RY. LABOR EXECUTIVES v. Norfolk & Western Ry. Co.

• Decision Date: 30 January 1987
• Docket Number: No. 86 C 2064.,86 C 2064.
• Citation: 659 F. Supp. 325
• Parties: RAILWAY LABOR EXECUTIVES ASSOCIATION, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

659 F. Supp. 325

RAILWAY LABOR EXECUTIVES ASSOCIATION, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.

No. 86 C 2064.

United States District Court, N.D. Illinois, E.D.

January 30, 1987.

Marvin Gittler, Stephen Feinberg, Asher, Pavalon, Gittler & Greenfield, Ltd., Chicago, Ill., Jerome M. Alper, Washington, D.C., for plaintiffs.

James S. Whitehead, Linzey D. Jones, Sidley & Austin, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

The plaintiffs in this action are eighteen labor unions ("the Unions") whose members are employed by defendant Norfolk and Western Railway Co. ("N & W").¹ The Unions seek a preliminary injunction enjoining N & W's imposition of a drug screen urinalysis as part of the railroad's routine medical examinations.² N & W has moved for summary judgment on the grounds that this claim is a "minor dispute" within the exclusive jurisdiction of the National Railroad Adjustment Board ("NRAB") and is barred by the statute of limitations. For the reasons set forth below, the court denies the Unions' motion for a preliminary injunction and grants N & W's motion for summary judgment.

Factual Background

N & W has had a long-standing policy against the use of drugs or intoxicants by any of its employees. Rule G³ of N & W's Operating and Safety Rules expressly prohibits the use or possession of drugs on the railroad's property. The Company's medical examinations require all employees to inform N & W of their consumption of alcohol or use of any prohibited drugs.

For at least twenty years, the railroad has required routine physicals of all its active employees as well as those employees returning from furlough or some other extended absence. These examinations require each employee to submit a urine specimen to the examining doctor for a urinalysis. The purpose of the urinalysis is to detect the level of albumen or sugar in the employee's body (Dr. Ford Aff.). If the urinalysis or any other test conducted in the medical examination indicates that the employee is not physically fit for his job, the railroad may suspend the employee from service until the disability subsides. Prior to 1984, N & W did not employ any medical tests to detect an employee's use of drugs or alcohol.

In 1984, Dr. George W. Ford, N & W's Medical Director, became concerned about the need to utilize a more scientific method for determining an employee's possible lack of fitness for work because of his alcohol or drug use. After consulting with N & W's management, it was determined that the urine samples, already a staple of the railroad's routine medical examinations, could also be used to determine the presence of drugs or alcohol in an employee's body. The company decided to implement a drug screen in conjunction with its medical examination urinalyses in October of 1984.

This new procedure merely provided that two tests would now be performed on the employee's urine sample. A portion of the sample would continue to be used for the testing of albumin and sugar, and the remaining portion would be shipped to a drug testing center to determine the presence of drugs in the employee's bloodstream. Prior to October 18, 1985, N & W did not permit any employees to return to service pending the results of the drug screen urinalysis. The policy was changed as of that date, and an employee may now commence work prior to N & W's receipt of the drug test results, so long as the employee does not have any other medical condition which requires withholding him from work (Dr. Ford Aff. ¶ 17).

If the laboratory drug tests reveal a positive trace of drugs in the employee's system, the employee is notified by letter that he will not be permitted to return to service until he submits a urine specimen that tests negative for the presence of drugs. The Medical Department's policy requires submission of this second urine sample within 45 days of the notification to the employee. Failure to comply with this directive within 45 days can result in dismissal for failure to obey instructions. Once the employee provides the negative urine sample, he will be allowed to return to work immediately. The Medical Department may also require follow-up examinations from time to time to determine the employee's continuing fitness for work.

An employee who tests positive for drugs may also elect to participate in the Norfolk Southern Drug and Alcohol Rehabilitation Services Program ("DARS"). An employee participating in this program does not have to provide a second urine sample until five days after he leaves the program.

