Lead Opinion
delivered the opinion of the Court.
In this case, we must examine the concepts of “major” and “minor” disputes in the area of railway labor relations, articulate a standard for differentiating between the two, and apply that standard to a drug-testing dispute.
I
Since its formation in 1976, petitioner Consolidated Rail Corporation (Conrail), has required its employees to undergo physical examinations periodically and upon return from leave. These examinations include the testing of urine for blood sugar and albumin and, in some circumstances, for drugs. On February 20, 1987, Conrail announced unilaterally that urinalysis drug screening would be included henceforth as part of all periodic and return-from-leave physical examinations. Respondent Railway Labor Executives’ Association (the Union), an unincorporated association of chief executive officers of 19 labor organizations which collectively represent Conrail’s employees, opposes this unilateral drug-testing addition.
The United States District Court for the Eastern District of Pennsylvania agreed with Conrail that this case involves a minor dispute, because Conrail’s policy of conducting physical examinations, which the parties agree is an implied term of their collective-bargaining agreement, arguably gave Conrail the discretion to include drug testing in all physical examinations. The Third Circuit reversed, ruling that “the undisputed terms of the implied agreement governing medical examinations cannot be plausibly interpreted to justify the new testing program.”
This Court has not articulated an explicit standard for differentiating between major and minor disputes. It adopted the major/minor terminology, drawn from the vocabulary of rail management and rail labor, as a shorthand method of describing two classes of controversy Congress had distinguished in the RLA: major disputes seek to create contractual rights, minor disputes to enforce them. Elgin, J. & E. R. Co. v. Burley,
The statutory bases for the major dispute category are §2 Seventh and § 6 of the RLA, 48 Stat. 1188, 1197, 45 U. S. C. § 152 Seventh and § 156. The former states that no carrier “shall change 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 through the mediation procedures established in §6. This statutory category
“relates to disputes over 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 therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.” Burley,325 U. S., at 723 .
In the event of a major dispute, the RLA requires the parties to undergo a lengthy process of bargaining and mediation.
In contrast, the minor dispute category is predicated on § 2 Sixth and § 3 First (i) of the RLA, which set forth conference and compulsory arbitration procedures for a dispute arising or growing “out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” This second category of disputes
“contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e. g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future.” Burley,325 U. S., at 723 .
A minor dispute in the railroad industry is subject to compulsory and binding arbitration before the National Railroad Adjustment Board, § 3, or before an adjustment board established by the employer and the unions representing the em
To an extent, then, the distinction between major and minor disputes is a matter of pleading. The party who initiates a dispute takes the first step toward categorizing the dispute when it chooses whether to assert an existing contractual right to take or to resist the action in question. But
To satisfy this need for some degree of judicial control, the Courts of Appeals uniformly have established some variant of the standard employed by the Third Circuit in this case:
“ ‘[I]f the disputed 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 “obviously insubstantial,” the controversy is a [minor dispute] within the exclusive province of the National Railroad Adjustment Board.’”845 F. 2d, at 1190 , quoting Local 1477 United Transportation Union v. Baker,482 F. 2d 228 , 230 (CA6 1973).
Verbal formulations of this standard have differed over time and among the Circuits: phrases such as “not arguably justified,” “obviously insubstantial,” “spurious,” and “frivolous” have been employed.
“To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language adopted by these . . . Courts of Appeals is correct.” Christiansburg Garment Co. v. EEOC,
Ill
In this case, the Union appears to agree that the “arguably justified” standard generally is the appropriate one for distinguishing between major and minor disputes. Brief for Respondents 35, n. 29. But it argues that the dispute in this case, properly viewed, is neither a major dispute nor a minor dispute. According to the Union, where an employer has
In a hybrid dispute, the Union contends, the employer may ask the Board to determine whether it has the contractual right to make a particular change, but must forgo unilateral implementation of the change until the Board reaches its decision. If the employer makes the change without establishing a clear and patent right to do so, the employer violates its statutory duty not to “change 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.” §2 Seventh (emphasis added). Stated more simply, the Union’s position is that, while a dispute over the right to make the change would be a minor dispute, the actual making of the change transforms the controversy into a major dispute.
This approach unduly constrains the freedom of unions and employers to contract for discretion. Collective-bargaining agreements often incorporate express or implied terms that are designed to give management, or the union, a degree of freedom of action within a specified area of activity. See NLRB v. American National Insurance Co.,
The effect of this ruling, of course, will be to delay collective bargaining in some cases until the arbitration process is exhausted. But we see no inconsistency between that result and the policies of the RLA.
