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

Supreme Court of the Buited States

OCTOBER TERM, 1988

CONSOLIDATED RAIL CORPORATION,

* Petitioner,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF FOR

THE NATIONAL RAILWAY LABOR CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

RICHARD T. CONWAY

(Counsel of Record)

RALPH J. Moore, JR.

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

Davw P. Lae

Vice Chairman and

General Counsel

NATIONAL RAILWAY

LABOR CONFERENCE

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National

Railway Labor Conference

November 28, 1988

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CONCLUSION

1

TABLE OF AUTHORITIES

Cases Page

Airline Flight Atten., Ete. v. Tez. Intern.. Ne.

411 F. Supp. 954 (8D. Tex. 1976), aff'd mem...

566 F.2d 104 (5th Cir. 1978) 20

American Ambulance, 255 N.L.R.B. 417 (1981),

enforced per cunam without opinion, 692 F 2d

762 (9th Cir. 1982). 21

Andrews v. Lewisville & Nashville R. Co., 406 U.S.

290 11

Atlanta 4 West Point K Co. v. ‘United Trenspor-

tation Union, 307 F. Supp. 1206 (ND. Ga

1970), aff'd, 489 F.2d 73 (Sth Cir. 1971), cert.

denied, 404 U.S. 825 (1971)... 20

Baker v United Transportation Union, AFL-CIO,

455 FA 149 (3d Cir. 1971)... 14

Broth of Lecomotive Eng. Vv. Burlington Northern,

838 F.2d 1087 (1986), cert. pet. pending, No. 8T-

— — 23

Brotherhood of Maintenance V. Burhington North

ern, 802 F.2d 1016 (8th Cir. 1986)... 3, 15

Bureau of National Affairs, Inc. 235 NLRIN 8

(1978)... 1 21

Burlington Northern Redroad Co v. Brotherhood

Sr

4576 (1987). | 10

District Ledge 19 . Pacifie Ten Co. “105

LKR 2046 (B.D. Cal. 1980) 5

Heim, J. & FX Co. v. Burley, 325 US. 1

(1945), on rehearing, 327 U.S. 661 (1946)... 9

Fibrebeard Corp. v. Laber Board, 379 U.S. 208

(1964) . . 2,23

First National Meintenance Corp. * ‘NLRB, 432

LD 20, 23, 24

Ford Motor Co. v. NLRB. “41 Us 4 (1979)... 23

Gateway Coal Co. v. Mineworkers, 414 US. 368

(1974) 17, 18

Goren Printing, 280 NL. R RH No, 64, 128 LR RM.

1276 (1986) 21

Gunther v. — as * co., 882 U.S. 257

EEE : 7, 14, 16

111

TABLE OF AUTHORITIES—Continued

Page

Inland Steel Co., 77 N.L.R.B. 1 (1948), enforced,

170 F.2d 247 (7th, Cir.), aff'd, 389 U.S. 382

(1950) 24

nied, 57 U.S. L. W. 3204 (1988) 20

Intern. Broth. of Teamsters v. Southwest Airlines,

842 F.2d 794 (5th Cir. 1988) 10, 20

International A4 of M. & A. Mrs. v. Reeve

A.A. Inc., 469 F.2d 990 (9th Cir. 1972), cert.

denied, 411 U.S. 982 (1973) i 20

John Wiley & Sons v. Livingston, 376 U.S. 543

(1960) 14

Labor Board v. Borg-Warner Corp., 356 U.S. 342

(1958) 23

Local 346 v. Labor Relations Com 'n, 391 Mass. 429,

462 N. E. 2d 96 (Sup. Jud. Ct. 198 21

Local 1477 United Transportation Union v. Baker,

482 F. 2d 228 (6th Cir. 1973) 12

Locomotive Engrs. v. L. & N. R. Co., 373 U.S. 38

(1963) 11

Medicenter, Mid-South Hospital, 221 N.L.R.B. 670

(1975) 22

Moody Chip Corp., 243 N.L.R.B. 265 (1979)... 21

NLRB . Acme Industrial Co., 385 US. 482

(1967) 17

Order of Conductors v. Pitney, 326 US. 561

(1946) nT weet 9, 15, 19

Railroad Trainmen v. Terminal Co., 394 U.S. 369

(1969) 10, 16

Railway Clerks v. Florida F.C. R. Co., 384 US.

238 (1966) rr. . 6,10

Railway Labor Executives v. Consolidated Rail,

845 F.2d 1187 (198) 3, 6, 13

Railway Labor Executives v. Norfolk & Western

Ry., 833 F.2d 700 (7th Cir. 1987) 8, 15

Rust Craft Broadcasting of New York, Inc., 225

N.L.R.B. 327 (1970) . 21,22

Shore Line v. Transportation Union, 996 US. 142

(1969) . 9, 14, 19

iv

TABLE OF AUTHORITIES—Continued

Slocum v. Delaware, L. & V. R. Co., 389 U.S. 239

. — — 11, 15

Southern Pacific Transportation Co. v. Locomotive

Engineers, 96 Labor Cases { 14,016 (N.D. Cal.

1980) 5

Steelworkers v. American Mfg. Co., 363 U.S. 564

— 17

Steelworkers v. Warrior & Gulf, 363 U.S. 574

. rr 17

Summit Airlines v. Teamsters Local Union No.

295, 628 F.2d 787 (2d Cir. 1980). 8

Telegraphers v. Chieago & N. W. R. Co., 362 US.

111 .. 9 10, 24

ey V. Ry. Express Agency, 321 US.

