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            Title Bolden v. Southeastern Pennsylvania Transportation Authority

 

            Date 1991

            By Alito

            Subject Misc

                

 Contents

 

 

Page 1

223 of 238 DOCUMENTS

RUSSELL BOLDEN, Appellant in No. 90-1478 v. SOUTHEASTERN PENNSYLVANIA TRANSPORATION AUTHORITY, Appellant in 90-1435 v. TRANSPORT WORKERS UNION OF PHILADELPHIA, LOCAL 234, TRANSPORT WORKERS UNION OF AMERICA AFL/CIO, Appellee/Cross-Appellant

Nos. 90-1435 and 90-1478

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

953 F.2d 807; 1991 U.S. App. LEXIS 30622; 139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772; 7 I.E.R. Cas. (BNA) 92

January 8, 1991, Originally Argued; October 9, 1991, Reargued In Banc

December 31, 1991, Filed

PRIOR   HISTORY:             **1        ON   APPEAL   FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN  DISTRICT  OF  PENNSYLVANIA.  (D.C. Civil No. 88-9156)

CASE SUMMARY:

PROCEDURAL  POSTURE:  Appellant  Southeastern Pennsylvania  Transportation  Authority  (transportation authority) required appellee employee to take a drug test. After a jury trial in the United States District Court for the Eastern District of Pennsylvania, employee was awarded damages in his 42 U.S.C.S. § 1983 suit. Addressing an

11th Amendment claim and employee's appeal of the dis- missal of his punitive damages claim, the court granted his petition for rehearing.

OVERVIEW:  Transportation  authority  unilaterally  in- stituted  a  drug  testing  program  that  required  employee to submit to a test when returning to work. The settle- ment  on  the  employee's  grievance  negotiated  with  ap- pellee union required employee to submit to drug testing. The court held (1) transportation authority could raise an

11th  Amendment  immunity  claim  for  the  first  time  on appeal,  (2) the possibility that the state might make up the cost of a judgment did not trigger 11th Amendment immunity, (3) the transportation authority was a person under § 1983, (4) the transportation authority had no spe- cial need to subject employee to a drug test because of job-related dangers, (5) employee's silent submission to an otherwise unconstitutional search on pain of discharge was  not  consent,  (6)  the  totality  of  the  circumstances showed employee did not consent to the drug test, (7) the grievance settlement did not preclude employee's § 1983 claim under res judicata or collateral estoppel,  (8) em- ployee's rejection of reemployment on the terms negoti-

ated cut off his right to damages for lost wages following that  date,  and  (9)  transportation  authority  was  immune from punitive damages under § 1983.

OUTCOME: The court affirmed the district court's judg- ment that the transportation authority was liable for violat- ing employee's constitutional right against unreasonable search and that the employee's claim for punitive damages under § 1983 should be dismissed. The court reversed the award for compensatory damages and remanded the case for a new trial on that issue.

LexisNexis(R) Headnotes

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN1  An employer must justify its return-to--work test- ing on the basis of some particularized suspicion.

Civil   Procedure   >   Jurisdiction   >   Subject   Matter

Jurisdiction > Jurisdiction Over Action

Constitutional Law > State Autonomy

HN2  The court does not generally consider issues not raised by the parties, but the court is always obligated to ensure that it has jurisdiction over the cases that come be- fore it. The 11th Amendment sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court in order to be preserved for appeal. The

11th Amendment defense is not jurisdictional in the sense that it must be raised and decided by the court on its own motion. Instead, when an 11th Amendment question is not raised by the parties, the court may determine whether to raise and decide the question based on what is appropriate in each particular case.

Governments > Courts > Judicial Precedents

HN3  When the court is sitting in banc, it is not bound

953 F.2d 807, *; 1991 U.S. App. LEXIS 30622, **1;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

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by  precedents  in  the  same  way  that  a  panel  would  be bound. Instead, the court is constrained only to the degree counseled by principles of stare decisis.

Constitutional Law > State Autonomy

HN4  The 11th Amendment protects a non-consenting state from suit in federal court by its own citizens as well as those of another state. The 11th Amendment applies to claims asserted in federal court under 42 U.S.C.S. §

1983. Although political subdivisions of a state, such as counties and municipalities, fall within the term "state" as  used  in  the  14th  Amendment,  political  subdivisions are  not  "states"  under  the  11th  Amendment.  The  11th Amendment limits the jurisdiction only as to suits against a state. While the county is territorially part of the state, yet politically it is also a corporation created by and with such powers as are given to it by the state. In this respect it is a part of the state only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the state.

Constitutional Law > State Autonomy

HN5  The 11th Amendment bars suits in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury. This principle applies even if the relief is labelled equitable. Constitutional Law > State Autonomy

HN6  A state law determination of sovereign immunity may coincide with and influence the federal law determi- nation of 11th Amendment status, but the former does not conclusively determine the latter.

Constitutional Law > State Autonomy

HN7  The court condenses the factors to determine 11th Amendment  immunity  into  three  larger  questions:   (1) Whether the money that would pay the judgment would come from the state (this includes whether payment will come from the state treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign immunizes  itself  from  responsibility  for  the  agency's debts); (2) The status of the agency under state law (this in- cludes how state law treats the agency generally, whether the entity is separately incorporated, whether the agency can sue and be sued in its own right,  and whether it is immune from state taxation); and (3) What degree of au- tonomy the agency has.

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN8       Southeastern         Pennsylvania         Transportation

Authority is a "separate body corporate and politic," 55

Pa. Cons. Stat. Ann. § 600.303(a),  and it falls squarely within the definition of the term "person," for purposes of 42 U.S.C.S. § 1983, as generally applying to "bodies politic and corporate," a phrase that means both private

and public (municipal) corporations.

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN9  Federal law determines who is a "person" under

42 U.S.C.S. § 1983.

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN10   As  to  persons  that  Congress  subjects  to  liabil- ity under 42 U.S.C.S. § 1983, individual states may not exempt such persons from federal liability by relying on their own common law heritage.

Governments  >  Local  Governments  >  Administrative

Boards

Constitutional Law > State Autonomy

HN11  The Commonwealth of Pennsylvania specifically disclaims  any  liability  for  Southeastern  Pennsylvania Transportation   Authority's   (transportation   authority) debts. The transportation authority has no power to pledge the  credit  or  taxing  power  of  the  commonwealth,  its obligations may not be deemed to be obligations of the commonwealth, and the commonwealth is not liable for the payment of principal or interest on such obligations.

1991 Pa. Laws 26, § 1503(21); 55 Pa. Cons. Stat. Ann.

§ 600.303(d)(20) (1991 Supp.). Furthermore,  the trans- portation authority, need not request funds from the state coffers in order to meet shortfalls caused by adverse judg- ments. Rather, the transportation authority, like a private railroad can raise revenues by raising fares. 55 Pa Cons. Stat.  Ann.  §  600.303(d)(9)  (Purdon  1991  Supp.).  The transportation authority may purchase insurance or self- insure. 55 Pa. Cons. Stat. Ann. § 600.303(d)(24) (Purdon

1991 Supp.).

Constitutional Law > State Autonomy

HN12  Legislature's discretionary subsidies committed in reaction to a judgment, however, would not necessarily transform the recipients into alter egos of the state. Governments  >  Local  Governments  >  Administrative Boards

HN13     Southeastern         Pennsylvania         Transportation Authority  possesses  certain  attributes  not  characteristic of an arm of a state: it has a separate corporate existence, the power to sue and be sued, and the power to enter into contracts and make purchases on its own behalf. The en- tity also possesses attributes associated with sovereignty, including exemption from state property taxation and cer- tain  public  powers  such  as  the  power  of  eminent  do- main. In addition, the entity is treated like its state under state tort laws: Southeastern Pennsylvania Transportation Authority,  like  the  Commonwealth  of  Pennsylvania,  is subject to the Pennsylvania Sovereign Immunity statute. Governments  >  Local  Governments  >  Administrative

953 F.2d 807, *; 1991 U.S. App. LEXIS 30622, **1;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

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Boards

Constitutional Law > State Autonomy

HN14     Southeastern         Pennsylvania         Transportation Authority's (transportation authority) board possesses the power  to  enter  contracts,  bring  lawsuits,  purchase  and sell property,  buy insurance,  structure the corporation's internal management, and set and collect fares, but its ac- tions are not subject to gubernatorial veto. Moreover, only five of the 15 board members are appointed by state offi- cials; all of the rest are appointed by the counties that the transportation  authority  serves.  Although  this  indicates influence on the transportation authority by the counties, it is the influence of the state,  not that of the counties, that  is  important  for  11th  Amendment  purposes.  Thus, the autonomy factor is weak.

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN15  While the question of Southeastern Pennsylvania Transportation Authority's (transportation authority) sta- tus  under  the  11th  Amendment  is  sufficiently  jurisdic- tional  in  nature  to  permit  a  court  to  raise  the  question on its own motion, the argument that the transportation authority  is  not  a  "person"  under  42  U.S.C.S.  §  1983, when stripped of its 11th Amendment component, does not implicate federal jurisdiction unless the claim that the transportation authority is a "person" is made in bad faith or is wholly insubstantial and frivolous.

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN16     Southeastern         Pennsylvania         Transportation Authority is a "person" under 42 U.S.C.S. § 1983. Constitutional Law > Substantive Due Process > Privacy

HN17   Employees'  expectations  of  privacy  are  dimin- ished by reason of their participation in an industry that is regulated pervasively to ensure safety. The government interest in testing is compelling when the employees sub- ject to the drug tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.

Civil  Procedure  >  Appeals  >  Standards  of  Review  > Standards Generally

Constitutional Law > Substantive Due Process > Privacy

HN18  The court must balance the employee's legitimate privacy expectations against the special need for drug test- ing asserted by the employer. Unlike a determination of

"reasonableness" in ordinary tort cases and some other contexts,  this  balancing  process  presents  a  question  of law, and therefore the court exercises plenary review of the district court's determination.

Civil  Procedure  >  Appeals  >  Standards  of  Review  > Harmless & Invited Errors

HN19  Reversal on the ground of erroneous submission of a question of law to the jury is not required when de- fendant does not object to the court's instruction, and it is clear that the jury's finding is correct.

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN20     Southeastern         Pennsylvania         Transportation Authority  has  no  special  need  to  subject  employee  to a drug test based on any dangers presented by his job as maintenance custodian.

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN21   If  the  party  conducting  the  search  claims  the authority  to  search  without  consent,  that  factor  weighs against a finding of voluntary consent. Consent to search is a question of fact to be determined from the totality of the circumstances. Therefore,  in reviewing a finding of fact on consent, the court must view the facts in the light most favorable to the finding.

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN22  Silent submission to a law enforcement search is not enough to establish voluntary consent as a matter of law. To be sure, cases involving consent to search by law enforcement officers should not be applied mechanically to cases involving administrative searches. Consent must be determined based on the totality of the circumstances in each individual case, and circumstances relating to a law enforcement search may differ from those relating to an administrative search.

Labor & Employment Law > Collective Bargaining & Labor Relations > Subjects of Bargaining

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN23  A union may validly consent to terms and condi- tions of employment, such as submission to drug testing, that implicate employees' Fourth Amendment rights. The authority of the employee's union to make binding con- tractual commitments regarding terms and conditions of employment is well established. Under the Pennsylvania Employee Relations Act, 43 Pa. Cons. Stat. § 1101.606

(Purdon  1991),  a  union  is  the  exclusive  collective  bar- gaining representative for all of the employees in the unit, and therefore the union, in entering into a collective bar- gaining agreement, may agree to terms and conditions of employment that are contractually binding on all of the employees. A union's authority as exclusive bargaining agent  necessarily  entails  some  restrictions  on  constitu- tional rights that individual employees would otherwise enjoy.

Labor & Employment Law > Collective Bargaining &

953 F.2d 807, *; 1991 U.S. App. LEXIS 30622, **1;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 4

Labor Relations > Subjects of Bargaining

HN24  The National Labor Relations Board holds that drug testing is a mandatory subject of bargaining.

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN25  If the union agrees, or if binding arbitration estab- lishes, that the collective bargaining agreement impliedly authorizes drug testing, individual employees are bound by this interpretation unless they can show a breach of the duty of fair representation.

Labor & Employment Law > Employee Privacy > Drug

& Alcohol Testing

HN26  Unless the union breaches its duty of fair rep- resentation,  a  negotiated  settlement  of  a  grievance  has the  same  effect  under  labor  law  and  under  the  Fourth Amendment as if the employee himself consents to such future drug testing.

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN27     Southeastern         Pennsylvania         Transportation Authority (transportation authority),  of course,  is not a governmental unit in the traditional sense,  but it shares many characteristics  with federal,  state,  and local gov- ernment agencies. The transportation authority is perhaps best described as a hybrid entity with substantial connec- tions to government at all levels-- federal, state, and local. While the transportation authority's ties to state govern- ment are not close enough or exclusive enough to persuade the court that it should be regarded as an alter ego of the commonwealth for 11th Amendment purposes, the trans- portation authority's ties to all levels of government taken together are sufficient to convince the court that it may be analogized to a government entity for purposes of deter- mining whether it should be liable for punitive damages. Thus,  the immunity from punitive damages enjoyed by all levels of government in 1871 weighs in transportation authority's favor.

COUNSEL:           H.             FRANCIS               deLONE,                 JR.,          ESQ.

(Argued), 1760 Market Street, Suite 1305, Philadelphia, PA 19103, Attorney for Russell Bolden

JOHN F. SMITH, III, ESQ., RICHARD S. MEYER, ESQ.

(Argued),  VIRGINIA  H.  MILLER,  ESQ.,  THOMAS E.  GROSHENS,  ESQ.,  BARBARA  SHOTEL,  ESQ., DILWORTH, PAXSON, KALISH & KAUFFMAN, 2600

The Fidelity Building, Philadelphia, PA 19109, Attorneys for Southeastern Pennsylvania, Transportation Authority

JUDGES:  Before:    COWEN,  ALITO  and  ROSENN, Circuit Judges

Before:    SLOVITER,   Chief   Judge   and   BECKER, STAPLETON,           MANSMANN,      GREENBERG, HUTCHINSON,    SCIRICA,    COWEN,    NYGAARD, ALITO, ROTH, and ROSENN,* Circuit Judges

* Hon. Max Rosenn, Senior Judge, participated as a member of the original panel.

OPINIONBY: ALITO

OPINION:

*809   OPINION OF THE COURT ALITO, Circuit Judge:

The         Southeastern         Pennsylvania         Transportation Authority  ("SEPTA")  appeals  from  a  judgment  award- ing compensatory damages to Russell Bolden, a former SEPTA  maintenance  custodian,  based  on  an  assertedly unconstitutional  drug  test  that  resulted  in  Bolden's  dis- charge. Bolden also appeals, contending that the district court improperly dismissed **2   his claim for punitive damages. We will affirm the district court judgment inso- far as it holds that SEPTA is liable for violating Bolden's constitutional right against unreasonable search, but we will reverse the award of   *810   compensatory damages and  will  remand  the  case  for  a  new  trial  on  that  issue. We will also affirm the dismissal of Bolden's claim for punitive damages.

I.

Bolden was a maintenance custodian at SEPTA's Fern Rock Depot from 1981 to 1986. In August 1986, Bolden was involved in an altercation with a SEPTA bus driver and  was  discharged  for  conduct  unbecoming  a  SEPTA employee.  Bolden's  union,  the  Transportation  Workers' Union Local 234 ("Local 234"), filed a grievance, which was denied by SEPTA and ultimately submitted for ar- bitration pursuant to the collective bargaining agreement. In June 1987, the arbitration panel ordered that Bolden be reinstated with one-half back pay.

