Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-1995

Dykes v SEPTA
Precedential or Non-Precedential:

Docket 95-1032




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                            No. 95-1032
                            ___________

         JOSEPH G. DYKES,

                                Appellant

                          vs.

         SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY;
         TRANSPORT WORKERS UNION OF PHILADELPHIA, LOCAL 234,
         TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO
                          ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                   (D.C. Civ. No. 94-cv-05478)
                           ___________

                              Argued
                        September 12, 1995
     Before:   MANSMANN, SCIRICA and NYGAARD, Circuit Judges.

                     (Filed November 7, 1995)
                           ___________

H. Francis deLone, Jr., Esquire (Argued)
1717 Arch Street
3754 Bell Atlantic Tower
Philadelphia, PA 19103

  COUNSEL FOR APPELLANT

Nicholas J. Staffieri, Esquire (Argued)
SEPTA
Legal Department
1234 Market Street
5th Floor
Philadelphia, PA 19107-3724

  COUNSEL FOR APPELLEE SEPTA

Michael L. Brodie, Esquire (Argued)
Robert W. Kosman, Esquire
Brodie & Rubinsky
924 Cherry Street


                                1
Suite 400
Philadelphia, PA   19107

  COUNSEL FOR TRANSPORT WORKERS UNION
                           ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,   Circuit Judge.
            In September, 1994, bus driver Joseph G. Dykes filed

suit pursuant to 42 U.S.C. § 1983 against the Southeastern

Pennsylvania Transportation Authority ("SEPTA") and the Transport

Worker's Union of Philadelphia, AFL-CIO, Local 234 ("Local 234").

In his two-count complaint, Dykes alleged that his constitutional

rights were violated when his SEPTA supervisors asked him to

submit to body fluids testing in the absence of reasonable

suspicion and that SEPTA and Local 234 conspired to deprive him

of due process in connection with the grievance proceedings which

followed his discharge.

            This appeal requires that we determine whether the

district court erred in dismissing Dykes' complaint for failure

to state a cause of action.    In making this determination we

revisit and extend our opinion in Bolden v. SEPTA, 

(3d Cir. 1991), to conclude that, pursuant to the collective

bargaining agreement, whether reasonable suspicion exists in a

given case is not a question of law under the Fourth Amendment,

but is instead a question of fact to be resolved during the

course of the grievance/arbitration process.    We also hold that

where an adequate grievance/arbitration procedure is in place and

is followed, a plaintiff has received the due process to which he


                                 2
is entitled under the Fourteenth Amendment.    Because we conclude

that Dykes has failed to allege a constitutional violation

cognizable under 42 U.S.C. § 1983, we will affirm the orders of

the district court.



                                  I.

           The allegations set forth in the complaint are

straightforward.1    On July 13, 1993, Dykes, a bus driver employed

by SEPTA and represented by Local 234, drove a SEPTA bus along

his regular route.    At some point during the trip, SEPTA

supervisors boarded the bus, ordered Dykes out of the driver's

seat, and asked that he submit to body fluids tests designed to

detect the presence of drugs and alcohol.    Dykes refused to

submit to those tests, and, as a result, was fired.    Following

Dykes' discharge, Local 234 pursued three levels of grievance

proceedings.   At each stage, it was determined that the tests

requested were based on reasonable suspicion and Dykes' discharge

was upheld.    The union did not submit the matter to arbitration.

           On September 6, 1994, Dykes filed a civil complaint

consisting of two counts, both of which were based upon 42 U.S.C.

§ 1983.   In Count One, Dykes alleged that SEPTA deprived "him of


1
          In reviewing the grant of a motion to dismiss for
failure to state a cause of action, we apply the same standard as
did the district court, accepting the allegations of the
complaint as true and construing those allegations, in a light
most favorable to the plaintiff. Wisniewski v. Johns Manville
Corp., 

, 273 (3d Cir. 1985). This standard does not
vary where the action is brought pursuant to 42 U.S.C. § 1983.
Pension Benefit Guaranty Corp. v. White Consolidated Industries,
Inc., 

(3d Cir. 1993).