11 10, 24

Teras & N. O. R. Co. v. Ry. Clerks, 281 U.S. 548

(1930) 8

Textile Workers v. Darlington Co., 380 U.S. 263

(1966) — Se ee eee 21

Trainmen v. Chicago R. & I. R. Co., 358 U.S. 30

| a as aa 11

Transportation Union v. U.P. R. Co., 385 U.S. 157

— 7, 18

Union Pacific R. Co. v. Sheehan, 489 U.S. 89

(1978) 11

William F. Arnold Co. v. Carpenters, 417 U.S. 12

SS SS ee ee + Se ee 16

Williams v. Terminal Co., 315 US. 386 (1942)... 9,19

Statutes

National Labor Relations Act, 29 U.S.C. §§ 141

et geg.:

bo a ee eae pve 22

. 22

989 —0 17

Railway Labor Act, 45 U.S.C. §§ 151 et seq.:

§ 152 Seventh ........ — ) V 9, 19

22... —.—— 8

*

TABLE OF AUTHORITIES—Continued

Page

r. 11

——— 10

Miscellaneous

Memorandum GC 87-5 (NLRB General Counsel),

Daily Labor Report No. 184 (BNA, September

1414 „ 16, 17, 22

RAILWAY LABOR EXBCUTIVES’ ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

THE NATIONAL RAILWAY LABOR CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

This amicus brief is being filed with the written con-

sent of the parties pursuant to Supreme Couft Rule 36.2.

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INTEREST OF AMICUS CURIAE

The National Railway Labor Conference (“NRLC”)

is an unincorporated association which includes almost

— — — —

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242585

1725

4

all of the nation’s Class I railroads, employing more than

90% of all railroad employees, among its members.“

Those members include Amtrak, which provides intercity

passenger service (for the most part over track main-

tained by other railroads and used also for freight opera-

tic 18), Conrail, and various other railroads that trans-

port freight and, in some instances, also provide com-

muter passenger service. NRLC represents member rail-

roads in multi-employer collective bargaining with unions

representing their employees, and in regard to a variety

of other labor relations matters of interest to the rail-

roads generally. Among other things, it assists and ad-

vises member railroads in connection with the arbitra-

tion of minor disputes arising out of workplace griev-

ances or the application and interpretation of collective

bargaining agreements.

The issues in this case are of critical importance to the

railroad industry. The practice under which a carrier

unilaterally has established and modified fitness-for-duty

standards applicable to its employees, and the tests and

other procedures utilized in implementing those stand-

ards, generally has existed throughout the railroad in-

dustry. That also is true of Rule G and the means by

which it has [been enforced.? Thus, these matters tradi-

tionally have not been a subject of collective bargaining

under the RLA or of written collective bargaining agree-

ments.

In our view, this long-established practice implies that

the unions have agreed that these policies, including re-

CSX Transportation, a member of NRLC, does not support the

arguments presented in this brief by the NRLC, except with respect

to the issue concerning the inappropriateness of the Third Circuit’s

“meetings of the minds” test for determining the existence of a past

practice.

2See the Brief for the National Railway Labor Conference as

Amicus Curiae in Support of the Petition in Burlington Northern

Railroad Company v. Brotherhood of Locomotive Engineers, No. 87-

1631, at pp. 8-9, which petition is pending before the Court.

5

visions thereof, should be left to managerial discretion,

and indicates that in any event they are managerial pre-

rogatives which the Congress did not intend to make man-

datorily bargainable under the RLA. But however that

may be, there can be no doubt that this established prac-

tice has permitted the railroads to adapt their fitness

requirements and means or methods of enforcement in

the light of the seriousness of perceived threats to rail-

road safety and/or advances in medical technology, with-

out previously invoking the long and drawn-out major

dispute procedures of the RLA in an effort to reach agree-

ments with each of the numerous unions representing

railroad employees—which in any event could lead to

strikes if no agreement is reached.

With rare if any exceptions, the unions did not chal-

lenge the right of a carrier to proceed unilaterally in

regard to these matters until the carriers in recent years

intensified their efforts to contain the threat to railroad

safety from the use and abuse of intoxicants and ex-

tended the use of urinalysis to test for aleohol and drugs."

This has given rise to the conflict of appellate decisions

referred to above in regard to the use of drug testing in

physical examinations and referred to in the certiorari

petition (and NRLC’s amicus brief) in No. 88-1673 in

regard to drug testing in enforcing Rule G.

There is no question about the importance of railroad

safety or about the importance to railroad safety of

maintaining a drug-free working environment.‘ The de-

In District Lodge 19 v. Pacific Trans. Co., 105 L. R. R. M. 2046

(E.D. Cal. 1980), and in Southern Pacific Transportation Co. v.

Locomotive Engineers, 96 Labor Cases f 14,016 (N. D. Cal. 1980),

two of the unions contested the right of the Southern Pacific uni-

laterally to adopt the use of an intoxilyzer“ breath analysis device

to measure the concentration of alcohol in an employee’s blood for

purposes of enforcing Rule G. In both cases, the courts held that

this gave rise to a minor dispute.

* The court below did “not minimize the serious drug and alcohol

problems in the transportation industry,” and noted that the unions

6

cision below, if upheld by this Court, would substantially

interfere with the ability of the railroads to use advanced

medical technology, including perhaps future improve-

ments upon or beyond urinalysis, in fighting the threat

to railroad safety from intoxicants including illegal

drugs. The case also raises issues of general importance

to the interpretation of the RLA. Thus, we urge this

Court to reverse the decision below.

SUMMARY OF ARGUMENT

Under the RLA, disputes over changes in existing

agreements respecting the “rates of pay, rules, or work-

ing conditions” of employees, including agreements im-

plied from established practices, are called major dis-

putes, while disputes over the application or interpreta-

tion of an existing agreement or established practice are

called minor disputes. The parties to a major dispute

are required to maintain the status quo while exhausting

procedures that “are purposely long and drawn out,

based on the hope that reason and practical considera-

tions will provide in time an agreement that resolves the

dispute,” Railway Clerks v. Florida E.C. R. Co., 384 U.S.

