San Onofre Drug Tests Reinstated by U.S. Court

A federal appeals court Wednesday reinstated a drug-testing program for workers at the San Onofre nuclear power plant, ruling that unions cannot seek protection from drug testing under the state Constitution.

In the first case pitting constitutional privacy rights of non-government employees against federal labor law, a three-judge panel of the U.S. 9th Circuit Court of Appeals held that workers’ privacy rights under state law do not prevent employers from introducing drug-testing programs into the collective-bargaining process.

The decision, which affects an estimated 2,000 workers with “red badge” access to secure areas of the power plant, holds that employees challenging the random testing program must seek redress through arbitration, not the courts.

‘Personal Rights’

“The question of drug testing obviously implicates important personal rights. To the best of our knowledge, however, no court has held that the right to be free from drug testing is one that cannot be negotiated away, and we decline to make such a ruling here,” Judge Alfred T. Goodwin wrote for the court.

Though other courts have held that a variety of state laws protecting workers are preempted by federal labor law, the decision appears to be the first to hold that constitutional rights may be preempted as well.

“I think it’s very disturbing,” said Edward Chen, an American Civil Liberties Union lawyer who handles drug-testing cases.

“We think there are certain rights that are so fundamental that they can’t be bargained away by contract,” Chen said. “And the right to privacy under California law is part of the Constitution, and the Supreme Court of this state has held that it is fundamental and inalienable, on a par with the right to life, to liberty and to defend property.”

Attorneys for Utility Workers of America, Local 246, which challenged the testing program, said they will seek to have the full appeals court rehear the case because the decision appears to conflict with past rulings protecting state rights.

Southern California Edison Co., which operates the nuclear power plant in northern San Diego County, said it was “pleased” with the decision but had no immediate plans for how to implement it.

“The decision confirms our belief that the district court erred in granting an injunction against unannounced drug testing as part of Edison’s drug-use screening program,” said Lewis M. Phelps, manager of corporate communications.

Program Modified

“We believe and continue to believe that unannounced testing is legal and appropriate under the circumstances to protect public health and safety,” he said.

The utility first began testing all employees with unescorted access to the plant on an annual basis in September, 1984, without negotiating the testing as a contract issue.

Local 246 filed a grievance arguing that the program violated the collective-bargaining agreement. Then, in December, 1986, Edison modified the program, requiring a certain number of employees chosen at random by a computer to provide urine samples on one day’s notice. The modification was also imposed without bargaining with employees.

A Superior Court judge issued a temporary restraining order nine days later, and when the case was removed to federal court, U.S. District Judge Harry L. Hupp issued a preliminary injunction barring the testing pending resolution of the union’s grievance.

Hupp did, however, dismiss the union’s claims that the program violated rights guaranteed under the California Constitution to privacy and freedom from unreasonable searches and seizures, holding, as the appeals court did Wednesday that the constitutional claims are preempted by federal labor law.

The provision of the Labor Code at issue provides that federal law governs all cases involving violation of contracts between employers and labor organizations.

“Drug testing does not implicate the sort of ‘non-negotiable state-law rights’ that preclude preemption” under the statute, Goodwin wrote in an opinion joined by Judges J. Clifford Wallace and Arthur L. Alarcon.

The appeals court ordered the district court to dissolve the injunction pending resolution of the dispute through the grievance process.

Glenn Rothner, attorney for Local 246, said he believes that past 9th Circuit decisions have held that a state interest--such as the right to privacy--can be asserted, despite the existence of a collective bargaining agreement.

Issue Still Alive

“The issue of whether the employees will have to submit to random drug testing is still alive, and the court has simply said that it’s to be resolved in arbitration, not the federal court,” Rothner said.

“But the court did deprive the employees of the opportunity to challenge drug testing, both as a violation of their collective-bargaining agreement and as a violation of the state Constitution,” he said. “And that is an unfortunate decision for employees and residents of California.”

The grievance on the annual testing program has already been submitted to arbitration and a decision is pending.