In  the  meantime,   SEPTA  had  unilaterally  imple- mented a new drug testing policy. n1 In January 1987, SEPTA  promulgated Order  No.  87-1,  which  called  for random  testing  of  certain  employees.  On  February  3,

1987, SEPTA promulgated Order 87-2, the order at is- sue in this case. Order 87-2 authorized drug testing **3  of  employees  returning  to  work  after  certain  absences, including any disciplinary suspension or any absence of more than 30 days. n2 The unions that represent SEPTA workers,  including  Local  234,  filed  an  action  in  the Eastern  District  of  Pennsylvania  challenging  the  legal- ity of SEPTA's new policy. On February 9, 1987, the dis- trict court issued a preliminary injunction against enforce-

953 F.2d 807, *810; 1991 U.S. App. LEXIS 30622, **3;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 5

ment of Order 87-1 but not Order 87-2. n3 After some modification of the random-testing program, the district court held in January 1988 that this program met Fourth Amendment standards but that the return-to--work testing requirement  was  unconstitutional.    Transport  Workers' Local 234 v. SEPTA, 678 F. Supp. 543 (E.D. Pa. 1988).

n1 The background and details of this policy are discussed in our opinion in Transport Workers' Local 234 v. SEPTA, 863 F.2d 1110, 1113-15 (3d Cir.  1988),  vacated,  492  U.S.  902  (1989),  reaf- firmed, 884 F.2d 709 (3d Cir. 1989).

n2 SEPTA Order 87-2 provided in relevant part: Any employee returning to work under the fol- lowing  circumstances  may  be  subject  to  a  medi- cal  examination,  including  body  fluid  testing:  1. Absences due to physical problems such as injury occurring on or off duty, and illness; 2. A rehabili- tation program for substance abuse which lasted for any length of time; 3. a disciplinary suspension; 4. Any other approved absence from duty in excess of

30 days. (excluding a five-week vacation period). Refusal to submit to the aforementioned medi- cal examination will subject employees to the dis-

ciplinary measures outlined under policy 85-1.

App. at 980.

**4

n3 Although the district court's later reported opinion stated that Order 87-2 had also been pre- liminarily enjoined (see Transport Workers, Local

234, 678 F. Supp. 543, 547 (E.D. Pa. 1988)), the same district court judge made clear in this case that the  preliminary  injunction  applied  only  to  Order

87-1.  See  10/20/89  Order-Memorandum  at  3  &

n.3.

We  affirmed  both  of  these  holdings.           Transport

Workers'  Local  234  v.  SEPTA,  863  F.2d  1110  (3d  Cir.

1988),  vacated,  492  U.S.  902  (1989),  reaffirmed,  884

F.2d  709  (3d  Cir.  1989).  n4  With  respect  to  return-to-- work testing, we wrote ( id. at 1122):

HN1  SEPTA must justify its return-to--work testing on the basis of some particularized suspicion. It has, how- ever, failed to present any evidence that the employees re- turning to work present some unique risk directly related to drug or alcohol use. Thus, SEPTA has not shown that this aspect of its program is initially justified or that testing of all employees returning after an absence for whatever

cause has any relationship **5   to the articulated need for the program.

As   noted   above,   the   arbitrators'   decision   requiring Bolden's reinstatement was issued   *811   in June 1987, more than six months before the district court permanently enjoined enforcement of Order 87-2. Since Bolden had missed  work  due  to  a  disciplinary  suspension  and  had been absent for more than 30 days, he was directed under Order 87-2 to submit to a medical examination, including body fluids testing, before returning to work. Bolden un- derwent a two-hour medical examination during which a blood sample was taken. He also provided a urine sam- ple in private. These samples were sent to a laboratory for testing, and the results were interpreted by SEPTA to mean that Bolden had used marijuana. Thus, in August

1987, Bolden was again discharged, this time for drug use in violation of SEPTA Order 85-1. n5

n4  The  Supreme  Court  vacated  our  decision and  remanded  for  reconsideration  in  light  of  its subsequent decisions in Skinner v. Railway Labor Executives  Ass'n,  489  U.S.  602,  103  L.  Ed.  2d

639, 109 S. Ct. 1402 (1989), and Consolidated Rail

Corp. v. Railway Labor Executives Ass'n, 491 U.S.

299,  105 L. Ed. 2d 250,  109 S. Ct. 2477 (1989). On remand,  we reaffirmed the portion of our de- cision  that  had  upheld  SEPTA's  testing  program for  safety-sensitive  positions,  but  we  had  no  oc- casion to address the return-to--work question be- cause SEPTA chose to abandon that issue. 884 F.2d at 711 n.1.

**6

n5   Order   85-1   is   discussed   in   Transport Workers,' Local  234 v. SEPTA, 678 F. Supp. 543 at 544, 545 & n.4 (E.D. Pa. 1988).

Once again, Local 234 filed a grievance, represented Bolden  through  three  levels  of  grievance  proceedings, and  requested  arbitration.  Prior  to  arbitration  and  after enforcement of Order 87-2 was permanently enjoined in January 1988, SEPTA and the union reached a settlement of the grievance regarding Bolden's discharge. Under this settlement,  Bolden was to receive full back pay for the second part of the discharge period, but he was required to  comply  with  one  of  two  options.  He  could  1)  enter SEPTA's Employee Assistance Program and present evi- dence of successful substance abuse treatment, agree to an

"aftercare program," submit to a body fluids test before returning  to  work,  and  remain  subject  to  unannounced follow-up tests or 2) submit to a body fluids test and, if

953 F.2d 807, *811; 1991 U.S. App. LEXIS 30622, **6;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 6

he passed,  meet with a substance abuse counsellor and remain subject to unannounced follow-up testing for six months.  Thus,  both  options  required  Bolden  to  submit to a drug test before returning to work **7   and to re- main subject to testing for a period thereafter. Bolden did not comply with either option and consequently did not resume work.

Instead, Bolden filed a complaint against SEPTA un- der 42 U.S.C. § 1983, alleging that SEPTA had violated his constitutional rights by subjecting him to an unreason- able search and seizure and by discharging him without a prior hearing. His complaint sought both compensatory and punitive damages. SEPTA filed an answer denying that the drug test was unconstitutional and asserting the affirmative defense of accord and satisfaction based on the settlement of the second grievance. SEPTA later filed a third-party complaint against Local 234, claiming that the union was liable for any recovery obtained by Bolden since the union had negotiated the settlement with SEPTA. Bolden, in turn, filed an amended complaint that added Local  234  as  a  defendant.  In  this  amended  complaint, Bolden asserted that "if . . . Local 234 . . . had any obli- gation to represent plaintiff in connection with this illegal drug  testing  and  illegal  discharge,  which  obligation  is denied by plaintiff, then Local 234 participated in a con- spiracy with SEPTA  to deprive plaintiff of his XIVth

**8    Amendment  rights."  According  to  the  amended complaint, Local 234 furthered this conspiracy by failing to file a Section 1983 action on his behalf, failing to insist on arbitration within the time required by the collective bargaining  agreement,  and  accepting  an  unsatisfactory settlement.

The district court denied Bolden's and SEPTA's cross- motions for summary judgment on liability, holding that there were genuine issues of material fact with regard to whether the drug test was reasonable, whether Bolden had consented to the test, and whether accord and satisfaction based on the settlement could be shown. The court did, however,  dismiss  Bolden's  claim  for  punitive  damages under City of Newport v. Fact Concerts,  Inc.,  453 U.S.

247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981). The court also granted Local 234's unopposed motion for summary judgment on SEPTA's third-party complaint.

Bolden's claims against SEPTA and Local 234 were tried  before  a  jury  for  eight  days  in  March  1990.  In response  to  interrogatories,  the  jury  found  that  SEPTA had violated Bolden's right to be free from unreasonable

*812    searches  and  seizures  and  found  that  his  dam- ages for this violation were $285,000. The jury found that SEPTA had **9    not violated Bolden's right to proce- dural  due  process  and  that  Local  234  had  not  violated Bolden's constitutional rights by conspiring with SEPTA.

The district court denied SEPTA's motion for judgment notwithstanding the verdict and entered judgment in favor of Bolden for the amount of the verdict. Both SEPTA and Bolden appealed.

In the briefs filed by SEPTA before the panel argu- ment, SEPTA contended that Bolden's drug test was rea- sonable  because  his  duties  posed  a  substantial  risk  of harm to himself and others and because Bolden had con- sented to the test. SEPTA also relied upon the settlement it  reached  with  Local  234  after  Bolden's  discharge  for drug  use.  Finally,  SEPTA  contended  that  the  judgment for $285,000 was contrary to law, excessive, and uncon- scionable. Bolden argued that the district court erred in dismissing his claim for punitive damages.

A  panel  of  this  court  issued  a  judgment  reversing the  district  court  and  remanding  for  entry  of  judgment in favor of SEPTA. Bolden's petition for rehearing was subsequently granted, and the judgment of the panel was vacated.

II.

Before turning to the arguments made by the parties in the briefs submitted prior to the initial panel argument,

**10   we first address an issue that was originally raised by the panel at oral argument, viz., whether SEPTA may be sued in federal court under Section 1983. The parties addressed this question in letter-briefs submitted after the panel argument and in supplemental briefs submitted after rehearing was granted. Relying on the Supreme Court's reasoning in Will v. Michigan Dep't of State Police, 491

U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), SEPTA contends  that  it  is  an  alter  ego  of  the  Commonwealth of Pennsylvania for Eleventh Amendment purposes and that it therefore may not be sued in federal court with- out its consent. SEPTA also argues that, because it is not subject to suit in federal court by virtue of the Eleventh Amendment, it is also not a "person" within the meaning of 42 U.S.C. § 1983.

Before   addressing   the   merits   of   this   Eleventh Amendment  argument,  we  must  consider  whether  we should  reach  this  issue,  since  it  was  never  raised  by SEPTA  at  any  time  prior  to  the  oral  argument  before the panel. HN2  We do not generally consider issues not raised by the parties (see Frank v. Colt Indus., Inc., 910

F.2d  90,  100  (3d  Cir.  1990)),  but  we  are  always  obli- gated to ensure that   **11    we have jurisdiction over the cases that come before us.  Mansfield, Coldwater & Lake Michigan R.R. v. Swan,  111 U.S. 379,  382,  28 L. Ed. 462, 4 S. Ct. 510 (1884). "The Eleventh Amendment sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court" in order to be preserved for appeal.  Edelman v. Jordan, 415 U.S.

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Page 7

651, 678, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); see also Ford Motor Co. v. Department of Treasury, 323 U.S.

459, 89 L. Ed. 389, 65 S. Ct. 347 (1945). The Supreme Court has held, however, that the Eleventh Amendment defense is not "jurisdictional in the sense that it must be raised  and  decided  by   the   Court  on  its  own  motion." Patsy v. Florida Bd. of Regents, 457 U.S. 496, 516, 73 L. Ed. 2d 172, 102 S. Ct. 2557 n.7 (1982). Instead, the Court has suggested that when an Eleventh Amendment ques- tion is not raised by the parties, the Court may determine whether to raise and decide the question based on what is

"appropriate" in each particular case. Id.; see also Alessi v. Commonwealth of Pa. Dep't of Pub. Welfare, 893 F.2d

1444, 1455 n.5 (3d Cir. 1990) (Becker, J., concurring and dissenting).

In light of Patsy,  we conclude that it is appropriate

**12    to reach the Eleventh Amendment issue in this case.  In  some  cases  in  which  an  Eleventh  Amendment issue  is  not  raised  in  the  district  court,  a  lack  of  rele- vant evidence in the district court record might impede us from deciding the issue, but this problem is not present here. As discussed in Part II.F. of this opinion, the only factual  question  bearing  on  our  Eleventh  Amendment analysis   *813    in  this  case  concerns  the  percentage of SEPTA's funds provided by the Commonwealth and other sources. While these statistics are not in the record of  this  case,  SEPTA  provided  these  figures  to  the  dis- trict court in Frazier v. SEPTA, Nos. 84-2950 & 84-3004,

1990 WL 82087 (E.D. Pa. June 11, 1987), a recent case in which SEPTA claimed that it was entitled to Eleventh Amendment protection. Both parties' in banc briefs rely on these statistics; and although Bolden was not a party in Frazier, Bolden's counsel stated during oral argument before the in banc court that he did not object to our rely- ing upon those same facts. Consequently, it is appropriate for  the  in  banc  court  to  decide  the  important  Eleventh Amendment question that is presented in this case.

B. The case now before us is   **13   only the most recent in a long string of cases in which we have con- sidered the Eleventh Amendment's application to a vari- ety of governmental and semi-governmental entities. Just two  and  a  half  years  ago,  sitting  in  banc  in  Fitchik  v. New  Jersey  Transit  Rail  Operations,  873  F.2d  655  (3d Cir.  1989),  cert.  denied,  493  U.S.  850,  107  L.  Ed.  2d

107,  110  S.  Ct.  148  (1989),  we  held  that  the  Eleventh Amendment did not apply to the agency created by the State of New Jersey to provide public transportation fol- lowing  the  demise  or  decline  of  many  of  the  privately owned  railroads  and  bus  companies  serving  the  state. See N.J.S.A. § 27:25-1 et seq. In this case, we consider whether  the  Eleventh  Amendment  applies  to  the  entity created by the Commonwealth  of Pennsylvania to pro- vide public transportation following the demise or decline

of many of the privately owned transportation companies serving southeastern Pennsylvania. In Fitchik, we applied essentially the same mode of analysis employed in cases previously decided by this court. See Urbano v. Board of Managers, 415 F.2d 247 (3d Cir. 1969), cert. denied, 397

U.S. 948, 25 L. Ed. 2d 128, 90 S. Ct. 967 (1970); Blake v. Kline, 612 F.2d 718 (3d Cir. 1979), **14   cert. denied,

447 U.S. 921, 65 L. Ed. 2d 1112, 100 S. Ct. 3011 (1980); Port Auth. Police Benevolent Ass'n v. Port Auth. of N.Y. and N.J., 819 F.2d 413 (3d Cir.), cert. denied 484 U.S. 953

(1987); Kovats v. Rutgers, The State Univ., 822 F.2d 1303

(3d Cir. 1987). HN3  Because we are sitting in banc in this case, we are not bound by these precedents in the same way that a panel would be bound. See Internal Operating Procedures 9.1. Instead,  we are constrained only to the degree counselled by principles of stare decisis. Before discussing these prior decisions, therefore, we turn to the fundamental Eleventh Amendment principles on which they were based.

C. The Eleventh Amendment provides:

The judicial power of the United States shall not be con- strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State.

Despite this wording, the Supreme Court has interpreted the HN4  Amendment to protect an unconsenting state from  "suit  in  federal  court  by  its  own  citizens  as  well as  those  of  another  state."  Pennhurst  State  School  & Hosp.  v.  Halderman,  465  U.S.  89,  100,  79  L.  Ed.  2d

67,  104 S. Ct. 900 (1984); **15    Edelman v. Jordan,

415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347

(1974). The Supreme Court has also held that the Eleventh Amendment applies to claims asserted in federal court un- der 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 59

L. Ed. 2d 358, 99 S. Ct. 1139 (1979).

Two   additional   propositions   established   in   the Supreme Court's Eleventh Amendment decisions are im- portant for present purposes. First, although political sub- divisions of a state, such as counties and municipalities, fall  within  the  term  "State"  as  used  in  the  Fourteenth Amendment,  n6  political  subdivisions  are  not  "States" under  the  Eleventh  Amendment.  In  Lincoln  County  v. Luning, 133 U.S. 529, 530, 33 L. Ed. 766, 10 S. Ct. 363

(1896), the Court held:

n6  See,  e.g.,  Monell  v.  Department  of  Social Services of the City of N.Y.,  436 U.S. 658,  56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (actions of lo- cal governments may violate individuals' constitu- tional rights against the states and give rise to causes

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Page 8

of action under Section 1983).

