# Amicus Curiae Brief — Consolidated Rail Corporation v. Railway Labor Executives' Assn.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 299

## Text

3 NOV 26 1988

may

In the Supreme Court of the United States

OCTOBER TERM, 1988

CONSOLIDATED RAIL CORPORATION, PETITIONER

V.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, ET AL.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

QUESTION PRESENTED

Whether a railroad’s addition of a drug screen to
the long-standing urinalysis component of its routine
fitness-for-duty physical examinations gives rise to a
“major” dispute under the Railway Labor Act, 45
U.S.C. 151 et seg., and is therefore not subject to
arbitration by an adjustment board.

(1)

TABLE OF CONTENTS

Page
Interest of the United States 1
Statement:
A. The statutory framework
B. The present controversy ee 5
| 9
Argument:

The court of appeals misapprehended the legal
principles for determining whether a labor dispute
is “major” or “minor” under the Railway Labor
ESS SE AT 10

A. A labor dispute is “minor” if it concerns a
matter that is “arguably” governed by the con-
tractual relationship between the parties 10

B. The court of appeals misapplied the principles
for determining whether an action is “arguably”
justified by the collective bargaining agreement.. 18

TABLE OF AUTHORITIES
Cases:

Andrews v. Louisville & N.R.R., 406 U.S. 320
EE 13, 14

r .. 4, 15
Baylis v. Marriott Corp., 843 F.2d 658 (2d Cir.

—— 11, 12
Brotherhood of Locomotive Engineers v. Atchison,

T. E S.F. Ry., 768 F.2d 914 (7th Cir. 1985) 12, 16
Brotherhood of Locomotive Engineers v. Consoli-

dated Rail Corp., 844 F.2d 1218 (6th Cir. 1988) .. 11

(iI)

IV
Cases—Continued : Page

Brotherhood of Locomotive Engineers v. Louisville
OS, Ea 12, 13, 16

Brotherhood of Locomotive Engineers v. Missouri-
Kansas-Texas R.R., 363 U.S. 528 (1960) 15

Brotherhood of Maintenance of Way Employees,
Lodge 16 v. Burlington N. R. R., 802 F.2d 1016

1 11, 20
Brotherhood of Ry. Clerks v. Atchison, T. & S. F.
Ry., 847 F. 2d 403 (7th Cir. 1988 10-11, 19
Brotherhood of Railroad Trainmen v. Chicago R.
rye em BCS |) ae 14, 15
Brotherhood of Railroad Trainmen v. Jackson-
ville Terminal Co., 394 U.S. 369 (1969977 8, 21
Burlington N. R. R. v. Brotherhood of Maintenance
of Way Employees, No. 86-39 (Apr. 28, 1987) 3
Chicago & N.W.R.R. v. Transportation Union,
el A Ee 22
Communications Workers v. Beck, No. 86-637
(June 29, 1988) ......... 21

Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).. 22, 23
Detroit & Toledo Shore Line R.R. v. United Trans-
portation Union, 396 U.S. 142 (1969) ................. 3, 17, 20
Division No. 1, Detroit, Brotherhood of Locomo-
tive Engineers v. Consolidated Rail Corp., 844

F.2d 1218 (e Cir. 1880) ñũĩũc%,ñ r: 17
Elgin, J. & E. R. R. v. Burley, 325 U.S. 711 (1945),

aff'd on reh’g, 327 U.S. 661 (1940) 3, 4, 13, 19
First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1983) 21
International Ass’n of Machinists v. “Soo Line R.R.,

850 F.2d 368 (8th Cir. 1988 10

International Ass’n of Machinists & Aerospace

Workers v. Northwest Airlines, Inc., 843 F.2d

1119, vacated as moot, 854 F.2d 1089 (8th Cir.
11 ˙——7§Üẽ5³ 12, 16

International Brotherhood of Teamsters v. Sout h-
west Airlines Co., 842 F.2d 794 (5th Cir. 1988) .. 11, 18,
19

NLRB v. United Food & Commercial Workers
Union, No. 86-594 (Dec. 14, 1987) 777 21

Cases—Continued : Page

National Ry. Labor Conf. v. International Ass’n
of Machinists & Aerospace Workers, 830 F.2d
x eae 18-19
O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141
1 — 11-12
Order of Conductors v. Pitney, 326 U.S. 561
r 14
RLEA v. Boston & Maine Corp., 808 F.2d 150 (1st
Cir. 1986), cert. denied, No. 86-2054 (Oct. 5,
E 11
RLEA v. Norfolk & W. Ry., 833 F.2d 700 (7th Cir.
1987), cert. denied, No. 86-2054 (Oct. 5,

Feen 17, 19-20
Slocum v. Delaware L. & W. R.R., 339 U.S. 239
. ee eoemeenn et eee 13-14

Star Tribune, a Division of Cowles Media Co., Nos.
18-CA-9938, 18-CA-10296 & J-D 266-88 (NLRB

Pe ii a ee cee 21
Switchmen’s Union v. Southern Pac. Co., 398 F.2d
EE ES a 11
Transportation Union v. Union Pac. R. R., 385 U.S.
Ee ree nee a 13
Union Pac. R. R. v. Price, 360 U.S. 601 (1959) ....... 14
Union Pac. R. R. v. Sheehan, 439 U.S. 89 (1978).... 5, 14,
‘ 15, 17
United Technologies Corp., 268 N.L.R.B. 557
, 23
Walker v. Southern R. R., 385 U.S. 196 (1966) 5
William F. Arnold Co. v. Carpenters District
Council, 417 U.S. 12 (1974) 24
Constitution and statutes:
r a 7
National Labor Relations Act, 29 U.S.C. 151 et
seq.:
§ 3(d), 29 U.S.C. 153 (d)) 161616 21
§ 8(a) (1), 29 U.S.C. 158 (a) () 23
Norris-LaGuardia Act, 29 U.S.C. 101 et seg. 14-15
Railway Labor Act, 45 U.S.C. 151 et seg. 1, 2, 7, 14

