IN COURT OF APPEALS
Law Enforcement Labor Services, Inc.,
Local No. 158, et al.,
Filed May 3, 2005
Affirmed in part, reversed in part, and remanded
Sherburne County District Court
File No. C1-04-590
Marylee Abrams, Tiffany L.
Schmidt, Law Enforcement Labor Services, Inc.,
Scott M. Lepak, Barna, Guzy &
Steffen, Ltd., 400 Northtown Financial Plaza,
Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Poritsky, Judge.
S Y L L A B U S
I. The establishment of a random drug-testing policy for employees in safety-sensitive positions, as authorized by Minn. Stat. § 181.951, subd. 4 (2004), is an inherent managerial right and is not subject to collective bargaining. But the implementation of the provisions of such a policy that are not inextricably intertwined with the policy’s establishment are subject to collective bargaining.
II. The unilateral imposition of bargainable terms of a random drug-testing policy constitutes an unfair labor practice when an employer refuses to meet and negotiate concerning those terms, and a union does not waive its right to bargain by refusing an employer’s offer to “meet and confer” on those terms.
III. A random drug-testing policy for employees holding “safety-sensitive” positions does not violate the Fourth Amendment rights of employees who are subject to testing under that policy.
O P I N I O N
This appeal is from a summary judgment dismissing appellant-labor union’s claims seeking relief from a county-employer’s unilateral implementation of a random drug-testing policy, established by the county in accordance with Minn. Stat. § 181.951, subd. 4 (2004). We conclude that the establishment of a random drug-testing policy as expressly authorized by statute, including the designation of which employees are in the “safety-sensitive” positions, is not subject to collective bargaining even though it affects the terms and conditions of employment. But aspects of the implementation of the policy that are not inextricably intertwined with its establishment are mandatory subjects for collective bargaining. Thus, when the county unilaterally imposed terms and conditions of employment under such a policy without providing an opportunity to bargain the terms of its implementation, the county committed an unfair labor practice. Appellants did not waive their right to pursue an unfair-labor-practice claim when they refused the county’s offer to “meet and confer” on the policy. Finally, we conclude that the establishment of a random drug-testing policy for employees in safety-sensitive positions does not violate the employees’ Fourth Amendment rights. We therefore (1) affirm the district court’s determination that the establishment of the policy does not constitute an unfair labor practice, (2) affirm the court’s denial of the Fourth Amendment claim, but (3) reverse the district court’s determination that the parties had no obligation to meet and negotiate those aspects of the policy’s implementation that are severable from its establishment, and remand with directions that the district court allow the union to pursue its unfair-labor-practice claim, insofar as the claim relates to bargainable terms of the policy’s implementation.
exclusive representative, the appellant labor union
is responsible for contract negotiations, grievance representation, and
internal-affairs representation for its members. In September 2003,
In January 2004, the union reiterated its opposition to the amendments and, in February 2004, submitted a grievance under its labor agreement with the county, alleging failure to meet and negotiate over terms and conditions of employment. Just prior to filing the grievance the union learned that the county had tested three employees in accordance with the amended policy.
LELS and Local No. 158, the local representing patrol deputies, investigators, and transport/security deputies, filed a complaint in district court, seeking injunctive relief restraining the county from unilaterally implementing the policy, damages, and an order requiring the county to meet and negotiate over the terms of the drug-testing policy. The district court denied the union’s application for a temporary restraining order. After both parties moved for summary judgment, the district court granted the union’s motion to amend the complaint to allege a violation of Fourth Amendment rights and to add Local 158.12, representing 911 dispatchers, as a plaintiff.
The district court rendered summary judgment for the county, denying all of the union’s claims. The court determined that although the amended testing policy had an impact on the terms and conditions of employment, the policy was inseparable from its implementation under the Workplace Testing Act. Further, the court ruled that the requirement of Minn. Stat. § 181.955, subd. 1 (2004), that bargaining be permitted over a drug-testing policy that “meets or exceeds” the minimum statutory requirements, did not apply when the policy did not differ meaningfully from the statute. The union has appealed, arguing that (1) the district court erred as a matter of law in concluding that the establishment and implementation of the policy did not require collective bargaining under PELRA; (2) the imposition of the policy constituted an unfair labor practice under the parties’ collective-bargaining agreement, which the union did not waive; and (3) the application of the policy to its members violated the Fourth Amendment.
II. Did the county’s unilateral imposition of the random drug-testing policy constitute an unfair labor practice, and if so, did the union waive its right to pursue an unfair-labor-practice claim when it did not accept the county’s offer to meet and confer?
III. Did the implementation of the random testing policy violate the Fourth Amendment rights of affected employees?
A N A L Y S I S
The district court granted summary
judgment for the county on the basis that the county’s random drug-testing
policy, established and implemented under the Workplace Testing Act, did not require collective
bargaining with the union. When a
district court grants summary judgment based on the application of a statute to
undisputed facts, the result is a legal conclusion that is reviewed de novo. Lefto v. Hoggsbreath Enters., Inc.,
581 N.W.2d 855, 856 (
examining the application of a statute, we look first to its language to
ascertain and effectuate legislative intent.