*814   The Eleventh Amendment limits the jurisdiction only as   **16    to suits against a State. . . . While the county is territorially part of the State, yet politically it is also a corporation created by and with such powers as are given to it by the State. In this respect it is a part of the State only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the State.

See also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S.

274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).

The  second  important  principle  is  that   HN5   the Eleventh Amendment "bars suits in federal court 'by pri- vate  parties  seeking  to  impose  a  liability  which  must be paid from public funds in the state treasury.'" Hafer v.  Melo,  116  L.  Ed.  2d  301,  60  U.S.L.W.  4001,  4003,

1991 WL 221067, 112 S. Ct. 358 (Nov. 5, 1991), quot- ing  Edelman,  425  U.S.  at  663.  In  Ford  Motor  Co.  v. Department  of  Treasury,  323  U.S.  459,  89  L.  Ed.  389,

65  S.  Ct.  347  (1945),  the  Court  held  that  the  Eleventh Amendment barred a tax refund suit against the Indiana governor,  treasurer,  and auditor,  "who 'together' consti- tuted  the  board  of  the  Department  of  Treasury."  Id.  at

460. The Court held that this suit "constituted an action against the State of Indiana" because the **17  judgment sought would be "satisfied by funds in the state treasury." Id. at 463. In Edelman, this principle was held to apply even if the relief was labelled "equitable."

The Supreme Court has relied on these principles in deciding whether an entity is an alter ego of a state for Eleventh Amendment purposes. In Mt. Healthy, the Court held (429 U.S. 280 at 280-81) that a local board of educa- tion was "more like a county or city than it was  like an arm of the State" and was therefore not entitled to Eleventh Amendment protection. This conclusion rested "at least in part, upon the nature of the entity created by state law," but the Court also considered the board's autonomy from state control and its actual and potential sources of income ( id. at 280). The Court noted (id.) that the board was "subject to some guidance from the State Board of Education and received a significant amount of money from the State," but that under state law it possessed "extensive powers to issue bonds and to levy taxes."

In Lake Country Estates, supra, the Court considered the status of an agency created by interstate compact to exercise **18   land use powers in a region straddling the two states. The Court reasoned (440 U.S. at 401) that "if an interstate compact discloses that the compacting States

created an agency comparable to a county or municipal- ity,  which  has  no  Eleventh  Amendment  immunity,  the Amendment should not be construed to immunize such an entity." Holding that the Amendment did not apply to the entity in question, the Court stated ( id. at 401-02) that most of the governing members of the agency were ap- pointed by local governments; that the agency was funded by counties, not the states; and that the agency's obliga- tions  were  not  binding  on  the  states  (  id.  at  402).  The Court observed ( id. at 401) that the states had disclaimed any intent to confer immunity,  and that the function of the agency,  regulation of land use,  was "traditionally a function performed by local governments" ( id. at 402).

D. Even before Mt. Healthy and Lake Country Estates, our decisions relied on essentially the same factors as the Supreme Court did in those cases. In Urbano (415 F.2d

250 at 250-51), we consulted the **19   following fac- tors  set  out  in  Krisel  v.  Duran,  258  F.  Supp.  845,  849

(S.D.N.Y. 1966), aff'd, 386 F.2d 179 (2d Cir. 1967), cert. denied, 390 U.S. 1042, 20 L. Ed. 2d 303, 88 S. Ct. 1635

(1968): n7

* * * Local law and decisions defining the status and na- ture of the agency involved   *815   in its relation to the sovereign are factors to be considered, but only one of a number that are of significance.

Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plain- tiff  prevails,  the  payment  of  the  judgment  will  have  to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether it has been  separately  incorporated;  the  degree  of  autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations.

In Blake v. Kline, 612 F.2d 718 (3d Cir. 1979), cert. denied,

447 U.S. 921, 65 L. Ed. 2d 1112, 100 S. Ct. 3011 (1980), we  relied  on   **20    Urbano  in  considering  whether the Pennsylvania Public School Employees' Retirement Board could successfully raise the Eleventh Amendment defense. Because we found that the district court should have permitted discovery and held a hearing before ruling on the issue, we remanded for further proceedings. n8 612

F.2d at 727.

n7 In Urbano, we ultimately found that absten- tion was appropriate, and therefore we did not de- cide whether the agency involved in that case, the

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Page 9

Board of Managers of the New Jersey State Prison, was protected by the Eleventh Amendment. See 415

F.2d at 1253-58.

n8 Although our decision in Skehan v., Board of

Trustees of Bloomsburg State College, 538 F.2d 53,

62 (3d Cir. 1976), cert. denied, 429 U.S. 979, 50 L. Ed. 2d 588, 97 S. Ct. 490 (1976), might suggest that state law characterization is the only relevant con- sideration in determining if an agency is entitled to  raise  the  Eleventh  Amendment  defense,  such a  reading  would  be  in  error.  State  law  extending sovereign immunity to an agency is relevant to the Eleventh Amendment determination (see Skehan,

538  F.2d  at  62,  citing  state  law  determination  of sovereign  immunity  in  Brungard  v.  Hartman,  12

Pa. Commw. 477, 315 A.2d 913 (Pa. Commw. Ct.

1974)), but it is not dispositive. In Brungard,  the plaintiff alleged state ownership and operation of the agency.  315 A.2d at 914. In Skehan, the agency was not separately incorporated.  Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d

31 (3d Cir. 1974), vacated on other grounds, 421

U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975), on remand, 538 F.2d 53 (3d Cir. 1976). Thus, HN6  a state law determination of sovereign immunity may coincide with and influence the federal law deter- mination  of  Eleventh  Amendment  status,  but  the former does not conclusively determine the latter.

**21    In  Port  Auth.  Police  Benevolent  Assoc.  v. Port Auth. of N.Y. and N.J., 819 F.2d 413 (3d Cir. 1987), cert. denied, 484 U.S. 953, 108 S. Ct. 344, 98 L. Ed. 2d

370  (1987),  we  considered  whether  the  Port  Authority enjoyed Eleventh Amendment protection. We relied on Lake  Country  Estates  as  well  as  the  Urbano  factors  in finding that the Port Authority could invoke this defense. We concluded (819 F.2d at 415) that the states that created the authority intended that it be considered a state agency for Eleventh Amendment purposes. We also concluded ( id. at 418) that a judgment against the Authority could affect the state treasuries, since a provision in the com- pact mandated state contribution to the Authority unless its revenues were "adequate to meet all expenditures." We noted ( id. at 417) that the Authority was not autonomous because the governors appointed the Authority's commis- sioners  and  because  the  governors  and  legislatures  re- tained substantial power over Authority actions. We also observed  (  id.  at  418)  that  the   **22    Authority  was exempt from state taxation. Although the Authority pos- sessed the power to sue and be sued, this was insufficient to persuade us that the Authority was not an arm of the state. n9

n9 The Supreme Court subsequently held that, if the Port Authority was otherwise eligible to raise the defense, New York and New Jersey had waived the Eleventh Amendment defense in the compact by expressly consenting to suit against the Authority in federal court.  Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 109 L. Ed. 2d 264, 110 S. Ct.

1868 (1990).

In Kovats v. Rutgers, the State Univ., 822 F.2d 1303

(3d Cir. 1987), we found that Rutgers was not an alter ego of the state. Although the university was, in part, state- created and received "a large degree of state funding," we noted (id. at 822) that it was "independent" and "directed its own actions." Perhaps most importantly,   *816   we stated (id. at 1312) that Rutgers was "responsible on its own for judgments resulting from its  actions." We wrote

( id. at 1309):   **23   "Rutgers has substantial amounts of non-state funds in both commingled and segregated ac- counts out of which a judgment can be paid. . . . Rutgers retains sole discretionary control over both its commin- gled and segregated accounts, subject only to audit by the state. . . . Thus, a judgment against Rutgers can be paid from non-state funds under Rutgers' discretionary con- trol." We noted (id. at 1309) that the state might choose to increase funding of the university if the university paid a judgment that reduced the non-state funds available for its  educational  activities.  But  we  distinguished  Rutgers from the Port Authority since the state had no statutory obligation to provide funding to Rutgers under that cir- cumstance.  We  wrote  (id.  at  1309):   "Any  increase  in Rutgers'  state  appropriations  as  a  result  of  a  judgment against Rutgers will be entirely the result of discretionary action by the state."

In  Fitchik,  873  F.2d  at  659  (footnote  omitted),  we

HN7   condensed  the  Urbano  factors  into  three  larger questions: n10

1) Whether the money that would pay the judgment would  come  from  the  state  (this  includes  three  of  the Urbano  factors --  whether  payment   **24    will  come from the state treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has im- munized itself from responsibility for the agency's debts);

2) The status of the agency under state law (this in- cludes  four  factors  --  how  state  law  treats  the  agency generally, whether the entity is separately incorporated, whether the agency can sue and be sued in its own right, and whether it is immune from state taxation);

3) What degree of autonomy the agency has.

In addition,  we reiterated (id.)   that the most important

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Page 10

question was "whether any judgment would be paid from the state treasury." Applying these factors to New Jersey Transit -- an entity that, as discussed below (see Part II.F. infra), is strikingly similar to SEPTA -- we concluded that the Eleventh Amendment did not apply.

n10 Fitchik eliminated one factor -- the distinc- tion between governmental and proprietary func- tions --  in light of Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985).

**25

E.  Nothing  convinces  us  to  abandon  the  approach taken in Urbano,  Blake,  Port Auth. Police,  Kovats, and Fitchik. SEPTA argues that the Supreme Court's decision in Will v. Michigan Dep't of State Police, supra, "must be taken to alter the calculus otherwise required by Fitchik  and like cases." SEPTA's In Banc Brief at 5-6. "Without necessarily concluding that state law immunity has ac- ceded to a controlling position . . . ," SEPTA asserts (id),

"such an analysis must now accord far more weight to that factor."

This  interpretation  of  Will --  a  decision  that  "most certainly  .  .  .  did  not  rest  directly  on  the  Eleventh Amendment"  (  Melo  v.  Hafer,  116  L.  Ed.  2d  301,  60

U.S.L.W. 4001, 4003, 1991 WL 221067, 112 S. Ct. 358

(U.S. 1991) -- is patently incorrect. In Will, the Supreme Court held that a state is not a "person" within the mean- ing of Section 1983. The Court provided essentially three reasons for this conclusion. First, the Court relied (491

U.S. at 64-66) on the language of Section 1983 and the meaning  of  the  word  "person."  Second,  the  Court  rea- soned (491 U.S. at 66-67) that Section 1983 was enacted to provide **26  "a federal forum to remedy many depri- vations of civil liberties" and that, since an unconsenting state could not be sued in federal court by virtue of the Eleventh Amendment, Congress could not have intended for Section 1983 to provide a claim that could be asserted against a state. Third, the Court noted (491 U.S. at 67) that states enjoyed sovereign immunity from suit under common law, and that Section 1983 was not intended to override "well established immunities or defenses under common law."

No  portion  of  this  reasoning  supports  SEPTA's  po- sition in this case. (For   *817    present purposes,  it is convenient to change the order in which these reasons are discussed.)  The first reason cited in Will -- the language of Section 1983 and the meaning of the term "person" -- is relevant only in construing Section 1983, not in deter- mining the scope of the Eleventh Amendment. Moreover, SEPTA does not claim that it does not fall within the con-

temporary legal usage of the term "person." Indeed, the

"Dictionary Act" (the Act of Feb. 25, 1871 § 1, 16 Stat.

431), which was quoted by both the Will majority (491

U.S. at 69) and the dissent ( id. at 78 (Brennan, J., dis- senting)), HN8  defined the term "person" as generally applying to "bodies politic and corporate," a phrase that meant "both private and public (municipal)" corporations. Id. at 69. Since SEPTA is a "separate body corporate and politic" (55 Pa. Cons. Stat. Ann. § 600.303(a)),  it falls squarely within this definition.   **27

The third reason cited in Will -- that Section 1983 was not  intended  to  override  well-established  common  law immunities --  likewise does not support SEPTA's claim that it is entitled to Eleventh Amendment immunity. Even if entities like SEPTA enjoyed sovereign immunity under common  law  and  were  likewise  immune  from  Section

1983 claims, it would not follow that those entities would be entitled to Eleventh Amendment protection. Will con- cluded that "the scope of the Eleventh Amendment is a consideration" when "deciphering congressional intent as to the scope of § 1983" (491 U.S. 66-67). It clearly would be illogical, however, to reason in the opposite direction, i.e., to rely on the scope of § 1983, a statute whose pre- decessor was enacted in 1871, in attempting to determine the meaning of the Eleventh Amendment, a constitutional

**28   provision adopted in 1798.

The second reason cited in Will --  that Section 1983 was not intended to create a cause of action that would be barred in federal court by the Eleventh Amendment -- also provides no assistance to SEPTA. Unless SEPTA can show that it is entitled to Eleventh Amendment protection, this portion of the Will analysis has no application here; and for the reasons just discussed, Will furnishes no basis for concluding that SEPTA enjoys Eleventh Amendment protection.

SEPTA's argument with respect to Will is essentially as follows: (1) Will recognized that Section 1983 was not meant to override common law immunities recognized in

1871;  (2) SEPTA now enjoys limited sovereign immu- nity under the Pennsylvania Sovereign Immunity Act en- acted in 1978 and amended in 1980; (3) therefore SEPTA should not be suable under Section 1983; (4) and therefore SEPTA  is  protected  by  the  Eleventh  Amendment.  This reasoning is plainly unsound. SEPTA's immunity under a 1978 state statute obviously reveals nothing about the intended scope of Section 1983's predecessor, which was enacted in 1871. And even if SEPTA could not be sued under Section 1983 (like municipalities **29    prior to Monell v. New York City Dep't of Social Services, 436 U.S.

658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)), it would not follow that SEPTA should be regarded as a "State" under the Eleventh Amendment (any more than a municipality

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Page 11

was viewed as a "State" for this purpose before Monell). Acceptance of SEPTA's interpretation of Will would revolutionize the meaning of the Eleventh Amendment. SEPTA's  position  is  that  the  Pennsylvania  Sovereign Immunity  Act  conferred  Eleventh  Amendment  protec- tion  upon  SEPTA.  As  stated  in  the  caption  of  part  IA of  its  in  banc  brief  (at  6),  SEPTA  maintains:    "The Pennsylvania Supreme Court and This Court Have Held That SEPTA Is a Commonwealth Agency Immune From Suit  Under  the  Pennsylvania  Sovereign  Immunity  Act, Which Conclusion Renders SEPTA Immune From Suit Under the Eleventh Amendment." If this reasoning were accepted,  each state legislature apparently could confer Eleventh Amendment protection on any entity it wished, including counties and cities, by enacting a statute cloth- ing these entities with "sovereign immunity" from suit on state claims. We are confident that Will was not intended to permit anything   *818   of this sort. Thus, we do not believe   **30    that  Will  requires  any  alteration  in  the Eleventh Amendment analysis employed in Fitchik and

our earlier cases.

We note that the Supreme Court rejected a similar ar- gument in Howlett v. Rose, 496 U.S. 356, 110 S. Ct. 2430,

110 L. Ed. 2d 332 (1990), decided after Will. In Howlett, the Court made clear that HN9  federal law determines who is a "person" under § 1983,  id. at 2442,  2443-44. Additionally, in rejecting a Florida law that extended im- munity from state court actions under § 1983 not only to the state and its arms,  but also to municipalities,  coun- ties, and school districts otherwise subject to suit under §

1983, the Court stated (id. at 2446-47 (citations omitted)

(emphasis added)):

Congress did take common law principles into account in providing certain forms of absolute and qualified immu- nity and in excluding States and arms of the State from the definition of person. But HN10  as to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their  own  common  law  heritage.  If  we  were  to  uphold the immunity claim in this case, every State would have the same opportunity   **31   to extend the mantle of sovereign immunity to "persons" who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.

