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IBEW, LOCAL 1900 v. POTOMAC ELEC. POWER CO.

March 25, 1986

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1900, Plaintiff,
v.
POTOMAC ELECTRIC POWER COMPANY, Defendant


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 This action is brought by the union of electrical workers employed by the Potomac Electric Power Company (PEPCO). On March 18, 1986, Judge Harold Greene heard, and granted, plaintiff's application for a temporary restraining order. The action is now before the Court on plaintiff's motion for a preliminary injunction. Pursuant to the Norris-LaGuardia Act, 29 U.S.C. ยง 107 (1982), the Court has heard testimony and received documentary evidence relevant to the motion.

 The parties do not dispute that PEPCO unilaterally put into effect on March 13, 1986, written drug and alcohol rules which superceded the company's previous policy. The parties also do not dispute that plaintiff has filed two specific grievances relating to PEPCO's drug and alcohol policies, which PEPCO has agreed to arbitrate: one regarding several specific employee drug and alcohol screening procedures, which was filed before imposition of the new rules; and one directly contesting the validity of the new rules, which was filed on March 13, 1986, the day the rules were issued.

 When the parties have agreed to arbitrate a dispute, a court may issue an injunction if, in addition to the usual equitable concerns, the integrity of the arbitration process would be threatened absent interim relief. *fn1" Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 254, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970); Aluminum Workers International Union, Local Union No. 215 v. Consolidated Aluminum Corp., 696 F.2d 437, 443 (6th Cir. 1982); Local Lodge No. 1266, International Assoc. of Machinists and Aerospace Workers v. Panoramic Corp., 668 F.2d 276, 283 (7th Cir. 1981); Columbia Local, American Postal Workers Union v. Bolger, 621 F.2d 615, 618 (4th Cir. 1980); Lever Brothers Co. v. International Chemical Workers Union, Local 217, 554 F.2d 115, 123 (4th Cir. 1976). Temporary loss of employment by the employees represented by a plaintiff union does not usually threaten the integrity of the arbitral process, since back pay and reinstatement can in most instances provide complete relief. Aluminum Workers, supra, 696 F.2d at 444; see Sampson v. Murray, 415 U.S. 61, 90, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974); Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1349 (7th Cir. 1982). But, if a union can demonstrate that its members have special current needs which could not be fully redressed by an arbitral award, preliminary relief can be justified. Truck Drivers, etc. v. Almarc Mfg., Inc., 553 F. Supp. 1170, 1173-74 (D.C. Ill. 1982).

 Dispute in this action centers first on whether, after imposition of the rules on March 13, 1986, the union is threatened with new injuries which it did not suffer under the previous company drug and alcohol policy; and second, whether any such new injuries will frustrate or vitiate the arbitral process. Defendant claims that the rules merely codify past practices. Plaintiff alleges that the new rules are significantly more intrusive and severe than past practices, and that the union and its members will suffer irreparable harm if the new rules are enforced prior to arbitration. Specifically, plaintiff's interprets the new rules to be different from the company's previous drug and alcohol policy in the following respects: (1) that they impose penalties more swiftly and more severe than those imposed under the previous policy; (2) that they permit random testing and searches of the person; and (3) that they allow the company to test and search individuals at whim and without cause.

 The change in penalties does not impose any other type of injury on the union or employees which would frustrate or vitiate arbitration. Plaintiff concedes that under the previous policy, the company would impose some level of discipline for a drug-related activity or failure to submit to a test. In contrast to discharge, the penalty previously might have been suspension or probation. This difference in the level of punishment, however, does not significantly affect the non-monetary injuries allegedly suffered by employees due to PEPCO's drug and alcohol policy, e.g., the stigma or humiliation suffered due to a drug-related disciplinary action. The enhancement of penalties does not materially change the effect on an employee's reputation which would be affected by some lesser penalty, such as suspension in accordance with the pre-March 13 practice. Therefore, the enhancement of penalty alone does not threaten injury sufficient to warrant a preliminary injunction pending arbitration. See Aluminum Workers, supra, 696 F.2d at 444.

 Plaintiff's other two concerns affect the scope of permissible drug testing at PEPCO, and relate to the potential invasion of privacy and fear of unjustified discharge which plaintiff alleges may occur as a result of the new rules. At the preliminary injunction hearing on March 25, 1986, defendant represented that it would abide by certain conditions in implementing the new drug and alcohol rules pending an arbitration decision on the new rules. These conditions make explicit that the company will continue to adhere to certain previous practices which protected the employees' privacy and employment rights. These conditions are as follows:

 
1. PEPCO will not engage in generalized random testing for drugs and alcohol, except as to employees on disciplinary probation. The only possibility of PEPCO's future use of random testing would occur in compelling circumstances, and the company would give plaintiff seventy-two (72) hours notice before implementing any such procedure.
 
2. PEPCO will not randomly search employees' persons. The only possibility of PEPCO's future random searches of employees' persons would occur in compelling circumstances, and the company would give plaintiff seventy-two (72) hours notice before implementation of such action.
 
3. PEPCO will abide by the Drug and Alcohol Testing Procedures issued by the company on March 13, 1986 (Defendant's Ex. 2). According to these procedures, PEPCO will:
 
(a) conduct confirmatory testing of all tests which show positive for controlled substances. The required confirmatory test will be the GCMS *fn2" test in every instance;
 
(b) abide by the established procedures which ensure the confidentiality of employee test results, except that the test may be used in an arbitration ...

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