D ...... 2

VI

Statutes—Continued: Page
es , 2
1 ͤ ecnibeccctenccensenteninnneniermnactnsanenn 3
46 U. C. 18 Dπ¹̊ c 3
. 4
F ccicsncccintanininanienmentindiien 4
C o,.ciiiiiiticiinientnsenmntnticncniitinenl 4, 5, 16
! — 5
45 U.S.C. 158 First (m) 1 5
BE . 5, 15
7 4, 5
e ... 4
.. eS eae oe Tere 4
e eee 3
e een ae oe 3,6
. 3
2 —— Oe 2, 3

D EEE vcs Sane ae 22

Miscellaneous:

Garrison, The National Railroad Adjustment
Board: A Unique Administrative Agency, 46
Yale L. J. 567 (1937 13
H.R. Rep. 328, 69th Cong., Ist Sess. (1926) 2
NLRB General Counsel’s Memorandum on Drug
and Alcohol Testing, Memorandum GC 87-5
yee 21, 22, 24

Iu the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-1

CONSOLIDATED RAIL CORPORATION, PETITIONER

V.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, Er AL.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the question whether, under the
Railway Labor Act, 45 U.S.C. 151 et seq., a partic-
ular labor dispute must be resolved through collec-
tive bargaining, with the attendant possibility of a
work stoppage, or whether, instead, it must be re-
ferred in the first instance to the grievance arbitra-
tion process, conducted by specially designed ad-
justment boards.“ The United States has long sought
to encourage the peaceful resolution of labor disputes
likely to disrupt interstate transportation in the rail-
road and airline industries, both of which are cov-

(1)

2

ered by the Railroad Labor Act. Grievance arbitra-
tion affords labor and management an expeditious
forum for resolving disputes over the interpretation
and implementation of collective bargaining agree-
ments. At the same time, it minimizes the risk that
those disputes will result in work stoppages that may
seriously disrupt the flow of interstate commerce.
When there is a prospect of a seriously disruptive
work stoppage, the United States also has a direct,
programmatic interest, since the President may be
called upon to create an emergency board to investi-
gate and report on the underlying labor dispute. See
45 U.S.C. 160. More generally, the United States
has an interest in clarifying the appropriate rela-
tionship between the railroad adjustment boards and
the courts, and thus the proper scope of the arbitra-
tion process.
STATEMENT

A. The Statutory Framework

1. The Railway Labor Act, 45 U.S.C. 151 et seq.,
is designed to ensure “the public continuity and ef-
ficiency of interstate transportation service, and to
protect the public from injuries and losses conse-
quent upon any impairment or interruption of inter-
state commerce * * *.” H.R. Rep. 328, 69th Cong.,
Ist Sess. 1 (1926). In order “[t]o avoid any inter-
ruption to commerce or to the operation of any car-
rier engaged therein” (45 U.S.C. 151a), the Act im-
poses a duty on “all carriers, their officers, agents,
and employees to exert every reasonable effort to
make and maintain agreements concerning rates of
pay, rules, and working conditions, and to settle all
disputes, whether arising out of the application of
such agreements or otherwise” (45 U.S.C. 152 First).

2. Where settlement between the parties cannot
be achieved, however, the Act provides two distinct

3

procedures for resolving disputes. On the one hand,
it provides for prolonged negotiation and mediation,
followed if necessary by the availability of self-help.
On the other hand, it establishes binding, compulsory
arbitration. Whether one procedure or the other is
available depends on the nature of the underlying
dispute.

So-called “major” disputes involve “the formation
of collective 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 there-
fore the issue is not whether an existing agreement
controls the controversy.” Elgin, J. ꝙ E. R. N. v. Bur-
ley, 325 U.S. 711, 723 (1945), aff'd on reh’g, 327
U.S. 661 (1946). Because major disputes “present
the large issues about which strikes ordinarily arise“
and “because they seek to create rather than to en-
force contractual rights, they have been left for set-
tlement entirely to the processes of noncompulsory
adjustment” (325 U.S. at 723-724). Where such a
dispute is involved, the parties must maintain the
status quo while they engage in a lengthy process
of negotiation, mediation, and possibly review
by a Presidential Emergency Board. Detroit 4.
Toledo Shore Line R.R. v. United Transportation
Union, 396 U.S. 142 (1969). If that process fails
to produce an agreement, however, each side is
free to resort to strikes, lock-outs, or other forms of
economic self-help calculated to achieve the desired
objectives. See 45 U.S.C. 152 Second and Seventh,
155 First, 156, 157, 160; Burlington N. R.R. v.
Brotherhood of Maintenance of Way Employees, No.
86-39 (Apr. 28, 1987), slip op. 14 n.10; Brotherhood
of Railroad Trainmen v. Jacksonville Terminal Co.,
394 U.S. 369, 378 (1969).