Minn. Stat. § 645.16 (2004) (setting forth plain meaning rule); Kersten
When employers—either public or private—seek to require employees to undergo drug testing, the matter is governed by the Workplace Testing Act, Minn. Stat. §§ 181.950-.957 (2004). Section 181.951 generally authorizes employers to “request or require” employees to undergo such testing, but, at the same time, imposes limits on that authority. Subdivision 4 of section 181.951 specifically provides that “[a]n employer may request or require only employees in safety-sensitive positions to undergo drug and alcohol testing on a random selection basis.” The Workplace Testing Act defines “safety-sensitive positions” as positions “in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.” Minn. Stat. § 181.950, subd. 13.
The Workplace Testing Act, Minn. Stat. § 181.955, subd. 1, also permits collective bargaining on drug-testing policies that “meet or exceed” the act’s requirements. That subsection provides:
Sections 181.950 to 181.954 shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection provided in those sections.
Because the county is a public
employer, we consider the application of the Workplace Testing Act in this case
under the requirements for collective bargaining imposed by PELRA. Under PELRA, public employers are not
required to negotiate over “matters of inherent managerial policy.” Minn. Stat. § 179A.07, subd. 1
(2004). Such matters include
discretionary or policy matters such as an employer’s functions or programs,
budget, technology use, organizational structure, and the selection, direction
and numbers of personnel.
Minnesota Supreme Court has recognized that in some close cases, “inherent
managerial policy” overlaps with “terms and conditions of employment.” Law
Enforcement Labor Servs., Inc. v.
the establishment and the implementation are not separate and distinct,
implementation is not subject to mandatory bargaining. See id. at 729 (concluding that because establishment of grooming policy
for sheriff’s department personnel was inseparable from implementation of
policy, mandatory bargaining was not required).
But if establishment and implementation are separate and distinct,
implementation is subject to bargaining. In City of West St. Paul v. Law Enforcement
Labor Servs., Inc., 481 N.W.2d 31, (
we first determine whether the county’s establishment of the random drug-testing
policy is subject to negotiation. In City
we have noted, the Workplace Testing Act authorizes an employer to “request or
require” drug and alcohol testing, Minn. Stat. § 181.951, subd. 1, and
further authorizes the employer, subject to certain limits, to “request or
require” random drug testing.
In a similar vein, we note that the union, while arguing that the employees have a right to collectively bargain over any random drug testing, does acknowledge that the Workplace Testing Act protects “an employers’ [sic] right to choose whether to test.” Here, too, we conclude that if the county has any right to choose whether to test, that right must include the right to establish a random drug-testing program, or else the county has no right whatsoever under section 181.951, subdivision 4.
Consequently, we conclude that the district court did not err in its implicit ruling that the county’s decision to establish a random drug-testing policy is an inherent managerial right. This conclusion leads to the next step in the analysis: Does the decision have an impact on the terms and conditions of employment? On this issue we agree with the district court’s finding that, “[t]he random drug testing policy has an impact on the union members’ terms and conditions of employment, because members would be subject to a change of duties, discipline, and possible dismissal.”
final step in this analysis is to determine whether the establishment of the
policy under Minn. Stat. § 181.951, subd. 4 is inseparable from the
policy’s implementation, so that neither the establishment nor the
implementation of the policy is subject to collective bargaining. On this issue, we look first to that part of
the policy designating certain categories of employees as “safety sensitive”
and thus subject to testing. The
Workplace Testing Act specifically authorizes testing of employees in
“safety-sensitive positions,” Minn. Stat. § 181.951, subd. 4, and defines those
positions as those “in which an impairment caused by drug or alcohol usage
would threaten the health or safety of any person.” Minn. Stat. § 181.950, subd. 13. The county’s policy identifies the following
categories of employees as safety sensitive: jail personnel, patrol officers,
investigators, the director of emergency management, and transport/court
security deputies. This provision sufficiently describes the
scope of positions subject to testing, and there can be no serious question
that all the positions on the county’s list are those with duties that
implicate the public safety and health.
In our view, to require the county to bargain on the issue of which
positions are safety sensitive would “likely hamper the establishment of the
policy.” City of
We disagree, however, with the district court’s conclusion that, as a matter of law, none of the aspects of the policy’s implementation is severable from its establishment. The plain language of Minn. Stat. § 181.955, subd. 1, permits the parties to bargain concerning a policy that “meets or exceeds” the minimum standards for employee protection specified in the Workplace Testing Act. This is consistent with legislative policy that provisions of the Workplace Testing Act were intended to provide a level of minimum mandated protection for employees affected by random drug testing. See Barbara Jean D’Aquila, Drug and Alcohol Testing in the Workplace: the Legislative Response, 14 Wm. Mitchell L. Rev. 255, 270 (1988) (“In an organized labor setting, the [Workplace Testing] Act only establishes the statutorily-minimum protections that employers must provide to employees.”).
