Under Count II, the Union alleges that in implementing the required Fitness-for-Duty program under the United States Nuclear Regulatory Commission guidelines codified at 10 CFR Parts 2 and 26, Edison unilaterally exceeded the requirements of the NRC. By imposing more expansive and strict requirements for drug testing, Edison unilaterally imposed a new working condition that is subject to collective bargaining.
Edison argues that the Union has not alleged sufficient facts to support a finding that an injunction is necessary to prevent frustration of arbitration, and that even if such a showing were made, the Union has not shown irreparable injury. Edison's theory is that the availability of reinstatement and backpay are sufficient remedies so as to render the arbitration process effective and any injury reparable.
Courts have construed irreparable injury in this context as an injury that would undermine the integrity of the arbitration process by making an eventual award only an "empty victory." Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 2-286 v. Amoco Oil Company, 885 F.2d 697, 704 (10th Cir. 1989); Local Lodge No. 1226 v. Panoramic Corp., 668 F.2d 276, 285-86 (7th Cir. 1981). Thus, an injunction in aid of arbitration may issue when the actual or threatened harm amounts to a frustration or vitiation of arbitration. Panoramic, 668 F.2d at 286. Failure to restrain Edison's unilateral imposition of a new working condition may undercut the purpose of the arbitration provision because invasion of privacy, stigmatization, and humiliation attending drug testing may cause irreparable injury. See Panoramic, 668 F.2d at 279; Amoco, 885 F.2d at 703-09. This court is unwilling to hold as a matter of law that the alleged actions of Edison could under no circumstances cause irreparable injury.
Edison relies heavily on International Chemical Workers Union v. Olin Corp., No. 87 C 5745 (N.D. Ill. July 16, 1987) (1987 U.S. Dist. LEXIS 6463). Although Judge Kocoras held that a union would suffer no irreparable injury as a result of a decision not to issue an injunction, the case is distinguishable from the present case. Initially, Judge Kocoras did not hold that reinstatement and backpay would be sufficient remedies under all circumstances, but rather only under the facts of Olin. Id. at 15. Crucial to his determination was the fact that the employer in Olin had several safeguards for confidentiality written into its drug testing plan. Id. Edison has not made any showing as to its procedures to insure confidentiality of test results and personnel records, and indeed such a showing could not be made at the motion to dismiss stage of this case. Most importantly, however, the Olin decision determined whether an injunction should issue, not whether the complaint should be dismissed.
This court may not grant dismissal unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropolous, 795 F.2d at 594. Invasion of privacy, stigmatization, and humiliation have been held to constitute irreparable harm in the context of the employer's unilateral imposition of a drug testing program. Amoco Oil, 885 F.2d at 708. Disclosure of confidential personal information and embarrassment have also been held to constitute irreparable harm in the context of drug testing. Graphic Comm. Union v. Stone Container, 1988 U.S. Dist. LEXIS 11426, 3 BNA IER CAS 261, 263 (S.D. Ind. 1988). The defendant has failed to show that it is beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
ORDERED: The motion to dismiss made on behalf of defendant Commonwealth Edison Company is denied.
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