No. 87-1289.United States Court of Appeals, Third Circuit.Argued November 3, 1987.
Decided April 25, 1988.
Lawrence M. Mann (argued), Alper Mann, Washington, D.C., Cornelius C. O’Brien, Jr., O’Brien and Davis, P.C., Philadelphia, Pa., for appellants.
Dennis J. Morikawa (argued), Joseph J. Costello, Hermon M. Wells, Consolidated Rail Corp., Philadelphia, Pa., for appellee.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before SLOVITER and BECKER, Circuit Judges, and COWEN, District Judge[*] .
[1] OPINION OF THE COURT
SLOVITER, Circuit Judge.
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addition of a drug-screening component to its employees’ medical examinations gives rise to a “minor” dispute under the Railway Labor Act over which the district court had no subject matter jurisdiction or to a “major” dispute which would entitle the parties to an injunction maintaining the status quo while they bargain over the change. This case concerns only the process pursuant to which drug screening may be introduced; it has nothing to do with whether drug screening is a good idea.
[3] The district court concluded that the parties’ prior practice with respect to medical examinations “arguably justified” the railroad’s unilateral imposition of uniform drug screening and dismissed the Unions’ action for want of jurisdiction. We will reverse.[4] I. Background [5] A. Facts
[6] Plaintiffs, the Railway Labor Executives’ Association, whose members head railway labor unions representing all crafts, and eighteen unions representing those crafts (hereinafter “Unions”), and defendant Consolidated Rail Corporation (“Conrail”), a railroad, have stipulated to the essential facts in this case. Since its formation in 1976, Conrail has required all employees to undergo periodic physical examination at intervals varying between one and three years depending on the employee’s age and job classification, and has required an examination upon the return to duty of all employees operating trains and engines who were out of service thirty days or longer and of all other employees out of service ninety days or longer “due to furlough, leave, suspension or similar causes.” App. at 71. These examinations have routinely included urinalysis for blood sugar and albumin.
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[10] On February 20, 1987, Conrail announced its unilateral decision to include a drug screen as part of the urinalysis in all periodic and return-to-duty examinations, and in any special examinations deemed necessary by the physician after a return from a drug-related absence from duty. The Unions filed suit in district court alleging that Conrail’s action violated Section 6 of the Railway Labor Act, 45 U.S.C. § 156 (1982), and the Fourth Amendment’s prohibition of unreasonable search and seizure and sought to enjoin Conrail from instituting the drug testing. [11] All parties moved for summary judgment. The district court, based on the facts set forth above, concluded that “Conrail’s decision to expand its use of drug testing is arguably justified under terms of the parties’ long-standing medical policy.” See Railway Labor Executives’ Ass’n v. Conrail, No. 86-2698, slip op. at 3 (E.D.Pa. April 28, 1987). It therefore found the dispute to be a “minor” one and dismissed the counts of the complaint based on the Railway Labor Act. The court also dismissed the Fourth Amendment claim on the ground that Conrail is not a government enterprise. Id. at 3-4. The Unions appeal only the order dismissing the Railway Labor Act counts. [12] The district court’s conclusion that the drug-testing program constitutes a minor dispute is a legal determination Brotherhood of Locomotive Eng’rs v. Burlington Northern R.R. Co., 838 F.2d at 1089; see Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 755 (3d Cir. 1977); United Transp. Union v. Penn Central Transp. Co., 505 F.2d 542, 543-45 (3d Cir. 1974) But see Railway Labor Executives’ Ass’n v. Norfolk and Western Ry. Co., 833 F.2d 700, 707 (7th Cir. 1987). Because the district court dismissed the claims pursuant to the undisputed facts, its order, akin to a grant of summary judgment, is subject to plenary review. Goodman v. Mead Johnson Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); cf. Medical Fund-Philadelphia Geriatric Center v. Heckler, 804 F.2d 33, 36 (3d Cir. 1986) (“dismissal of a complaint for lack of jurisdiction . . . raises a question of law subject to plenary review”).[13] B. Major and Minor Disputes
[14] This court has recently had occasion to review the statutory background of the Railway Labor Act in Railway Labor Executives’ Association v. Pittsburgh Lake Erie Railroad Co., 845 F.2d 420
(3d Cir. 1988). Therefore, we will only briefly discuss the provisions relating to major and minor disputes insofar as necessary to an understanding of the issue before us.