Although it is not the province of the courts to suggest which areas are subject to collective bargaining, we agree with the union that such areas exist. Therefore, we conclude that the district court erred in determining that the parties had no obligation to meet and negotiate concerning those areas of implementation of the county’s random drug-testing policy.
Since we have determined that
the union has collective bargaining rights in some areas of policy
implementation, we address whether the county engaged in an unfair labor
practice by refusing to meet and negotiate concerning those areas. Under PELRA, an employer has engaged in an
unfair labor practice if it “refus[ed] to meet and negotiate in good faith with
the exclusive representative of its employees in an appropriate unit.” Minn. Stat. § 179A.13, subd. 2(5)
(2004). This requirement comports with
the established labor law principle that a unilateral change by an employer in
the terms and conditions of employment constitutes a prima facie violation of
the employees’ collective-bargaining rights.
Foley Educ. Ass’n v. Indep. Sch. Dist. No. 51, 353 N.W.2d
917, 920-21 (
The county argues that its amendment
of the policy was consistent with past practice because a previous drug and
alcohol testing policy was already in place, which operated outside of the
collective bargaining process, and that the collective bargaining agreement
gave the county broad authority to establish any term or condition of
employment not specifically referenced in the agreement. But
The county further argues that the
union waived its right to bargain concerning these terms when it failed to
respond to the county’s offer to “meet and confer” concerning the random-testing
The union also argues that the county’s implementation of the random-testing policy for “safety-sensitive” employees, which is authorized by the Workplace Testing Act, violates the Fourth Amendment rights of the affected employees. The district court granted the union’s motion to add this cause of action to its complaint but granted summary judgment denying the claim without comment.
Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures.
the reasoning in Skinner, the
the union argues that the application of the county’s policy impermissibly
bypasses the required fact-specific constitutional scrutiny of the balancing
test by permitting the county to require random drug testing of employees in
safety sensitive positions. But, as in Van Raab and Geffre,
here there is a risk of serious harm to the public, should the designated
safety-sensitive employees be working under the influence of alcohol or drugs. The public employees involved in the present
case also have a diminished expectation of privacy through their work in
safety-sensitive positions with the county.
And the county’s policy specifically references the Workplace Testing
Act, which provides reliability and fairness safeguards for testing, including
standards for laboratories used, the employee’s right to explain a positive
test, the right to obtain a confirmatory retest, and a limitation on discharge
or discipline without a confirmatory retest.
We conclude that the establishment of a random drug-testing policy under the Workplace Testing Act is an inherent managerial right and not subject to collective bargaining under PELRA. As to the implementation of the policy, the categorization of which positions are “safety sensitive” is so intertwined with the establishment of the policy as to be equivalent to its establishment and not, therefore, subject to collective bargaining. But in other areas not covered by the Workplace Testing Act, the implementation of the policy may be separated from the policy’s establishment and thus requires collective bargaining as provided by Minn. Stat. § 181.955, subd. 1 (2004). As to those areas, the county committed an unfair labor practice by refusing to meet and negotiate with the union. Finally, the application of the random drug-testing policy to employees who occupy “safety-sensitive” positions does not violate the employees’ Fourth-Amendment rights.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellants are Law Enforcement Labor, Services, Inc.,
(LELS) a labor union representing law enforcement personnel throughout
Minnesota, and its Locals No. 158 and 158.12, which represent patrol deputies,
investigators, transport/security deputies, and 911 dispatchers employed by
 The policy provides in part: “Violations of this policy will constitute just cause for discipline, up to and including discharge.”
The policy specifically identifies the following safety-sensitive positions: “corrections officer, jail sergeant, jail captain, jail administrators, jail recreation/programming staff, master control operators, patrol deputies, patrol sergeants, patrol captain, investigators, investigative sergeant, director of emergency management, and transport/court security deputies.”
 In City of Luverne this court said: “We decline to hold the parties to the . . . areas . . . as either negotiable or non-negotiable. Rather, the parties must be free to explore a variety of avenues in negotiating the implementation of the policy.” 463 N.W.2d 550 n.3.
The Minnesota Supreme Court has recognized, in interpreting PELRA, that “it is
often instructive to refer to decisions interpreting the National Labor
Relations Act (NLRA), 29 U.S.C.A. §§ 151 to 168.” Int’l Union of Operating Eng’rs, Local No.
49 v. City of Minneapolis,
 The union has made no claims under the Minnesota Constitution.
The union also argues on appeal that the county impermissibly equated the
category of “safety-sensitive” employees with the broader designation of “essential
employees” who are not permitted to strike.
See Minn. Stat. § 179A.03, subd. 7 (2004) (defining
“essential employees”). But the district
court did not rule on this issue, and we decline to consider it on appeal. See Thiele v. Stich, 425 N.W.2d 580,