4

By contrast, “minor” disputes involve “the mean-
ing or proper application” of a particular collective
bargaining agreement, or they may relate to the so-
called “omitted case,” in which a dispute “is founded
upon some incident of the employment relation, or
asserted one, independent of those covered by the
collective agreement” (Elgin, 325 U.S. at 723). Like
“major” disputes, “[m]inor disputes initially must
be dealt with through a railroad’s internal resolution
processes.” Atchison T. & S. F. R. R. v. Buell, No.
85-1140 (Mar. 24, 1987), slip op. 6. Unlike a major
dispute, however, if a minor dispute is not settled
through initial discussions, it may be “referred by
petition of the parties or by either party” to one of
a number of grievance “adjustment boards.” 45
U.S.C. 153 First (i) Submission of the grievance

The statute authorizes the creation of several different
types of adjustment boards. The National Railroad Adjust-
ment Board (“NRAB”) is a standing body created by Con-
gress. 45 U.S.C. 153 First. It is divided into four divisions,
each having jurisdiction over particular job classificatons. 45
U.S.C. 153 First (h). In addition, the parties, upon mutual!
agreement, may establish system, group, or regional boards

of adjustment. 45 U.S.C. 153 Second. The creation of such

boards is wholly voluntary, and either party to an agreement
creating one of these boards may elect to come under the
NRAB’s jurisdiction upon ninety days notice (ibid.). Finally,
the statute provides that any carrier or union may request
the establishment of a special board of adjustment to resolve
any dispute otherwise referable to the NRAB or any dispute
that has been pending before the NRAB for twelve months.
45 U.S.C. 153 Second. These special boards, commonly known
as “public law” boards, must be established upon demand.
The parties are consequently required to join in an agreement
establishing the board. If the parties fail to reach such an
agreement, the National Mediation Board (see 45 U.S.C. 154,

5

to arbitration by an adjustment board is compulsory
upon the request of either party; it does not depend
on mutual agreement or consent. 45 U.S.C. 153
First (i), Second; see Walker v. Southern R.R., 385
U.S. 196, 198 (1966). The boards, moreover, are
structured so as to preclude deadlock and ensure a
reasonably prompt decision. 45 U.S.C. 153 First (J),
Second. And the decision of the adjustment board is
final and binding upon the parties. 45 U.S.C. 153
First (m), Second. Thus, judicial review of an ad-
justment board decision is narrowly limited to
whether the board exceeded its jurisdiction, failed to
comply with specific statutory requirements of the
Railway Labor Act, or was influenced by fraud or
corruption. 45 U.S.C. 153 First (q), Second; Union
Pac. R. R. v. Sheehan, 439 U.S. 89, 93 (1978) (per
curiam ).

B. The Present Controversy

1. Since its inception in 1976, petitioner, Consoli-
dated Rail Corporation (Conrail), has required all
of its employees to undergo periodic physical exam-
inations. Conrail has also required train and engine
employees who have been out of service for at least
30 days due to furlough, leave, suspension, or similar
causes to undergo physical examinations upon re-
turning to duty; in the case of all other employees,
it has imposed the same return-to-service require-
ment if those employees have been furloughed, on
leave, or suspended for at least 90 days. These phys-
ical examinations have included urinalysis for blood
sugar and albumin, although they have not ordinar-

155) can designate members of the board on a party’s behalf.
The board as designated must then determine all unresolved
matters relating to its establishment and jurisdiction. 45
U.S.C. 153 Second. .

6

ily included a drug screen. Conrail has in the past
required a drug screen only for employees who were
taken out of service for drug-related conduct, or
when, in the judgment of the examining physician,
the employee may have been using drugs. Finally,
Conrail employees have always been subject to “Rule
G,” an industry-wide rule that prohibits the use or
possession of narcotics or intoxicants by employees
who are on duty or who are subject to duty. Pet.
App. A3-A4, A58-A59.“

On February 20, 1987, Conrail announced its deci-
sion to add a drug screen as part of the urinalysis
in all periodic and return-to-duty physical examina-
tions. The company explained that an employee who
tested positive for drugs in such an examination
would be barred from service unless, within 45 days,
he could provide a negative drug test from a medica!
facility approved by Conrail’s Medical Director. In
addition, Conrail stated, an employee whose first test
was positive would be given the opportunity to be
evaluated by Conrail’s Employee Counseling Service.
If the evaluation revealed drug addiction, and the
employee agreed to enter a treatment program, he
would be given an additional period, up to 125 days,
in which to provide a negative drug test. Pet. App.
A5, A51.

2. Respondents thereafter filed suit in the United
States District Court for the Eastern District of
Pennsylvania, alleging that Conrail’s action violated
Section 6 of the Railway Labor Act, 45 U.S.C. 156,

2 In 1984, Conrail announced that it would add a drug screen
to the urinalysis conducted during its periodic, fitness-for-duty
examinations. But that drug screen was implemented only in
Conrail’s Eastern Region and was discontinued after six
months (Pet. App. A49).

7

and constituted an unreasonable search and seizure
under the Fourth Amendment. It sought to enjoin
— from instituting the drug screen. Pet. App.
The district court dismissed the complaint for
want of subject matter jurisdiction (Pet. App. A23-
A26), concluding, in pertinent part, that respond-
ents’ objection to the drug screen constituted a
“minor” dispute and was therefore “subject to the
mandatory and exclusive jurisdiction of the National
Railroad Adjustment Board or a public law board“
(id. at A23). The district court reasoned (id. at
A24) that “[a] dispute is minor if the parties’
agreement is reasonably susceptible of the contested
interpretation or if the employer’s action is arguably
justified under the terms of the existing agreement.”
The court noted (ibid.) that Conrail had consistently
included a urinalysis component in its periodic and
return-to-work medical tests, and that under some
circumstances the company had required a drug
screen as well. The court therefore concluded that
“Conrail’s decision to expand its use of drug testing
is arguably justified under terms of the parties’ long-
standing medical policy” (ibid.).“

3. The Third Circuit reversed (Pet. App. Al-
Al19), holding that Conrail’s addition of a drug
screen constituted a “major” dispute under the Rail-
way Labor Act. The court recognized (id. at A9)
that “[i]f the disputed action can ‘arguably’

