Railway Labor Exec. v. Port Authority Trans-Hudson

• Decision Date: 16 August 1988
• Docket Number: 86 Civ. 6066 (RLC).,No. 86 Civ. 5308 (RLC),86 Civ. 5308 (RLC)
• Citation: 695 F. Supp. 124
• Parties: RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. PORT AUTHORITY TRANS-HUDSON CORP., Defendant. RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. METRO-NORTH COMMUTER RAILROAD CO., Defendant.
• Court: U.S. District Court — Southern District of New York

695 F. Supp. 124

RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. PORT AUTHORITY TRANS-HUDSON CORP., Defendant.

RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. METRO-NORTH COMMUTER RAILROAD CO., Defendant.

Nos. 86 Civ. 5308 (RLC), 86 Civ. 6066 (RLC).

United States District Court, S.D. New York.

August 16, 1988.

Alper & Mann, Washington, D.C. (Lawrence M. Mann, of counsel), Peter M.J. Reilly, Islip, N.Y., for plaintiffs.

Patrick J. Falvey, New York City (Patrick J. Falvey, Sholem Friedman, James M. Begley, Kathleen M. Collins, of counsel), for defendant PATH.

Walter E. Zullig, Jr., New York City (Mary Ann Mills, of counsel), for defendant Metro-North.

OPINION

ROBERT L. CARTER, District Judge:

In these cases, the Railway Labor Executives' Association and a number of the unions which make up its membership seek to enjoin certain employee drug-screening procedures which have been put in place unilaterally by the Port Authority Trans-Hudson Corporation ("PATH") and Metro-North Commuter Railroad Company ("Metro-North"). Plaintiffs assert entitlement to summary judgment on the basis of the Railway Labor Act, 45 U.S.C. §§ 151-188, the fourth amendment to the United States Constitution, and the doctrine of pre-emption. PATH, but not Metro-North, has cross-moved for summary judgment.

BACKGROUND

A. PATH

The parties to Number 86 Civ. 5308 have stipulated as follows: PATH, created in 1962 by the Port Authority of New York and New Jersey, operates an inter-urban railroad between the States of New York and New Jersey. Since 1962, all PATH employees have been governed by PATH's Book of Rules. Rule 15 provides in part that

the use of intoxicants or narcotics by employees while on duty is prohibited. No employee shall present himself for or perform any service for PATH while under the influence of intoxicants or narcotics. The possession of intoxicants or narcotics while on duty is prohibited....

Rule 15 has customarily been enforced by supervisory observation and by requiring employees reasonably suspected of drug or alcohol abuse to undergo urine or other diagnostic tests. Rule 7 provides that an employee who commits an "insubordinate, dishonest, immoral, illegal or vicious act" may not remain in service.

The collective bargaining agreements into which PATH has entered with the unions representing its employees vest in PATH the discretion to conduct such medical examinations of its employees as it deems appropriate. PATH requires all of its hourly employees to undergo annual medical examinations. In addition, employees must undergo medical examinations upon returning to duty following an absence of ninety days or more due to furlough, leave, injuries, sickness, suspension or similar causes.¹ At both annual medical exams and return-to-duty exams, employees are required to provide a urine specimen.

In June, 1972, PATH began screening all urine specimens provided at annual medical exams for certain drugs, including various controlled substances. PATH did not post a general notice informing employees of such testing.² In 1979, the testing was expanded to include a marijuana screen. Specimens given at return-to-duty exams are screened for drugs only when the employee has been previously taken out of service for a drug-related problem or when, in the judgment of the examining physician, the employee may have been using drugs.³

The parties disagree as to the purpose of these drug tests. Plaintiffs contend that drug screening was instituted as a new method of enforcing Rule 15, while PATH asserts that its purpose was limited to determining an employee's medical fitness. Both purposes apparently coexist at present, since PATH concedes that when an employee tests positive for drug use, PATH's medical personnel inform management both that the employee is (medically) unfit for duty and that "there has been an infraction of PATH rules." Doronin Aff't, ¶ 6.