N & W began to inform the unions of its intention to add the drug screen urinalysis to its routine medical exams shortly after the policy was adopted in October of 1984. In December of 1984, R.C. Steele, N & W's Assistant Vice-President of Labor Relations, notified nine of the Unions⁴ of the new policy. Dr. Ford met with union representatives in January of 1985 to discuss the new policy. In response to the representatives' request for individual notice regarding the drug screen urinalysis, N & W sent a notice of this new medical policy to all N & W employees on February 12, 1985. The notice informed them of N & W intention to conduct a drug screen urinalysis in connection with every medical exam and the consequences of a positive test result.

N & W spoke with Union representatives in February, March and July of 1985, and issued a second notice of the medical policy to all employees on August 1, 1985⁵ (Ex. 13 to N & W's Motion for Summary Judgment). The Norfolk Southern Corporation, N & W's parent, also published notice of the new policy in its company newsletter in November of 1985 (Ex. 14 to N & W's Motion for Summary Judgment).

The Unions filed the present action on March 25, 1986. They allege that N & W's addition of this drug-screen test to the urinalysis conducted in connection with its routine medical examinations constitutes a unilateral change in employee "working conditions" in violation of Section 2, Seventh and Section 6 of the Railway Labor Act ("RLA"), 45 U.S.C. §§ 152, Seventh and 156.⁶ According to the Unions, this court has jurisdiction over the lawsuit because their challenge to the drug screen constitutes a "major dispute" under the RLA. N & W asserts that the Unions' objection is a "minor dispute" which must be referred to the NRAB prior to the institution of a lawsuit in federal court. See 45 U.S.C. § 153.⁷

The RLA does not define the distinction between a major dispute, which is subject to federal court intervention, and a minor dispute, which is subject to the exclusive jurisdiction of the NRAB. The Supreme Court coined these terms in an attempt to explain the distinction between challenges under Section 2 and Section 3 of the RLA in Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945). In that case, the Court held that major disputes are those arising

over the formulation of collective bargaining agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.... They are the large issues about which strikes ordinarily arise with the consequent interruptions of traffic the Act sought to avoid.

Id. at 723-24, 65 S.Ct. at 1290. These major disputes are distinguishable from minor disputes, which

contemplate the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case.... The claim is to rights accrued, not merely to have new ones created for the future.... Minor disputes seldom produce strikes....

Id. at 723-24, 65 S.Ct. at 1289-90 (footnote omitted). Thus, if a proposed practice is clearly outside the terms of the collective bargaining agreement, the dispute is characterized as a "major dispute," and the railroad cannot unilaterally impose the proposed practice. On the other hand, if the practice is arguably permissible under the collective bargaining agreement, then the railroad may act unilaterally, and disputes over the procedure must be resolved, at least initially, in an arbitration process before the NRAB. Brotherhood of Maintenance of Way Employees v. Burlington Northern Railroad Co., 802 F.2d 1016, 1017 (8th Cir.1986); International Ass'n of Machinists and Aerospace Workers, AFLCIO, 639 F.Supp. 100, 102 (W.D.Wash. 1986); Air Line Pilots Ass'n v. United Air Lines, Inc., 637 F.Supp. 215, 217 (N.D.Ill. 1986).

In determining whether a suit involves a major or minor dispute, the court must ascertain whether the conflict can be resolved by reference to an existing collective bargaining agreement. Atcheson, Topeka & Santa Fe Railroad v. United Transportation Union, 734 F.2d 317, 321 (7th Cir.1984). The collective bargaining agreement includes those terms contained in the written agreement as well as any "course of dealing" based upon an employer's established practice. 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); Maine Central Railway Co. v. United Transportation Union, 787 F.2d 780, 782 (1st Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 169, 93 L.Ed.2d 107 (1986); Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 620 F.Supp. 163, 169 (D.Mont.1985). Since the Railroad's medical examination policies are not contained in the collective bargaining agreement, the court must determine, as an initial matter, whether these practices constitute an implied condition of...