238, 246 (1966); but if no agreement is reached the par-

ties may resort to self help, including strikes. Minor dis-

putes not settled by agreement are subject to arbitra-

tion by an adjustment board, which has exclusive juris-

diction over such disputes, and strikes are unlawful at

any time. If a union contends that a carrier’s unilateral

action changed an agreement or established practice in

violation of the status quo provisions and the carrier

contends that the action was permitted by the agreement

or established practice, the courts of appeals consistently

have held that the dispute is minor if the carrier’s posi-

tion is at least arguable.

“stated in their brief that they ‘yield to no one in abhorence [sic]

of alcohol or drug use in employment, or in the desire to purge the

industry of their adverse effects“. Pet. at A-18; 845 F.2d at 1195.

7

In holding that Conrail’s expanded use of long-required

urinalysis as a drug screen is not even arguably justified,

the court below thought it must determine whether “it is

plausible to believe that there was in fact a meeting of

the parties’ minds” that encompassed the disputed drug

testing. That approach contravenes the teaching of this

Court that a collective bargaining agreement is not “gov-

erned by the same old common-law concepts” applicable

to other contracts, but rather “is a generalized code to

govern a myriad of cases” not “wholly anticipate[d],”

and thus “calls into being a new common law... of a

particular industry or of a particular plant.” Trunspor-

tation Union v. U.P. R. Co., 385 U.S. 157, 160-161

(1966). This Court repeatedly has emphasized the spe-

cial competence of adjustment boards to determine the

significance of custom and practice, as they include “rep-

resentatives of management and labor” who are “in daily

contact with workers and employers, and know] the

industry's language, customs, and practices.” Gunther v.

San Diego A.E. R. Co., 382 U.S. 257, 261 (1965). As

the Seventh and Eighth Circuits held as to other carriers

in similar circumstances, Conrail’s disputed drug testing

is at least arguably justified by its past practice of de-

termining unilaterally fitness-for-duty standards, tests

and procedures.

Given the.well established law under the RLA in re-

gard to these matters and the differences in the statutory

schemes, the particular significance which the court be-

low attributed to the views of NLRB’s General Counsel

as to the application of the NLRA to drug testing is

wholly unwarranted. In any event, while arbitration un-

der the NLRA is voluntary, the courts require arbitration

of even frivolous claims if covered by an arbitration

agreement, and construe arbitration agreements to favor

coverage in a manner similar to the “arguable” standard

applied under the RLA in distinguishing minor from

major disputes.

8

If the court below correctly held that there must be,

and has not been, a plausible showing of a “meeting of

the minds” on the disputed drug testing to give rise to a

minor dispute, then that is a matter as to which there

is no express or implied collective agreement. Under § 2

Seventh of the RLA as construed by this Court, a car-

rier may make changes in matters not “embodied in

agreements” without invoking the major dispute proce-

dures of the Act; and if, as here, the union did not in-

voke such procedures by serving an appropriate notice

under § 6 of the Act, such unilateral changes do not vio-

late the status quo.

In any event, the major dispute procedures apply only

to changes in the “rates of pay, rules, or working con-

ditions” of employees; i.e., those are the only mandatory

subjects of bargaining under the RLA. Drug testing at

most is a method of enforcing a rule or working condi-

tions, and is not itself a rate of pay, rule, or working

condition. Hence, Conrail could require drug testing in

enforcing its fitness-for-duty standards without proceed-

ing under the major dispute provisions of the RLA even

if they otherwise would be applicable.

ARGUMENT

I. The Statutory Framework under the Railway Labor

Act.

The “major purpose of . . the Railway Labor Act was

‘to provide a machinery to prevent strikes.’” Texas &

N. O. R. Co. v. Ry. Clerks, 281 U.S. 548, 565 (1930).

The Act thus provides procedures for dealing with dis-

putes over the representation of employees,’ which are

not involved here, and with what commonly are referred

The National Mediation Board (“NMB”) has jurisdiction to

decide representation disputes. 45 U.S.C. § 152 Ninth. Where such

a dispute is involved, strikes may be enjoined. E.g., Summit Air-

lines v. Teamsters Local Union No. 295, 628 F.2d 787 (2d Cir. 1980).

9

to as “major” and “minor” disputes in accordance with

terminology adopted in Elgin, J. & E. R. Co. v. Burley,

325 U.S. 711, 722-728 (1945), on rehearing, 327 U.S.

661 (1946). Major disputes are “over the formation of

collective agreements or efforts to secure them,” and thus

“look to the acquisition of rights for the future, not to

assertion of rights claimed to have vested in the past.”

325 U.S. at 723. The major dispute provisions of the

RLA do not apply, therefore, if the issue is “whether an

existing agreement controls the controversy.” Ibid. Such

issues are minor disputes “over the meaning or proper

application” of an agreement “with ce to a spe-

cific situation or to an omitted case.” Ibid. An “omitted

case” involves “some incident of the employment rela-

tion, or asserted one, independent of those covered by the

collective agreement. Ibid.

In regard to major disputes, Section 2 Seventh of the

RLA prohibits a carrier from “chang{ing] the rates of

pay, rules, or working conditions of its employees, as a

class as embodied in agreements except in the manner

prescribed in such agreements or in Section 6 of the

Act.” 45 U.S.C. § 152 Seventh. Thus, “it operates to give

legal and binding effect to collective agreements, and it

lays down the requirement that collective agreements can

be changed only by the statutory procedures.” Shore

Line v. Transportation Union, 396 U.S. 142, 156 (1969).

That is true of implied agreements, such as those that

arise from established practices, as well of express writ-

ten agreements. Id. at 153-154, and 159 (Harlan, J.,

concurring in part and dissenting in part). However,

as g 2 Seventh makes clear, a carrier need not resort to

the “statutory procedure” in regard to changes in ar-

rangements “made by the carrier for its own convenience

and purpose” that have not been “embodied” in either

an express or implied collective agreement. Williams v.