The  decisions  of  other  courts  of  appeals  in  analogous cases fortify our decision to retain the mode of analysis used in our earlier cases. Most of these decisions have emphasized  that  the  most  important  factor  is  whether any judgment would have to be paid from the state trea- sury, but these decisions have also considered, to varying

degrees, the state law characterization of the entity, the source of funding, the degree of functional autonomy, the power of the agency to sue and be sued and to enter into contracts,  immunity from state taxation,  and the state's responsibility under state law for the agency's operations. See Puerto Rico Ports Auth. v. M/V Manhattan Prince,

897  F.2d  1  (1st  Cir.  1990);  Stewart  v.  Baldwin  County Bd. of Educ., 908 F.2d 1499 (11th Cir. 1990); Feeney v. Port Auth. Trans-Hudson Corp.,  873 F.2d 628 (2d Cir.

1989), aff'd, 495 U.S. 299, 109 L. Ed. 2d 264, 110 S. Ct.

1868 (1990); **32   Mitchell v. Los Angeles Community

College Dist., 861 F.2d 198 (9th Cir. 1988), cert. denied,

490 U.S. 1081, 104 L. Ed. 2d 663, 109 S. Ct. 2102 (1988); Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988); Morris v. Washington Metro. Area Transit Auth.,  781 F.2d 218

(D.C.  Cir.  1986);  Foremost  Guar.  Corp.  v.  Community Sav. & Loan, Inc., 822 F.2d 1383 (4th Cir. 1987); Jensen v. State Bd. of Tax Comm'rs of the State of Ind., 763 F.2d 272

(7th Cir. 1985); Greenwood v. Ross, 778 F.2d 448 (8th Cir.

1985); Hall v. Medical College of Oh. at Toledo, 742 F.2d

299 (6th Cir. 1984), cert. denied, 469 U.S. 1113 (1985). The same criteria have been employed in determining the status of various transportation authorities that are similar to SEPTA in character, although different in some details. See Feeney,  supra;  Sanders v. Washington Metro. Area Transit Auth.,  819 F.2d 1151 (D.C. Cir. 1987); Morris, supra; Feary v. Regional Transit Auth., 685 F. Supp. 137

(E.D. La. 1988); Weide v. Mass Transit Admin.,  628 F. Supp.  247  (D.  Md.  1985);   **33    Morrison-Knudsen Co.  v.  Mass.  Bay  Transp.  Auth.,  573  F.  Supp.  698  (D. Idaho 1983).

In  sum,  we  conclude  that  SEPTA's  entitlement  to Eleventh Amendment protection should be decided based on Fitchik and on earlier cases. We will therefore turn to that analysis.

F. 1. Funding. As previously noted,  our prior cases have held that the "most important" factor is "whether any judgment would be paid from the state treasury." Fitchik,

873 F.2d at 659; see also Urbano,  415 F.2d at 251. In Fitchik, we found that this factor provided an "extremely strong indication that New Jersey Transit was  not the alter ego" of the state, and this factor weighs at least as heavily against SEPTA here.

*819    In  Fitchik  (873  F.2d  at  660  (emphasis  in original)), we wrote that "the most striking financial de- tail  is  that  NJT's  money  does  not  come  predominately from the state." Instead, New Jersey provided "less than

33%  of  NJT's  operating  funds"  (id.).  Here,  the  figures on which SEPTA relies show that only about 27% of its revenues came from the state government. n11 The re- mainder  came  from  federal  and  local  subsidies  (14%),

**34    fares (54%), and other sources (5%). Thus, this

953 F.2d 807, *819; 1991 U.S. App. LEXIS 30622, **34;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 12

most important fact weighs more heavily against SEPTA

than it did against New Jersey Transit.

n11 SEPTA received $147,360,000 in state sub- sidies out of operating funds of $554,852,000.

In  Fitchik,   we  also  relied  (873  F.2d  at  660)  on the  fact  that  "New  Jersey   was   under  no  obligation to  pay  NJT's  debts  or  reimburse  NJT  for  judgments that  it  pays."  "Indeed,"  we  added  (id.),   HN11   "New Jersey has specifically disclaimed any liability for NJT's debts."  These  words  apply  equally  to  SEPTA.  SEPTA has "no power . . . to pledge the credit or taxing power of  the  Commonwealth,"  its  obligations  may  not  "be deemed  to  be  obligations  of  the  Commonwealth,"  and the Commonwealth is not "liable for the payment of prin- cipal or interest on such obligations." 1991 Pa. Laws 26, §

1503(21); 55 Pa. Cons. Stat. Ann. § 600.303(d)(20) (1991

Supp.).

Furthermore,  SEPTA,  like  NJT,  need  not  "request funds  from  the  state  coffers  in  order  to  meet  shortfalls caused by adverse judgments."   **35   Fitchik, 873 F.2d at 661. Rather, SEPTA, like NJT and "like a private rail- road, . . . can raise revenues by raising fares" (id.). See Act 26 § 1503(9) (SEPTA's authority to set fare and ser- vices); 55 Pa Cons. Stat. Ann. § 600.303(d)(9) (Purdon

1991 Supp.)  (same). And like NJT ( Fitchik, 873 F.2d at

661), SEPTA may purchase insurance or self-insure. Act

26, § 1503(25); 55 Pa. Cons. Stat. Ann. § 600.303(d)(24)

(Purdon 1991 Supp.).

SEPTA contends that it might be unable to make up a significant shortfall by raising fares and thus might be compelled to rely on increased state subsidies. We rejected a similar argument, however, in Fitchik (873 F.2d at 661) and Kovats (822 F.2d at 1309). In Fitchik, we wrote (873

F.2d at 661): "Although New Jersey might appropriate funds to NJT to meet any shortfall caused by judgments against NJT, such voluntary payments by a state do not trigger Eleventh Amendment  immunity." A state legis- lature might feel compelled as a practical matter to subsi- dize a variety of entities that provide necessary services, including financially pressed municipalities. **36  Such

HN12  discretionary subsidies committed in reaction to a judgment, however, would not necessarily transform the recipients into alter egos of the state.

SEPTA  also  relies  on  a  new  state  law  enacted  in August  1991.  This  law  provides  for  the  revenues  from a  variety  of  fees  and  taxes  to  be  paid  into  a  "Public Transportation Assistance Fund" and distributed among

"transit  entities"  in  accordance  with  a  statutory  for- mula.  Act  26,  §  1314.  The  law  also  provides  for  the Commonwealth to make an annual appropriation for pub-

lic transportation assistance in order to meet certain needs. See Act 26, §§ 1302(2)(III) and 3, 1303(A). n12 Without knowing  the  percentage  of  SEPTA's  revenues  that  will come from state funds under this new law, and without

*820    knowing how the provisions relating to annual appropriations will be interpreted and implemented, we believe that the future impact of this new law is too uncer- tain to be given significant weight in our present decision.

n12 Section 1302(3) of the Act provides for the

Department of Transportation

to make grants to municipalities, counties, or their instrumentalities, and to agencies and instrumental- ities of the Commonwealth to supplement federal or local or federal and local funds for use. . .

(iii)  To  assist  in  providing  grants  to  continue necessary service to the public,  to permit needed improvements  in  services  which  are  not  self- supporting,  to  permit  services  which  may  be  so- cially desirable but economically unjustified,  and otherwise for any purpose in furtherance of urban common carrier mass transportation. . . .

Section   1302(3)   of   the   Act   provides   for   the

Department

to make grants to any transportation company or companies for use in providing necessary service to  the  public,  to  permit  needed  improvements  in services which are not self-supporting,  to permit services which may be socially desirable but eco- nomically unjustified,  and otherwise for any pur- pose in furtherance of urban common carrier mass transportation.

**37   We therefore conclude that the funding fac- tor weighs at least as strongly against SEPTA's Eleventh Amendment  argument  as  it  did  against  New  Jersey Transit's argument in Fitchik.

2. Status under state law. In Fitchik (873 F.2d at 662-

63), we found that this factor weighed "slightly" in favor of NJT's Eleventh Amendment argument,  and SEPTA's status under state law is not markedly different from that of New Jersey Transit. HN13  Both entities possess cer- tain attributes not characteristic of an arm of a state: both have a separate corporate existence, n13 the power to sue and be sued,  n14 and the power to enter into contracts and make purchases on their own behalf. n15 Both en- tities also possess attributes associated with sovereignty, including exemption from state property taxation n16 and certain public powers such as the power of eminent do-

953 F.2d 807, *820; 1991 U.S. App. LEXIS 30622, **37;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 13

main. n17 In addition, both entities are treated like their respective states under state tort laws: NJT, like the State of New Jersey  itself,  is subject  to the  New Jersey Tort Claims Act, n18 and SEPTA, like the Commonwealth of Pennsylvania,  is  subject  to  the  Pennsylvania  Sovereign Immunity statute. n19

n13  Fitchik,  873  F.2d  at  663.  Pa.  Cons.  Stat. Ann. tit. 55, § 600.303(a) (Purdon 1991 Supp.); 26

Act § 1502.

**38

n14  Fitchik,  873  F.2d  at  663.  Pa.  Cons.  Stat. Ann. tit. 55, § 600.303(d)(2) (Purdon 1991 Supp.);

26 Act § 1503(2).

n15  Fitchik,  873  F.2d  at  663.  Pa.  Cons.  Stat. Ann. tit. 55, § 600.303(d)(5),(11),(12),(13),(14); 26

Act §§ 1503 (5),(11),(12), (13),(14).

n16 Fitchik, 873 F.2d at 663 . Pa. Cons. Stat. Ann. tit. 55,  § 600.342 (Purdon 1991 Supp.);  26

Act § 1542.

n17  Fitchik,  873  F.2d  at  663.  Pa.  Cons.  Stat. Ann. tit. 55, § 600.303(d)(15) (Purdon 1991 Supp.);

26 Act §§ 1503(15), 1506.

n18 Fitchik, 873 F.2d at 662-63.

n19 See Feingold v. Southeastern Pa. Transp. Auth., 512 Pa. 567, 517 A.2d 1270, 1274-76 (Pa.

1986); Hall v. Southeastern Pa. Transp. Auth., 596

A.2d 1153 (Pa. Commw. Ct. 1991).

SEPTA differs from NJT in that SEPTA is proclaimed by statute to be "an agency and instrumentality" of the Commonwealth,  but this same provision also describes SEPTA as a "separate body corporate and public." n20

On  the  whole,  SEPTA's  status  under  state  law  is  not substantially **39    stronger than NJT's,  and this fac- tor consequently weighs "slightly" in favor of Eleventh Amendment protection.

n20 Pa. Cons. Stat. Ann. tit. 55, § 600.303(a)

(Purdon 1991 Supp.); 26 Act § 1502.

3. Autonomy. In Fitchik (873 F.2d at 664), we found that  this  factor  weighed  "slightly  in  favor  of  according NJT  immunity"  because  "the  degree  of  control  by  the governor was  fairly substantial." We noted ( id. at 663) that NJT possessed a measure of autonomy, since it was governed by its own board of directors with "significant powers," including the exclusive power to initiate action

and the power "to enter contracts, bring lawsuits, purchase and sell property,  buy insurance,  structure the corpora- tion's internal management, and set and collect fares." On the other hand, we observed that "three of the seven board members must be members of the executive branch, and the governor may veto the board's actions" ( id. at 663). SEPTA  enjoys  more  autonomy.   HN14   SEPTA's board **40   possesses all of the powers cited in Fitchik, but  its  actions  are  not  subject  to  gubernatorial  veto. Moreover,  only  five  of  the  15  board  members  are  ap- pointed  by  state  officials;  all  of  the  rest  are  appointed by  the  counties  that  SEPTA  serves.  n21  Although  this indicates influence on SEPTA by the counties,  it is the influence  of  the  state,  not  that  of  the  counties,  that  is important for Eleventh Amendment purposes. Thus, the autonomy factor, which weighed "slightly" in NJT's favor,

is appreciably weaker here.

n21 Pa. Cons. Stat. Ann. tit. 55, § 600.317(a)

(Purdon 1991 Supp); 26 Act § 1517.

*821      4.  The  totality  of  factors.  Funding,  the most important factor, weighs at least as strongly against SEPTA as it did against NJT. SEPTA's status under state law is not substantially stronger than NJT's, and SEPTA has significantly more autonomy. On balance,  SEPTA's Eleventh  Amendment  argument  is  weaker  than  NJT's. Since we are not prepared to overrule Fitchik, it follows that SEPTA is not protected by the Eleventh Amendment.

**41

G.  In  light  of  our  conclusion  that  SEPTA  lacks Eleventh Amendment protection, SEPTA's argument that it  is  not  a  "person"  under  Section  1983  requires  only brief discussion. As previously noted, see page 9, supra, SEPTA never raised this argument until questioned dur- ing oral argument before the panel, and we generally do not raise new issues on our own motion unless federal jurisdiction is implicated. HN15  While the question of SEPTA's status under the Eleventh Amendment is suffi- ciently jurisdictional in nature to permit a court to raise the question on its own motion, the argument that SEPTA is not a "person" under Section 1983, when stripped of its Eleventh Amendment component, does not implicate federal jurisdiction unless the claim that SEPTA is a "per- son" was made in bad faith or was "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 90

L. Ed. 939, 66 S. Ct. 773 (1946); Kehr Packaging, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991), cert. denied, 111 S. Ct. 2839, 115 L. Ed. 2d 1007 (1991). Under this test, the claim that SEPTA is a "person" did not raise any jurisdictional issue. Indeed, SEPTA's only grounds for contending that **42    it is not a "person"

953 F.2d 807, *821; 1991 U.S. App. LEXIS 30622, **42;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 14

are the arguments based on the Eleventh Amendment and Will that were discussed above. SEPTA does not main- tain that its position finds any support in the language or legislative history of Section 1983 or in cases (other than Will) that construe that provision. Thus, it is apparent that

HN16  SEPTA is a "person" under Section 1983, as our prior decisions and SEPTA itself appear to have assumed for some time. See, e.g., Davis v. Southeastern Pa. Transp. Auth., 924 F.2d 51 (3d Cir. 1991) (appeal from an award of attorneys fees in a successful Section 1983 claim against SEPTA). We will therefore turn to the arguments made by the parties in their initial briefs.

III.

SEPTA contends that Bolden's drug test was reason- able because his job posed a "substantial risk of harm to himself and others." Brief for Appellee/Cross-Appellant at 22. This argument must be analyzed within the frame- work provided by prior drug testing cases decided by the Supreme Court and by this court.

A. In Skinner v. Railway Labor Executives Ass'n, 489

U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989), and Treasury Employees v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), the **43   Supreme Court discussed the circumstances in which government n22 may require warrantless drug testing of employees without probable cause or reasonable suspicion of drug use. The Court wrote that "where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to bal- ance the individual's privacy expectations against the gov- ernment's interests to determine whether it is impractical to require a warrant or some level of individualized sus- picion  in  the  particular  context."  Treasury  Employees,

489 U.S. 656 at 665-66, 103 L. Ed. 2d 685, 109 S. Ct.

1384. Applying this standard,  the Court in Skinner up- held Federal Railroad Administration regulations requir- ing blood and urine tests of railroad employees who are involved in certain train accidents, as well as regulations permitting railroads to administer breath and urine tests to employees who violate certain safety rules. In analyz- ing the privacy interests of the affected employees,  the Court noted (489 U.S. at 627) that these HN17  employ- ees'  expectations  of  privacy   *822    were  "diminished by reason of their participation in an industry that is reg- ulated pervasively to ensure safety." Turning **44    to the other side of the scale,  the Court observed that the government interest in testing was "compelling" because

"employees subject to the tests discharge duties fraught with such risks of injury to others that even a momen- tary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities, . . . employees who are subject to

testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others." Id. at 628.

n22    SEPTA    has    not     contested    that    its acts   are   "state   action"   under   the   Fourteenth Amendment.   That   SEPTA   may   not   raise   the Eleventh  Amendment  defense  does  not  affect  its status under the Fourteenth Amendment. See supra p. 813.