                                  3
his Fourth Amendment Right to be free from unreasonable searches

and seizures."    He explained that "[t]he supervisors who ordered

[him] to submit to a body fluids test had no reasonable basis for

suspecting that [he] was under the influence of drugs or

alcohol."    Count Two of the complaint, directed at SEPTA and

Local 234, alleged that Dykes was deprived of a property interest

in his employment without due process of law as required by the

Fourteenth Amendment.    Specifically, Dykes challenged the role of

SEPTA and Local 234 in the post-termination grievance

proceedings.    Local 234 was said to have "allow[ed] SEPTA . . .

to get away with what [the Union] knew to be violations of

plaintiff's due process rights even though [the Union] had the

power to prevent such violations and a duty to try to do so."

Dykes also claimed that Local 234 failed to obtain and present

meaningful evidence and discouraged Dykes from presenting

evidence in his own behalf.    The Union was said to have "aided

and abetted" and "acted in concert with SEPTA in effecting the

deprivation of plaintiff's due process rights."

            On October 7, 1994, SEPTA filed a Motion to Dismiss

Plaintiff's Complaint pursuant to F.R.Civ.P. 12(b)(6).    Local 234

filed a similar motion on November 14, 1994.    By Order dated

December 19, 1994, the district court dismissed Dykes' complaint

as to SEPTA and, on December 29, 1994, entered an order

dismissing Count II of the complaint.2   This appeal followed.



2
          The district court did not issue opinions explaining
the deficiencies in the complaint.


                                 4
          The sole issue before us concerns the adequacy of the

complaint.    In order for a plaintiff to state a cause of action

under 42 U.S.C. § 1983, he must allege "that the defendant has

deprived him of a right secured by the `Constitution and laws' of

the United States . . . and that the defendant deprived him of

this Constitutional right `under the color of any statute,

ordinance, regulation, custom or usage of any State or

Territory'."     Adickes v. S.H. Kress & Co., 

. 150

(1970).   We evaluate each count of Dykes' complaint with

reference to this standard.



                                 II.

             In Count One, Dykes alleged that "the actions of

defendant SEPTA . . . deprived him of his Fourth Amendment right

to be free from unreasonable searches and seizures" and that "in

denying [Dykes] his Fourth Amendment rights, defendant SEPTA - a

state agency - was acting under color of state law."     In

addition, Dykes alleged that "Defendant [Local 234] is a labor

organization which . . . -- at all times relevant to this action

-- was [Dykes'] exclusive representative . . . for the purposes

of collective bargaining and pursuing grievances with respect to

the terms and conditions of . . . employment"; further, that

SEPTA had "no reasonable basis for suspecting that [he] was under

the influence of alcohol and that the proposed search which

deprived [him] of his Fourth amendment Rights [was] done in

accordance with policies or practices of SEPTA. . . ."




                                  5
          SEPTA filed a motion to dismiss, attaching a copy of

the 1992-1995 collective bargaining agreement ("CBA") made

between SEPTA and Local 2343.   Article XII § 1203.I(a) of the CBA

governs when drug and alcohol testing of SEPTA personnel based

upon reasonable suspicion may be undertaken and defines what

constitutes reasonable suspicion.4   SEPTA asserts that the issue

3
          Dykes argues that we may not look to the CBA in
reviewing a 12(b)(6) motion. This argument ignores our decision
in Pension Benefits Guaranty Corp. v. White Consolidated
Industries, Inc.. There, we held that

          A court may consider an undisputedly
          authentic document that a defendant attaches
          as an exhibit to a motion to dismiss if the
          plaintiff's claims are based on the document.
          Otherwise, a plaintiff with a legally
          deficient claim could survive a motion to
          dismiss simply by failing to attach a
          dispositive document upon which it 

(citations omitted). This holding is not
inconsistent with "Rule 12(b)(6)'s requirement that a motion to
dismiss be converted to a summary judgment motion if a court
considers matter outside the pleadings . . . . When a complaint
relies on a document, however, the plaintiff obviously is on
notice of the contents of the document and the need for a chance
to refute evidence is greatly diminished." 

