DOT Testing: Claims & Collective Bargaining Rights

Employers of transportation-related safety-sensitive employees must abide by the strict regulations found in the 49 C.F.R. Part 40 and the regulations specific to the DOT sub-agency that has authority over those employees.[1] However, to what extent does or can a collective bargaining agreement limit or modify an employer’s or a covered employee’s responsibilities under the regulations? In Dykes v. Southeastern Pennsylvania Transportation Authority, the United States Court of Appeals for the Third Circuit held that a collective bargaining agreement which provides for a binding grievance process which comports with Constitutional Due Process requirements and makes no finding of a violation of the regulations may receive substantial or even complete deference by the courts.[2]

In July of 1993, Joseph G. Dykes, a bus driver for Southeastern Pennsylvania Transportation Authority (“SEPTA”) drove his usual route until at some point during the trip, supervisors boarded and ordered that he undergo drug and alcohol testing.[3] Dykes refused to undergo those tests and was subsequently discharged as a result.[4] Dykes worked with his local union, Transport Worker’s Union of Philadelphia, AFL-CIO, Local 234 (“Local 234”) to appeal the discharge.[5] Among their arguments in the grievance process was that the supervisors hadn’t established sufficient reasonable suspicion to order the drug and alcohol test in the first place; however, during each of the three stages of the grievance process this argument failed.[6]

In September of 1994, Dykes filed a civil action against SEPTA and Local 234 based on 42 U.S.C. § 1983 alleging a violation of his Fourth Amendment privacy interests in the ordering of a drug and alcohol test without sufficient reasonable suspicion and, in his second count, alleging that SEPTA’s actions and Local 234’s representation of him in the proceedings led to a violation of his Due Process rights.[7] The trial court dismissed these complaints for failure to state a claim upon which relief can be granted and Dykes appealed.[8]

While the court acknowledged that the United State Constitution’s Fourth Amendment protection against unreasonable searches and seizures applied to Dykes as an employee of SEPTA, a state agency, the court acknowledged that the reasonableness of the policy itself was not at issue.[9] Instead, Dykes asserted that the policy was not appropriately followed.[10] Dykes suggests that SEPTA ordered a drug and alcohol test labeled as reasonable suspicion, but that SEPTA lacked sufficient suspicion to order the test at all.[11] Dykes then reasoned in his argument that without suspicion, the test was unreasonable and therefore unconstitutional.[12]

If a collective bargaining agreement had not been in place which allowed Local 234 to enter into agreements regarding drug and alcohol testing, the court may have considered the merits of Dykes’ claim. In such an instance, if the court had determined that suspicion was not sufficient to justify the ordering of the test, SEPTA may have indeed violated its employee’s Fourth Amendment right to privacy.[13] However, the court found that the question of whether suspicion existed was a question of fact subject to the terms of the collective bargaining agreement to which Dykes was bound and that in all three tribunals involved in the grievance process, none had made any findings to indicate that suspicion was not present.[14] The court went on to find that the grievance hearings did not violate Dykes’ Due Process rights. Since the grievance hearings were proper under the Due Process Clause and the hearings found no violation of the policy, the court affirmed the case’s dismissal.[15]