In a recent case involving the same parties American Postal Workers Union v. Frank 725 F. Supp.87 (D. Mass. 1989) the present plaintiff American Postal Workers Union (APWU) requested and obtained injunctive relief against urinalysis testing of applicants for positions in the Postal Service as well as its members for purposes of governmental research only. In the present action similar relief is sought by the Union only on behalf of job applicants who will be denied employment if the results of the urinalysis tests are positive for drugs. In the first case the Union sought to restrain drug testing done for purposes of research only. In this case the Union seeks to restrain drug testing as a condition of employment.

In the earlier action injunctive relief was granted. In this action the request for injunctive relief is denied. First there may now be a legitimate question of standing. In the earlier decision we concluded that through the doctrine of association standing the Union did have the right to represent job applicants. APWU v. Frank 725 F. Supp. at 88-89. Since the date of that decision however the National Labor Relations Board has determined that the APWU waived any right of collective bargaining over the issue of applicant drug testing. United States Postal Service v. American Postal Workers Union Nos. 5-CA-194445(P) 5-CA-19979-(P) (N.L.R.B. Oct. 12 1989) (opinion by administrative law Court became N.L.R.B.'s final decision where no exceptions to the opinion were filed). The chartered area local plaintiff here is not in a position different from that of the national union of the same name. The N.L.R.B.'s decision is binding upon us.

Secondly we are not persuaded that plaintiff can show a reasonable likelihood of success in this action. See Planned Parenthood League of Massachusetts v. Bellotti 641 F.2d 1006 1009 (1st Cir. 1981). Even assuming that the issue of standing were decided in the Union's favor there would still be a serious doubt that plaintiff could prevail. As noted above this matter presents a different factual situation from that of the earlier case. Here we deal strictly with the issue of the right of a potential employer to require a job applicant to undergo successfully a pre-employment physical examination including a urinalysis and to refuse employment in the event that the physical exam is failed. There is of course the interest of the applicant to be considered and such an interest was fully discussed in our prior opinion. In the present case however as distinguished from the prior action the objective is more than simply research. The government is seeking a drug free workplace. The objective is to preclude persons who are using drugs from handling mail. It is not simply research at all. Such an objective is clearly in accord with the interest of the public.

Where I conclude that plaintiff does not have a reasonable likelihood of success on the merits plaintiff's motion for a preliminary injunction is denied.