          Clearly, this matter falls within the rule announced in
Pension Benefit Guaranty as Dykes' complaint, while framed in
constitutional terms, grows out of an alleged violation of the
CBA.
4
          The CBA, at Article XII, § 203, provides as follows:

          [SEPTA] may require an employee to submit to
          drug and alcohol testing on a reasonable
          suspicion basis where a supervisor trained in
          the detection of drug and alcohol use can
          articulate and substantiate specific
          behavioral performance or contemporaneous
          physical indicators of probable drug or
          alcohol use. [SEPTA] and the Union
          understand such indicators to include such of
          the following as would reasonably lead the

                                 6
of whether reasonable suspicion exists is an issue of contract

interpretation which must be addressed pursuant to the grievance

process.   Accordingly, Dykes allegedly is bound by the finding,

made in each step of the grievance process, that SEPTA acted on

reasonable suspicion in requesting that he submit to drug and

alcohol testing.   The crux of these contentions is that Dykes was

not subjected to an unreasonable search and seizure within the

meaning of the Fourth Amendment or, consequently, within the

scope of section 1983.



                                 A.

           Cases interpreting the scope of the Fourth Amendment

establish that drug testing of public employees may raise search

and seizure issues.   Skinner v. Railway Labor Executives' Assoc.,

(1989); National Treasury Employees Union v. Von

Raab, 

(1989).    It is equally clear that the Fourth

Amendment applies only to unreasonable searches and seizures.

.    What is reasonable "depends on all of

           supervisor to conclude that drug or alcohol
           use is a contributory factor: Behavior or
           actions which differ from normal behavior or
           actions under the circumstances,
           inappropriate or disoriented behavior and
           incidents involving serious violations of
           safety or operating rules and practices.

Article XII, § 1203II(a) provides that "[f]ailure to submit to a
drug and alcohol test properly required . . . is a dischargeable
offense." The grievance procedure designed to test the
circumstances surrounding drug and alcohol testing is set forth
in Article II of the CBA. While Article XII does not refer
specifically to the grievance procedure detailed in Article II,
the parties agree that the grievance procedures applied to the
situation presented here.

                                  7
the circumstances surrounding the search or seizure and the

nature of the search or seizure itself."    

required to "balance the nature and quality of the intrusion on

the individual's Fourth Amendment interests against the

importance of the governmental interests alleged to justify the

intrusion."    United States v. Place, 

, 703 (1983).

          The Supreme Court has stated that the very fact of

individualized suspicion goes far toward making a search

reasonable where the government has a legitimate interest in

confirming the alleged violation.    See 

;

National Treasury Employees Union v. Yeutter, 

, 975

(D.C. Cir. 1990).

          In this case, where Dykes operated a transit bus, there

is no question that SEPTA had a legitimate interest in developing

and administering a drug and alcohol testing program.     In fact,

in Transport Workers' Local 234 v. SEPTA, 

(3d Cir.

1988), we held that even random testing of SEPTA drivers was

constitutionally justified given "SEPTA's extensive evidence of a

severe drug abuse problem among its operating employees."       

          What we confront here, then, is not a policy alleged to

be unconstitutional; the parties agree that the SEPTA suspicion-

based testing policy is reasonable for purposes of the Fourth

Amendment.    Dykes alleges, instead, that the policy was not

followed; SEPTA sought to have him submit to testing in the

absence of reasonable suspicion.     It is SEPTA's violation of its




                                 8
own policy that allegedly renders the proposed search

unreasonable.



                                B.

          Ultimately, the question of whether a particular search

is reasonable for purposes of the Fourth Amendment is not a

question of fact.   "Unlike a determination of `reasonableness' in

ordinary tort cases and some other contexts, this balancing

process presents a question of law. . . ."   Bolden v. SEPTA, 

, 822 (3d Cir. 1991), cert. denied, 

(1992).   In order to resolve the reasonableness question

presented here, we must first examine the more narrow question of

whether there was reasonable suspicion underlying SEPTA's request

that Dykes submit to testing.   If there was reasonable suspicion,

and SEPTA, therefore, complied with the terms of its drug and

alcohol testing policy, there is no Fourth Amendment issue; the

policy, evaluated against the background of precedent, is

reasonable in the broad constitutional sense.   If SEPTA's request

that Dykes be tested was founded on reasonable suspicion, Count

One of Dykes' complaint was properly dismissed.

