Railway Labor Executives' Ass'n v. Consolidated Rail Corp., No. 87-1289

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtBefore SLOVITER and BECKER, Circuit Judges, and COWEN; SLOVITER
Parties128 L.R.R.M. (BNA) 2168, 46 Empl. Prac. Dec. P 37,931, 56 USLW 2624, 108 Lab.Cas. P 10,453 RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Appellants, v. CONSOLIDATED RAIL CORPORATION.
Docket NumberNo. 87-1289
Decision Date25 April 1988

Page 1187

845 F.2d 1187
128 L.R.R.M. (BNA) 2168, 46 Empl. Prac. Dec. P
37,931,
56 USLW 2624, 108 Lab.Cas. P 10,453
RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Appellants,
v.
CONSOLIDATED RAIL CORPORATION.
No. 87-1289.
United States Court of Appeals,
Third Circuit.
Argued Nov. 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.

Before SLOVITER and BECKER, Circuit Judges, and COWEN, District Judge *.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The issue presented by the Unions' appeal is whether the railroad's unilateral

Page 1188

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.

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.

I. Background

A. Facts

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.

Conrail employees always have been subject to Rule G or its equivalent, an industry-wide rule, which prohibits the use or possession of "intoxicants, narcotics, amphetamines or hallucinogens" by employees on duty or the use of such substances by employees subject to duty, and which requires employees under medication to be certain that their safe performance of duty is not compromised. This rule has been enforced in the past principally by supervisory observation.

Conrail has routinely used drug screening urinalysis as part of the return-to-duty medical examination of any employee previously taken out of service because of a drug-related problem, and in both periodic and return-to-duty examinations, when the examining physician suspected drug abuse. In applying Rule G, Conrail "encourag[ed] employees who are suspected of being drug or alcohol abusers to voluntarily agree to undergo blood, urine, or other diagnostic tests." See App. at 70; cf. Brotherhood of Locomotive Eng'rs v. Burlington Northern R.R. Co., 838 F.2d 1087, 1089 (9th Cir.1988) (railroad's employee suspected of drug use could avoid suspicion by voluntarily submitting to urinalysis); Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R. Co., 802 F.2d 1016, 1018 (8th Cir.1986) (Arnold, J., for a unanimous court, concurring in part) (same).

In February 1986, the regulations of the Federal Railway Administration on "Control of Alcohol and Drug Use in Railroad Operations" became effective. 49 C.F.R. Sec. 219 (1987). These regulations require post-accident drug screening by urinalysis, breathalizer and/or blood testing for all employees covered by the Hours of Service Act, 45 U.S.C. Sec. 61-64b (1982), i.e., for operating employees. 1 Employees reasonably suspected of being under the influence of a prohibited substance may also be tested if they are involved in an operating rule violation or contribute to an accident. The application of these regulations to covered employees is not at issue on this appeal.

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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. Sec. 156 (1982), and the Fourth Amendment's prohibition of unreasonable search and seizure and sought to enjoin Conrail from instituting the drug testing.

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.

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").

B. Major and Minor Disputes

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.

The Railway Labor Act ("RLA"), 45 U.S.C. Sec. 151 et seq., was passed in 1926 to facilitate labor peace in the railroad industry, then the backbone of the American transportation system. See H.R.Rep. No. 328, 69th Cong., 1st Sess. 1-3 (1926) [hereinafter 1926 House Report ]; Baker v. United Transp. Union, 455 F.2d 149, 153-54 (3d Cir.1971). In an unprecedented cooperative process, the Act was drafted by negotiators for railroad management and labor and presented to Congress as, essentially, a finished product. See 1926 House Report at 1, 3. In its original form, the Act did not provide compulsory arbitration for any claim; it worked instead to prevent strikes and lockouts by funneling disputes into "purposely long and drawn out [procedures], based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute." Brotherhood of Ry. & S.S. Clerks v. Florida East Coast Ry. Co., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424, 16 L.Ed.2d 501 (1966); see Elgin, Joliet & Eastern R.R. v. Burley, 325 U.S. 711, 725-27, 65 S.Ct. 1282, 1290-91, 89 L.Ed. 1886 (1945).

From the beginning, the Act made a distinction between disputes arising from grievances and the interpretation of a contract ("minor" disputes), on the one hand, and disputes arising from changes in pay rates, work rules and working conditions ("major" disputes), on the other. See Railway Labor Act, Pub. L. No. 257, Secs. 3, First, 5(a)-(b), 6, 44 Stat. 577, 578-82 (1926); see also Brotherhood of R.R.

Page 1190

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, Sec. 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. Sec. 153; Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 754 n. 6 (3d Cir.1977); cf. 45 U.S.C. Sec. 156.

In contrast, parties to a major dispute have always been required to proceed through a more extensive mediation and conciliation mechanism as specified by sections 5 and 6 of the Act, 45 U.S.C. Secs. 155-56;...

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  • City of Miami v. F.O.P. Miami Lodge 20, No. 85-2863
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    ...agreed that drug testing is a subject of mandatory bargaining. 8 Railway Labor Executives' Association v. Consolidated Rail Corp., 845 F.2d 1187 (3d Cir.), cert. granted, 488 U.S. 815, 109 S.Ct. 52, 102 L.Ed.2d 31 (1988); International Brotherhood of Teamsters, Chauffeurs, Warehousemen & He......
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19 cases
  • Air Line Pilots Ass'n Intern. v. Eastern Air Lines, Inc., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 28, 1988
    ...in "rates of pay, rules, or working conditions." 45 U.S. Sec. 156; 4 Railway Labor Executives Ass'n v. Consolidated Rail Corp., 845 F.2d 1187, 1190 (3d Cir.), cert. granted, --- U.S. ----, 109 S.Ct. 52, 102 L.Ed.2d 31 (1988). Finally, if the parties cannot resolve a major dispute ......
  • Bolden v. Southeastern Pennsylvania Transp. Authority, No. 90-1478
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 31, 1991
    ...to the arbitral jurisdiction of the Board. Because Conrail was a private entity, Railway Labor Exec. Ass'n v. Consolidated Rail Corp., 845 F.2d 1187, 1189 (3d Cir.1988), the Supreme Court addressed the issue only with respect to contractual entitlements associated with collective bargaining......
  • Maher v. New Jersey Transit Rail Operations, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • August 1, 1991
    ...Corp., supra, 491 U.S. at 306, 109 S.Ct. at 2482, 105 L.Ed.2d at 263 (quoting Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 845 F.2d 1187, 1190 (3d The key to this puzzle lies in the nature of the "disputed action." Keeping in mind that the question arises in the con......
  • City of Miami v. F.O.P. Miami Lodge 20, No. 85-2863
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...agreed that drug testing is a subject of mandatory bargaining. 8 Railway Labor Executives' Association v. Consolidated Rail Corp., 845 F.2d 1187 (3d Cir.), cert. granted, 488 U.S. 815, 109 S.Ct. 52, 102 L.Ed.2d 31 (1988); International Brotherhood of Teamsters, Chauffeurs, Warehousemen &......
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