RAILWAY LABOR EXEC. v. NATIONAL RR PASS. CORP.

• Decision Date: 03 August 1988
• Docket Number: Civ. A. No. 86-1235.
• Citation: 691 F. Supp. 1516
• Parties: RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

691 F. Supp. 1516

RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.

Civ. A. No. 86-1235.

United States District Court, District of Columbia.

August 3, 1988.

Lawrence M. Mann, Alper & Mann, Washington, D.C., for plaintiffs.

Robert A. McCullough, Sally D. Garr, Assoc. Gen. Counsel, Nat. R.R. Passenger Corp., Washington, D.C., for defendant.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

The issue in this case is whether Amtrak's unilateral imposition of drug testing on its employees gives rise to a "minor" dispute under the Railway Labor Act over which this Court lacks subject matter jurisdiction or to a "major" dispute entitling the parties to an injunction maintaining the status quo while they bargain over the change.

The Court finds that drug testing is a substantial change in the employees' terms and conditions of employment not arguably predicated on an existing agreement and shall issue the injunction sought by plaintiffs. The case is before the Court on cross-motions for summary judgment. The Court finds that no genuine issues of material fact remain for trial and plaintiffs are entitled to summary judgment as a matter of law pursuant to Fed.R.Civ.P. 56.

Background

The Railway Labor Executives' Association, which is an association of railway labor unions, and a number of unions representing railway workers (collectively "the unions") have sued the National Railroad Passenger Corporation (Amtrak), a private entity created by Congress in 1972 to provide intercity rail passenger service.

The collective bargaining contracts between the unions and Amtrak are silent on drug testing, physical examinations, and the use of alcohol or drugs. However, agreements include not only express terms, but terms implied by well-established past practice and by law. See Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 153-54, 90 S.Ct. 294, 301, 24 L.Ed.2d 325 (1969). Amtrak contends past practice provides a basis for drug testing of its employees.

For a number of years, Amtrak has required physical examinations of its employees. These examinations are conducted before an employee is hired, when an employee returns to work from a non-vacation absence of more than 30 days, and, for employees covered by the Hours of Service Act, 45 U.S.C. §§ 61-66 (1982),¹ periodically.² The medical standards and tests administered in these physical examinations have changed from time to time with medical developments, and Amtrak asserts that it has become established practice for the railroad to unilaterally make such changes.

Since the mid-1970s, the physical examinations have routinely included urinalysis, although a drug screen was not initially part of the urinalysis. A drug screen was performed only when, in the judgment of the examining physician, the employee may have been using drugs. In April, 1983, Amtrak began requiring a drug screen as part of the urinalysis in pre-employment and return-to-work physical examinations. In July, 1985, Amtrak began requiring a drug screen as part of every mandatory physical examination, including periodic physicals.

Amtrak also requires urinalysis drug screening outside the context of a medical examination when there exists reasonable suspicion that an employee may be under the influence of alcohol or a drug. The record suggests the railroad began testing based on reasonable suspicion less than a year before this lawsuit was filed; previously, the railroad relied on supervisory observation to detect drug or alcohol impairment.

A rule of conduct, unilaterally implemented by the railroad, prohibits on-duty employees from working while under the influence of alcohol or drugs. That provision, asserted by Amtrak without contradiction by the unions to be long-standing, was known in prior years as Rule C and stated as follows:

Reporting for work under the influence of alcoholic beverages or narcotics, or the use of alcoholic beverages while on or subject to duty or on Company property is prohibited.

In early 1985, Amtrak revised the rule, now designated as Rule G, to state as follows:

Employees subject to duty, reporting for duty, or while on duty, are prohibited from possessing, using, or being under the influence of alcoholic beverages, intoxicants, narcotics or other mood changing substances, including medication whose use may cause drowsiness or impair the employee's responsiveness.

On April 15, 1986, Amtrak issued a 12-page document detailing its policy and procedure for drug and alcohol testing of employees covered by the Hours of Service Act. On January 1, 1987, the railroad issued a similar document for employees not covered by the Hours of Service Act. Amtrak characterizes the documents as "modifications and codifications of Amtrak's preexisting policies and practices."

