Co., 384 F.2d at 327. The Agreement in effect between the parties makes explicit reference to furthering "the safety of air transportation", Article 1(a), and provides that TWA employees "shall be governed by all reasonable rules, regulations, and orders" issued by TWA "which are not in conflict with the terms and conditions of this Agreement. . . ." Article 2(b). Exhibit A to Cato Affidavit. TWA has had a long-standing policy since 1969, in which IAM has acquiesced, of prohibiting its employees from reporting to work under the influence of drugs or alcohol or using drugs or alcohol on the job. This prohibition, which appears as Rule 3 in TWA's current Rules of Conduct, has been enforced, with IAM acquiescence, through sensory observation of the behavior and appearance of TWA employees by TWA supervisors. Rule 3, enforced through such sensory observation, has become an implied term in the agreement between the parties by virtue of their longstanding practice.
TWA's February 1987 policy of testing based on "reasonable suspicion" is arguably predicated on the parties' agreement that enforcement of Rule 3 depends on specific observation of individual behavior and appearance suggesting that an individual is under the influence of drugs or alcohol. TWA has not instituted a policy of random drug testing or a policy of testing all employees on duty after an accident. Compare Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 838 F.2d 1087 (9th Cir. 1988) (generalized mandatory drug testing raises major dispute). TWA has clarified that, to the extent testing is triggered by the occurrence of an on-duty accident causing personal injury or property damage alone, only employees suspected in good faith of being at fault may be tested. Memorandum from James R. Cato, dated May 6, 1987, Exhibit I to O'Driscoll Declaration.
While IAM has argued strongly that TWA has no prior practice of blood or urine testing under Rule 3 that rises to the level of an implied agreement, TWA's claimed contractual justification for its testing Policy is not "obviously insubstantial." Southern Railway Co., 384 F.2d at 327. Plaintiff acknowledges that TWA has enforced Rule 3 through the sensory observation of TWA supervisors with IAM's acquiescence. TWA's February 1987 Policy limits testing to those employees whose conduct or appearance, based on specific observation of documented behavior by TWA supervisors, raises a "reasonable suspicion" that the employee is impaired by or under the influence of drugs or alcohol while on the job. Testing under these circumstances is arguably an interpretation or application of Rule 3 and thus constitutes a minor dispute. See Brotherhood of Maintenance of Way Employees v. Burlington Northern Railway Co., 802 F.2d 1016, 1023 (8th Cir. 1986) ("What the railroad has done now is to add a more refined step, the urine test, to confirm the observation of the supervisor. Since the test can be required only upon some showing that the employee may be impaired, the ground rules between the union and the railroad have not changed significantly.")
Like the 8th Circuit case, TWA's testing Policy is based on particularized suspicion, triggered by sensory observation of a supervisor, that an employee is under the influence of drugs or alcohol on the job. Id. at 1023. In contrast, the 5th Circuit case cited by plaintiff involves a far more expansive drug testing program in which particularized suspicion is not necessarily a factor. That program, for example, provides for testing of mechanics after a vehicular accident if management so desires, regardless of whether human responsibility or fault was a factor in the accident. Moreover, under that program, employees whose jobs require a physical examination are obligated to take a drug test on the basis of no suspicion whatsoever. International Brotherhood of Teamsters v. Southwest Airlines Co., 842 F.2d 794 (5th Cir. 1988).
The Joint Policy Statement of August 1976 referred to by plaintiff does not alter the conclusion that TWA's testing Policy gives rise to a minor dispute. The Joint Statement does not supplant the disciplinary rules by which TWA has regulated drug and alcohol abuse by its employees. By its own terms, the Joint Statement is "not intended to supplant the normal disciplinary process. . . ." Exhibit B to O'Driscoll Declaration.