Terminal Co., 315 U.S. 386, 400, 403 (1942). Accord,

Order of Conductors v. Pitney, 326 U.S. 561, 564-565

(1946).

10

Moreover, the major-dispute procedure expressly ap-

plies only to “intended change [s] in agreements affecting

rates of pay, rules, or working conditions“; ie., only

those subjects are mandatorily bargainable.* Section 6

requires both “[c]arriers and representatives of the em-

ployees” to serve the other with a written notice of such

an “intended change,” and, “where such notice of in-

tended change has been given,” prohibits alteration of the

status quo as to the “rates of pay, rules, or working con-

ditions” involved “until the controversy has been finally

acted upon as required by” the Act. 45 U.S.C. § 156. In

the absence of agreement, the parties to a major dis-

pute must exhaust procedures that include conferences,

mediation, and, at the discretion of the President, in-

vestigation and recommendations by an emergency board.

See Railroad Trainmen v. Terminal Co., 394 U.S. 369,

378 (1969). Those procedures “are purposely long and

drawn out, based on the hope that reason and practical

considerations will provide in time an agreement that

resolves the dispute.” Railway Clerks v. Florida E.C. R.

Co., supra, 384 U.S. at 246. But if exhausted without a

resolution of the dispute, the parties may resort to self

help, including strikes of the carrier involved in the dis-

pute. Railroad Trainmen v. Terminal Co., supra, 394

U.S. at 378-379, 384.“

* The “duty to bargain imposed by the RLA extends only to those

proposals directly related to ‘rates of pay, rules, and working con-

ditions.’ ... One of these issues must be implicated, and the action

by management must affect people presently in the bargaining unit”

represented by the union involved. Intern. Broth. of Teamsters v.

Southwest Airlines, 842 F.2d 794, 800 (5th Cir. 1988). See, e.g.,

Telegraphers v. Chicago & N. . R. Co., 362 U.S. 330, 334, 339

(1960); Telegraphers v. Ry. Express Agency, 321 U.S. 342, 347

(1944).

In addition, this Court has held that the Norris-LaGuardia Act

deprives the courts of jurisdiction to enjoin secondary picketing of

other railroads. Burlington Northern Railroad Co. v. Brotherhood

of Maintenance of Way Employes, 55 U.S.L.W. 4576 (1987).

11

Minor disputes, on the other hand, are decided by ar-

bitration under § 3 of the RLA (45 U.S.C. § 153) if not

settled by agreement of the parties. Disputes “growing

out of grievances or out of the interpretation or applica-

tion of agreements concerning rates of pay, rules, or

working conditions” (§3 First (i)) may be submitted

to the National Railroad Adjustment Board (“NRAB”)

permanently established by §3 First or to alternative

adjustment boards created pursuant to § 3 Second. The

Court repeatedly has held that the jurisdiction of these

adjustment boards to arbitrate minor disputes is exclu-

sive so that the courts have no jurisdiction to decide

them.“ A union cannot strike over such a dispute either

before or after the decision of the adjustment board.“

In short,

“Congress endeavored to promote stability in labor-

management relations in this important national

industry by providing effective and efficient remedies

for the resolution of railroad-employee disputes aris-

ing out of the interpretation of collective-bargaining

agreements. .. . The 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

carriers regarding rates of pay, rules and working

conditions. . . . Congress considered it essential to

keep these so-called ‘minor’ disputes within the Ad-

justment Board and out of the courts.”

Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94 (1978)

(emphasis added; citations omitted).

Although the foregoing principles are well established

by many decisions in addition to those cited, it often is

F. g., Andrews v. Louisville & Nashville R. Co., 406 U.S. 320

(1972); Slocum v. Delaware, L. & V. R. Co., 339 U.S. 239 (1950).

9 F. g., Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30 (1957)

(before) ; Locomotive Engrs. v. L. & N. R. Co., 373 U.S. 33 (1963)

(after).

12

necessary for a court to decide conflicting contentions as

to whether a particular dispute is minor or major in

nature. “Confronted by such opposing characterization

of particular disputes, the courts of appeals have con-

sistently ruled that if the disputed action of one of the

parties can ‘arguably’ be justified by the existing agree-

ment or, in somewhat different statement, if the con-

tention that the labor contract sanctions the disputed ac-

tion is not ‘obviously insubstantial,’ the controversy is

within the exclusive province of” an adjustment board.

Local 1477 United Transportation Union v. Baker, 482

F.2d 228, 230 (6th Cir. 1973).

That “arguably” standard for distinguishing between

minor and major disputes has been adopted by every

court of appeals that has considered the matter,” and

has not been contested in this case. Any less rigorous

standard would undermine the exclusive jurisdiction of

adjustment boards to decide the merits of minor disputes

and the intent of the Congress to keep them out of the

courts.

II. This Dispute Is A Minor Dispute For an Adjustment

Board to Decide.

Although the court below acknowledged the applicabil-

ity of the “arguably” standard, it reached a decision

clearly contrary to the spirit and purpose of that stand-

ard and of the RLA. That court proceeded as though

its task were to apply the common law to decide the

precise extent to which there was a “meeting of the

minds” between Conrail and the unions. Even though

previously Conrail determined and revised its fitness

10 See the Brief for Respondents in Opposition to the petition for

writ of certiorari in Railway Labor Executives’ Association v.

Chicago and North Western Transportation Company, No. 88-464,

now pending before this Court. Appendix C to that brief lists some

50 cases, decided by 10 different circuits, in which the “arguably”

standard has been adopted and applied.

13

standards, procedures and tests, without consultation

with or objection from the unions; even though those

tests included urinalysis which at times was used for a

drug screen as well as for other purposes; and despite

the importance to railroad safety of preventing the use

and abuse of dangerous and illegal drugs by railroad em-

ployees; the court below concluded that Conrail had no

“arguable” justification for using urinalysis as a drug

screen in long-required routine physical examinations.