In addition to conducting drug tests at the medical exams which it requires its employees to undergo, PATH has required various operating personnel covered by the Hours of Service Act, 45 U.S.C. §§ 61-66, to submit to post-accident testing under certain circumstances. This requirement was similar in scope to the testing subsequently mandated by a regulation of the Federal Railroad Administration ("FRA"). 45 C.F.R. Part 219 (1985). When the FRA regulation entered into effect on February 10, 1986, PATH conformed to it and posted a general notice to employees of the FRA testing requirements. On February 11, 1988, the Ninth Circuit struck down the FRA regulation on fourth amendment grounds. Railway Labor Executives' Ass'n v. Burnley, 839 F.2d 575 (9th Cir. 1988). The present record does not reflect whether PATH has discontinued its program of post-accident testing.⁴

The consequences for an employee of a positive drug test at a periodic or return-to-duty medical exam are not entirely clear. It is stipulated that "in most instances no disciplinary action was taken" when an employee tested positive prior to 1985. Stip., ¶ 7; see Skowronski Aff't, ¶ 4. Before 1985, such an employee would be listed on medical records for future reference, and offered medical assistance. Subsequent to that time, however, when an employee's periodic or return-to-duty test shows positive, management is "advised that laboratory tests indicated that the employee is unfit for duty and that there has been an infraction of PATH rules." Doronin Aff't, ¶ 6. It is not stated explicitly that disciplinary action is now taken, but the affidavit of PATH's medical administrator, id., when read in conjunction with Rules 7 and 15, compels the conclusion that drug-positive employees are removed from service.

B. Metro-North

Number 86 Civ. 6066 has been submitted for decision on opposing affidavits. Defendant urges that disputed questions of fact preclude summary judgment. Since 1983, Metro-North has operated a commuter railroad between the States of New York and Connecticut. Metro-North's employees are bound to observe Rule G, similar in substance to PATH's Rule 15, which states in relevant part:

The use of intoxicants, narcotics, marijuana, amphetamines, hallucinogens or other controlled substances by employees subject to duty, or their possession or use while on duty, is prohibited and is sufficient cause for dismissal.

Plaintiffs contend that Metro-North originally relied on supervisory observation as its means of enforcing Rule G. Phelan Aff't, ¶ 4.

Like PATH, Metro-North performs periodic and return-to-duty medical examinations of its employees. Since 1983, urine and blood specimens have routinely been required at such exams. It is Metro-North's current practice to screen all employees' urine specimens for drugs, but the parties disagree on when that practice commenced. Metro-North contends that it has routinely engaged in such drug screening since early 1983. Herrlin Aff't, ¶ 4. Plaintiffs contend, however, that the present practice began in March of 1986. Statement Pursuant to Local Rule 3(g), at 2; Phelan Aff't, ¶ 9.⁵ Employees who test positive for drugs are subject to discipline and disqualification. Cairns Aff't, ¶ 6. Thus, Metro-North's screening program apparently serves a dual purpose just as PATH's does: to determine employees' medical fitness, see id., ¶ 8, and to detect violations of Rule G. Id., ¶ 6.

On February 15, 1986, shortly after the FRA's post-accident testing requirements went into effect, Metro-North established a written policy regarding substance abuse. Plaintiffs contend that Metro-North's practice of conducting routine employee drug tests originated with that written policy, which took effect on March 3, 1986. Metro-North contends, on the contrary, that its written substance-abuse policy simply "memorialized" its long-standing practice of conducting such tests. The policy makes provision for post-accident testing as required by the FRA regulation. There is no indication that such testing has been discontinued in response to the Ninth Circuit's decision in Burnley, 839 F.2d 575.

Plaintiffs state that they did not receive copies of the policy until they specifically requested them in June, 1986, while Metro-North contends that copies of the policy were "distributed ... to employees and their representatives" on March 3, 1986. In any event, nothing in the present record tends to show that plaintiffs were aware of the practice of routine drug testing prior to 1986.⁶

DISCUSSION

I. Railway Labor Act Claims

Plaintiffs assert that defendants have deviated from the requirements of the Railway Labor Act ("the Act") by unilaterally implementing their respective drug-testing programs. The Act does not prohibit drug testing by carriers, but simply requires them to negotiate with their employees prior to instituting any "major" change in working conditions. In response, defendants urge (1) that employee drug testing is a matter within their managerial prerogative, (2) that plaintiffs have acquiesced in managements' respective drug-testing programs, and (3) that those programs raise only a "minor" dispute, over which the court lacks jurisdiction.

A.

The Act imposes upon all carriers and their employees the duty to "exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions...." 45 U.S.C. § 152, First. If a dispute over a new management practice implicates a mandatory subject of bargaining under the Act, a carrier may not proceed unilaterally to institute that practice, but must negotiate over it with the employees' bargaining representative. Int'l Brotherhood of Teamsters v. Southwest Airlines Co., 842 F.2d 794, 799 (5th Cir.1988). See Order of Railroad Telegraphers v. Chicago & N.W. Ry., 362 U.S. 330, 339-40, 80 S.Ct. 761, 766-67, 4 L.Ed.2d 774 (1960). As to matters of managerial prerogative, on the other hand, that is, matters which do not concern "rates of pay, rules and working conditions"...