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Trainmen v. Chicago R. I.R.R. Co., 353 U.S. 30, 35, 77 S.Ct. 635, 637, 1 L.Ed.2d 622 (1957). Originally, minor disputes could be submitted to binding arbitration by “adjustment boards” composed of equal representatives of labor and management voluntarily established by the parties. The inability of the parties to agree to such boards and the deadlock in thousands of disputes before boards led Congress to amend the Act in 1934 to create the National Railroad Adjustment Board before which either side in a minor dispute can submit the issue to compulsory arbitration if the parties have not agreed on their own arbitrators. Railway Labor Act, ch. 691, § 23, 48 Stat. 1185, 1189-93 (1934); Trainmen, 353 U.S. at 39, 77 S.Ct. at 639; Elgin, 325 U.S. at 726, 65 S.Ct. at 1291. See generally
Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L.J. 567, 574-76 (1937). The carrier is not barred in minor disputes from introducing the disputed change during the pendency of the arbitration proceedings. See 45 U.S.C. § 153; Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 754 n. 6 (3d Cir. 1977) cf. 45 U.S.C. § 156.
[I]f the disputed action of one of the parties can “arguably” be justified by the existing agreement or, in somewhat different statement, if the contention that the labor contract sanctions the disputed action is not “obviously insubstantial”, the controversy is [a minor dispute] within the exclusive province of the National Railroad Adjustment Board.
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[21] Local 1477 United Transp. Union v. Baker, 482 F.2d 228, 230 (6th Cir. 1973), quoted in United Transp. Union v. Penn Central,505 F.2d at 544; accord, e.g., Brotherhood of Locomotive Eng’rs v. Burlington Northern R.R. Co., 838 F.2d 1087, 1091 (9th Cir. 1988). For this purpose, it is not necessary that the terms of a collective bargaining agreement governing relations under the Act be embodied in a written document; instead they may be inferred from habit and custom. See Detroit Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969); Brotherhood of Locomotive Eng’rs v. Burlington Northern, 838 F.2d at 1091-92; Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R. Co., 802 F.2d 1016, 1022 (8th Cir. 1986) (Arnold J., for a unanimous court, concurring). [22] In this case, the district court found, and the parties do not dispute, that Rule G and the medical examination policy, although not incorporated in the parties’ written agreement, constitute implied-in-fact contractual terms. Thus, we reach the principal issue: whether Conrail’s imposition of a drug screen was an interpretation of one or both of these agreements thereby constituting it as a minor dispute under 45 U.S.C. § 153, First, (i), which it could institute unilaterally, or whether its attempt to impose such a drug screen was a new term constituting a major dispute under 45 U.S.C. § 152, Seventh, over which it must bargain.
[23] II. Discussion
[24] The Unions argue that the incorporation of a drug-screen test as an element of the urinalysis required in all periodic and return-to-duty physical examinations is a change in the existing rules and working conditions. They argue that the working conditions had not previously encompassed testing employees for drugs without some particularized suspicion or past medical problem and therefore the across-the-board testing is a major dispute within the jurisdiction of the district court. They also argue that the drug-screen represents a new method of enforcing Rule G, which had been enforced primarily by supervisory observation. Such a unilateral change in the method of enforcement, they contend, constitutes a major dispute.
A.
[26] Three other courts of appeals have considered the same or similar drug-testing issues under the RLA, with varying results and rationales. In a pair of cases, the Ninth Circuit denominated as major disputes the use of drug-detecting dogs, Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 838 F.2d 1102 (9th Cir. 1988) (Dog Search Case), and mandatory urinalysis testing of crew-people implicated in “human-factor” accidents or operating-rule violations, Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 838 F.2d 1087 (9th Cir. 1988) (Chemical Testing Case), as a means of enforcing Rule G.
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non-intrusive.” Id. It rejected the railroad’s claim that the union, by acquiescing “in Rule G’s enforcement by sensory surveillance can be said to have agreed to allow [the railroad] to implement any procedure beyond sensory surveillance so long as the procedure is brought into play by . . . an `objective triggering event.'” Id. The court also noted that it had recently held that the Fourth Amendment was violated by Federal Railway Administration regulations which imposed a similar testing program based only on generalized suspicion arising from an accident. Id. at 1093 (citing Railway Labor Executives’ Ass’n v. Burnley, 839 F.2d 575 (9th Cir. 1988)). The court ruled that it would construe the implied agreement with the railroad in enforcing Rule G as containing the same expectation of privacy as to the employer as the worker had as to the government. Id. at 1093. Because the new mandatory urine testing program changed the working conditions governed by the bargaining agreement, it was “by definition” a major dispute Id.