          The dispositive issue in this case is, therefore,

whether SEPTA had reasonable suspicion upon which to test Dykes.

Relying on our en banc decision in Bolden v. SEPTA, 

(3d Cir. 1991), we conclude that this question is one of fact to

be determined during the course of the grievance process and that

the finding reached during this process is binding upon the

reviewing court.


                                9
           In order to explain this conclusion, we explore the

facts of Bolden in some detail.    In 1986, Bolden, a SEPTA

custodian, was involved in an altercation with a SEPTA bus driver

and was discharged.   This discharge was pursued through three

levels of grievance proceedings with Bolden represented by Local

234.   In June, 1987, an arbitration panel ruled that Bolden was

entitled to reinstatement and back pay.

           Between the time that Bolden was discharged and the

time that he was to return to work, SEPTA unilaterally instituted

a new drug testing policy which required that employees returning

to work after certain absences be tested for drugs.    Unions

representing SEPTA workers challenged the legality of this

return-to-work testing.   The district court found this type of

testing unconstitutional, Transport Workers' Local 234 v. SEPTA,

(E.D. Pa. 1988), and we affirmed.    Transport

Workers' Local 234 v. SEPTA, 

(3d. Cir. 1988),

vacated, 

, reaffirmed, 

(3d Cir. 1989).

Commenting on return-to-work testing, we wrote:
          SEPTA must justify its return-to-work testing
          on the basis of some particularized
          suspicion. It has, however, failed to
          present any evidence that the employees
          returning 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 to the articulated need for the
          

.




                                  10
             While the Unions' suit was pending, but prior to the

court decisions in this matter, Bolden was reinstated.     Under the

testing policy then in force, Bolden submitted to a return-to-

work drug test.    He tested positive for marijuana and was again

discharged.    Once again, the Union initiated grievance

proceedings on Bolden's behalf.    At the end of the three-step

process but prior to arbitration and prior to resolution of the

pending suit challenging return-to-work drug testing, SEPTA and

the Union reached a settlement regarding Bolden's second

discharge.    Under the terms of the settlement, Bolden was

authorized to return to work provided that he
          (1) enter SEPTA's Employee Assistance Program
          and present evidence 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 he passed, meet
          with a substance abuse counsellor and remain
          subject to unannounced follow-up testing for
          six months.

    Under either settlement option, Bolden was required

to submit to body fluids testing.      Bolden declined to return to

work on these terms and filed an action pursuant to 42 U.S.C.

§1983, alleging violation of his Fourth and Fourteenth Amendment

rights.   Following a jury trial, judgment was entered for Bolden

on the Fourth Amendment claim.

             On appeal, we affirmed the order of the district court

with respect to the Fourth Amendment claim, holding first that

return-to-work testing could not be justified under the balancing

test outlined in Skinner:     "SEPTA has no special need to subject


                                  11
Bolden to a drug test based on any dangers presented by his job."

.    We also rejected SEPTA's claim that

return-to-work testing was reasonable under the Fourth Amendment

because Bolden had, upon his original reinstatement, voluntarily

consented to drug testing as a matter of law.    We found, however,

"greater merit in SEPTA's reliance on the settlement it reached

with local 234 following Bolden's discharge for drug use."        

          While we held that the grievance settlement did not

preclude Bolden's section 1983 claim under the doctrines of res

judicata or collateral estoppel, we found that the grievance

settlement was binding upon Bolden because "a union such as

Bolden's may validly consent to terms and conditions of

employment, such as submission to drug testing, that implicate

employees' Fourth Amendment rights."    

          We noted that unions are given statutory authority to

make binding contractual commitments regarding the terms and

conditions of employment.    "Under the Pennsylvania Public

Employees Relations Act (PERA), Pa. Stat. tit. 43 § 1101.606

(Purdon 1991), a union is the exclusive collective 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 that are

contractually binding on all of the employees."       

reviewed caselaw generated by the Supreme Court and our sister

courts of appeals recognizing that "a union's authority as

exclusive bargaining agent necessarily entails some restrictions


                                 12
on constitutional rights that individual employees would

otherwise enjoy."   

recognized that "[t]he

National Labor Relations Board has held that drug testing is a

mandatory subject of [collective] 

.