The second aspect of TWA's February 1987 Policy challenged here by IAM is TWA's pronouncement that employees who use, distribute, or possess unlawful drugs or controlled substances off-duty "will be subject to discharge." Exhibit H to O'Driscoll Declaration. Unlike TWA's drug testing policy which is based on "reasonable suspicion" that an employee is under the influence of, or impaired by, drugs or alcohol on the job, TWA's policy that off-duty conduct involving drugs, without more, can subject an employee to termination is a departure that constitutes a major dispute. It represents a formal change in the agreement between the parties rather than a reinterpretation or application of it. See Brotherhood of Maintenance of Way Employees v. Chicago & North Western Transportation Co., 827 F.2d 330 (8th Cir. 1987) (regulation of off-duty drug use, possession or sale raises major dispute).
The justification claimed by TWA for this aspect of its February 1987 Policy is insubstantial and is not reasonably based in its collective bargaining agreement with IAM. TWA conceded in oral argument that its rules regulating off-duty employee conduct that might subject the company to embarrassment or impair an employee's efficiency on duty were withdrawn by TWA many years ago and do not appear in TWA's current Rules of Conduct. TWA also acknowledges that the rule prohibiting drug and alcohol abuse -- Rule 3 -- has not been changed since it was introduced in 1969. TWA thus has simply not established a "past practice" or implied agreement that gives it the right to change Rule 3 unilaterally to subject its employees to discharge for off-duty conduct involving the use, possession or distribution of drugs. Such a change in Rule 3 gives rise to a major dispute subject to the procedures set forth in the Railway Labor Act at 45 U.S.C. §§ 152, 156. As the 8th Circuit found in a similar case:
. . . the agreement of the parties (including any terms necessarily implied as a result of established past practices and working conditions) is not reasonably susceptible to the [carrier's] proposed interpretation whereby it has the right to unilaterally extend its operating rules to regulate off duty use, possession, or sale of illegal drugs in the manner contemplated by the amendment to Rule G [the existing rule].
Brotherhood of Maintenance of Way Employees, 827 F.2d at 336. Taken to its logical conclusion, TWA's argument that it has the right to regulate unilaterally the off-duty conduct of its employees would purport to justify investigating the private lives of TWA employees, in the name of safety and managerial prerogative, without regard to the effect of the employees' off-duty conduct on their job performance. TWA's February 1987 Policy does not, for example, limit disciplinary consideration of an employee's off-duty drug use to its probativeness of on-the-job impairment. The Policy does not address, the parties have not addressed, and therefore the Court does not address the issue of whether the Policy makes, or could make, evidence of off-duty drug use a basis for "reasonable suspicion" of on-duty use or impairment that would justify testing to determine whether an employee was in violation of Rule 3.
TWA's policy of treating off-duty drug use, possession, or distribution, without more, as a basis for discharging TWA employees is a departure from the existing agreement between the parties represented by Rule 3. It gives rise to a major dispute subject to the procedures set forth in Section 6 of the Railway Labor Act, 45 U.S.C. § 156. Accordingly, an accompanying Order enjoins implementation of that aspect of TWA's February 1987 Policy pending exhaustion of those procedures.
For reasons stated in the accompanying Memorandum, it is this 16th day of May, 1988, hereby
ORDERED: that plaintiff's motion for summary judgment should be, and is hereby, GRANTED IN PART and DENIED IN PART; and it is further
ORDERED: that defendant's motion to dismiss should be, and is hereby, GRANTED IN PART and DENIED IN PART; and it is further
ORDERED, ADJUDGED and DECLARED: that defendant's drug testing policy based on "reasonable suspicion" instituted on February 15, 1987 gives rise to a minor dispute subject to arbitration under the Railway Labor Act; and it is further
ORDERED, ADJUDGED and DECLARED: that defendant's policy of subjecting its employees to discharge for off-duty use, possession or distribution of illegal drugs or controlled substances gives rise to a major dispute subject to the procedures set forth in Section 6 of the Railway Labor Act, 45 U.S.C. § 156; and it is further
ORDERED: that defendant is ENJOINED, pursuant to 45 U.S.C. § 156, from implementing, with respect to any TWA employees represented by plaintiff IAM, its policy of subjecting employees to discharge solely for off-duty use, possession or distribution of illegal drugs or controlled substances pending exhaustion of the procedures set forth in the Railway Labor Act, 45 U.S.C. § 156.
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