This was clear error.

The court below stated that, to find a minor dispute,

it must “determine[] that it is plausible to believe that

there was in fact a meeting of the parties’ minds on the

general issue” (Pet. at A-14; 845 F.2d at 1193), and

that it had “search led] the past practices of the parties

in vain for any indication of an agreement” between

them “on such crucial matters as the drug test to be used,

the methods of confirming positive results, and the con-

fidentiality protections to be employed” (Pet. at A-17;

845 F.2d at 1194)." That “line of reasoning” is similar

to the one this Court rejected in Transportation Union v.

U.P. R. Co., supra, 385 U.S. at 160-161, in regard to a

union contention that “rests on the premise that collective

bargaining agreements are to be governed by the same

common-law principles which control private contracts be-

tween two private parties.” As the Court there stated:

“A collective bargaining agreement is not an ordi-

nary contract for the purchase of good and services,

nor is it governed by the same old common-law con-

cepts which control such private contracts... .’* * *

[I]t is a generalized code to govern a myriad of

cases which the draftmen cannot wholly anticipate.

* * * The collective agreement covers the whole em-

11 The court did not point to problems in regard to those “crucial

matters” that differ in nature from any that existed in Conrail’s

prior use of urinalysis to test for drug use in some physical exami-

nations without objection from the unions.

14

ployment relationship. It calls into being a new

common law—the common law of a particular in-

dustry or of a particular plant.’” (Citations

omitted.) *

See also, Gunther v. San Diego & A. E. R. Co., supra, 382

U.S. at 261-262.

Thus, if a carrier’s practice has “occurred for a suffi-

cient period of time with the knowledge and acquiescence

of the employees to become in reality a part of the actual

working conditions,” an implied agreement thereto arises,

and those “actual, objective working conditions and prac-

tices” are “broadly conceived ....” Shore Line v. Trans-

portation Union, supra, 396 U.S. at 153, 154. As the

court below once recognized, “when the railroad has en-

gaged in a certain activity over a sufficient period of

time for the union to become aware of it and react ac-

cordingly if it objects,” the union’s failure to object is

enough to show acquiescence. Baker v. United Transpor-

tation Union, AFL-CIO, 455 F.2d 149, 156 (3d Cir.

1971). And, where that has been the past practice, as

here, the implied “working condition” may be “an on-

going management prerogative that permits the railroad

to change some aspect of its operations” unilaterally in

the future as well. Jd. at 154-155. This was the ap-

proach followed by the Seventh and Eighth Circuits in

holding, upon substantially identical facts, that a dispute

over a railroad’s unilateral use of urinalysis as a drug

screen in physical examinations is a minor dispute.“ That

12 Among others, the Court cited John Wiley & Sons v. Livingston,

376 U.S. 543, 550 (1960), in which it further concluded that a collec-

tive bargaining agreement under the NLRA “is not in any real

sense the simple product of a consensual relationship.”

18 “For the past twenty years N & W has unilaterally determined

what tests are administered as part of all employee medical exami-

nations and the union has not previously objected to N & W’s con-

trol over the content of these examinations.” Hence, it is arguable

that the “parties’ past practice has been to accord N & W. unilateral

authority to determine the appropriate tests to conduct during

15

approach also should have been followed by the court

below in this case and should be followed here.

Other interpretations also may be arguable, but the

determination of which is correct is within the province

of an adjustment board rather than the courts. That is

particularly true in this case because there is no written

agreement and interpretation turns altogether upon the

implications to be drawn from custom and practice. The

Congress in providing for arbitration of minor disputes

“intended to leave a minimum of responsibility to the

courts” for the very reason, among others, that the inter-

pretation of collective agreements often requires consid-

eration of “usage, practice and custom” which “must be

taken into account and properly understood.” Order 0

Conductors v. Pitney, supra, 326 U.S. at 566, 567. The

NRAB was created as “[a]n agency especially ¢om-

petent” to deal with such issues. Jd. at 567. “Its mem-

bers understand railroad problems and speak the rail-

road jargon. Long and varied experiences have added to

the Board’s initial qualifications.” Slocum v. Delaware,

L. & W. R. Co., supra, 339 U.S. at 243. Its members in-

clude “representatives of management and labor

peculiarly familiar with the thorny problems and the

whole range of grievances that constantly exist in the

railroad world,” as they are “in daily contact with work-

required medical examinations.” Railway Labor Executives v. Nor-

folk & Western Ry., supra, 833 F.2d at 706. “BN’s past practice of

requiring employees to submit to periodic and comprehensive medi-

cal examinations in order to ensure all employees are fit for duty

is not challenged. . . . It is beyond dispute the drug screen is a new

technique; the underlying purpose of the medical examinations,

however, remains the same—to ensure all BN employees are fit for

duty. The drug screen is nothing more than a method designed to

detect the presence of a newly emerging threat to that fitness.

It should come as no surprise to the parties that the components of

a work fitness physical examination will change with the times.”

Thus, BN’s disputed actions. . are arguably justified” so that

“this dispute should be submitted to the“ NRAB. Brotherhood of

Maintenance v. Burlington Northern, supra, 802 F.2d at 1024.

16

ers and employers, and know[] the industry’s language,

customs, and practices.” Gunther v. San Diego & A.E.

R. Co., supra, 382 U.S. at 261.

The Court below thus usurped the jurisdiction of an

adjustment board in circumstances where its special com-

petence is most important—where decision turns alto-

gether upon the implications to be drawn from custom

and practice. That error was compounded by the par-

ticular significance attributed to a memorandum issued

by the NLRB’s General Counsel “to assist the Regional

Offices in the disposition of . . . cases inovlving drug

testing.” Memorandum GC 87-5 as reprinted in Daily

Labor Report No. 184 (BNA, September 24, 1987), at

D-1. There is no “absence of viable guidelines” under

the RLA for distinguishing between major and minor dis-

putes, and thus between the respective jurisdictions of

courts and arbitrators, so as to necessitate resort to

analogies under the NLRA. See Railroad Trainmen v.

