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RAILWAY LABOR EXECUTIVES' ASSN. v. AMTRAK

August 3, 1988

RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE.

 The issue in this case is whether Amtrak's unilateral imposition of drug testing on its employees gives rise to a "minor" dispute under the Railway Labor Act over which this Court lacks subject matter jurisdiction or to a "major" dispute entitling the parties to an injunction maintaining the status quo while they bargain over the change.

 The Court finds that drug testing is a substantial change in the employees' terms and conditions of employment not arguably predicated on an existing agreement and shall issue the injunction sought by plaintiffs. The case is before the Court on cross-motions for summary judgment. The Court finds that no genuine issues of material fact remain for trial and plaintiffs are entitled to summary judgment as a matter of law pursuant to Fed. R. Civ. P. 56.

 Background

 The Railway Labor Executives' Association, which is an association of railway labor unions, and a number of unions representing railway workers (collectively "the unions") have sued the National Railroad Passenger Corporation (Amtrak), a private entity created by Congress in 1972 to provide intercity rail passenger service.

 The collective bargaining contracts between the unions and Amtrak are silent on drug testing, physical examinations, and the use of alcohol or drugs. However, agreements include not only express terms, but terms implied by well-established past practice and by law. See Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 153-54, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969). Amtrak contends past practice provides a basis for drug testing of its employees.

 For a number of years, Amtrak has required physical examinations of its employees. These examinations are conducted before an employee is hired, when an employee returns to work from a non-vacation absence of more than 30 days, and, for employees covered by the Hours of Service Act, 45 U.S.C. ยงยง 61-66 (1982), *fn1" periodically. *fn2" The medical standards and tests administered in these physical examinations have changed from time to time with medical developments, and Amtrak asserts that it has become established practice for the railroad to unilaterally make such changes.

 Since the mid-1970s, the physical examinations have routinely included urinalysis, although a drug screen was not initially part of the urinalysis. A drug screen was performed only when, in the judgment of the examining physician, the employee may have been using drugs. In April, 1983, Amtrak began requiring a drug screen as part of the urinalysis in pre-employment and return-to-work physical examinations. In July, 1985, Amtrak began requiring a drug screen as part of every mandatory physical examination, including periodic physicals.

 Amtrak also requires urinalysis drug screening outside the context of a medical examination when there exists reasonable suspicion that an employee may be under the influence of alcohol or a drug. The record suggests the railroad began testing based on reasonable suspicion less than a year before this lawsuit was filed; previously, the railroad relied on supervisory observation to detect drug or alcohol impairment.

 A rule of conduct, unilaterally implemented by the railroad, prohibits on-duty employees from working while under the influence of alcohol or drugs. That provision, asserted by Amtrak without contradiction by the unions to be long-standing, was known in prior years as Rule C and stated as follows:

 
Reporting for work under the influence of alcoholic beverages or narcotics, or the use of alcoholic beverages while on or subject to duty or on Company property is prohibited.

 In early 1985, Amtrak revised the rule, now designated as Rule G, to state as follows:

 
Employees subject to duty, reporting for duty, or while on duty, are prohibited from possessing, using, or being under the influence of alcoholic beverages, intoxicants, narcotics or other mood changing substances, including medication whose use may cause drowsiness or impair the employee's responsiveness.

 On April 15, 1986, Amtrak issued a 12-page document detailing its policy and procedure for drug and alcohol testing of employees covered by the Hours of Service Act. On January 1, 1987, the railroad issued a similar document for employees not covered by the Hours of Service Act. Amtrak characterizes the documents as "modifications and codifications of Amtrak's pre-existing policies and practices."

 The main difference in the two documents concerns post-accident testing, which is authorized for employees covered by the Hours of Service Act. *fn3" The documents state that an employee who tests positive for drugs or alcohol is subject to discipline and shall not be allowed to work until ...


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