          Most importantly for purposes of reviewing Dykes'

claims, we held that certain factual questions may be

conclusively determined through collective bargaining, even where

resolution of those questions could "have important implications

under the Fourth Amendment."    

  We also made clear

that determination of these factual issues precludes their being

litigated further:
          If individual public employees may litigate
          such questions despite the resolution reached
          through collective bargaining, the utility of
          collective bargaining with respect to drug
          testing would be greatly diminished. In sum,
          we conclude that a public employee union
          acting as exclusive bargaining agent may
          consent to drug testing on behalf of the
          employees it represents.

may be explicit, i.e., an express term in the

collective bargaining agreement, or implicit, derived from

practice, usage and custom.    "[I]f the union agrees, or if

binding arbitration establishes, that the collective bargaining

agreement impliedly authorizes drug testing, individual employees

[and the court] are bound by this interpretation unless they can

show a breach of the duty of fair representation."    

applied these principles to Bolden's case, we concluded that when

the union, as Bolden's exclusive bargaining agent, pursued

grievance procedures and ultimately entered into a settlement



                                 13
with SEPTA which mandated drug testing for Bolden, "the

settlement had the same effect under labor law and under the

Fourth Amendment as if Bolden himself consented to such future

drug 

.    Bolden, even though he never

personally ratified the settlement, was bound by its terms and

could not recover damages for the period of time following the

settlement.

            Our holding in Bolden establishes that even where a

drug testing policy has been held to be constitutionally infirm,

a public employee may not pursue a civil rights suit based upon

that infirmity where his union and his employer agree to operate

under that policy.



                                 C.

            While Dykes' case differs from Bolden in some

significant respects, we believe that Bolden sets forth the

principles which govern the outcome of this case.      Unlike in

Bolden, the issue here is not SEPTA's policy per se.     As we have

explained, the policy, as written, raises no Fourth Amendment

concerns.   The issue for Dykes is whether the policy was

followed, i.e., was there reasonable suspicion as required by the
CBA?   The issue for us is even more basic:     is the existence of

reasonable suspicion a question of law for the courts or one of

fact appropriately resolved in grievance proceedings?

            We believe that under the CBA, both in the details of

the drug testing policy where reasonable suspicion is defined and

in the applicable grievance procedures, it should have been clear


                                 14
to all parties that this question would be considered and

resolved in the grievance proceedings.   At oral argument, counsel

for SEPTA represented, without challenge, that the question of

reasonable suspicion is regularly considered and resolved through

the grievance and arbitration process.   We view the issue of

reasonable suspicion as one of fact which, like the question of

which jobs are "safety-sensitive," is best left to resolution in

the grievance process.

          In sum, we agree with SEPTA that whether reasonable

suspicion exists in a given case is an issue involving

interpretation of the CBA and that we "must defer to this

interpretation of the agreement unless the employee can show that

the union has breached its duty of fair representation. . . ."

been no such allegation here.

          Because the question of reasonable suspicion was not

resolved in Dykes' favor in any step of the grievance process, we

find that the proposed search was reasonable.   The allegations in

the complaint, therefore, are not sufficient to support a Fourth

Amendment claim cognizable under 42 U.S.C. § 1983.



                                III.

          We next address the adequacy of the claims set forth in

Count II of Dykes' complaint.   This count, directed against both

SEPTA and Local 234, alleges that Dykes was deprived of a

property interest in his job without due process of law as

required by the Fourteenth Amendment when SEPTA failed to accord

him "a meaningful opportunity to be heard with respect to the


                                15
discharge."   Local 234 is alleged to have "aided and abetted and

acted in concert with SEPTA in effecting the deprivation of

Dykes' due process rights."5    We will not focus upon whether the

allegations set forth in Count II are sufficient to allege a

conspiracy bringing Local 234, as a private actor, within the

ambit of 42 U.S.C. § 1983.     We need not reach the issue of

conspiracy because we conclude that Dykes' complaint fails to

allege a cognizable violation of his due process rights.