Terminal Co., supra, 394 U.S. at 391. But even if it

were otherwise, the court below ignored the teaching that

“analogies must be drawn circumspectly with due regard

3 the many differences between the statutory schemes.“

. at 383.

The General Counsel’s memorandum is directed to the

policies of her office in deciding whether to file unfair

labor practice complaints and thus is concerned with her

views as to the jurisdiction and policies of the NLRB

with respect to such complaints—including, in a portion

of her memorandum apparently overlooked by the court

below—the NLRB’s policies regarding deferral to arbi-

tration.“ There are fundamental differences between the

* Although the NLRB need not defer to arbitration, its general

“policy is to refrain from exercising jurisdiction in respect to dis-

puted conduct arguably both an unfair labor practice and a contract

violation when . . the parties have voluntarily established a bind-

ing settlement procedure.” William E. Arnold Co. v. Carpenters,

417 U.S. 12, 16 (1974). The General Counsel discussed deferra! to

17

statutory schemes in those regards. Most importantly,

there is no equivalent in the NLRA to the mandatory ar-

bitration procedures in § 3 of the RLA, and there is no

equivalent in the RLA to the NLRB or to the provision

under which the NLRB’s jurisdiction over unfair

labor practice charges “shall not be affected by any

other means of adjustment . . established by law,

agreement, or otherwise” (29 U.S.C. § 160 (a)). Hence,

the “relationship of the [NLRB] to the arbitration proc-

ess is of a quite different order” than the relationship of

a court to that process. NLRB v. Acme Industrial Co.,

385 U.S. 432, 436 (1967). The General Counsel in her

memorandum is not concerned with the latter relation-

ship, but the law under the NLRA in that regard pro-

vides the closest analogy for purposes of ascertaining the

relationship of the courts to arbitration under the RLA.

Arbitration under the NLRA is voluntary, but if a

collective agreement contains an arbitration clause, the

courts compel arbitration of a covered dispute even if the

position of one of the parties is believed to be frivolous.

Steelworkers v. American Mfg. Co., 363 U.S. 564, 568

(1960). And, “unless it can be said with positive assur-

ance that the arbitration clause is not susceptible to”

such an interpretation, coverage is found “with doubts

being resolved in favor of coverage.” Steelworkers v.

Warrior & Gulf Co., 363 U.S. 574, 582-583 (1960). This

“presumption of arbitrability’ announ 4 in the Steel-

workers Trilogy applies to safety disputes” as well as

others. Gateway Coal Co. v. Mineworkers, 414 U.S. 368,

379 (1974). It goes at least as far as the “arguably”

standard under the RLA in avoiding judicial encroach-

arbitration separately, at the end of her memorandum, and advised

that the “Regions should apply the established Board criteria

whether to defer cases” so that “if a dispute arguably raises issues

of contract interpretation . . subject to binding arbitration, it may

be appropriate to defer the case.” Daily Labor Report No. 184,

supra, at D-8. Thus, assuring an applicable arbitration clause, the

General Counsel (and the NLRB) might well defer to arbitration in

circumstances such as exist here.

18

ment upon the jurisdiction of labor arbitrators. Indeed,

like the “arguably” standard (see pp. 13-16 supra), the

presumption of arbitrability flows in part from the fact

that “the industrial common law—the practices of the

industry and the shop—is equally a part of the collective

bargaining agreement although not expressed in it,” id.

at 378; and, as the Court added, the special expertise

of the labor arbitrator, with his knowledge of the com-

mon law of the shop, is as important” in regard to

“labor disputes touching the safety of employees as to

other varieties of disagreement,” id. at 379.

‘ Plainly, therefore, when considered in the light of the

differences between the statutory schemes, the law under

the NLRA provides no support for the decision below

denying arbitration in this case. But however that may

be, it is well established under the RLA that a dispute

such as this is minor and thus arbitrable by an adjust-

ment board if the carrier’s position is at least arguably

justified by the collective agreement including custom

and practice. Conrail’s position surely is arguable, and

we believe much stronger than that.

III. Even If the Collective Agreement Did Not Authorize

Conrail’s Disputed Action, It Did Not Restrict that

Action and Conrail Could Act Without Invoking the

Major Dispute Provisions of the Railway Labor Act.

As shown above, we believe that the court below erred

in holding that the case does not give rise to a minor

dispute because the court found no evidence of a “meet-

ing of the minds” encompassing the disputed drug test-

ing. But even if this Court should agree with the court

below in that regard, there is no evidence of a “meeting

of the minds” in which Conrail agreed not to revise its

policies in regard to drug testing. Assuming a holding

that there is no collective agreement that either author-

izes or restricts Conrail’s expanded drug testing, Conrail

could unilaterally institute that drug testing without first

% Thus, “the labor arbitrator necessarily and appropriately has

resort to considerations foreign to the courts... .” 414 U.S. at 378.

19

proceeding under § 6 and the other major disputes provi-

sions of the Act or violating their status quo require-

ments.

As pointed out at p. 9 above, §2 Seventh of the

RLA expressly prohibits a carrier from changing! the

rates of pay, rules, or working conditions of its employ-

ees, as a class as embodied in agreements except in the

manner prescribed in such agreements or in Section 6

of the Act” (emphasis added); but there is no prohibi-

tion of such changes if the rates of pay, rules, or working

conditions are not “embodied in agreements” either writ-

ten or implied. And, this Court held in Williams v. Ter-

minal Co., supra, and in Order of Conductors v. Pitney,

supra, that thus where there is no existing agreement

the carrier may make unilateral changes without pro-

ceeding under § 6 and related provisions of the Act. See

p. 9 supra.

