution of statutory or constitutional issues is a primary responsibility of courts”); McDonald, 104 S.Ct. at 1803 (“although arbitration is well suited to resolving contractual disputes ... it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard”). While the mistrust of arbitration and similar proceedings have been assuaged somewhat, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985), there can be no question that federal courts are the best forum to resolve § 1983 and constitutional claims. See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 102 S.Ct. 2557, 2561, 73 L.Ed.2d 172 (1982).

I would hold that absent an express authorization by a union member, a union never possesses actual authority to waive the Fourth Amendment rights of its members. The Supreme Court’s opinion in Alexander, which the majority ignores, compels this result.

In Alexander, the Supreme Court held that an employee’s statutory right to a trial de novo under Title VII may not be foreclosed by submitting his claim to final arbitration under the nondiscrimination clause of a collective bargaining agreement, even though that agreement provided that the arbitrator’s decision was to be “final and binding upon the Company, and Union, and any employee or employees involved.” 94 S.Ct. at 1025. The Court stressed that an employee’s contractual rights under a collective bargaining agreement are distinct from his Title VII statutory rights:

In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. ...
Moreover, a contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee.

94 S.Ct. at 1020, 1022 (emphasis added).

Thus, in Alexander, the Court distinguished between a union member’s contractual rights and obligations arising from a collective bargaining agreement, and his constitutional and statutory rights that exist independently of his union status. The Court reasoned that certain statutory rights may not be abridged in collective bargaining, or by an arbitration proceeding mandated by a union contract. It then *836declared what rights of its members a union can contractually waive:

It is true, of course, that a union, may waive certain statutory rights related to collective activity, such as the right to strike. These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand stands on plainly different ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportuni-ties_ In these circumstances, an employee’s rights under Title VII are not susceptible of prospective waiver.

94 S.Ct. at 1021 (citations omitted).3

Thus an employee may waive his cause of action under Title VII, but a union cannot. 94 S.Ct. at 1021. This follows because “the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit [and] harmony of interest between the union and the individual employee cannot always be presumed.” 94 S.Ct. at 1024 n. 19.4

Alexander makes clear that TWU cannot waive Bolden’s constitutional rights. In Alexander, the employee’s right arose from Title VII; here Bolden’s right arises from § 1983 and the Fourth and Fourteenth Amendments. In Alexander, express provisions in the collective bargaining agreement provided that the employer shall not discriminate, that discrimination claims shall be arbitrated, and that the arbitrator’s decision shall be “final and binding” on the employee: Here the collective bargaining agreement between TWU and SEPTA did not even permit drug testing. In Alexander, the employee permitted the union to pursue arbitration; here Bolden seasonably, persistently and unequivocally rejected TWU’s offer to pursue grievance proceedings. In Alexander, the employee did not seek review of the arbitrator’s decision, but asserted a statutory right independent of the arbitration process, 94 S.Ct. at 1022; here Bolden does not seek review of TWU’s actions as it pertains to the fair representation doctrine, but asserts an independent constitutional claim under § 1983. Yet while the Supreme Court has concluded that neither the express provisions of the collective bargaining agreement nor submitting a grievance to arbitration vitiated an employee’s statutory rights, the majority concludes that TWU’s waiver, despite Bolden’s disapproval, in his absence, and without express provision in the collective bargaining agreement, vitiated Bolden’s constitutional rights.

//Bolden’s rights at issue here were no more than contractual entitlements arising out of collective bargaining, I would agree he is “bound” by his union’s willingness to impose drug testing obligations. See Consolidated Rail Corp. v. Railway Labor Exec. Ass’n, 491 U.S. 299, 109 S.Ct. 2477, *8372484, 105 L.Ed.2d 250 (1989).5 But here Bolden brought a § 1983 suit alleging that SEPTA violated rights secured for him by the Constitution, not run-of-the-mill rights gotten by agreement. If, as Alexander holds, a union cannot waive its members’ statutory rights under Title VII, it seems clear to me a union lacks power to waive its members’ Fourth Amendment rights. Like Title VII, Fourth Amendment rights are guaranteed to individuals. Unions do not have inherent actual authority to waive such constitutional rights; else individual rights would be sacrificed for some perceived collective good as unions negotiate to get economically related benefits for their members as a whole. The Bill of Rights is predicated on the notion that minority or individual rights must be protected from assault by the majority. Indeed, the Supreme Court in Alexander precludes the result reached by the court herein.