> h-1
This case, then, turns on whether the inclusion of drug testing in periodic and return-from-leave physical examinations is arguably justified by the parties’ collective-bargaining agreement. Neither party relies on any express provision of the agreement; indeed, the agreement is not part of the record before us. As the parties acknowledge, however, collective-bargaining agreements may include implied, as well as express, terms. See, e. g., Northwest Airlines, Inc. v. Air Line Pilots Assn., Int’l,
In this case, Conrail’s contractual claim rests solely upon implied contractual terms, as interpreted in light of past practice. Because we agree with Conrail that its contractual claim is neither frivolous nor obviously insubstantial, we conclude that this controversy is properly deemed a minor dispute within the exclusive jurisdiction of the Board.
A
The essential facts regarding Conrail’s past practices — the facts in support of the positions of both Conrail and the Union — are not disputed.
Conrail conducts physical examinations in three categories of cases. First, it always has required its employees to un
Conrail has implemented medical standards for all three types of physical examination. Over the years, procedures for hearing tests, lung-capacity tests, eye tests, and cardio-logical tests have been modified to reflect changes in medical science and technology. These changes have been made by Conrail unilaterally, without consulting the Union.
Drug testing always has had some place in Conrail’s physical examinations, although its role has changed with time. Conrail has included drug testing by urinalysis as part of periodic physical examinations whenever, in the judgment of the examining physician, the employee may have been using drugs. Drug screens also routinely have been performed as part of the return-to-duty physical examination of any employee who has been taken out of service previously for a drug-related problem; in addition, drug testing is included
On April 1, 1984, Conrail issued a Medical Standards Manual stating that a drug screen would be included in all periodic and return-to-duty physicals. For budgetary reasons, however, this policy then was applied only in Conrail’s eastern region and was discontinued after six months.
On February 20, 1987, Conrail implemented the Medical Standards Manual in all of its regions, requiring drug testing as part of its periodic and return-to-duty physicals and, in addition, requiring follow-up examinations for all employees returning to duty after disqualification for any reason associated with drug use.
The problem of drug use has been addressed by Conrail not only as a medical concern, but also as a disciplinary one. This Court noted earlier in the present Term that the railroad industry has adopted operating “Rule G,” which governs drug use by employees. Skinner v. Railway Labor Executives’ Assn.,
In addition, Conrail has implemented the Federal Railroad Administration regulations recently upheld in Skinner against a Fourth Amendment challenge. Since March 1986, Conrail has required all employees covered by the Hours of Service Act, 45 U. S. C. §61 et seq., to undergo postaccident drug and alcohol testing, pursuant to 49 CFR §219 et seq. (1987).
B
The dispute between the parties focuses on the meaning of these past practices. Conrail argues that adding urinalysis drug testing to its periodic and return-to-duty physicals is justified by the parties’ implied agreement regarding physical examinations, as indicated by their longstanding practice of permitting Conrail unilaterally to establish and change fitness-for-duty standards, to revise testing procedures, and to remove from service employees who are deemed unfit for duty under those standards and testing procedures.
The Union contends that, even using the “arguably justified” standard, “it is simply not plausible” to conclude that the parties’ agreement contemplated that Conrail had the authority to include drug screens in all routine physical examinations. The Union argues that Conrail has departed materially from the parties’ agreement, as reflected by Conrail’s past medical practice, in several respects. First, the Union states that past practice limited the use of drug testing in physical examinations to circumstances in which there was cause to believe the employee was using drugs; the current program, on the other hand, includes testing without cause. Second, in the Union’s view, Conrail’s general medical policy permits Conrail to remove an employee from active service until the employee’s physical condition improves, but does not permit Conrail to discharge an employee for failure to get well within a specified time; the current drug-testing program includes a fixed time limit, and results in discharge rather than removal from active service. Third, the Union contends that the expansion of drug testing constitutes, for the first time, regulation by Conrail of the private, off-duty conduct of its employees.
In addition to pointing to these asserted departures from past practice, the Union argues that the absence of a “meeting of the minds” on the particulars of testing and confidentiality procedures renders untenable Conrail’s claim that the parties tacitly have agreed to Conrail’s current use of drug testing. Finally, the Union presents an alternative view of what Conrail has done: Conrail has expanded the disciplinary use of drug testing to employees not covered by the Federal Railroad Administration regulations, an expansion
C
In the end, the Union’s arguments distinguishing drug testing from other aspects of Conrail’s medical program, and asserting that Conrail’s true motive is disciplinary, conceivably could carry the day in arbitration. But they do not convince us that Conrail’s contractual arguments are frivolous or insubstantial. Conrail’s interpretation of the range of its discretion as extending to drug testing is supported by the general breadth of its freedom of action in the past, and by its practice of including drug testing within routine medical examinations in some circumstances.