The main difference in the two documents concerns post-accident testing, which is authorized for employees covered by the Hours of Service Act.³ The documents state that an employee who tests positive for drugs or alcohol is subject to discipline and shall not be allowed to work until testing negative. An employee who tests positive three times in a row is subject to dismissal.

In a separate notice to employees covered by the Hours of Service Act, Amtrak warned that the urine test may detect off-duty drug use, without any on-the-job impairment, for up to 60 days. Unless the employee demands a blood test, a positive urinalysis "will support a presumption that you were impaired at the time the sample was taken."⁴

The first grievance concerning Amtrak's modifications of its drug testing procedures was filed in April, 1986, by the Brotherhood of Maintenance of Way Employees, a plaintiff here. A number of similar grievances are now pending. This lawsuit was filed on May 2, 1986.⁵

The unions contend drug testing is not arguably justified by the established past practices relating to physical examinations and the prohibition against on-duty use of drugs or alcohol. Amtrak urges a much broader finding of what is implicit in the agreements between the railroad and the unions:

Amtrak has had a long-standing and established practice of unilaterally: (1) developing and implementing comprehensive medical fitness standards and programs, including mandatory physical examinations and tests; (2) requiring urinalysis as part of all mandatory physical examinations; (3) requiring drug testing as a part of these urinalysis procedures; (4) revising or changing its medical standards including the battery of tests used in those mandatory physical examinations; (5) developing and implementing medical standards and policies, including revisions and expansions of its Rules of Conduct such as Rule G; and (6) developing and implementing a comprehensive drug and alcohol rehabilitative program (EAP) Employee Assistance Program.

Defendant's Opposition to Plaintiffs' Motion for Summary Judgment at 17 (footnote omitted).

It is a question of fact whether a practice or custom has become part of the contract by implication through long-standing observance or acquiescence of the parties. See, e.g., Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 838 F.2d 1087, 1091 (9th Cir. 1988), petition for cert. filed, 56 U.S.L.W. 3720 (U.S. Apr. 1, 1988) (No. 87-1631); Railway Labor Executives' Association v. Norfolk & Western Railway Co., 833 F.2d 700, 705-06 (7th Cir.1987). The Supreme Court has framed the inquiry as whether the practice has "occurred for a sufficient period of time with the knowledge and acquiescence of the employees to become in reality a part of the actual working conditions." Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 154, 90 S.Ct. 294, 301, 24 L.Ed.2d 325 (1969). The Eighth Circuit has stated that a "long-standing practice" should be considered part of the agreement when it "ripens into an established and recognized custom between the parties." Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern Railroad Co., 802 F.2d 1016, 1022 (8th Cir.1986).

In this case, the Court cannot find that Amtrak's practice of requiring drug testing, either in physical examinations or based on reasonable suspicion, has occurred for a sufficient period of time, with the knowledge and acquiescence of the unions, to become part of the agreement itself. The record does not reflect when Amtrak began testing based on reasonable suspicion, which precludes a finding that the practice was longstanding and established before the unions challenged the practice in April and May, 1986.⁶ Drug testing was not required in pre-employment and return-to-work physical examinations until April, 1983, and in periodic physical examinations until July, 1985. At the most, routine drug testing was required for three years before the unions objected formally; in the case of periodic physical, the unions objected after nine months. This is not the length of time required for a practice to become so "long-standing" and "established" that it ripens into an implied working condition and an implied part of the collective bargaining agreement.

On the other hand, the Court finds that routine medical examinations and the rule against use of drugs or alcohol on duty are so well-established and long-standing as to be an implied working condition.

Discussion

Relations between the unions and Amtrak are governed by the Railway Labor Act ("the Act"), 45 U.S.C. §§ 151-188 (1982). The Act is designed to provide for the prompt and orderly settlement of both fundamental contractual disputes and of grievances between the unions and management, to avoid the disruption of commerce caused by strikes or other means of self-help by either side. Id. § 151a. The Act imposes on both the unions and the railroad a duty to negotiate whenever a dispute arises. Id. § 152 First, Second. Beyond the initial...