In Treasury Employees v. Von Raab, supra, the Court upheld a Customs Service program requiring urinalysis of employees seeking transfer or promotion to positions that are directly involved in drug interdiction **45   or that require the carrying of firearms. The Court found that employees in these positions had a diminished expecta- tion of privacy and that the government had a "compelling interest" in conducting the tests. The Court wrote (id. at

570) that the "national interest in self-protection could be irreparably damaged if those charged with safeguarding it  were,  because  of  their  own  drug  use,  unsympathetic to their mission of interdicting narcotics. The Court ob- served (id.)  that drug-using agents with interdiction re- sponsibilities could "facilitate the importation of sizeable drug shipments or block apprehension of dangerous crim- inals." With respect to employees who carry weapons, the Court stated (id. at 671) that "the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force."

We have also previously upheld warrantless and sus- picionless testing of employees holding positions analo- gous to those in the Supreme Court cases. As previously noted (see pages 4-5 and footnote 4, supra), in Transport Workers' Union, Local 234 v. SEPTA, supra, we upheld SEPTA's **46   program of random testing for employ- ees in safety-sensitive positions. In our opinion after re- mand by the Supreme Court, we stressed that we reached this holding "only in light of the special circumstances and  extraordinarily  compelling  government  interest  in- volved  in  testing  railway  operating  personnel  who  'can cause great human loss before any signs of impairment become noticeable to supervisors or others.'" 884 F.2d at

712, quoting Skinner, 489 U.S. at 628.

Previously,  in  Policeman's  Benevolent  Ass'n,  Local

318 v. Washington Township, 850 F.2d 133, 135 (3d Cir.

1988), cert. denied, 490 U.S. 1004, 104 L. Ed. 2d 153,

109 S. Ct. 1637 (1989), we upheld a municipality's ran- dom drug testing program for police officers. We noted

(850 F.2d at 141) that "the police industry was  probably the most highly regulated" of any in the state, and that the

953 F.2d 807, *822; 1991 U.S. App. LEXIS 30622, **46;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 15

police officers were "members of quasi-military organi- zations, called upon for duty at all times, armed at almost all times, and exercising the most awesome and danger- ous power that a democratic state possesses with respect to its residents -- the power to use force to arrest and de- tain   **47   them." See also Shoemaker v. Handel, 795

F.2d 1136 (3d Cir. 1986) (upholding random testing of employees in the heavy-regulated horse racing industry). B. In the present case, we must determine whether the drug test administered to Bolden may be justified within the framework of these precedents. Accordingly, HN18  we must balance Bolden's legitimate privacy expectations against the special need for testing asserted by SEPTA. Unlike a determination of "reasonableness" in ordinary tort cases and some other contexts,  this balancing  pro- cess presents a question of law, and therefore we exercise plenary review of the district court's determination. n23

n23 Without objection from the parties, the dis- trict court in this case instructed the jury to balance Bolden's privacy interests against SEPTA's asserted need for testing and to determine whether the test was reasonable under the circumstances. 3/15/1990

Tr. at 8-12. This approach was incorrect. The task of  balancing  the  competing  interests  in  this  con- text must be performed by the courts, not by juries. Determination of reasonableness under the Fourth Amendment  is  a  question  of  law.   United  States v.  Evans,  937  F.2d  1534,  1536  (10th  Cir.  1991); United  States  v.  Morgan,  936  F.2d  1561,  1565-

66 (10th Cir. 1991); United States v. Butler,  904

F.2d  1482,  1484  (10th  Cir.  1990).  See  also,  e.g.,

Colorado v. Bertine, 479 U.S. 367, 93 L. Ed. 2d 739,

107 S. Ct. 738 (1987) (court determines reasonable- ness of search); United States v. Salmon, 944 F.2d

1106  (same).  The  reasonableness  of  a  search  or seizure must be determined based on constitutional law,  not  a  factual,  reasonable-person  determina- tion. If the Fourth Amendment balancing process were submitted to juries, conflicting decisions re- garding the constitutionality of identical drug test- ing provisions would almost certainly result.

While the HN19  submission of this question to the jury was erroneous, reversal on this ground is not required. SEPTA did not object to the court's instruction. Moreover, it is clear that the jury's find- ing -- that compulsory drug testing of Bolden was unconstitutional -- was correct.

**48

*823     It  is  clear  that  compulsory,  suspicionless drug testing of a person holding Bolden's job falls outside

the precedents discussed above. In all of those cases, the employees subjected to suspicionless testing were found to  have  diminished  privacy  expectations  due  to  perva- sive governmental regulation of the jobs they performed. Here, SEPTA has not shown that maintenance custodians are  pervasively  regulated  or  that  they  have  diminished privacy expectations for any other reason.

On the other side of the scale, SEPTA's brief asserts in passing that Bolden's duties posed a substantial risk of harm to others, but we find no factual support in the record for this contention. SEPTA did not include maintenance custodians among the employees in "safety sensitive" po- sitions who are covered by its random-testing program. See 863 F.2d at 1114 & n.2. Moreover,  the nature of a maintenance custodian's work does not appear to involve any great risk of causing harm to other persons. SEPTA's job description for a maintenance custodian lists the po- sition's routine duties and responsibilities as follows:

GENERAL

To be proficient in the cleaning maintenance of SEPTA locations,   **49   facilities and equipment and in the per- formance of related duties under the general supervision of the foreperson.

1. Assigned to travel throughout SEPTA system to clean subway-elevated  and  surface  locations,   facilities  and equipment.

2. Scrapes and cleans floors, walls, walks, and all SEPTA

facilities.

3. Paints various items as required, such as shop equip- ment, wheel rims, etc.

4. Sweeps, cleans, washes vehicle interiors, exteriors.

5. Polices premises for debris, trash and scrap. Loads into truck for removal.

The main thrust of SEPTA's argument is not that Bolden's duties posed a risk to others but that Bolden himself might be injured at the Fern Rock Depot if his faculties were impaired by drug use. Neither the Supreme Court nor this court has endorsed the proposition that compulsory, sus- picionless drug testing may be conducted to prevent an employee from causing harm to himself,  rather than to others. Acceptance of SEPTA's argument would dramat- ically extend current law.

In any event, we need not and do not hold that drug testing may never be justified on this ground. For present purposes, it is enough to note that SEPTA has not shown

953 F.2d 807, *823; 1991 U.S. App. LEXIS 30622, **49;

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Page 16

that Bolden's position involved **50  any unusual degree of personal danger. Certainly the routine duties and re- sponsibilities noted above do not suggest that his job was unusually dangerous. SEPTA does not cite any statistics regarding injuries at the Fern Rock Depot or injuries to maintenance custodians, but merely states that "accidents have occurred" at the depot and specifically mentions a single accident several years ago. SEPTA also points to several hazards at the depot, such as open pits, the par- tially-exposed "third rail" that supplies electricity to sub- way cars, and trains that enter and depart at speeds of up to

18 miles per hour. These facts do not portray a site that is markedly more dangerous than countless other industrial or transportation facilities. Thus,  we hold   *824    that

HN20  SEPTA had no special need to subject Bolden to a drug test based on any dangers presented by his job.

IV.

SEPTA also maintains that Bolden consented to the drug test because he knowingly submitted to the test with- out voicing any objection and later testified that he had

"no qualms" about taking the test. A search of a person is constitutional if the person freely and voluntarily con- sents. See Schneckloth v. Bustamonte, 412 U.S. 218, 219,

224,  36  L.  Ed.  2d  854,  93  S.  Ct.  2041  (1973).   **51

HN21   If  the  party  conducting  the  search  claimed  the authority  to  search  without  consent,  that  factor  weighs against a  finding  of  voluntary  consent.  See,  e.g.,  Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 60 L. Ed. 2d

920, 99 S. Ct. 2319 (1979); Bumper v. North Carolina,

391 U.S. 543, 549-50, 20 L. Ed. 2d 797, 88 S. Ct. 1788

(1968); United States v. Molt, 589 F.2d 1247, 1251 (3d Cir. 1978). Consent to search is a question of fact to be determined from the totality of the circumstances. Id. at

226. Therefore, in reviewing a finding of fact on consent, we must view the facts in the light most favorable to the finding. See Edwards v. City of Philadelphia,  860 F.2d

568, 571 n.2 (3d Cir. 1988); Black v. Stephens, 662 F.2d

181, 188 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 71

L. Ed. 2d 876, 102 S. Ct. 1646 (1982).

In this case, it is not clear that SEPTA preserved the issue of consent at trial. Testimony and argument on the issue were presented, and both Bolden and SEPTA sub- mitted proposed jury instructions on consent. However, SEPTA later submitted an amended instruction that ne- glected to mention consent, the court gave no instruction on consent, and the   **52   record contains no indication that SEPTA objected to this omission. Apparently the jury was left to consider the facts bearing on consent as part of its general determination regarding the reasonableness of the test.

In any event,  even if the issue were preserved,  n24

the  evidence,  when  viewed  in  the  light  most  favorable

to the verdict winner, was sufficient to support a finding that Bolden did not consent. In a portion of SEPTA's an- swer to Bolden's complaint that was read into evidence, SEPTA stated that it "required the Plaintiff to submit to a body fluids test for intoxicants and controlled substances." SEPTA's medical director testified that if Bolden had not undergone  the  test,  he  could  not  have  been  reinstated. SEPTA does not claim that Bolden verbally consented to the  test.  Instead,  SEPTA  relies  on  Bolden's  knowledge that the test would be performed, his submission to the test without voicing objection, and his subsequent testi- mony that he had "no qualms" about the test. In essence, SEPTA argues that Bolden's silent submission to an oth- erwise unconstitutional search on pain of dismissal from employment constituted consent as a matter of law. We reject this argument.

n24 Judge Mansmann would hold that SEPTA has not preserved the issue of Bolden's consent as a defense to its liability and cannot raise the issue on appeal. Thus she would not reach the merits of the consent dispute.

**53

Acceptance of SEPTA's argument in cases involving law enforcement searches would mean that no person or- dered  by  the  police  to  submit  to  a  search  could  claim that the search was unconstitutional unless the person re- fused to submit or at least voiced an objection. Caselaw does not support this position. Far from holding that silent submission to a law enforcement search constitutes vol- untary  consent  as  a  matter  of  law,  the  Supreme  Court has  examined  the  totality  of  the  circumstances  even  in cases in which the defendant expressed verbal consent. In United States v. Mendenhall,  446 U.S. 544,  558-59,

64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), the defendant

"was twice expressly told that she was free to decline to consent to the search, and only thereafter explicitly con- sented to it." 446 U.S. at 558. Holding that the totality of the evidence was sufficient to support the district court's finding of voluntary consent, the Court observed that "al- though the Constitution does not require 'proof of   *825  knowledge of a right to refuse as the sine qua non of an effective consent to a search,  . . . such knowledge was highly relevant to the determination that there had been consent." Id. at 558-59, quoting Schneckloth, 412 U.S. at

234. In Schneckloth, the police stopped a car and asked an occupant whether they could search the car.   **54  The  occupant  said,  "Sure,  go  ahead."  412  U.S.  at  220. The Supreme Court held that the totality of the circum- stances were sufficient to show voluntary consent. Since Mendenhall  and  Schneckloth  both  involved  defendants who expressly consented,  those cases would have been

953 F.2d 807, *825; 1991 U.S. App. LEXIS 30622, **54;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 17

very easy indeed if voluntary consent could be found as a matter of law based on silent submission to a search per- formed by an officer claiming the right to search without consent. The analysis undertaken in those cases plainly shows that HN22  silent submission to a law enforce- ment search is not enough to establish voluntary consent as a matter of law.

To be sure, cases involving consent to search by law enforcement officers should not be applied mechanically to cases like this one involving administrative searches. Consent must be determined based on the totality of the circumstances in each individual case, and circumstances relating to a law enforcement search may differ from those relating to an administrative search.   **55   To take one example,  the  degree  of  coercive  authority  projected  by those conducting the search (see Mendenhall, 446 U.S. at

558), may be different.

Nevertheless, we are convinced that the totality of the circumstances in this case was sufficient to support a find- ing that Bolden did not voluntarily consent. Viewed in the light most favorable to the verdict, the evidence showed that Bolden submitted to drug testing without voicing any objection, not because he was truly willing to undergo the test, but because he understood that the test was compul- sory and that the alternative to submission was loss of his job --  perhaps permanently or until after another round of potentially lengthy grievance proceedings or litigation. Accordingly, we cannot hold that Bolden consented as a matter of law.

V.

We find greater merit in SEPTA's reliance on the set- tlement  it  reached  with  Local  234  following  Bolden's discharge for drug use. As previously noted,  the union filed a grievance on Bolden's behalf pursuant to the appli- cable provisions of the collective bargaining agreement. SEPTA  and  the  union  eventually  reached  a  settlement of  the  grievance  under  which  Bolden  was  to  be  rein- stated **56    with back pay for the second half of the discharge  period  but  was  required  to  submit  to  a  drug test before returning to work, as well as to unannounced follow-up testing for some time thereafter. n25 Bolden did not personally endorse this settlement. In consider- ing the effects of the grievance settlement, it is important to  distinguish  between  two  separate  questions:   (a)  the res judicata or collateral estoppel effect of an arbitration award  or  grievance  settlement  with  respect  to  a  subse- quent claim under 42 U.S.C. § 1983 and (b) the effect for Fourth Amendment purposes of a union's consent to drug testing, either during the negotiation of a new collective bargaining agreement or in resolving disputes about the meaning or application of an existing agreement. We will discuss each of these questions in turn.

n25 See page 6, supra.

A.  We  agree  with  Bolden  that  the  grievance  settle- ment in this case did not preclude his Section 1983 claim under the doctrines of res judicata or collateral estoppel. The  Supreme  Court   **57    considered  closely  related questions in several cases and held that prior arbitration decisions  did  not  preclude  subsequent  federal  statutory claims.

In Alexander v. Gardner-Denver Co., 415 U.S. 36, 39

L. Ed. 2d 147, 94 S. Ct. 1011 (1974), the Court held that an adverse arbitration decision did not bar a discharged em- ployee from suing under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e   *826   et seq. In Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 67 L. Ed. 2d

641, 101 S. Ct. 1437 (1981), the Court reached the same result concerning a claim under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Finally, in McDonald v. West Branch, 466 U.S. 284, 80 L. Ed. 2d 302, 104 S. Ct. 1799

(1984) -- a suit, like Bolden's, under 42 U.S.C. § 1983 -- the Court held that an arbitration decision did not preclude a discharged public employee from suing on the ground that the discharge violated his constitutional rights. n26

n26 In Gilmer v. Interstate/Johnson Lane Corp.,

114 L. Ed. 2d 26, 111 S. Ct. 1647, 1656-57 (1991), the Supreme Court explained that McDonald and the  prior  cases  "did  not  involve  the  issue  of  the enforceability  of  an  agreement  to  arbitrate  statu- tory  claims"  but  rather  "the  quite  different  issue whether arbitration of contract-based claims pre- cluded subsequent judicial resolution of statutory claims." Since the collective bargaining agreement in this case did not require arbitration of Section

1983 claims, this case falls within the Alexander -

Barrentine - McDonald line of cases.