* The district court also dismissed respondents’ Fourth
Amendment claim because they “failed to show for purposes
of this motion that Conrail is a federal actor whose actions
are subject to constitutional scrutiny” (Pet. App. A25). Re-
spondents did not appeal from that determination, and the
constitutional issue is not presented in this case.

be justified by the existing agreement or * * * if the
contention that the labor contract sanctions the dis-
puted action is not ‘obviously insubstantial’, the con-
troversy is [a minor dispute] within the exclusive
province of the National Railroad Adjustment
Board.” The court eoncluded, however, “that the
agreement governing prior medical examinations
cannot be strained to include, even arguably, an
agreement to routinely perform a drug screen” (id.
at Al7). The court explained that the legislative
history of the Act “makes clear * that ‘minor’
disputes, with their attendant compulsory arbitra-
tion, were to be limited to ‘comparatively minor’
problems” (id. at A8). A drug screen, the court ob-
served, could not meet that standard, because “[e]m-
ployee drug testing is a controversial issue through-
out the railroad industry and beyond” and because
“(t]he practice poses serious ethical and practical
dilemmas” (id. at Al6). The court acknowledged
(id. at A9) that “it is not necessary that the terms
of a collective bargaining agreement governing rela-
tions under the Act be embodied in a written docu-
ment” and that the agreement might instead “be in-
ferred from habit and custom.” It nevertheless ob-
served that Conrail could not “point to any existing
agreement between the parties on such crucial mat-
ters as the drug test to be used, the methods of con-
firming positive results, and the confidentiality pro-
tections to be employed” (id. at Al7). Finally, the
court of appeals found it “particularly significant
that the General Counsel of the National Labor Re-
lations Board has taken the position that drug
sereening, even where it is added to a pre-existing
medical examination program, constitutes a substan-
tial change in working conditions and is a manda-

tory subject of bargaining under the Nationa! Labor
Relations Act” (id. at A16-A17).

SUMMARY OF ARGUMENT

A. The courts of appeals—including, at least nom-
inally, the court below—uniformly hold that a labor
is “minor,” and therefore subject to arbitra-

iE

this Court’s insistence that matters of contractual
interpretation be left to the adjustment boards under
the Act, and that such issues not be resolved by the
courts. Moreover, a presumption of arbitrability is
fully consistent with the parties’ right to bargain
collectively over “major” disputes, since if an ad-
justment board concludes that the dispute is a major
one, it will issue an order to that effect and will
remit the parties to negotiation and mediation under
the statute.

B. Although the court of appeals articulated the
correct legal standard, in applying that standard it
relied on factors that are entirely at odds with the
presumption of arbitrability. The court erred at the
outset because it believed that “minor” disputes are
limited to “comparatively minor problems.” That is
not so. The term “minor” is a term of art, and it
refers to any dispute that is “arguably” governed by
the agreement, regardless of how “important” the
disputed issue is to one or both of the parties. The
court next erred in requiring petitioner to show an
express agreement about the details of its drug
screening policy. That is wrong, because parties do
not ordinarily spell out all the terms of their agree-
ment in a formal contract, and because a dispute

10

may be “arguably” governed by the contract, even
if the contract does not descend to elaborate detail.
Finally, the court of appeals relied mistakenly on the
NLRB General Counsel’s memorandum concerning
drug tests under the National Labor Relations Act.
In particular, the court of appeals overlooked the fact
that the Labor Board, like the courts under the RLA,
will defer to the arbitration process in appropriate
cases.

We believe that, under a correct application of the
governing legal standard, the dispute over petition-
er’s addition of a drug screen is “arguably justified”
by the contract and should be referred to an adjust-
ment board. Although a board may ultimately agree
with respondent that the terms of the contract do
not resolve the dispute—and therefore remit the mat-
ter to the collective bargaining process—the Railway
Labor Act requires that the board initially be given
the opportunity to make that determination.

ARGUMENT

THE COURT OF APPEALS MISAPPREHENDED THE
LEGAL PRINCIPLES FOR DETERMINING WHETHER
A LABOR DISPUTE IS “MAJOR” OR “MINOR” UNDER
THE RAILWAY LABOR ACT

A. A Laber Dispute Is “Minor” If It Concerns A Matter
That Is “Arguably” Governed By The Contractual Re-
lationship Between The Parties

1. The courts of appeals have uniformly held that
a labor dispute is “minor” for purposes of the Rail-
way Labor Act if it involves a matter that is “argu-
ably” comprehended by the contractual relationship
between the parties.“ As the Eighth Circuit ex-

* See, e.g., International Ass'n of Machinists v. Soo Line
R. R., 850 F.2d 368, 376 (8th Cir. 1988) (en banc); Brother-

11

plained in a recent case, “[t]his Court has said that
a dispute is minor if the agreement is ‘reasonably
susceptible’ of the interpretations sought by both the
employer and the employees. Other courts have said
that a dispute is minor if the employer’s action can
be arguably justified under the terms of the existing
agreement * * *, or that the dispute is minor unless
the employer’s argument that its actions are within
the contract is ‘obviously insubstantial.’ These locu-
tions are essentially the same in their result.”
Brotherhood of Maintenance of Way Employees,
Lodge 16 v. Burlington N. R. R., 802 F.2d 1016,
1022 (8th Cir. 1986) (citations omitted). The court
below approved the same standard—at least nomi-
nally—when it stated (Pet. App. A9), “[i]f the dis-
puted 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 ‘obvi-
ously insubstantial,’ the controversy is [a minor dis-
pute] within the exclusive province if the National
Railroad Adjustment Board.”

