A union representing employees at San Onofre nuclear power plant won a court order Monday blocking Southern California Edison Co. from enforcing a drug-testing program for workers with access to areas near the reactor core.
U.S. District Judge Harry Hupp in Los Angeles ordered the company, which operates the plant, not to implement the urine-testing program, slated to affect about 900 workers, until the dispute is settled in arbitration.
Under a company policy that took effect last December, certain employees were to have been required at least once a year to submit to drug testing with 24 hours’ notice.
Edison officials said the program was set up in response to increasing federal pressure to guarantee a drug-free nuclear work force. They characterize the testing program as an effort to increase plant safety, and therefore something that does not fall under traditional union bargaining rights.
But members of the Utility Workers Union of America, Local 246, challenged the drug testing as an unconstitutional invasion of privacy, labeling the proposal a “humiliating and embarrassing” intrusion.
Union officials maintain that unscheduled drug testing, such as that called for by Edison, should be limited to only those employees suspected of drug use. Since the new Edison policy simply states that a test must be administered “within 24 hours” after notice is given to an employee, it essentially amounts to a random test, according to union officials.
During a hearing on the issue Monday, Hupp dismissed the union’s argument that the testing program amounted to a violation of the workers’ rights to privacy as well as provisions against unlawful search and seizure.
But the judge agreed that the dispute should be decided by an arbitrator to be selected by the union and Edison officials.
“This is a victory for the union and the employees,” said Glenn Rothner, the union’s attorney. “The effect is that now the employees will continue to be free from the indignity and personal invasion that follows from random drug testing performed without cause.”
Rothner predicted that it would take between six months and a year for an arbitrator to be selected and hearings on the issue to be held.
Mark Mikulka, an attorney for Edison, said company officials feel confident that an arbitrator will agree that the drug-testing effort is a legitimate and permissible program to ensure plant safety.
“The company thinks it will prevail in arbitration,” Mikulka said. “We feel there is adequate contractional support, that the company has the right to implement safety rules, and can do so unilaterally without sitting down and bargaining with the union.”
Edison first began a drug-testing program in September, 1984, for workers with unaccompanied access to areas near the reactor core.
At that time, the program involved annual urine tests that employees had to submit to after getting a 30-day notice.
Typically, the tests came at the same time that employees were taking annual tests to requalify for the so-called “red badge,” which allows workers to enter protected areas around the sensitive reactor core.
Because employees know well in advance when they are scheduled to undergo requalification, the urine tests never came as much of a surprise. Nonetheless, the union challenged that drug testing program, and the first arbitration session is scheduled to begin today.
“What we’ve maintained is that the company should have bargained with the union before they implemented any drug-testing program,” Rothner said. “And even if they had bargained with the union, we feel that drug testing is unreasonable unless there is probable cause to suspect an employee is using drugs.”
Union leaders became even more irritated late last year when Edison officials announced the policy change providing for unscheduled drug testing with 24 hours’ notice. The union filed a lawsuit challenging the policy change.
In December, the union won a temporary restraining order from a Los Angeles Superior Court judge blocking the change in the drug testing policy. Later, at the request of Edison officials, the matter was transferred to federal court.
Rothner said the union had hoped to consolidate the issue of unscheduled drug tests with the arbitration session planned for today, but Edison officials steadfastly refused.
Indeed, at one point in Monday’s hearing, Hupp indicated he might be inclined to hold off issuing an injunction blocking the unscheduled drug tests if the company agreed to settle the dispute in today’s arbitration session.
Edison refused. Mikulka said company officials feel the two issues should remain separate, fearing that it could confuse the dispute.
Although Hupp’s ruling forbids the company from subjecting employees to the unscheduled urine tests, Edison retains the right to perform the annual drug tests given after each employee receives a 30-day notice, according to David Barron, an Edison spokesman.
“The basic substance abuse program is continuing,” Barron said, noting that the tests are performed not only on Edison employees at San Onofre but also on workers with contracting firms that do work inside the nuclear power plant.