**58

Insofar  as  the  doctrines  of  res  judicata  and  collat- eral estoppel are concerned, the present case differs from McDonald in only one particular: in McDonald there was a prior arbitration decision whereas here there was a prior grievance settlement that Bolden did not personally en- dorse. For present purposes, however, we see no basis for regarding this distinction as dispositive. Accordingly, we hold that the grievance settlement in this case did not have a res judicata or collateral estoppel effect with respect to Bolden's Section 1983 claim.

B. While Alexander, Barrentine, and McDonald con- trol any res judicata or collateral estoppel question in this case, they do not resolve the question whether, for Fourth Amendment purposes, a public employee union may con-

953 F.2d 807, *826; 1991 U.S. App. LEXIS 30622, **58;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 18

sent to future drug testing of the employees it represents. Those cases did not involve the question whether a union could affect employees' statutory rights by consenting to future actions proposed by an employer. In addition, none of those cases concerned Fourth Amendment rights. n27

Thus, Alexander, Barrentine, and McDonald do not con- trol the Fourth Amendment question presented by the case at hand.   **59

n27 Whereas a search or seizure comports with the  Fourth  Amendment  if  conducted  pursuant  to voluntary consent,  rights under Title VII and the Fair Labor Standards Act may not be prospectively waived, as the Court pointedly noted in Alexander,

415 U.S. at 51-52, and Barrentine, 450 U.S. at 740. In analyzing this Fourth Amendment question, we be- gin by noting that there are a variety of circumstances in which a third party may validly consent to a search or seizure.  Such  consent  may  be  provided  by  an  agent  to whom such authority has been conferred.  Stoner v. Cal.,

376 U.S. 483, 489,   *827    84 S. Ct. 889, 11 L. Ed. 2d

856 (1964); United States v. House, 524 F.2d 1035, 1041

(3d Cir. 1975). In addition, consent may be provided by certain other third parties with substantial interests or re- sponsibilities related to the search or seizure. These third parties include, among others, a party with common au- thority over the premises or item to be searched ( Matlock v. United States, 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct.

988 (1974); **60   Frazier v. Cupp, 394 U.S. 731, 740,

22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969)) and employees with significant responsibilities relating to the object of the search (see 3 W. LaFave, Search and Seizure § 8.6(c)

(collecting cases)). In accordance with these precedents, we  believe  that   HN23   a  union  such  as  Bolden's  may validly consent to terms and conditions of employment, such as submission to drug testing, that implicate employ- ees' Fourth Amendment rights.

The authority of Bolden's union to make binding con- tractual commitments regarding terms and conditions of employment is well established. Under the Pennsylvania Employee Relations Act (PERA), Pa. Cons. Stat. tit. 43

§ 1101.606 (Purdon 1991), a union is the exclusive col- lective bargaining representative for all of the employees in  the  unit,  and  therefore  the  union,  in  entering  into  a collective bargaining agreement, may agree to terms and conditions of employment that are contractually binding on all of the employees. See Vaca v. Sipes, 386 U.S. 171,

177,  17 L. Ed. 2d 842,  87 S. Ct. 903 (1967); Cohen v. Temple  Univ.,  299  Pa.  Super.  124,  445  A.2d  179,  185

(1982).

The Supreme Court has recognized, most notably in

Abood v. Detroit Board of Education, 431 U.S. 209, 52

L.  Ed.  2d  261,  97  S.  Ct.  1782  (1977),   **61    and  its progeny, that a union's authority as exclusive bargaining agent  necessarily  entails  some  restrictions  on  constitu- tional rights that individual employees would otherwise enjoy. As the Court summarized in Teachers v. Hudson,

475 U.S. 292, 301-02, 89 L. Ed. 2d 232, 106 S. Ct. 1066

(1986) (footnote omitted):

In  Abood  v.  Detroit  Board  of  Education,  431  U.S.

209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977), we recog- nized that requiring nonunion employees to support their collective-bargaining representative "has an impact upon their  First  Amendment  interests,"  id.,  at  222,  and  may well "interfere in some way with an employee's freedom to associate for the advancement of ideas,  or to refrain from doing so, as he sees fit," ibid. See also id., at 255

(POWELL, J., concurring in judgment). We nevertheless rejected the claim that it was unconstitutional for a public employer to designate a union as the exclusive collective- bargaining representative of its employees, and to require nonunion employees,  as a condition of employment, to pay a fair share of the union's cost of negotiating and ad- ministering a collective-bargaining   **62   agreement.

The  Court  has  permitted  such  interference  with  First Amendment interests when necessary or reasonable "for the purpose of performing the duties of an exclusive rep- resentative of the employees in dealing with the employer on labor-management issues." Elllis v. Railway Clerks,

466  U.S.  435,  448,  104  S.  Ct.  1883,  80  L.  Ed.  2d  428

(1984). See also Robinson v. N.J., 741 F.2d 598, 607 (3d Cir. 1984). On the other hand, the Court has not permitted such interference for other purposes, such as support for political  candidates  or  ideological  causes.   Abood,  431

U.S.  at  235;  Teachers v.  Hudson,  475  U.S.  at  302.  We see no reason why similar principles should not be em- ployed  in  determining  whether  a  union,  in  its  capacity as  exclusive  bargaining  representative,  may  consent  to terms and conditions of employment implicating Fourth Amendment interests.

Several  courts  of  appeals  in  recent  years  have  sug- gested  that  unions,  in  negotiating  collective  bargaining agreements,  may  consent  to  drug  testing  or  analogous searches  on  behalf  of  employees.  In  Jackson  v.  Liquid Carbonic Corp., 863 F.2d 111, 119 (1st Cir. 1988), **63  cert. denied, 490 U.S. 1107, 109 S. Ct. 3158, 104 L. Ed.

2d 1021 (1989), the court observed, in discussing an em- ployee's  rights  under  the  Fourth  Amendment  and  state privacy law, that "the dimensions of the employee's  cog- nizable expectation of privacy regarding drug testing  de- pend to a great extent upon concessions the union made regarding working conditions during collective bargain- ing." In Utility Workers of Am. v. Southern Cal. Edison,

953 F.2d 807, *827; 1991 U.S. App. LEXIS 30622, **63;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 19

852 F.2d 1083, 1086 (9th Cir. 1988) (footnote omitted),

cert. denied, 489 U.S. 1078, 109 S. Ct. 1530, 103 L. Ed.

2d 835 (1989), the court wrote:

To the best of our knowledge, . . . 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.

See also Stikes v. Chevron, USA, Inc., 914 F.2d 1265, 1270

(9th  Cir.  1990).  Similarly,  in  American  Postal  Workers Union v. USPS, 871 F.2d 566,  567 (6th Cir. 1989), the court rejected a Fourth Amendment challenge to searches of employee lockers, in part because the searches were authorized by the collective bargaining agreement.

In  recent  years,  many  employers  in  the private  and public  sectors   **64    have  sought  to  implement  drug testing programs. HN24  The National Labor Relations Board has held that drug testing is a mandatory subject of bargaining. See Johnson-Bateman Co. and Machinists, AFL-CIO, Dist. Lodge 120, 1989 NLRB LEXIS 373, 295

NLRB No. 26, 131 L.R.R.M. 1393, 1396-98 (1989). See also  General  Counsel  Memorandum  87-5  (September

8,  1987),  Guideline Memorandum Concerning Drug or Alcohol  *828       Testing  of  Employees  (recommend- ing  that  the  NLRB  take  the  position  that  drug  and  al- cohol testing be a mandatory subject of bargaining). Cf. Consolidated  Rail  Corp.  v.  Railway  Labor  Executives Ass'n, 491 U.S. 299, 105 L. Ed. 2d 250, 109 S. Ct. 2477

(1989) (Railway Labor Act). Through collective bargain- ing,  a public employer and union can reach agreement on detailed factual questions (such as whether particular jobs are safety-sensitive) that may have important impli- cations under the Fourth Amendment. n28 If individual public employees may litigate such questions despite the resolution reached through collective bargaining, the util- ity of collective bargaining with respect to drug testing in the public sector would be greatly diminished. In sum, we conclude that a public employee union acting as exclusive bargaining   **65   agent may consent to drug testing on behalf of the employees it represents.

n28 Although the collective bargaining agree- ment in effect at the time of Bolden's test did not contain express drug testing provisions, the 1989-

92 collective bargaining agreement contains such provisions. Exhibit to Defendant SEPTA's Motion for Summary Judgment Against the Plaintiffs.

Such consent may be manifested in several different contexts. The simplest example occurs when a union ex- pressly agrees to drug testing during the negotiation of a collective bargaining agreement. As previously explained,

individual employees are bound by such express consent. Essentially  the  same  analysis  applies  when  a  col- lective bargaining agreement implicitly authorizes drug testing.  In  Consolidated  Rail  Corp.  v.  Railway  Labor Executives, 491 U.S. 299, 311-12, 105 L. Ed. 2d 250, 109

S. Ct. 2477 (1989) (citations omitted), the Supreme Court explained  that  a  collective  bargaining  agreement  lack- ing any provision expressly authorizing drug tests may nevertheless implicitly permit **66   such tests based on

"'practice, usage and custom.'" When a collective bargain- ing agreement contains such implied authorization, that authorization must bind individual employees as surely as an express term.

Whether a particular collective bargaining agreement contains such implied authorization must be determined in accordance with the established procedures for inter- preting collective bargaining agreements. If the agreement contains provisions specifying mandatory grievance and arbitration  proceedings,  those  procedures  must  be  fol- lowed and exhausted before an employee may sue under the agreement.  DelCostello v. Teamsters, 462 U.S. 151,

163, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). The result of this process may be a settlement or arbitration decision that the collective bargaining agreement implicitly or ex- plicitly  permits  drug  testing  of  some  or  all  employees. The courts must defer to this interpretation of the agree- ment unless the employee can show that the union has breached its duty of fair representation in agreeing to the drug testing. Chauffeurs, Teamsters and Helpers, Local No. 391, 494 U.S. 558, 110 S. Ct. 1339, 1344, 108 L. Ed.

2d 519 (1990) (NLRA); Fouts v. Allegheny County, 64 Pa. Commw. 441, 440 A.2d 698, 701 (1982) **67   (PERA). In other words,   HN25  if the union agrees,  or if bind- ing arbitration establishes, that the collective bargaining agreement impliedly authorizes drug testing,  individual employees are  bound  by  this  interpretation  unless  they can show a breach of the duty of fair representation.

Here, Bolden's union, acting as his exclusive bargain- ing agent, n29 pressed a grievance   *829   on his behalf and  eventually  entered  into  a  voluntary  settlement  un- der which Bolden was to be reinstated with partial back pay  on  condition  that  he  submit  to  future  drug  testing. In effect, the union and SEPTA agreed at that time that the collective bargaining agreement permitted future drug testing of Bolden in accordance with the settlement terms. Thus, HN26  unless the union breached its duty of fair representation, this settlement had the same effect under labor law and under the Fourth Amendment as if Bolden himself had consented to such future drug testing.

n29 Even if Bolden's union had lacked actual authority to consent to future drug testing on his

953 F.2d 807, *829; 1991 U.S. App. LEXIS 30622, **67;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 20

behalf, SEPTA would not have violated the Fourth Amendment  by  conditioning  Bolden's  continued employment on submission to future drug testing. A search is constitutional if it is based on reason- able belief that a third party had authority to con- sent.   Ill.  v.  Rodriguez,  110  S.  Ct.  2793,  111  L. Ed. 2d 148 (1990). Here,  SEPTA had reasonable grounds to believe that the union possessed the au- thority to consent to future drug testing of Bolden. As noted, the union was Bolden's exclusive collec- tive bargaining representative,  and  the  union  had represented Bolden regarding the first grievance a short time earlier and had secured his reinstatement. During the same period, the union also represented dozens  of  other  SEPTA  employees  in  grievances based on drug testing. Under these circumstances, SEPTA's reliance on the union's authority to settle Bolden's  grievance  and  to  consent  to  future  drug testing was reasonable. Therefore, SEPTA's insis- tence  upon  compliance  with  the  settlement  as  a condition of employment did not violate Bolden's Fourth Amendment rights.

**68

Bolden, however, has neither claimed nor shown that the union breached its duty of fair representation in its handling of his second grievance. As noted earlier,  the claim  asserted  against  the  union  in  Bolden's  amended complaint was not for breach of the duty of fair represen- tation but for conspiring with SEPTA to violate his consti- tutional rights. The jury rejected this claim, and Bolden has not contested that verdict on appeal. Consequently, we conclude that Bolden was bound by the terms of the settlement and that Bolden's rejection of reemployment on these terms cut off his right to damages for lost wages following that date. See, e.g., Ford Motor Co. v. EEOC,

458 U.S. 219, 231-32, 73 L. Ed. 2d 721, 102 S. Ct. 3057

(1982); Bruno v. W.B. Saunders Co., 882 F.2d 760, 770

(3d Cir. 1989); Carden v. Westinghouse Elec. Corp, 850

F.2d 996, 1004-05 (3d Cir. 1988). Because it is impossi- ble to determine how much of the jury verdict was based on lost wages and emotional distress occurring after this settlement,  we must reverse the award of damages and remand for a new trial on this issue.

VI.

A. The final question that we must consider is whether the district **69   court properly dismissed Bolden's re- quest for punitive damages. n30 Like the district court, we begin our analysis with City of Newport v. Fact Concerts, Inc.,  453  U.S.  247,  69  L.  Ed.  2d  616,  101  S.  Ct.  2748

(1981), in which the Supreme Court held that municipal- ities are immune from punitive damages under Section

1983. In reaching this conclusion, the Court considered both the history and policy of Section 1983.

n30 This is a question of law over which we exercise plenary review.

In analyzing history,  the Court began by assuming, as it has in other cases, that Section 1983 should not be construed as abrogating established common law immu- nities unless the legislative history showed that Congress desired such a result. The Court had previously held that this assumption did not lead to the conclusion that munic- ipalities were entirely exempt from Section 1983 claims, since  by  1871  municipalities  no  longer  enjoyed  com- plete immunity from suit under state law. Owen v. City of Independence, 445 U.S. 622, 646-47, 63 L. Ed. 2d 673,

100 S. Ct. 1398 (1980). **70    See also Will, 491 U.S. at 67 n.7. In City of Newport, however, the Court found that while municipalities could be sued under state law when Section 1983's predecessor was enacted, the prece- dents  at  that  time  "were  virtually  unanimous  in  deny- ing punitive  damages against a municipal corporation." The Court therefore assumed that "'Congress would have specifically  so  provided  had  it  wished  to  abolish   this  doctrine.'" Id. at 263,  quoting Pierson v. Ray,  386 U.S.

547, 555, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). The Court, however, found nothing in the legislative history of  Section  1  of  the  1871  Act  to  suggest  that  Congress wanted to disturb the immunity from punitive damages that municipalities had previously enjoyed. 453 U.S. at

263-66.

The Court then examined "whether considerations of public policy dictated a contrary result." Id. at 266. Noting that  a  major  purpose  of  punitive  damages  is  to  punish wrongdoers, the Court concluded that assessing punitive

*830   damages against a municipality would not serve this purpose because those damages would not be paid by the officials responsible for the wrongdoing but would be

"visited upon   **71   the shoulders of blameless or un- knowing taxpayers." Id. at 267. The Court also questioned whether punitive damages were necessary to deter future violations.  Id. at 268-69. The Court observed that other means of deterring constitutional violations by municipal officials were already available, such as punitive damage awards against the offending officials themselves and the discharge or electoral defeat of officials whose violations result in compensatory damage awards that must be paid with municipal funds.   Id. at 268-70. Finally, the Court noted that juries traditionally have had broad discretion in assessing the amount of punitive damages and that evi- dence of a municipality's large revenues might encourage sizeable awards.  Id. at 270. The Court wrote ( id. at 270-

71) that "the impact of such a windfall recovery is likely

953 F.2d 807, *830; 1991 U.S. App. LEXIS 30622, **71;

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Page 21

to be both unpredictable and, at times, substantial, and we are sensitive to the possible strain on local treasuries and therefore on services available to the public at large."