The “arguably justified” standard “is not a string-
ent one in view of the substantial and long-standing
interest in removing labor disputes from the federal
courts and placing them in the expert hands of the
various arbitration and mediation facilities.” O’Don-

hood of Ry. Clerks v. Atchison, T. & S. F. Ry., 847 F.2d 403,
406 (7th Cir. 1988); Brotherhood of Locomotive Engineers
v. Consolidated Rail Corp., 844 F.2d 1218, 1221 (6th Cir.
1988) ; Baylis v. Marriott Corp., 843 F.2d 658, 663 (2d Cir.
1988) ; International Brotherhood of Teamsters v. Southwest
Airlines Co., 842 F.2d 794, 803 (5th Cir. 1988); RLEA v.
Boston & Maine Corp., 808 F.2d 150, 159 (1st Cir. 1986),
cert. denied, No. 86-2054 (Oct. 5, 1987); Switchmen’s Union
v. Southern Pac. Co., 398 F.2d 443, 447 (9th Cir. 1968).

12

nell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1146-
1147 (9th Cir. 1977). The rule reserves only a
modest role for the courts. A court may not “inter-
pret or construe the language of the contract”; its
task is only to “determine whether th[e] case im-
plicates a question of contract interpretation.“ Inter-
national Ass’n of Machinists & Aerospace Workers V.
Northwest Airlines, Inc., 843 F.2d 1119, 1122 (8th
Cir. 1988). Thus, [if the question of whether a
dispute is ‘major’ or ‘minor’ is close, it should be
viewed as being ‘minor’ unless the carrier’s contrac-
tual justification is ‘obviously insubstantial’ and the
contract is not ‘reasonably susceptible’ to the car-
rier’s interpretation.” Baylis v. Marriott Corp., 843
F.2d 658, 663 (2d Cir. 1988).°

2. Although this Court has more than once char-
acterized particular labor disputes as “major” or
“minor” (see, e. g., Brotherhood of Locomotive Engi-
neers v. Louisville & N. R. R., 373 U.S. 33, 36 & n.3
(1963)), it has not had occasion to decide the legal
standard under which a given dispute may be found
to be “minor,” and therefore subject to arbitration by
an adjustment board. The Court has, however, artic-
ulated several principles that, taken together, con-
firm that, to the fullest extent practicable, disputes
concerning contractual interpretation should be re-
solved by the adjustment boards.

a. First, the Court has repeatedly emphasized that
the adjustment boards have unusual expertise in the

5 As the Seventh Circuit has noted, “[s]ince the machinery
for resolving major disputes is conciliatory rather than bind-
ing, a major dispute can escalate into a strike, which in the
transportation industries * * * can be a calamity. So it is no
surprise that, when in doubt, the courts construe disputes as
minor.” Brotherhood of Locomotive Engineers v. Atchison,
T. & S. F. Ry., 768 F.2d 914, 920 (1985).

13

interpretation of collective bargaining agreements.
“[T]he Board is acquainted with established proce-
dures, customs and usages in the railway labor
world. It is the specialized agency selected to adjust
these controversies.” Elgin J. & E. R. R. v. Burley,
327 U.S. 661, 664 (1946). As the Court has noted,
“[t]he Adjustment Board is well equipped to exer-
cise its congressionally imposed functions. Its mem-
bers understand railroad problems and speak the
railroad jargon.'*! Long and varied experiences have
added to the Board’s initial qualifications.” Slocum
v. Delaware L. & V. R.R., 339 U.S. 239, 243 (1950)
(footnote omitted).

b. Second and relatedly, the Court has held that
the adjustment boards have exclusive jurisdiction
over issues of contract interpretation, and that courts
may not interfere with that jurisdiction. Andrews v.
Louisville & N. R.R., 406 U.S. 320, 325 (1972);
Transportation Union v. Union Pac. R. R., 385 U.S.
157, 160, 164 (1966); Brotherhood of Locomotive
Engineers v. Louisville & N. R. R., 373 U.S. 33, 38
(1963); Slocum, 339 U.S. at 24. As the Court has
explained, “[t]he Adjustment Board was created as
a tribunal consisting of workers and management to
secure the prompt, orderly and final settlement of
grievances that arise daily between employees and

*Soon after the National Railroad Adjustment Board was
created, one commentator noted the kind of jargon that the
adjustment boards might be called upon to construe. “The
following bulletin was issued by a superintendent of the
Southern Pacific Ry. in San Jose, Cal., on Dec. 20, 1928: ‘All
Yardmasters: Effective date, all yardmen in cannon-ball serv-
ice bringing drags in yard from outside points will bleed and
cut own cars’.” Garrison, The National Railroad Adjustment
Board: A Unique Administrative Agency, 46 Yale L. J. 567,
569 n.10 (1937).

14

carriers regarding rates of pay, rules and working
conditions.” Union Pac. R.R. v. Sheehan, 439 U.S.
89, 94 (1978). For that reason, “Congress consid-
ered it essential to keep these so-called ‘minor’ dis-
putes within the Adjustment Board and out of the
courts” (ibid.). See also Andrews v. Louisville & N.
R.R., 406 U.S. 320 (1972) (rail employee may not
maintain a wrongful discharge action in the courts
but is limited instead to the grievance adjustment
remedies established by the Railway Labor Act) ;
Union Pac. R.R. v. Price, 360 U.S. 601 (1959) (once
an aggrieved party has pressed a wrongful discharge
claim before the adjustment board, he may not reliti-
gate the same matter in a judicial action for dam-
ages); Slocum v. Delaware, L. & V. R. R., 339 U.S.
239 (1950) (a dispute between two unions concern-
ing the scope of their collective bargaining agree-
ments was within the adjustment board’s exclusive
jurisdiction and could not be resolved by the state
courts) ; Order of Conductors v. Pitney, 326 U.S. 561
(1946) (where a jurisdictional dispute between two
unions turns on the meaning of an existing collec-
tive bargaining agreement, a federal court must stay
its decision pending the adjustment board’s interpre-
tation of the agreement).

