FINDINGS OF FACT AND CONCLUSION OF LAW

This cause comes before Court upon the request for a preliminary injunction filed by Graphic Communications Union Local 17(M) as plaintiff against Stone Container Corporation as defendant. All parties were given notice of the hearing on preliminary injunction which was held before Court on April 1 1988. Court has considered the evidence and argument presented at the hearing together with the pleadings affidavits and briefs submitted. On the basis of the foregoing Court makes the following findings of fact and conclusions of law:

Findings of Fact

1. Plaintiff Union is a labor organization representing production and maintenance employees of defendant at its facility located at 8111 Zionsville Road Indianapolis Indiana.

2. Defendant Company is engaged at such facility in the manufacture and printing of paper bags and is an employer in an

industry affecting commerce within the meaning of 29 U.S.C. Sec. (s) 142 and 185.

3. The Company and Union are parties to a collective bargaining agreement covering the terms and conditions of employment of such employees represented by the plaintiff. Such collective bargaining agreement was in effect at all times material to this action and contains provisions for a grievance and arbitration procedure for resolution of disputes arising under the agreement which culminates in final and binding arbitration.

4. Although the Company has owned and operated the facility only since 1982 the Union has represented production and maintenance employees at the facility for approximately 11 years beginning shortly after the Company's predecessor began production.

5. On January 28 1988 the Company announced implementation of a drug and alcohol abuse program for employees represented by the Union. The program provides for mandatory drug testing in various circumstances. Enforcement of the drug testing program was to begin on March 1 1988.

6. The drug testing of employees provided for in the program is a change from the Company's prior policy. While the Company has existing rules prohibiting use possession or being under the influence of drugs at work drug testing has never before been used as a means of detecting violations of such rules. The Company did not provide the plaintiff an opportunity to bargain over the content or implementation of the program.

7. A. The provisions of the defendant's drug and alcohol abuse program include mandatory drug testing under a variety of circumstances including the following:

i. Random testing for one (1) year at the defendant's discretion of any employee who has undergone treatment for drug or alcohol abuse or who has tested positive for drugs or alcohol in the past;

ii. Testing of all employees involved in industrial accidents requiring treatment by a physician even in the absence of reasonable cause to believe that the employee was under the influence of alcohol or drugs; (at the hearing the Company agreed that it would not enforce this rule as written).

iii. Testing of employees involved in industrial accidents resulting in property damage even in the absence of reasonable cause to believe that the employee was under the influence of alcohol or drugs;

iv. Testing of employees involved in "near miss" situations even in the absence of reasonable cause to believe that the employee was under the influence of alcohol or drugs; and

v. Testing of employees whose actions or lack of actions lead to injury of another even in the absence of reasonable cause to believe that the employee was under the influence of alcohol or drugs.

B. The Company's drug and alcohol abuse program contains other provisons which severely invade the privacy of its employees without any showing of reasonable cause to believe an employee is under the influence of drugs including requirements that employees inform the Company if they enter any kind of drug or alcohol treatment program; requirements that employees sign a form authorizing the Company to search their persons and personal property without reasonable cause and waiving any rights they may have to protest or challenge such searches; and requiring employees to divulge personal medical information regardless of any rational relation such information may have to their employment.

8. On February 2 1988 the Union filed a grievance under the collective bargaining agreement protesting implementation of the Company's drug testing program. At the time of the hearing herein the grievance had been processed up through the Union's request for arbitration in accordance with the grievance and arbitration provisions of the parties' agreement. An arbitrator has been selected and the parties are awaiting a hearing date.

9. Positions similar to that which will be espoused by the Union in arbitration in support of its grievance have been successfully presented to arbitrators by other unions under their respective collective bargaining agreements.

10. The Union requested the Company to suspend implementation of the program pending the outcome of the arbitration but the Company nevertheless insisted upon implementation of the program as scheduled.

11. On February 26 1988 this Court issued a temporary restraining order enjoining the March 1 implementation of the drug testing program and set the Union's motion for preliminary injunction for hearing on March 7 1988. Upon agreement of the parties and the Company's agreement to forego implementation of the policy the hearing was postponed until April 1 1988.