B. Based on the Supreme Court's reasoning in City of Newport, we conclude that SEPTA,   **72   like a munic- ipality, is immune from punitive damages under Section

1983.  In  view  of  the  many  characteristics  that  SEPTA shares with federal, state, and local agencies, both history and policy considerations support this conclusion.

History cannot provide the same sort of specific guid- ance  in  this  case  as  it  did  in  City  of  Newport  because SEPTA, unlike municipalities, is a distinctively twentieth century creation. It is doubtful that any closely compa- rable entities existed in 1871. Thus we cannot examine court decisions from that era addressing the immunities of such entities.

History does reveal, however, that during that era all governmental units, whether performing governmental or proprietary functions, were generally immune from puni- tive damages. As noted in City of Newport, municipalities and counties enjoyed such immunity, even when perform- ing "proprietary" functions. See Genty v. Resolution Trust Corp., 937 F.2d 899 (1991). In addition, both states (see Will v. Michigan Dep't of State Police, 491 U.S. at 67) and the federal government (see Feres v. United States, 340

U.S. 135, 139-40, 95 L. Ed. 152, 71 S. Ct. 153 (1951)), enjoyed complete **73   sovereign immunity from suit without their consent.

HN27  SEPTA, of course, is not a governmental unit in the traditional sense,  but it shares many characteris- tics with federal,  state,  and local government agencies. SEPTA is perhaps best described as a hybrid entity with substantial connections to government at all levels -- fed- eral,  state,  and local.  While  SEPTA's  ties to state  gov- ernment are not close enough or exclusive enough to per- suade us that SEPTA should be regarded as an alter ego of the Commonwealth for Eleventh Amendment purposes, SEPTA's ties to all levels of government taken together are sufficient to convince us that SEPTA may be analo- gized to a government entity for purposes of determining whether SEPTA should be liable for punitive damages. Thus,  the immunity from punitive damages enjoyed by all levels of government in 1871 weighs in SEPTA's favor here. n31

n31  The  Pennsylvania  Supreme  Court's  deci- sion in Feingold v. SEPTA, 512 Pa. 567, 517 A.2d

1270 (1986), although not dispositive on the ques- tion of federal law now before us, is instructive be- cause of its recognition of SEPTA's governmental character. Noting that "government agencies" have long been exempt from the imposition of punitive

damages under Pennsylvania law (id.at 1276), the court held that SEPTA's governmental character en- titled it to the same immunity. See also Toombs v. Manning, 835 F.2d 453, 460-65 (3d Cir. 1987) (in banc) (holding that SEPTA is a "Commonwealth party"  under  Pennsylvania's  sovereign  immunity statute).

**74

Moreover,  here  as  in  City  of  Newport  (453  U.S.  at

266),  "considerations  of  public  policy"  do  not  "dictate a  contrary  result."  The  thrust  of  the  Court's  discussion in  City  of  Newport  was  that  punitive  damage  awards against municipalities   *831   would not serve the goals of  punishment  or  deterrence  in  the  same  way  as  puni- tive  damage  awards  against  individuals  found  to  have violated Section 1983. This reasoning is fully applicable to  SEPTA.  Awarding  punitive  damages  against  SEPTA might result in increased taxes or fares and thus punish taxpayers and users of mass transportation who cannot be regarded,  except perhaps in an indirect and abstract sense,  as bearing any guilt for constitutional violations that SEPTA may commit. See Feingold, 517 A.2d at 1277

(punitive damages against SEPTA would be assessed "ef- fectively against taxpayers and the public at large."). See also Toombs v. Manning, 835 F.2d at 463. Similarly, the deterrent effect that such awards may have on SEPTA de- cision1makers is far more speculative than the deterrent effect of punitive damage awards on individuals who vi- olate Section 1983, and other means of deterring **75  violations by SEPTA officials -- including the assessment of damages against offending the officials themselves and adverse employment actions against such officials -- are already available. Finally,  SEPTA would be a tempting target for large punitive damage awards by juries unduly influenced by SEPTA's size and revenues, which greatly exceed those of many municipalities.

In sum, we believe that the Supreme Court's reason- ing in City of Newport is applicable to SEPTA, and we consequently conclude that SEPTA, like a municipality, is immune from punitive damages under Section 1983.

VII.

In conclusion, we hold that SEPTA is not protected by the Eleventh Amendment, that the drug test administered to Bolden was unconstitutional, that SEPTA is not liable for  wages  lost  by  Bolden  after  the  settlement  between SEPTA and his union, and that punitive damages cannot be assessed against SEPTA under Section 1983. We will therefore affirm the judgment of the district court insofar as  it  holds  that  SEPTA  is  liable  for  violating  Bolden's constitutional  rights,  but  we  will  vacate  the  awards  of

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damages and remand for further proceedings related to this issue.

CONCURBY: NYGAARD (In Part) DISSENTBY: NYGAARD (In Part) DISSENT:   **76

NYGAARD,  Circuit  Judge,  concurring  in  part  and dissenting in part.

I concur in the court's opinion except for Part V and its conclusion. I agree with the majority that Bolden's silent submission to the drug test did not constitute voluntary consent, yet I cannot join its opinion that Bolden's rights were nonetheless waived by the Transportation Workers' Union Local 234 (TWU) with the grievance settlement. As  a  matter  of  law,  a  union  cannot  waive  the  Fourth Amendment rights of its members in a grievance settle- ment. It occurs to me that this individual right is enshrined in our Constitution just so the SEPTAs and TWUs cannot collectively compromise them.

I  disagree  with  the  majority's  holding  that  a  union has  "actual  authority"  to  waive  its  members'  Fourth Amendment rights bound only by the fair representation doctrine.  It  seems  that  the  fair  representation  doctrine, a  creature  of  labor  law  n1,  is  now  to  become  the  new standard for constitutional waiver of Fourth Amendment rights in the public employment sector. I cannot accept this  notion.  This  sweeping  assertion  divests  all  public sector employees of their Fourth Amendment rights and strains to make legitimate that which **77    clearly is not.

n1 Under Pennsylvania labor law, "a union is guilty of unfairly representing an employee if its refusal to carry a grievance through to arbitration is due to arbitrariness, discrimination or bad faith." Fouts  v.  Allegheny  County,  64  Pa.  Commw.  441,

440 A.2d 698 (1982).

The  majority's  reasoning  seems  to  be  this:   (1)  the union  is  the  exclusive  bargaining  representative  for  its members under Pennsylvania labor law; (2) hence, it can enter  into  collective  bargaining  agreements  that  effec- tively  restrict  Fourth  Amendment  rights  that  unionized employees  would  otherwise  enjoy  because  such  agree- ments permit, among other things, work-related searches and seizures; (3) that being so, there is no apparent reason why a union cannot likewise, in the course of negotiating a grievance settlement, waive its member's constitutional right to be free from unreasonable tests for drugs; and (4) a union member who wishes to challenge such a waiver

must first show that the union breached its   **78   duty of fair representation, else he is "contractually bound" to the rights waiver.

I  start  with  this  fundamental  premise:   Before  the grievance settlement was made,  Bolden had a constitu- tional right not to be   *833    tested for drugs. n2 See Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 109

S. Ct. 1402, 1413, 103 L. Ed. 2d 639 (1989) (collecting and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable). Under the majority's reasoning this right was waived by TWU just as TWU and other unions "commonly restrict rights that the employees would otherwise enjoy under the Fourth Amendment" and set the "terms and conditions of em- ployment embodied in collective bargaining agreements with public employers."

n2 To conclude otherwise would be inconsis- tent with the court's holding that SEPTA violated Bolden's Fourth Amendment right when it tested him for drugs.

This reasoning confuses the distinction between a rea- sonable and an unreasonable search or seizure. The dis- tinction  is  crucial  since   **79    it  determines  whether there is a Fourth Amendment right or not.  United States v.  Sharpe,  470  U.S.  675,  105  S.  Ct.  1568,  1573,  84  L. Ed. 2d 605 (1985) ("The Fourth Amendment is not,  of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.") (em- phasis in original).

Indeed,  the majority thinks terms and conditions of employment  embodied  in  collective  bargaining  agree- ments with public employers commonly restrict "rights" that unionized public employees would otherwise enjoy under the Fourth Amendment. The majority apparently believes that because some reasonable directives may be negotiated in collective bargaining agreements,  a union may,  in  the  context  of  a  grievance  settlement,  concede to the employer rights it could not reasonably have de- manded.

I disagree. By choosing to belong to a union, Bolden cannot be said to have delegated complete authority to compromise  a  right  that  is  the  very  touch-stone  of  the Bill of Rights and consecrated by generations of consti- tutional  jurisprudence.  Although  a  union  can  negotiate the terms and conditions of employment referred to by the majority, they are not Fourth Amendment **80   is- sues. By accepting work conditions, employees can ex- pect certain restrictions on their movements for safety and efficiency reasons. But these restrictions are not unreason- able "seizures" under the Fourth Amendment. See INS v.

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Page 23

Delgado, 466 U.S. 210, 104 S. Ct. 1758, 1763, 80 L. Ed.

2d 247 (1984) ("when people are at work their freedom to move about has been meaningfully restricted . . . by the workers' voluntary obligations to their employers"). See also Skinner,  109 S. Ct. at 1418 ("the expectations of privacy by covered employees are diminished by rea- son of their participation in an industry that is regulated pervasively to ensure safety"); O'Connor v. Ortega, 480

U.S. 709, 107 S. Ct. 1492, 1497, 94 L. Ed. 2d 714 (1987)

(public sector employees have Fourth Amendment pro- tection in their possessions and work stations if there is a reasonable expectation of privacy).

No one would contend, for example, that posting se- curity cameras in highly sensitive areas of a work place constitutes an unconstitutional "search" within the mean- ing of the Fourth Amendment. It follows that the "rights" properly  restricted  by  collective  bargaining  agreements

**81   do not have constitutional dimensions, but rather are  in  the  nature  of  contractual  entitlements.  Like  any other privately created rights and obligations, customary conditions of employment may be negotiated by a union on behalf of its members without Fourth Amendment bar- riers.

The  majority  also  contends  that  unions  possess  the authority to consent to periodic, invasive medical exam- inations (for instance, blood tests or urinalysis to detect disease), which are often important for the protection of co-workers, the employer, and the public, as well as the union employees themselves. Majority Opinion 45. I too have no doubt unions may negotiate and, if collectively ratified by its membership, agree to such tests, including drug tests in some circumstances, not because the union has  omnipotent  authority  under  labor  law,  but  because such medical incursions  into individual liberty are rea- sonable under the circumstances and hence do not violate the Fourth Amendment. See Skinner, 109 S. Ct. at 1418-

19   *834    (post-accident drug testing without individ- ualized  suspicion  is  reasonable  because  of  strong  gov- ernmental  interest  ensuring  public  safety);  Policeman's Benevolent Ass'n v. Township of Wash., 850 F.2d 133 (3d Cir. 1988) **82   (drug testing of police officers during annual job physical is valid); Jones v. McKenzie, 266 App. D.C. 85, 833 F.2d 335, 341 (D.C. Cir. 1987) (drug testing of bus drivers and attendants of handicapped school chil- dren "conducted as part of a routine, reasonably required, employment-related medical examination"), vacated sub nom.   Jenkins v. Jones, 490 U.S. 1001, 109 S. Ct. 1633,

104 L. Ed. 2d 149 (1989), replaced, 878 F.2d 1476 (D.C. Cir. 1989) (affirming and modifying its earlier decision); Amalgamated Transit Union Div. 1279 v. Cambria County Transit Auth., 691 F. Supp. 898 (W.D. Pa. 1988) (uphold- ing drug testing of certain employees during annual phys- ical); Burka v. New York City Transit Auth., 680 F. Supp.

590 (S.D.N.Y. 1988) (same); Wrightsell v. City of Chicago,

678 F. Supp. 727, 734 (N.D. Ill. 1988) (drug testing as part of "routine, employment-related medical examinations" valid). Since a reasonable search or seizure does not vi- olate the Fourth Amendment,  reasonable drug tests are proper subjects for negotiation in collective bargaining. Yet,  if for example  a union consented  to drug test- ing  of  all  its   **83    members  (regardless  of  individu- alized  suspicion,  an  employee's  job  function,  nature  of the  employer's  industry,  triggering  facts  or  exigent  cir- cumstances),  such  testing,  if  without  consent  by  indi- vidual  union  members,  would  not  be  reasonable,  em- ployment-related physical examinations. Indiscriminate drug  testing,  entailing  invasive  blood  drawing  or  other bodily intrusions, is not rendered reasonable for Fourth Amendment purposes by a collective bargaining agree- ment. The Fourth Amendment bars such drug testing ab- sent a valid individual consent or waiver. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d

854 (1973) (requiring consent by the individual); Illinois v. Rodriguez, 111 L. Ed. 2d 148, 110 S. Ct. 2793, 2801

(1990) (recognizing as valid Fourth Amendment waiver consent given by third party, but only if the government actor  is  reasonably  mistaken  that  such  third  party  pos- sessed the right waived and was thus authorized to give consent to search).

The Supreme Court has made clear that random, in- discriminate and discretionary drug testing policies ad- ministered without regard to job function, nature of in- dustry,  triggering  facts,  exigent  circumstances,   **84  or other facts that make for "reasonable" testing violate the Fourth Amendment. See Skinner, 109 S. Ct. at 1414. Recently  we  invalidated  SEPTA's  return-to--work  drug testing policy because "SEPTA has not shown that this aspect of its program is initially justified or that testing of all employees returning after an absence for whatever cause has any relationship to the articulated need for the program." Transportation Workers' Local 234 v. SEPTA,

863 F.2d 1110, 1122 (3d Cir. 1988), vacated, 492 U.S. 902

(1989), reaffirmed, 884 F.2d 709 (3d Cir. 1989) (SEPTA). If  federal  or state  regulations  and  statutes  cannot  force employees to be tested in the absence of reasonable cir- cumstances, there is no principled reason to find, as the majority does, that a union whose authority derives from statutes has actual authority to waive the constitutional rights of its members by "contractually" binding them to unreasonable searches and seizures.

The rigorous, independent inquiry into whether there has  been  an  unreasonable  search  or  seizure  under  the Fourth Amendment, or a voluntary consent or waiver to a search, should **85   not be reduced to legal doctrines and theories governing collective bargaining. The major-

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Page 24

ity seems to believe that the scope and nature of Fourth Amendment rights would depend on the legal framework of labor law, especially the "fair representation" doctrine. I reject that importation into Fourth Amendment jurispru- dence. The contours of the Fourth Amendment cannot be molded by a union to its utilitarian concept of fairness.