Because the adjustment board’s jurisdiction over
matters of interpretation is exclusive under the Act,
the Court has also held that the parties may not re-
sort to self-help measures to vindicate a claim aris-
ing from the interpretation of their contract. For
example, in Brotherhood of Railroad Trainmen V.
Chicago R. & I. R.R., 353 U.S. 30 (1957), the Court
held that rail labor unions may not strike over minor
disputes pending before the National Railroad Ad-
justment Board and that, notwithstanding the Nor-

15

ris-LaGuardia Act, 29 U.S.C. 101 et seg., a fed-
eral court may enjoin a union from striking over
a minor dispute. The Court accordingly rejected
the union’s contention “that there is no compulsion
on either side to allow the Board to settle a dis-
pute if an alternative remedy, such as resort to
economic duress, seems more desirable.” 353 U.S.
at 34. “Such an interpretation,” the Court con-
cluded, “would render meaningless those provisions
in the Act which allow one side to submit a dis-
pute to the Board, whose decision shall be final
and binding on both sides.” Jbid. (emphasis in
original). See also Brotherhood of Locomotive En-
gineers v. Missouri-Kansas-Texas R.R., 363 U.S.
528, 534 (1960) (injunction against strike during
minor dispute may be qualified by conditions against
self-help by railroad, “at least where [the conditions]
are designed not only to promote the interests of jus-
tice, but also to preserve the jurisdiction of the
Board“).

c. Finally, the Court has held that [j judicial re-
view of these Boards’ determinations * * * [is]
among the narrowest known to the law.“ Atchi-
son T. & S. F. R. R. v. Buell, No. 85-1140 (Mar. 24,
1987), slip op. 6 (citations omitted)). Under 45
U.S.C. 153 First (q), review of a board order “is
limited to three specific grounds: (1) failure of the
Adjustment Board to comply with the requirements
of the Railway Labor Act; (2) failure of the Ad-
justment Board to conform, or confine, itself to mat-
ters within the scope of its jurisdiction; and (3)
fraud or corruption.” Union Pac. R.R. v. Sheehan,
439 U.S. 89, 93 (1978) (per curiam). The Court
has therefore held that a court of appeals may not
overturn a board decision simply because the decision
may be characterized as one of law. See ibid. And

16

the Court has made clear that a party seeking to en-
force its interpretation of a board decision may not
engage in self-help, but is relegated instead to the
concededly narrow process of judicial review.
Brotherhood of Locomotive Engineers v. Louisville &
N. R. R., 373 U.S. 33 (1963).

3. These principles all point to a legal standard
that treats a dispute as minor“, and therefore sub-
ject to arbitration, whenever the employer’s action
is “arguably justified” by the agreement. As the
Eighth Circuit has noted, the “arguably justified”
standard “is a necessary adjunct of the need to pro-
tect the arbitrator’s exclusive jurisdiction over minor
disputes.” International Ass’n of Machinists & Aero-
space Workers v. Northwest Airlines, Inc., 843 F.2d
1119, 1123, vacated as moot, 854 F.2d 1089 (8th Cir.
1988). On the one hand, it ensures that the broadest
range of contractual issues will be deferred to the
adjustment boards, thereby allowing them to dis-
charge their statutory obligation to resolve all “dis-
putes * * * growing out of grievances or out of the
interpretation or application of agreements concern-
ing rates of pay, rules, or working conditions.” 45
U.S.C. 153 First (i). On the other hand, the “argu-
ably justified” standard accords with Congress’ in-

Indeed, as one court of appeals has noted, “[pjerhaps
‘review’ is a misnomer. The district court (and this court, on
appeal from the district court) does not review the correct-
ness of the arbitration award, even under a highly deferential
standard, such as ‘clearly erroneous’ or ‘clear abuse of discre-
tion.’ All it asks, unless issues of fraud or corruption are
raised, * * * is whether the arbitrators did the job they were
told to do—not whether they did it well, or correctly, or
reasonably, but simply whether they did it.“ Brotherhood of
Locomotive Engineers v. Atchison T. & S. F. Ry., 768 F.2d
914, 921 (7th Cir. 1985).

17

tention that under the Railway Labor Act it is
“essential to keep these so-called ‘minor’ disputes
* * * out of the courts.” Union Pac. R. R. v. Sheehan,
439 U.S. at 94. The court’s function therefore ends
once it is satisfied that there is a non-frivolous basis
in the contract for the disputed action.

4. We note, finally, that a presumption in favor
of arbitral jurisdiction does not jeopardize the par-
ties’ statutory right to demand collective bargaining
over matters that involve a “major” dispute. When
a court concludes that a dispute is “minor,” it is not
determining “the more searching question of which
party’s view of the existing agreement is correct.”
Division No. 1, Detroit, Brotherhood of Locomotive
Engineers v. Consolidated Rail Corp., 844 F.2d 1218,
1221 (6th Cir. 1988). Accord RLEA v. Norfolk &
W. Ry., 833 F.2d 700, 707 (7th Cir. 1987), cert.
denied, No. 86-2054 (Oct. 5, 1987). Rather, it is
determining only that the contractual arguments are
sufficiently plausible to warrant committing the
question to the adjustment board for initial determi-
nation. Once the dispute is referred to an adjust-
ment board by one of the parties, the board is free
to decide the merits of the controversy, and it may
well conclude that the contract does not, in fact, sanc-
tion the challenged conduct. In that event, the ad-
justment board will fashion an appropriate order,
and the party seeking to depart from the contract—
as that contract has been construed by the adjust-
ment board—is remitted to the process of “negotia-
tion, mediation, voluntary arbitration, and concilia-
tion” (Detroit & Toledo Shore Line R.R. v. Trans-
portation Union, 396 U.S. at 148-149), followed by
the availability of self-help. The parties’ right to
negotiate changes in pay or working conditions

18

through collective bargaining is therefore protected,
but it is protected in a manner that does not require
inappropriate judicial intrusion into the adjustment
board’s jurisdiction over questions of contract in-
terpretation.