My view that a union cannot waive its members’ Fourth Amendment rights does not undermine the utility of collective bargaining with respect to drug testing in the public sector. Nor does my view compromise public policies aimed at maintaining drug free public employees (particularly those in safety sensitive jobs). Since employees’ Fourth Amendment rights to be free of unreasonable searches do not encompass a right to be free of reasonable work restrictions and conditions, these restrictions and conditions, including certain drug testing, are the proper subject of negotiation.6 My view leaves room for a union to negotiate mandatory drug testing, albeit in a limited class of cases outside the Fourth Amendment restrictions: namely, those presenting circumstances where public employee drug testing is reasonably justified. Bolden’s case is not one of these because, as the majority and I agree, Bol-den did not have a safety-sensitive job and because SEPTA's return-to-work drug testing policy is unconstitutional.

Constitutional rights can be relinquished. But whether TWU may waive Bolden’s Fourth Amendment rights is another issue. If TWU is to relinquish Bolden’s Fourth Amendment rights, it must meet constitutional standards. That is, there must be a voluntary consent by the individual holding the right, Schneckloth, 93 S.Ct. 2041, or at least a reasonable government belief that waiver is by the possessor of the right being waived, Rodriguez, 110 S.Ct. 2793.

The court holds, and I agree, Bolden did not voluntarily consent to his initial drug search or to mandatory future drug searches. Nor did Bolden expressly or implicitly authorize TWU to waive his Fourth Amendment rights. Yet the majority concludes “SEPTA had reasonable grounds to believe that the union possessed the authority to consent to future drug testing of *838Bolden.” It relies improvidently upon Rodriguez for this proposition.

The Rodriguez Court held that a search is reasonable under the Fourth Amendment if the government actor reasonably believed the consenting party had authority to waive the Fourth Amendment right. 110 S.Ct. at 2801. This holding is vested in the Court’s interpretation of Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), which held that a hotel clerk cannot properly consent to a police search of a rented room. The Stoner Court said “the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’ ” 84 S.Ct. at 892. The Rodriguez Court interpreted Stoner to mean that the police in Stoner “could not reasonably have believed that the [hotel clerk] had general access to or control” over the rented room. 110 S.Ct. at 2801 (emphasis added). Thus the Rodriguez Court framed the Fourth Amendment third party waiver issue in terms of whether government actors reasonably believed that “the consenting party had authority over the premises.” 110 S.Ct. at 2801. This emphasis on whether a consenting party was reasonably perceived to have “authority over the premises” indicates the Rodriguez Court’s test of effective third party consent requires inquiry into whether the government actor could reasonably view the consent-giver as actually possessing the Fourth Amendment right.

Rodriguez then stands for the proposition that only if government actors reasonably think a consenting party actually possesses a Fourth Amendment right, or otherwise has valid authority to relinquish that right, does an invasive search and seizure consented to by a third party become reasonable. 110 S.Ct. at 2801 (“what is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated ”) (emphasis in original). Thus, under Rodriguez, the proper inquiry here is whether SEPTA reasonably thought TWU possessed, or had express authorization to waive, Bolden’s Fourth Amendment rights.

Clearly, SEPTA could not have reasonably believed that TWU either shared Bol-den’s Fourth Amendment rights, or else had express authority to waive Bolden’s rights by virtue of the union’s power to represent employees. Just because Bolden agreed that a union, could represent him in collective bargaining for contractual entitlements (wage, hour, benefit, and work condition terms), it does not follow that SEPTA could reasonably believe TWU had acquired Bolden’s authority to waive his Fourth Amendment rights.

Indeed, before the grievance settlement was finalized, Bolden by letter to TWU and SEPTA disavowed his association with TWU in this grievance. Bolden informed SEPTA and TWU that he had retained an attorney and that “[h]e does not want your Union or any counsel retained by your Union to represent him in connection with this discharge.” Bolden’s letter evinces clearly the “[dis]harmony of interest between the union and [Bolden].” See Alexander, 94 S.Ct. at 1024 n. 19.