[28] In the Dog Search Case, involving the use of trained dogs to randomly search for drugs, the court again relied on the fact that previous practice under Rule G had always required “a triggering event”, the perception of facts by an official suggesting that a specific employee was under the influence of alcohol or drugs. 838 F.2d at 1105. Furthermore, the court construed the parties’ implied agreement as directed to whether an employee was under the influence of a prohibited substance, unlike the newly imposed search which was directed to detecting possession to prevent future use. Id. [29] Railway Labor Executives Association v. Norfolk Western Railway Co., 833 F.2d 700 (7th Cir. 1987), presented the Seventh Circuit with issues almost identical to those we confront here. As here, the railroad added a drug screen to the urinalysis that had been a routine element of the medical examination. Rejecting the unions’ argument that the drug-screening intruded into employees’ conduct outside of the workplace, the court held that “[t]he addition of a drug screen as a second component of the urinalysis previously required of all employees does not constitute such a drastic change in the nature of the employees’ routine medical examination or the parties’ past practices that it cannot arguably be justified by reference to the parties’ agreement.” Id. at 706. The court of appeals rejected the unions’ argument that the testing was designed to enforce Rule G, holding that the district court’s factual finding “that [the railroad] had not made any unilateral changes in the enforcement of Rule G” was not clearly erroneous. Id. at 707. [30] There were two separate testing issues before the Eighth Circuit in Brotherhood of Maintenance of Way Employees v. Burlington Northern Railroad Co., 802 F.2d 1016 (8th Cir. 1986). One, which is not at issue here, concerned the railroad’s institution of post-incident testing to enforce Rule G. The court unanimously concluded that although the ground rules between the parties governing Rule G enforcement required suspicion of impairment to justify a test, the urinalysis “`of the individual crew member having . . . exclusive responsibility for the action triggering the incident'” or other crew members “only when individual responsibility is not clear” satisfied that suspicion requirement and would not be “such a serious departure from past practice as to give rise to a major dispute.” Id. at 1023 (quoting railroad policy). [31] The court divided on the second issue, the railroad’s institution of a drug screen as part of its periodic and return-to-duty medical exams. Two members of the court tersely reversed the district court’s finding that the medical examination screening presented a major dispute. The majority noted that the union did not deny that the agreement allowed medical testing to identify workers who were unfit for duty, and stated that consequently, “all that is involved in the parties’ dispute is the extent to which the urinalysis component of these examinations may be refined in order to predict safe employee performance.” Id. at 1024; see also International Ass’n of Machinists, District Lodge 19 v. Southern Pacific Transp. Co.,105 LRRM 2046 (E.D.Cal. 1980) (use of alcohol breath test a minor dispute). Judge Arnold, in dissent,
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stressed that regardless of whether the testing was characterized as a medical or disciplinary matter, the medical testing program could result in an employee’s being fired without any prior suspicion of drug use. 802 F.2d at 1025 (Arnold, J., dissenting in part). “This new examination is universal and indiscriminate, in the sense that it is imposed without regard to any degree of suspicion that the employee is working while impaired.” Id. at 1024. Such a change, he argued, was too significant’ to go forward without negotiations between the parties.
B.
[32] The absence of any uniformity in interpretation by the other courts reinforces our responsibility to make an independent analysis of the applicable law to the undisputed facts. When a court holds that an existing agreement, explicit or implied, arguably justifies a new practice, the court has determined that it is plausible to believe that there was in fact a meeting of the parties’ minds on the general issue. In this case, we must determine whether the existing agreement arguably admits of an implied term encompassing the new drug screening. See Chemical Testing Case, 838 F.2d at 1092-93; cf. Transportation-Communication Employees Union v. Union Pacific R.R. Co., 385 U.S. 157, 160-61, 87 S.Ct. 369, 371, 17 L.Ed.2d 264 (1966) (“In order to interpret [a collective bargaining] agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements.”)