BB. The Court of Appeals Misapplied The Principles for
Determining Whether an Action is “Arguably” Justi-
fied by the Collective Bargaining Agreement

The court of appeals articulated the correct legal
standard in resolving the dispute over Conrail’s pro-
posed drug screen. But the court misapplied that
standard, relying on factors that are wholly at odds
with the presumption of arbitrability.

1. The court of appeals got off on the wrong track
at the outset, when it took as its premise that “minor”
disputes are “limited to ‘comparatively minor’ prob-
lems” (Pet. App. A8). Apparently for that reason,
the court found it significant that ſelmployee drug
testing is a controversial issue throughout the rail-
road industry and beyond” and that “[t]he practice
poses serious ethical and practical dilemmas” (id. at
16).

As the Fifth Cireuit has explained. however, the
method for determining whether a dispute is major
or minor has absolutely nothing to do with how im-
portant a dispute is. The sole question is whether
the proposed change has a basis in the contract.” /»-
ternational Brotherhood of Teamsters v. Southwest
Airlines Co., 842 F.2d 794, 803 (5th Cir. 1988).
“There is no necessary connection between the mag-
nitude of the impact of a practice and its inclusion in
(or exclusion from) a collective barcaining agree-
ment.” National Ry. Labor Conf. v. International
Ass’n of Machinists d Aerospace Workers, 830 F.2d

19

741, 747 n.5 (7th Cir. 1987). In that respect, the
term “minor” is something of a misnomer, since it
refers not to the “impact of the dispute on the prac-
tices of the parties” but only to “whether or not there
is a nonfrivolous argument that reference to a col-
lective bargaining agreement will resolve the dis-
pute” (ibid.).*

2. The court of appeals also erred in requiring pe-
titioner to “point to an[] existing agreement between
the parties on such crucial matters as the drug test to
be used, the methods of confirming results, and the
confidentiality protections to be employed” (Pet. App.
Al17). There are two possible objections to that re-
quirement, depending on what the court of appeals
meant by its remarks.

First, the court may have meant that a dispute is
minor only if it is governed by the explicit terms of
the bargaining agreement. If so, the court was surely
mistaken. It is uniformly recognized that “[i]n de-
termining whether a proposal is ‘arguably justified’
by the contract [courts] must look both to the con-
tract itself and to the practices under the contract.”
International Brotherhood of Teamsters v. Southwest
Airlines Co., 842 F.2d 794, 804 (5th Cir. 1988). Ac-
cord Brotherhood of Ry. Clerks v. Atchison, T. & S.F.
Ry., 847 F.2d 403, 406 (7th Cir. 1988); RLEA vy.

»The court of appeals mistakenly relied (Pet. App. A8)
on this Court’s Elgin decision for the proposition that “minor”
disputes refer only to “comparatively minor” issues. This
Court used the phrase “comparatively minor” as a way of
stating that “minor” disputes do not ordinarily give rise to
work stoppages. 325 U.S. at 723-724. And while there is
language in the opinion suggesting that “major” disputes
involve “large issues” (id. at 723), it is clear that there, too,
che Court was differentiating “major” disputes on the ground
that they more often result in strike actions.

Norfolk & W. Ry., 833 F.2d 700, 705 (7th Cir.
1987), cert. denied, No. 86-2054 (Oct. 5, 1987);
Brotherhood of Maintenance of Way Employees,
Lodge 16 v. Burlington N. R. R., 802 F.2d 1016, 1022
(8th Cir. 1986). In the present case, not only the
formal agreement with respondents, but also the his-
torical understandings and practices that have evolved
in implementing the agreement, are relevant in de-
ciding whether the addition of a drug screen to the
long-standing urinalysis test is “arguably justified.”

Alternatively, the court of appeals may have meant
that, although a court may look to the entire con-
tractual relationship, it should defer to the arbitra-
tion process only if the parties’ agreement and asso-
ciated understandings address the disputed issue in
considerable detail. Thus, because the contractual
relationship between Conrail and its employees did
not resolve such “crucial matters” as testing methods
and privacy protections, the court could not find even
an “arguable” justification in the contract. As this
Court has explained, however, “[i]t would be vir-
tually impossible to include all working conditions
in a collective-bargaining agreement.” Detroit &
Toledo Shore Line R.R. v. United Transportation
Union, 396 U.S. 142, 154-155 (1969). The same
holds true even if one examines the entire contractual
relationship, written and unwritten: the parties ordi-
narily will not have considered and expressly agreed
on every detail of a particular issue. Nevertheless,
the question whether the agreement between the par-
ties “arguably” governs a particular dispute does
not require, or permit, a court to delve that far into
the minutiae of the contractual relationship. If the
issue in dispute is generally (even if not specifically)
within the ambit of the relationship, that should be
sufficient to refer the matter to an adjustment board.

21

3. The court of appeals also found “particularly
significant” an opinion of the NLRB General Counsel
that “drug screening, even where it is added to a
pre-existing medical examination program, consti-
tutes a substantial change in working conditions and
is a mandatory subject of bargaining under the Na-
tional Labor Relations Act“ (Pet. App. A16-A17).
The court’s reliance is misplaced for two reasons.’