I  suspect  the  majority's  conclusions  are  driven  by

"slippery  slope"  considerations:   specifically,  that  fed- eral courts might be inundated with suits by disgruntled public   *835   sector employees alleging that their col- lective bargaining, arbitration and settlement proceedings did not adequately protect their constitutional rights. The majority writes: "If individual public employees may liti- gate such questions despite the resolution reached through collective bargaining, the utility of collective bargaining with respect to drug testing in the public section would be greatly diminished." Majority Opinion 49. But if "the utility of collective bargaining" is bought at the expense of individual rights,  it  is bought with  too high  a price. Indeed,  in  similar  circumstances,  the   **86    Supreme Court has said so. See Alexander v. Gardner-Denver Co.,

415 U.S. 36, 94 S. Ct. 1011, 1023, 39 L. Ed. 2d 147 (1974)

("the court of appeals also thought that to permit a later re- sort to the judicial forum would undermine substantially the  employer's  incentive  to  arbitrate  and  would  'sound the death knell for arbitration clauses in labor contracts.' Again, we disagree."). Moreover, I fear the solution here espoused by the majority has not been carefully weighed and the evils that follow will surely exceed those it seeks to cure. I believe disputes as to whether government in its capacity as an employer violated the Fourth Amendment should not be resolved by union grievance and arbitration proceedings:   They  are  best  resolved  in  federal  courts. See 94 S. Ct. at 1024 ("the resolution of statutory or con- stitutional issues is a primary responsibility of courts"); McDonald,  104 S. Ct. at 1803 ("although arbitration is well suited to resolving contractual disputes . . . it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that **87   § 1983 is designed to safeguard"). While the mistrust of arbitration and similar proceedings have been assuaged somewhat, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346,

3354, 87 L. Ed. 2d 444 (1985), there can be no question that federal courts are the best forum to resolve § 1983 and constitutional claims. See Patsy v. Florida Bd. of Regents,

457 U.S. 496, 102 S. Ct. 2557, 2561, 73 L. Ed. 2d 172

(1982).

I would hold that absent an express authorization by a union member, a union never possesses actual authority to waive the Fourth Amendment rights of its members. The  Supreme  Court's  opinion  in  Alexander,  which  the majority ignores, compels this result.

In  Alexander,  the  Supreme  Court  held  that  an  em- ployee's statutory right to a trial de novo under Title VII may not be foreclosed  by submitting his claim to final arbitration under the nondiscrimination clause of a col- lective bargaining agreement, even though that agreement provided that the arbitrator's decision was to be "final and binding upon the Company, and Union, and any employee or employees involved." 94 S. Ct. at 1025. **88    The Court stressed that an employee's contractual rights un- der a collective bargaining agreement are distinct from his Title VII statutory rights:

In submitting his grievance to arbitration,  an employee seeks  to  vindicate  his  contractual  right  under  a  collec- tive-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statu- tory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vi- tiated merely because both were violated as a result of the same factual occurrence. . . .

Moreover, a contractual right to submit a claim to ar- bitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee.

94 S. Ct. at 1020, 1022 (emphasis added).

Thus, in Alexander, the Court distinguished between a union member's contractual rights and obligations arising from a collective bargaining agreement, and his consti- tutional and statutory rights that exist independently of his union status. The Court reasoned that certain **89  statutory  rights  may  not  be  abridged  in  collective  bar- gaining, or by an arbitration proceeding mandated by a union contract. It then   *836   declared what rights of its members a union can contractually waive:

It is true, of course, that a union, may waive certain statu- tory rights related to collective activity, such as the right to strike. These rights are conferred on employees col- lectively to foster the processes of bargaining and prop- erly  may  be  exercised  or  relinquished  by  the  union  as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand stands on plainly different ground; it concerns not majoritarian processes, but an individual's right to equal employment opportunities. . . . In these circumstances, an employee's rights under Title VII are not susceptible of prospective waiver.

94 S. Ct. at 1021 (citations omitted). n3

n3  The  majority  cites  to  these  cases,  among

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Page 25

others, for the proposition that the concept of ex- clusive union representation restricts the freedom of individual employees to enter into separate em- ployment contracts, but that concept may also re- sult in some other restrictions that implicate indi- vidual employees' constitutional rights: Teachers v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed.

2d 232 (1986); Ellis v. Railway Clerks,  466 U.S.

435,  104  S.  Ct.  1883,  80  L.  Ed.  2d  428  (1984); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977); Keller v. State Bar of Cal., 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed.

2d 1 (1990). These cases involve the type of issues

"related  to  collective  activity"  that  the  Alexander Court  discusses.  When  constitutional  rights  were implicated,  the  Court  resolved  them  by  applying the appropriate constitutional standards.

**90

Thus an employee may waive his cause of action un- der Title VII, but a union cannot.  94 S. Ct. at 1021. This follows because "the interests of the individual employee may be subordinated to the collective interests of all em- ployees in the bargaining unit and  harmony of interest between  the  union  and  the  individual  employee  cannot always be presumed." 94 S. Ct. at 1024 n.19. n4

n4 In McDonald v. City of West Branch,  466

U.S. 284, 104 S. Ct. 1799, 80 L. Ed. 2d 302), the Supreme Court held that an award in an arbitration proceeding brought under the terms of a collective bargaining agreement did not bar an employee from bringing a § 1983 action. Again the Court stressed the fundamental problem:  when individual rights are at issue "the union's interests and those of the in- dividual employee are not always identical or even compatible. As a result, the union may present the employee's grievance less vigorously, or make dif- ferent strategic choices, than would the employee."

104 S. Ct. at 1803. See Taylor v. NLRB, 786 F.2d

1516, 1522 (11th Cir. 1986) (considering "the prac- tical reality . . . in which individual rights may be negotiated away by unions  in the interest of the collective good").

**91

Alexander   makes   clear   that   TWU   cannot   waive Bolden's  constitutional  rights.  In  Alexander,  the  em- ployee's right arose from Title VII; here Bolden's right arises  from  §  1983  and  the  Fourth  and  Fourteenth Amendments. In Alexander, express provisions in the col- lective bargaining agreement provided that the employer shall not discriminate, that discrimination claims shall be

arbitrated, and that the arbitrator's decision shall be "fi- nal and binding" on the employee:  Here the collective bargaining agreement between TWU and SEPTA did not even permit drug testing. In Alexander, the employee per- mitted the union to pursue arbitration; here Bolden sea- sonably, persistently and unequivocally rejected TWU's offer to pursue grievance proceedings. In Alexander, the employee did not seek review of the arbitrator's decision, but asserted a constitutional right independent of the ar- bitration process,  94 S. Ct. at 1022: Here Bolden does not seek review of TWU's actions as it pertains to the fair representation doctrine, but asserts an independent consti- tutional claim under § 1983. Yet while the Supreme Court has concluded that neither the express provisions **92  of the collective bargaining agreement nor submitting a grievance to arbitration vitiated an employee's statutory rights, the majority concludes that TWU's waiver, despite Bolden's disapproval, in his absence, and without express provision in the collective bargaining agreement vitiated Bolden's constitutional rights.

If Bolden's rights at issue here were no more than con- tractual entitlements arising out of collective bargaining, I would agree he is "bound" by his union's willingness to impose drug testing obligations. See Consolidated Rail Corp. v. Railway Labor Exec. Ass'n, 491 U.S. 299, 109 S. Ct. 2477,   *837   2484, 105 L. Ed. 2d 250 (1989). n5 But here Bolden brought a § 1983 suit alleging that SEPTA vi- olated rights secured for him by the Constitution, not run- of-the--mill rights gotten by agreement. If, as Alexander holds, a union cannot waive its members' statutory rights under Title VII, it seems clear to me a union lacks power to  waive  its  members'  Fourth  Amendment  rights.  Like Title VII, Fourth Amendment rights are guaranteed to in- dividuals. Unions do not have inherent actual authority to waive such constitutional rights; else individual rights would be sacrificed for some perceived collective **93  good as unions negotiate to get economically related ben- efits for their members as a whole. The Bill of Rights is predicated on the notion that minority or individual rights must be protected from assault by the majority. Indeed, the Supreme Court in Alexander precludes the result reached by the court herein.

n5  The  Court  held  if  an  employer's  contrac- tual  claim  to  make  a  particular  change  in  work- ing conditions is arguably justified by the parties' agreement,  the  employer  may  make  the  change and the courts must deter to the arbitral jurisdic- tion of the Board. Because Conrail was a private entity, Railway Labor Exec. Ass'n v. Consolidated Rail  Corp.,  845  F.2d  1187,  1189  (3d  Cir.  1988), the Supreme Court addressed the issue only with respect to contractual entitlements associated with

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collective bargaining. 109 S. Ct. at 2427 ("Conrail's contractual arguments are not  frivolous or insub- stantial"). (Emphasis added) Consolidated Rail did not address whether a union can waive in grievance or settlement proceedings an employee's constitu- tional rights or whether such waiver is binding in an independent § 1983 claim. In this respect, this case is inapposite.

I  also  point  out  that  in  Consolidated  Rail, Conrail required its employees to undergo physical examinations periodically and upon return to work. These examinations included drug testing. 109 S. Ct. at 2486. If Consolidated Rail was a government employer subject to the Fourth Amendment its re- turn-to--work drug testing policy would most likely be unconstitutional under the Supreme Court's rea- soning in Skinner. See Skinner, 109 S. Ct. at 1417

(only where privacy interest is minimal and where an important governmental interest is furthered by the intrusion may a search be reasonable without individualized suspicion).

**94

My  view  that  a  union  cannot  waive  its  members' Fourth Amendment rights does not undermine the util- ity of collective bargaining with respect to drug testing in the public sector. Nor does my view compromise public policies aimed at maintaining drug free public employees

(particularly those in safety sensitive jobs). Since employ- ees' Fourth Amendment rights to be free of unreasonable searches do not encompass a right to be free of reasonable work  restrictions  and  conditions,  these  restrictions  and conditions, including certain drug testing, are the proper subject of negotiation. n6 My view leaves room for a union to negotiate mandatory drug testing,  albeit in a limited class of cases outside the Fourth Amendment restrictions: namely, those presenting circumstances where public em- ployee drug testing is reasonably justified. Bolden's case is not one of these because, as the majority and I agree, Bolden did not have a safety-sensitive job and because SEPTA's return-to--work drug testing policy is unconsti- tutional.

n6  In  SEPTA,  we  held  that  SEPTA's  random drug testing program for employees with safety sen- sitive jobs is "constitutionally justified." 884 F.2d at

713. Because these employees did not have a Fourth Amendment right to be free of drug testing, drug testing became a matter of contractual entitlement. Relying  on  Consolidated  Rail,  we  therefore  held that  the  program  "constitutes  an  issue  'arguably' covered by the implied terms of the parties' agree- ment as established by past practice." 884 F.2d at

713.

**95

Constitutional rights can be relinquished. But whether TWU may waive Bolden's Fourth Amendment rights is another issue. If TWU is to relinquish Bolden's Fourth Amendment rights, it must meet constitutional standards. That is,  there must be a voluntary consent by the indi- vidual holding the right, Schneckloth, 412 U.S. 218, 93

S. Ct. 2041,  36 L. Ed. 2d 854, or at least a reasonable government belief that waiver is by the possessor of the right being waived, Rodriguez, 111 L. Ed. 2d 148, 110 S. Ct. 2793.

The court holds, and I agree, Bolden did not voluntar- ily consent to his initial drug search or to mandatory future drug searches. Nor did Bolden expressly or implicitly au- thorize TWU to waive his Fourth Amendment rights. Yet the majority concludes "SEPTA had reasonable grounds to believe that the union possessed the authority to con- sent to future drug testing of   *838    Bolden." It relies improvidently upon Rodriguez for this proposition.

The Rodriguez Court held that a search is reasonable under  the  Fourth  Amendment  if  the  government  actor reasonably believed the consenting party had authority to waive the Fourth Amendment right. 110 S. Ct. at 2801. This holding **96    is vested in the Court's interpreta- tion of Stoner v. California, 376 U.S. 483, 84 S. Ct. 889,

11 L. Ed. 2d 856 (1964), which held that a hotel clerk cannot  properly  consent  to  a  police  search  of  a  rented room. The Stoner Court said "the rights protected by the Fourth Amendment are not to be eroded by strained ap- plications of the law of agency or by unrealistic doctrines of 'apparent authority.'" 84 S. Ct. at 892. The Rodriguez Court interpreted Stoner to mean that the police in Stoner

"could not reasonably have believed that the hotel clerk

had general access to or control" over the rented room.

110 S. Ct. at 2801 (emphasis added). Thus the Rodriguez Court framed the Fourth Amendment third party waiver issue in terms of whether government actors reasonably believed that "the consenting party had authority over the premises." 110 S. Ct. at 2801. This emphasis on whether a consenting party was reasonably perceived to have "au- thority over the premises" indicates the Rodriguez Court's test of effective third party consent requires inquiry into whether  the  government  actor  could  reasonably   **97  view the consent-giver as actually possessing the Fourth Amendment right.

Rodriguez  then  stands  for  the  proposition  that  only if government actors reasonably think a consenting party actually possesses a Fourth Amendment right, or other- wise has valid authority to relinquish that right, does an invasive search and seizure consented to by a third party

953 F.2d 807, *838; 1991 U.S. App. LEXIS 30622, **97;

139 L.R.R.M. 2118; 120 Lab. Cas. (CCH) P56,772

Page 27

become reasonable.   110 S. Ct. at 2801 ("what is at is- sue  when  a  claim  of  apparent  consent  is  raised  is  not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated") (emphasis in original). Thus, under Rodriguez, the proper inquiry here is whether SEPTA rea- sonably thought the TWU possessed, or had express au- thorization to waive, Bolden's Fourth Amendment rights. Clearly, SEPTA could not have reasonably believed that  TWU  either  shared  Bolden's  Fourth  Amendment rights,  or  else  had  express  authority  to  waive  Bolden's rights  by  virtue  of  the  union's  power  to  represent  em- ployees. Just because Bolden agreed that a union could represent him in collective bargaining for contractual enti- tlements (wage, hour, benefit, and work condition **98  terms), it does not follow that SEPTA could reasonably believe TWU had acquired Bolden's authority to waive

his Fourth Amendment rights.

Indeed, before the grievance settlement was finalized, Bolden by letter to TWU and SEPTA disavowed his as- sociation with TWU in this grievance. Bolden informed SEPTA and TWU that he had retained an attorney and that

"he does not want your Union or any counsel retained by your Union to represent him in connection with this dis- charge." Bolden's letter evinces clearly the "disharmony of interest between the union and Bolden." See Alexander,

94 S. Ct. at 1024 n.19.

Furthermore,  as the majority points out,  the collec- tive bargaining agreement in effect the first time SEPTA fired Bolden did not contain any drug testing provision. In light of the intensely personal Fourth Amendment right involved, Bolden's disassociation with TWU refutes any

notion that TWU had authority, apparent or otherwise, to compromise Bolden's Fourth Amendment rights. It fol- lows that it was unreasonable for SEPTA to believe that TWU could, in the course of settling Bolden's grievance, waive Bolden's constitutional rights. n7

n7 In any event, the reasonableness of SEPTA's belief is a jury question. See Rodriguez, 110 S. Ct. at 2801 (waiver by third party is a factual determi- nation);  Schneckloth, 412 U.S. at 226 (consent to search is a question of fact).

**99

I believe with Justice Cardozo that "the great ideals of  liberty  and  equality  are  preserved  .  .  .  by  enshrin- ing  them  in  constitutions,  and  consecrating  to  the  task of   *839    their  protection  a  body  of  defenders."  n8  I fear  that  by  this  decision  the  defenders  have  abdicated the  defense  to  union  negotiators  and  relegated  a  right guaranteed  by  the  Constitution  to  the  status  of  a  bar- gaining chip in a grievance settlement game. I believe a Fourth Amendment right must not be consideration or the medium of exchange for a contractual modification when the  individual  possessing  the  right  chooses  not  to  give it up but instead to stand upon it. I would hold that any waiver of constitutional rights must be subject to consti- tutional standards not labor laws and Bolden retains his right of action against SEPTA for violating them. I would affirm.

n8  Cardozo,   Benjamin,   The  Nature  of  the

Judicial Process (1921) 92-94.

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