Furthermore, as the majority points out, the collective bargaining agreement in effect the first time SEPTA fired Bolden did not contain any drug testing provision. In light of the intensely personal Fourth Amendment right involved, Bolden’s disassociation with TWU refutes any notion that TWU had authority, apparent or otherwise, to compromise Bolden’s Fourth Amendment rights. It follows that it was unreasonable for SEPTA to believe that TWU could, in the course of settling Bolden’s grievance, waive Bolden’s constitutional rights.7

I believe with Justice Cardozo that “[t]he great ideals of liberty and equality are preserved ... by enshrining them in constitutions, and consecrating to the task of *839their protection a body of defenders.”8 I fear that by this decision the defenders have abdicated the defense to union negotiators and relegated a right guaranteed by the Constitution to the status of a bargaining chip in a grievance settlement game. I believe a Fourth Amendment right must not be consideration or the medium of exchange for a contractual modification when the individual possessing the right chooses not to give it up but instead to stand upon it. I would hold that any waiver of constitutional rights must be subject to constitutional standards not labor laws and Bolden retains his right of action against SEPTA for violating them. I would affirm.

. Under Pennsylvania labor law, “a union is guilty of unfairly representing an employee if its refusal to carry a grievance through to arbitration is due to arbitrariness, discrimination or bad faith.” Fouts v. Allegheny County, 64 Pa. Commw. 441, 440 A.2d 698 (1982).

. To conclude otherwise would be inconsistent with the court’s holding that SEPTA violated Bolden’s Fourth Amendment right when it tested him for drugs.

. The majority cites to these cases, among others, for the proposition that the concept of exclusive union representation not only restricts the freedom of individual employees to enter into separate employment contracts, but that concept may also result in some other restrictions that implicate individual employees’ constitutional rights: Teachers v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986); Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Keller v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). These cases involve the type of issues "related to collective activity” that the Alexander Court discusses. When constitutional rights were implicated, the Court resolved them by applying the appropriate constitutional standards.

. In McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), the Supreme Court held that an award in an arbitration proceeding brought under the terms of a collective bargaining agreement did not bar an employee from bringing a § 1983 action. Again the Court stressed the fundamental problem: when individual rights are at issue "the union's interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee’s grievance less vigorously, or make different strategic choices, than would the employee.” 104 S.Ct. at 1803. See Taylor v. NLRB, 786 F.2d 1516, 1522 (11th Cir.1986) (considering "the practical reality ... in which individual rights may be negotiated away [by unions] in the interest of the collective good”).

. The Court held if an employer’s contractual claim to make a particular change in working conditions is arguably justified by the parties’ agreement, the employer may make the change and the courts must deter to the arbitral jurisdiction of the Board. Because Conrail was a private entity, Railway Labor Exec. Ass’n v. Consolidated Rail Corp., 845 F.2d 1187, 1189 (3d Cir.1988), the Supreme Court addressed the issue only with respect to contractual entitlements associated with collective bargaining. 109 S.Ct. at 2427 ("Conrail’s contractual arguments are [not] frivolous or insubstantial”) (emphasis added). Consolidated Rail did not address whether a union can waive in grievance or settlement proceedings an employee’s constitutional rights or whether such waiver is binding in an independent § 1983 claim. In this respect, this case is inapposite.

I also point out that in Consolidated Rail, Conrail required its employees to undergo physical examinations periodically and upon return to work. These examinations included drug testing. 109 S.Ct. at 2486. If Conrail was a government employer subject to the Fourth Amendment its return-to-work drug testing policy would most likely be unconstitutional under the Supreme Court’s reasoning in Skinner. See Skinner, 109 S.Ct. at 1417 (only where privacy interest is minimal and where an important governmental interest is furthered by the intrusion may a search be reasonable without individualized suspicion).

. In SEPTA, we held that SEPTA’s random drug testing program for employees with safety sensitive jobs is "constitutionally justified.” 884 F.2d at 713. Because these employees did not have a Fourth Amendment right to be free of drug testing, drug testing became a matter of contractual entitlement. Relying on Consolidated Rail, we therefore held that the program “constitutes an issue 'arguably’ covered by the implied terms of the parties’ agreement as established by past practice.” 884 F.2d at 713.

. In any event, the reasonableness of SEPTA’s belief is a jury question. See Rodriguez, 110 S.Ct. at 2801 (waiver by third party is a factual determination); Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 (consent to search is a question of fact).

. Cardozo, Benjamin, The Nature of the Judicial Process 92-94 (1921).