‘a Shore Line v. Transportation Union, supra, the

union had served a notice under § 6 of the RLA in regard

to a matter, which was pending when the carrier effec-

tuated the disputed action respecting that matter, and thus

brought into play the status quo provisions in §6 and

related provisions of the RLA. See 396 U.S. at 144-145.

The Court held that, when the union thus has “move[d]

to bring . . a previously uncovered condition within

the agreement,” the status quo includes working condi-

tions in effect when the notice was served even if not

embodied in an agreement. 396 U.S. at 155. Williams

and Pitney were distinguished as involving the issue of

whether § 6 and the status quo provisions applied, rather

than the scope of those provisions when § 6 had been in-

voked so as to bring the status quo requirements into

play. 396 U.S. at 157-158. But the Court did not over-

rule Williams and Pitney, and hardly could do so in view

of the language of § 2 Seventh of the Act.

None of the unions served a §6 notice proposing an

agreement in regard to Conrail’s fitness policies in gen-

eral or drug testing in particular, before (or after) Con-

20

rail implemented its present drug testing policy. Hence,

assuming a holding that Conrail’s collective agreements

neither authorized nor restricted the disputed drug test-

ing, the major dispute provisions and their status quo

requirements are not applicable and have not been vio-

lated by Conrail.**

IV. Drug Testing Is Not A Mandatory Subject of Bar-

gaining Under the Railway Labor Act.

An alternative ground for reversing the decision below

is that drug testing is neither a rate of pay, a rule nor a

working condition, as those terms are used in the RLA,

and thus is not an issue as to which § 6 and related major

dispute provisions of the Act mandates collective bar-

gaining. See n. 6 on p. 10 supra and accompanying text.

Rather, drug testing is a means of assuring employee

compliance with a fitness-for-duty standard, as here,

and/or “Rule G” or some similar restriction on employee

use of intoxicating alcohol and drugs (as in No. 87-

1631), which are directed (among other things) towards

providing safe and drug-free “working conditions.” *

16 See, also, Intern. Ass’n of Machinists v. Trans World Airlines,

839 F.2d 809, 812-815 (D.C. Cir. 1988), cert. denied, 57 U.S.L.W.

3204 (1988); International Ass’n of M. & A. Ves. v. Reeve A.A.

Inc., 469 F.2d 990, 993 (9th Cir. 1972), cert. denied, 411 U.S. 982

(1973); Airline Flight Atten., Etc. v. Tex. Intern., Ete., 411 F.

Supp. 954, 962-963 (S.D. Tex. 1976), aff'd mem., 566 F.2d 104 (5th

Cir. 1978); Atlanta & West Point R. Co. v. United Transportation

Union, 307 F. Supp. 1205, 1208 (N.D. Ga. 1970), aff’d, 489 F.2d 73

(5th Cir. 1971), cert. denied, 404 U.S. 825 (1971).

17 While a charge therein is not involved in this case, we doubt if

those standards and restrictions constitute a “rule” or “working

condition” as to which the RLA mandates bargaining, at least in-

sofar as they apply to the use or abuse of intoxicating alcohol and

drugs. But see Intern. Broth. of Teamsters v. Southwest Airlines,

supra, 842 F.2d at 799-801. Safety of operations is too critical to the

successful operation of railroads and airlines, for those matters to

have been left by the Congress to the constraints of collective bar-

gaining. See First National Maintenance Corp. v. NLRB, 452 U.S.

21

In Rust Craft Broadcasting of New York, Inc., 225

N.L.R.B. 327 (1976), the NLRB rejected a contention

that an employer violated the mandatory duty to bar-

gain under § 8(a) (5) of the NLRA “by unilaterally ini-

tiating a more dependable method of enforcing its long-

standing rule that employees record their time ‘in and

out.“ Ibid. Although this clearly constituted “a depar-

ture from the previous practice, more importantly the

rule itself remained intact. And to those employees who

had conscientiously followed this rule , the new

timeclock procedure would have been inconsequential.”

Ibid. More generally, “absent discrimination, an em-

ployer is free to choose more efficient and dependable

methods for enforcing its workplace rules.” Ibid.““

666, 678-679 (1981) (“Management must be free from the con-

straints of the bargaining process to the extent essential for the

running of a profitable business”). We think it inconceivable that

the Congress intended a carrier to bargain about a proposal that

employees be allowed to operate a train or airplane while drunk or

under the influence of illegal drugs, and be subject to strikes if it

did not agree, yet that would be a possible consequence of a holding

that employee restrictions in that regard are a mandatory subject

of bargaining. This would “represent such a startling innovation

that it should not be entertained without the clearest manifestation

of legislative intent or unequivocal judicial precedent so construing

the. Act.“ Textile Workers v. Darlington Co., 380 U.S. 263, 270

(1965). See Local 346 v. Labor Relations Com'n, 391 Mass. 429, 462

N.E.2d 96, 102-108 (Sup. Jud. Ct. 1984). The fact that fitness-for-

duty standards and Rule G traditionally have not been bargained

about in the railroad industry reinforces the view that they are not

mandatorily bargaining (see pp. 24-25 infra).

18 See also, e. ., American Ambulance, 255 N.L.R.B. 417, 422-423

(1981), enforced per curiam without opinion, 692 F.2d 762 (9th Cir.

1982); Goren Printing, 280 N.L.R.B. No. 64, 123 L.R.R.M. 1276

(1986) ; Moody Chip Corp., 243 N.L.R.B. 265, 272 (1979); Bureau

of National Affairs, Inc., 235 N.L.R.B. 8, 9 (1978). In his influen-

tial concurring opinion in Fibreboard Corp. v. Labor Board, 379

U.S. 203, 223 (1964), Justice Stewart observed that in “many of

these areas the impact of a particular management decision upon

job security may be extremely indirect and uncertain, and this

alone may be sufficient reason to conclude that such decisions are

22

This is all that has occurred here. Conrail has ini-

tiated a “more efficient and dependable” method (than

visual observation) of enforcing its long-standing rule

that employees be fit for duty as applied to drug usage.