12. Drug testing by urinalysis invades not only an employee's bodily integrity but also his or her legitimate expectation of privacy as to the chemical content and disposal of urine. Because urinalysis can yield positive results even weeks after drug use and necessarily discloses much additional personal information about an employee's personal life such as pregnancy and treatment for depression or diabetes such testing accomplishes a significant intrusion into an employee's off-duty personal life which has been recognized as an invasion of privacy. National Federation of Federal Employees v. Weinberger 818 F.2d 935 (D.C.Cir.1987); Taylor v. O'Grady 669 F.Supp.1422 (N.D.Ill.1987); Local 185 v. Weyerhaeuser Paper Co. 650 F.Supp.431 (S.D.Ill.1986).

13. The harm encompassed in this invasion of privacy by the process and results of drug testing cannot be remedied by an arbitrator's prohibition of future testing or rescission of discipline. An arbitrator's award cannot undo the humiliation and the disclosure of personal information which will have already occurred to those tested while awaiting an arbitrator's ruling.

14. Those employees who will be tested under the policy prior to the rendition of the arbitration award will suffer substantial and irreparable injury by invasion of their privacy and subjection to embarrassment humiliation and disclosure of confidential medical and personal information. A favorable arbitration award would be nothing more than a hollow victory for such employees and would irreparably harm the arbitration process by making an adequate remedy impossible.

15. The Company submits that it will suffer irreparable harm if it is not permitted to go forward immediately with its plan because its Indianapolis plant had the highest accident rate of any of its plants in the year 1987. However the same plant had the lowest accident rate in 1985. In the absence of evidence linking the differences to the use of drugs and there is none it appears that on average the accident rate at Indianapolis is about the same as at any other of defendant's plants.

16. The harm which would be suffered by the Union and its members if an injunction did not issue outweighs any harm which may result to the Company from delay in implementation of the drug testing program provided by this order. In fact I find that the defendant will suffer no harm at all if the injunction issues.

17. The Union has no adequate remedy at law.

Conclusions of Law

1. This Court has jurisdiction over the subject matter of this action under 29 U.S.C. Sec. 185 and 28 U.S.C. Sec. (s) 1331 and 1337.

2. The dispute raised by the Union's grievance is an arbitrable dispute under the parties' collective bargaining agreement.

3. This Court is not required to determine the propriety of either the Union's grievance or the Company's drug testing program and Court specifically declines to do so here because these matters are within the province of the arbitrator. In cases of this type Court must only find and does find herein that the position to be espoused in arbitration is not frivolous and is sufficiently sound to prevent the arbitration from being a futile endeavor.

4. The implementation and enforcement of the drug testing program while a grievance over the program is pending will frustrate and cause substantial irreparable harm to the parties' agreed-upon arbitration process by rendering arbitration a meaningless ritual for those employees who will be tested before a decision is rendered.

5. The Union is entitled to an injunction herein to preserve the status quo protect the integrity of the arbitration process in which the parties are currently engaged and prevent irreparable harm to the arbitration process and the employees who are threatened with mandatory drug testing.

6. The public interest in the prompt and peaceful resolution of labor disputes through arbitration is served by issuance of a preliminary injunction.

An order will be entered in accordance herewith. Dated this 6th day of April 1988.

ORDER

Court having filed its findings of fact and conclusions of law in connection with plaintiff's application for a preliminary injunction in the above entitled cause reading as follows: ( H. I.)

IT IS THEREFORE ORDERED:

1. Defendant Stone Container Corporation is hereby enjoined and restrained from implementing its mandatory drug and alcohol testing program announced on January 28 1988 as to employees represented by plaintiff Graphic Communications Union Local 17(M) until such time as an award is rendered by an arbitrator pursuant to the parties' collective bargaining agreement on the pending grievance challenging the program and only then to the extent if any that such award permits such implementation.

2. As a condition for obtaining this order plaintiff shall post a bond or other security in the sum of $ 10 000.00.