                                  A.

           In order to state a section 1983 claim based on the

Fourteenth Amendment, Dykes must allege that he was deprived of a

property interest under color of state law without due process.

For purposes of our analysis, we assume that Dykes has alleged

facts sufficient to establish that he had a contractual

employment relationship with SEPTA and that the relationship

created a property interest subject to Fourteenth Amendment

protection.   We also assume that Dykes was deprived of that

interest when he was discharged for failing to submit to body

fluids testing.   Our focus, then, rests upon the question of due

process.   "We must bear in mind that no single model of

procedural fairness, let alone a particular form of procedure, is

dictated by the Due Process Clause."     Kremer v. Chemical

Construction Corp., 

, 483 (1982).     "[D]ue process is

5
          Dykes does not claim that the procedures established
are inadequate per se or that additional procedures are required.
The thrust of his complaint is that SEPTA and Local 234 acted to
make a "sham" of the procedures in place.


                                  16
flexible and calls for such procedural protections as the

particular situation demands."   Mathews v. Eldridge, 

, 334 (1976) (citation omitted).   The complaint establishes

that Dykes had available to him a three step grievance process

which could have been followed by arbitration.   The grievance

process was exhausted and, when the union determined not to carry

the matter to arbitration, Dykes did not pursue a state court

action alleging breach of the duty of fair representation.



                                 B.

          We have held that under the Pennsylvania Public

Employee Relations Act, 43 Pa. Stat. Ann. § 101.101 et seq.,

federal labor law governs a challenge to procedures followed in

the termination of a public employee.   See Crilly v. SEPTA, 

(3d Cir. 1976).   If a public employee believes that the

grievance process was defective, he may seek relief available

under state law. Once an employee establishes that a
          [U]nion has acted in bad faith towards its
          member[,] . . . the Court of Common Pleas
          sitting in equity may order completion of the
          arbitration procedure . . . . Under this
          procedure a wrongfully discharged employee
          receives precisely the treatment all the
          employees in the unit are entitled to under
          the collective bargaining agreement.

Martino v. T.W.U., Local 234, 

, 409-410 (1984).
          Where a due process claim is raised against a public

employer, and grievance and arbitration procedures are in place,

we have held that those procedures satisfy due process

requirements "even if the hearing conducted by the Employer . . .



                                 17
[was] inherently biased."   Jackson v. Temple University, 

(3d Cir. 1983).

          In Jackson, a public employee filed suit pursuant to 42

U.S.C. § 1983 alleging that his due process rights were infringed

by the biased nature of the grievance hearings conducted by

Temple University following his discharge and by the Union's

refusal to bring the matter to arbitration.   We affirmed the

district court's dismissal of the section 1983 claim, agreeing

with the district court that no precedent, "binding or

otherwise," has "recognized a section 1983 action where a union

has refused to take to arbitration an employee's claim against a

public 

n.1. We noted that
          [t]he Union, as the sole and exclusive
          bargaining representative had the ultimate
          power to make a fair and responsible
          determination as to whether it would invoke
          the arbitration proceeding available under
          the collective bargaining agreement. The
          right to proceed to arbitration provided
          . . . an adequate due process safeguard even
          if the hearing conducted by the Employer
          earlier had been inherently biased.

  Finally, we stated that, "[t]he right to arbitrate

provided . . . essentially the same due process safeguards which

would have been available through an unbiased hearing.   There is

no evidence suggesting that the arbitration proceeding would have

been biased. . . .    Therefore, there is no due process violation

in this case."   

n.2.

          Our opinion in Jackson was relied upon by our sister

court in Armstrong v. Meyers, 

, 951 (9th Cir. 1992).

There a discharged university employee filed suit pursuant to


                                   18
section 1983, alleging that he had been deprived of property

without due process of law.   In affirming a grant of summary

judgment in favor of the defendants, the Court of Appeals for the

Ninth Circuit held that, "A public employer may meet its

obligation to provide due process through grievance procedures

established in a collective bargaining agreement, provided, of

course, that those procedures satisfy due process."   