First, as this Court has more than once explained,
“the National Labor Relations Act cannot be imported
wholesale into the railway labor arena. Even rough
analogies must be drawn circumspectly, and with due
regard for the many differences between the statu-
tory schemes.” Brotherhood of Railroad Trainmen
v. Jacksonville Terminal Co., 394 U.S. 369, 383
(1969). Accord Communications Workers v. Beck,
No. 86-637 (June 29, 1988), slip op. 5, 8; First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666,
686-687 n.23 (1981) ; Chicago & N.W. R. R. v. Trans-
portation Union, 402 U.S. 570, 579 n.11 (1971). An-

The General Counsel’s memorandum is a set of guidelines
that the General Counsel, in the exercise of her prosecutorial
authority under Section 3(d) of the National Labor Relations
Act (NLRA), 29 U.S.C. 153(d), has formulated “to assist
the Regional Offices in the disposition of pending and future
cases involving drug testing” (NLRB General Counsel's Mem-
orandum on Drug and Alcohol Testing, Memorandum GC 87-5,
at D-1 (Sept. 8, 1987)). Cf. NLRB v. United Food & Com-
mercial Workers Union, No. 86-594 (Dec. 14, 1987), slip op.
17 (distinguishing between “prosecutorial” determinations of
the General Counsel and “adjudicatory” decisions of the
Labor Board). The General Counsel’s position concerning
drug testing has been upheld by NLRB administrative law
judges in several cases (see, e. g., Star Tribune, a Division of
Cowles Media Co., Nos. 18-CA-9938, 18-CA-10296 & J-D 266-88
(Nov. 3, 1988)), but the matter has not yet been adjudicated
by the Board.

in
cause there is no system under the NLRA that i

way Labor Act. To be sure, the NLRA provides that
“[f]linal adjustment by a method agreed upon by the
parties is * * * the desirable method for settlement
of grievance disputes arising over the application or
interpretation of an existing collective bargaining
agreement.” 29 U.S.C. 173(d). But unlike the Rail-
way Labor Act, the NLRA does not mandate arbi-
tration of grievances, nor does it establish special ad-
justment boards with expertise in labor contracts and
exclusive jurisdiction over questions of interpretation.

In any event, the court of appeals overlooked a
relevant part of the General Counsel’s memorandum.
Under the NLRA, a particular matter may be a man-
datory subject of bargaining, but at the same time
may be subject to arbitration under the collective
bargaining agreement. As the General Counsel ex-
plained elsewhere in the memorandum, “if a dispute
arguably raises issues of contract interpretation cog-
nizable under the grievance provision of the parties’
collective-bargaining agreement and subject to bind-
ing arbitration, it may be appropriate to defer the
case” (NLRB General Counsel's Memorandum on
Drug and Alcohol Testing, Memorandum GC 87-5, at
D-3 (Sept. 8, 1987).

Indeed, deferral to the arbitration process is con-
sistent with the Labor Board’s long-standing, dis-
cretionary policy of refraining from adjudicating
unfair labor practice allegations in circumstances
where the dispute is more appropriately resolved
through the parties’ voluntarily-adopted arbitration
procedures. For example, in Collyer Insulated Wire,
192 N.L.R.B. 837 (1971), the Board dismissed a

concluded (id. at 841-842 (citation omitted)) that
“ ‘where, as here, the contract clearly provides for
grievance and arbitration machinery, where the uni-
lateral action taken is not designed to undermine the
Union and is not patently erroneous but rather is
based on a substantial claim of contractual privilege,
and it appears that the arbitral interpretation of the
contract will resolve both the unfair labor practice
issue and the contract interpretation issue in a man-
ner compatible with the purposes of the Act, then the
Board should defer to the arbitration clause conceived
by the parties.”

More recently, the Board applied the same prin-
ciples, deferring to the arbitration process in a case
in which an employer was alleged to have violated
Section 8(a)(1) of the National Labor Relations
Act, 29 U.S.C. 158(a)(1), by threatening an em-
ployee with unlawful disciplinary action. United
Technologies Corp., 268 N.L.R.B. 557 (1984). The
Board explained (id. at 558) that “[a]rbitration as
a means of resolving labor disputes has gained wide-
spread acceptance over the years and now occupies
a respected and firmly established place in Federal
labor policy.” The Board observed, moreover, that
“(t]he reason for [the] success” of arbitration “is
the underlying conviction that the parties to a col-
lective-bargaining agreement are in the best position

to resolve, with the help of a neutral third party if
necessary, disputes concerning the correct interpreta-
tion of their contract (ibid.).”

Thus, even where an issue is a mandatory subject
of bargaining, the Labor Board may elect to defer to
the arbitration process so that an arbitrator may

of appeals drew the wrong lessons from the NLRA—
assuming that NLRA principles are applicable in the
first place.

4. e
justified” standard, we believe that petitioner’s addi-
Nr
In light of Conrail’s long history of routine urinal
ysis testing, the established fitness for duty require-
ments, and petitioner’s established rule prohibiting
the use or possession of drugs by on-duty employees,
there is more than sufficient basis to require respond-
ents to press their contentions through the adjustment
board process. The board may ultimately agree with
respondents’ position, but the Railway Labor Act re-
quires that the board be given the opportunity to
make that determination.

intent of Congress. See William F. Arnold Co. v. Carpenters
District Council, 417 U.S. 12, 16-17 (1974).

CHARLES FRIED

Solicitor General
JOHN R. BOLTON

Assistant Attorney General
THOMAS W. MERRILL

Deputy Solicitor General
LAWRENCE S. ROBBINS

Assistant to the Solicitor General

LEONARD SCHAITMAN
JEFFREY CLAIR
Attorneys

NOVEMBER 1988

® ©. &. GOvERnmanT eee orrice, 1908 241699 6076°¢

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0222%3A09. Public record. Not legal advice.