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[37] Ultimately, Conrail’s argument rests on the premise that testing urine for cannabis metabolites is no different in kind from testing urine for blood sugar. This ignores considerable differences in what is tested for and the consequences thereof. Employee drug testing is a controversial issue throughout the railroad industry and beyond. See, e.g., Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987) (school bus attendants); National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir. 1987) (Customs Service employees), cert. granted, ___ U.S. ___, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988); Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.) (race track jockeys), cert. denied, ___ U.S. ___, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986); Transport Workers’ Union of Philadelphia v. Southeastern Pennsylvania Transp. Authority, 678 F. Supp. 543 (E.D.Pa. 1988) (municipal transport workers); Association of Western Pulp and Paper Workers v. Boise Cascade Corp., 644 F. Supp. 183 (D.Or. 1986) (paper mill workers); Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57, 517 N.Y.S.2d 456, 510 N.E.2d 325 (1987) (school teachers). The practice poses serious ethical and practical dilemmas as well. See, e.g., Substance Abuse in the Workplace: Readings in the Labor-Management Issues (R. Hogler ed. 1987) [hereinafter Substance Abuse] (collecting commentary). We regard it as particularly significant that the General Counsel of the National Labor Relations Board has taken the position that drug screening, even where it is added to a pre-existing medical examination program, constitutes a substantial change in working conditions and is a mandatory subject of bargaining under the National Labor Relations Act See National Labor Relations Board, Office of the General Counsel Mem. GC 87-5 (Sept. 8, 1987), reprinted in Daily Labor Report (BNA), No. 184 at D-1 (Sept. 24, 1987) (“When conjoined with discipline, up to and including discharge, for refusing to submit to the test or for testing positive, the addition of a drug test substantially changes the nature and fundamental purpose of the existing physical examination.”) [38] The function of bargaining over major disputes is obviously to reach agreement on terms and conditions which have not yet been addressed. Conrail cannot point to any existing agreement between the parties on such crucial matters as the drug test to be used, the methods of confirming positive results, and the confidentiality protections to be employed. Cf. Shoemaker, 795 F.2d at 1140, 1144; Rothstein, Screening Workers for Drugs, i Substance Abuse, supra, 115, 116-22. We search the past practices of the parties in vain for any indication of an agreement on these key matters. It follows that the agreement governing prior medical examinations cannot be strained to include, even arguably, an agreement to routinely perform a drug screen.C.
[39] The Unions also argue that the new testing is a change in working conditions in that it represents a change in the method of enforcing Rule G, which is itself a working condition. Conrail denies that its drug testing is designed to enforce Rule G, but argues that even if it were, the implementation of a new procedure to enforce Rule G would be a minor dispute. As we noted before, the only court of appeals to reach the issue of the characterization for RLA purposes of a change in the method of enforcement of Rule G ruled that it raised a major dispute. See Chemical Testing Case, 838 F.2d at 1092-93; see also Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R. Co., 802 F.2d at 1024-25 (Arnold, J., dissenting in part). However, in light of Conrail’s disavowal of Rule G as a justification for the newly imposed drug screen and our conclusion that the existing medical policy did not arguably justify the drug screen, we need not reach the Rule G enforcement issue.
[40] III. Conclusion
[41] As we have explained above, Conrail’s addition of drug screening to the urinalysis examination of employees as to whom Conrail has no particularized suspicion of drug use changes the terms and conditions governing the employment relationships. It therefore constitutes a major dispute which Conrail cannot impose unilaterally. Instead,
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the RLA requires that the parties must bargain under the prescribed procedure.
[42] In so holding, we do not minimize the serious drug and alcohol problem in the transportation industry. See, e.g., De Rosa Alcohol Problems in the Railroad Industry, in Substance Abuse, supra, 29, 29 (reporting estimate that some 25 percent of railroad workers drink on duty or while subject to duty); New Regulations to Control Substance Abuse in the Transportation’ Industry, in id. at 31 (alcohol and drug abuse responsible for 37 deaths, 80 injuries and $34 million in property damage between 1975 and 1985). We also note that the Unions have stated in their brief that they “yield to no one in abhorence [sic] of alcohol or drug use in employment, or in the desire to purge the industry of their adverse effects.” Appellants’ Brief at 4. They will have an opportunity to effectuate this desire at the bargaining table. [43] The order of the district court dismissing the complaint for lack of subject matter jurisdiction will be reversed and the case remanded for further proceedings consistent with this opinion.