The court then turned to the following balancing test established

by the Supreme Court in Mathews v. 

.    In

order to determine whether a particular procedure meets due

process requirements, three factors must be considered:
          First, the private interest that will be
          affected by the official action; second, the
          risk of an erroneous deprivation of such
          interest through the procedures used, and the
          probable value, if any, of additional or
          substitute procedural safeguards; and
          finally, the Government's interest, including
          the function involved and the fiscal and
          administrative burdens that the additional or
          substitute procedural requirement would
          entail.


Applying these factors in the public employee context, our sister

court of appeals recognized that an employee's interest in

retaining his job is "substantial."
          However, the risk of an erroneous
          determination in the grievance/arbitration
          procedure is not large, and the value of
          additional or substitute procedures is not
          great. Grievance/arbitration procedures are
          a universally accepted method of resolving
          employment disputes, included in countless
          collective bargaining agreements. Although
          [the] union could and did decide not to take
          [the employee's] claim to arbitration, it did
          so under a duty of fair representation, and
          may be sued for beach of that duty if its


                                19
          "conduct toward a member of the collective
          bargaining unit is arbitrary, discriminatory,
          or in bad 

(citation omitted).   In holding that the

grievance/arbitration procedures in place were adequate to meet

the demands of due process, the court recognized "the strong

public and private interest in maintaining an effective

grievance/arbitration process to settle disputes between

employers and employees."   

          We are convinced that the reasoning in Armstrong v.

Meyers applies with equal force in this case.    Even where, as

here, a plaintiff alleges that the defendants acted in concert to

deprive him both of a meaningful hearing and of arbitration, we

believe that the administrative process in place has incorporated

safeguards adequate to resolve these allegations in a manner

consistent with the demands of due process.6    Significantly,


6
          In so holding, we re-confirm our agreement with the
many courts holding that grievance procedures outlined in
collective bargaining agreements can satisfy due process
requirements. See Wallace v. Tilley, 

(7th Cir. 1994)
(grievance procedure outlined in collective bargaining agreement
can satisfy due process even in cases where public employee has
bee discharged); Buttitta v. City of Chicago, 

, 1206
(7th Cir. 1993) (due process satisfied where police officer had
access to post-deprivation grievance procedure under collective
bargaining agreement); Narumanchi v. Bd. of Trustees of Conn.
State Univ., 

, 72 (2d Cir. 1988) (hearing rights
available to discharged professor under the collective bargaining
agreement fully satisfied procedural due process even where there
were unsubstantiated claims of bias); Lewis v. Hillsborough
Transit Authority, 

, 667 (11th Cir. 1983) (per
curiam), cert. denied, 

(1984) (grievance procedure,
if utilized, could eliminate a constitutional violation); Ash v.
Bd. of Educ. of Woodhaven School Dist., 

, 827 (6th
Cir. 1983) (grievance procedures satisfied minimum requirements
of due process).


                                20
Dykes could have asked a court of common pleas to order

arbitraton pursuant to the collective bargaining agreement,

thereby assuring him of the due process to which he was entitled.

Because he chose not to do so, Dykes is unable to prove a

violation of 42 U.S.C. § 1983 by SEPTA or by Local 234.   We

conclude, therefore, that Count II of Dykes' complaint was

appropriately dismissed for failure to state a cause of action.7

                               IV.

          Because we find that the district court properly

applied Fed. R. Civ. P. 12(b)(6) in dismissing both counts of

Dykes' complaint, we will affirm the orders of the district

court.




7
          While Dykes elected to appeal the dismissal of the
complaint rather than seek leave to amend under Fed. R. Civ. P.
15, this fact alone does not preclude amendment of the complaint.
Dist. Council 47, American Federation v. Bradley, 

,
316 (3d Cir. 1986). This is not a situation, however, where the
complaint has been dismissed for lack of specificity or some
other readily curable defect. Given the facts of this case and
the law as we have stated it, amendment of the complaint will not
result in its being found sufficient to withstand a renewed
motion under Fed. R. Civ. P. 12(b)(6).


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