The use of urinalysis for that purpose as “to employees

who had conscientiously followed” the rule would be in-

consequential,” and that it even more true in this case

since urinalysis has been and is required by Conrail even

apart from its use as a drug screen.

Application of this approach is even more appropriate

in construing the RLA since the most pertinent statutory

language (“working conditions”) is not as broad on its

face as the otherwise similar term in the NLRA (“terms

and conditions of employment“). “ Justice Stewart, con-

not ‘with respect to . . conditions of employment’” under the

NLRA. Rust Craft did not refer to a prior decision, in Medicenter,

Mid-South Hospital, 221 N.L.R.B. 670 (1975), in which the NLRB

adopted the decision of an Administrative Law Judge (“ALJ”)

without issuing a separate opinion of its own. The ALJ dismissed

a complaint based upon the unilateral use by the employer of poly-

graph testing for the purpose of identifying employees who had

committed acts of vandalism in the course of a strike, as the union

had had adequate opportunity to bargain about that matter; but in

so doing asserted that the employer had a mandatory duty to bar-

gain. In Memorandum GC 87-5, Daily Labor Report No. 184, supra

at D-1, the General Counsel primarily relied upon Medicenter for

her failure to “believe that drug testing falls within the realm of

managerial or entrepreneurial prerogatives excluded from” the

duty to bargain under the NLRA. She also stated that ‘[i]n addi-

tion, it is our view that a drug test is not simply a work rule—

rather, it is a means of policing and enforcing compliance with a

rule,” and that there “is a critical distinction between a rule against

drug usage and the methodology used to determine whether the

rule is being broken” (id. at D-2), without noting that the Board in

Rust Craft had relied upon that “critical distinction” in concluding

that the unilateral institution of improved means for enforcing a

rule is not mandatorily bargainable.

1 Sections 8(a)(5) and (d) of the NLRA mandate bargaining

with respect to “ ‘wages, hours, and other terms and conditions of

employment.“ so that the “duty is limited to those subjects

23

curring in Fibreboard Corp. v. Labor Board, supra, ob-

served that [iln common parlance, the conditions of a

person’s employment are most obviously the various

physical dimensions of his working environment” (379

U.S. at 222), but that the term is ‘susceptible of diverse

interpretations” and had been more broadly construed

by the NLRB and the courts in reviewing its decisions

(id. at 221-222). In rejecting a contention that “the

term ‘conditions of employment’ has no broader meaning

than that perhaps spontaneously suggested by the term

Labor 3ourd v. Borg-Warner Corp., 356 U.S. 342, 349 (1958). In

Broth. of Locomotive Eng. v. Burlington Northern, 838 F.2d 1087,

1090 (1986), cert. pending, No. 87-1631, the Ninth Circuit rejected

to collective bargaining,” pursuant to an interpretation of the RLA

as requirſ ing] parties to bargain over any proposal whose primary

impact is the loss—or potential loss—of existing er ployment or

benefits.” 838 F.2d at 1090. Tat sweeping

tures, product design, the manner of financing, and sales, all may

such decisions so involve ‘conditions of employment’ that they

be

121

stantial impact on the continued availability of employment“ is

nance, supra, 452 U.S. at 679, and that plainly must be true also

under the RLA.

20 In the NLRA, “Congress assigned to the Board the primary

task of construing” the provisions of the Act regarding the manda-

tory subjects of bargaining; thus, “if its construction of the statute

is reasonably defensible, it should not be rejected merely because

the courts might prefer another view of the statute.” Ford Motor

Co. v. NLRB, 441 U.S. 488, 495, 497 (1979). Congress has assigned

the primary task of construing the RLA to the courts, rather than

to an administrative agency, so that the courts can adopt the

interpretation that they believe to be most justifiable even if some

other interpretation is reasonably defensible.

24

‘working conditions,’ and that it therefore refers to the

physical conditions under which employees are compelled

to work rather than to the terms or conditions under

which employment status is afforded or withdrawn,” the

NLRB noted that Senator Wagner (sponsor of the

NLRA) had stated in debates on amendments thereto,

than ‘working conditions’ . . . . (93 Congressional Record

3427).” Inland Steel Company, 77 N.L.R.B. 1, 7 (1948),

enforced, 170 F.2d 247 (7th Cir. 1948), aff'd, 339 U.S.

382 (1950) =

Moreover, “the whole idea of what is bargainable has

been greatly ihfluenced by the practices and customs of

the railroads and their employees themselves.” Tele-

graphers v. Chicago & N.W. R. Co., supra, 362 U.S. at

338." Since neither fitness-for-duty requirements, Rule

G, nor the tests and procedures utilized in enforcing com-

pliance by a carrier with those requirements have hereto-

fore been subjects of collective bargair.ing, on Conrail or

in the railroad industry as a whole with rare if any ex-

ceptions, see pp. 4-5 supra, this provides further sup-

that: “A comparison of the language of the two Acts shows that

Congress in the instant legislation must have intended a bargaining

provision of broader scope than that contemplated in the Railway

Labor Act. . . Congress in the instant legislation used the phrase,

other conditions of employment,’ instead of the phrase ‘working

conditions,’ which it had used previously in the Railway Labor Act.

We think it is obvious that the phrase which it later

inclusive than that which it had formerly used.”

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25

port for a holding that drug testing is not a mandatory

subject of bargaining under the RLA.

CONCLUSION

For the reasons stated above and in the Brief for Ap-

pellant, the decisions below should be reversed.

Respectfully submitted,

RICHARD T. CONWAY

(Counsel of Record)

RALPH J. MOORE, JR.

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

DAVID P. LEE

Vice Chairman and

General Counsel

NATIONAL RAILWAY

LABOR CONFERENCE

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National

Railway Labor Conference

November 28, 1988