In the past, the parties have left the establishment and enforcement of medical standards in Conrail’s hands. Conrail long has treated drug use as a matter of medical concern. Cf. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 163-179 (3d ed. 1980) (substance abuse disorders); BNA Special Report, Alcohol & Drugs in the Workplace: Costs, Controls, and Controversies 1 (1986) (disciplinary and therapeutic approaches to drugs in the workplace); T. Denenberg & R. Denenberg, Alcohol & Drugs: Issues in the Workplace 18 (1983) (drug and alcohol abuse as treatable disorders); cf. Traynor v. Turnage,
There need be no “meeting of the minds” between the parties on the details of drug-testing methods or confidentiality standards for Conrail’s current drug-testing program argu
Conrail’s well-established recognition of the relevance of drug use to medical fitness substantially weakens the Union’s claim that Conrail now, for the first time, is engaging in medical testing that reveals facts about employees’ private off-duty conduct. Indeed, the fact that medical testing often detects physical problems linked to off-duty behavior makes it difficult to draw a bright line for jurisdictional purposes between testing which does, and that which does not, reflect upon private conduct.
As to the relevance of “cause,” we do not doubt that there is a difference between Conrail’s past regime of limiting drug testing to circumstances in which there is cause to believe that the employee has used drugs and Conrail’s present policy of including drug tests in all routine physical examinations. Indeed, the difference between testing with and without cause perhaps could be of significance to arbitrators in deciding the merits of drug-testing disputes. See generally Denenberg & Denenberg, Drug Testing from the Arbitrator’s Perspective, 11 Nova L. Rev. 371, 387-392 (1987); Veglahn, What is a Reasonable Drug Testing Program?: Insight from Arbitration Decisions, 39 Lab. L. J. 688, 689-692 (1988). But under the RLA, it is not the role of the courts to decide the merits of the parties’ dispute. Our role is limited
As Conrail pointed out and urged at oral argument, “particularized suspicion” is not an accepted prerequisite for medical testing. Tr. of Oral Arg. 21. A physician’s decision to perform certain diagnostic tests is likely to turn not on the legal concept of “cause” or “individualized suspicion,” but rather on factors such as the expected incidence of the medical condition in the relevant population, the cost, accuracy, and inherent medical risk of the test, and the likely benefits of detection. In designing diagnostic-testing programs, some employers establish a set of basic tests that are to be administered to all employees, see generally M. Rothstein, Medical Screening of Workers 16-19 (1984), regardless of whether there is cause to believe a particular employee will test positive. It is arguably within Conrail’s range of discretion to alter its position on drug testing based on perceived changes in these variables.
We turn next to the alleged disciplinary consequences of a positive drug test. It is clear that Conrail is not claiming a right, under its medical policy, to discharge an employee because of a single positive drug test, a right many railroads assert under Rule G. See Skinner,
The fact that for drug problems, unlike other medical conditions, Conrail’s standards include a fixed time period in which the employee’s condition must improve does serve to distinguish Conrail’s drug policy from its response to other medical problems. Conrail has argued that it needs, for
V
Because we conclude that ConraiTs contractual arguments are not obviously insubstantial, we hold that the case before us constitutes a minor dispute that is within the exclusive jurisdiction of the Board. We make clear, however, that we go no further than to hold that Conrail has met the light burden of persuading this Court that its drug-testing practice is arguably justified by the implied terms of its collective-bargaining agreement. We do not seek to minimize any force in the Union’s arguments that the discretion afforded Conrail by the parties’ implied agreement, as interpreted in light of past practice, cannot be understood to extend this far. Thus, in no way do we suggest that Conrail is or is not entitled to prevail before the Board on the merits of the dispute.
The judgment is reversed.
It is so ordered.
Notes
The Union filed suit against Conrail on May 1, 1986, well before Conrail unilaterally added drug testing to its physical examinations. See App. 3. The Union’s complaint challenged Conrail’s use of drug testing to enforce its disciplinary Rule G and to comply with federal drug-testing regulations affecting the railroad industry. By the time the District Court ruled, how
Cf. Brotherhood of Locomotive Engineers v. Burlington Northern R. Co.,
In addition, the RLA provides for arbitration of a major dispute in the event that mediation fails. Thus, the National Mediation Board is required to “endeavor ... to induce the parties to submit their controversey to arbitration.” §5 First. Participation, however, is voluntary. See Aaron, Voluntary Arbitration of Railroad and Airline Interest Disputes, in The Railway Labor Act at Fifty: Collective Bargaining in the Railroad and Airline Industries 129 (C. Rehmus ed. 1977).
In the airline industry, also covered by the RLA, there is no national adjustment board; a minor dispute is resolved by an adjustment board established by the airline and the unions. 49 Stat. 1189, 45 U. S. C. § 184. See Machinists v. Central Airlines, Inc.,
See generally Comment, Enjoining Strikes and Maintaining the Status Quo in Railway Labor Disputes, 60 Colum. L. Rev. 381, 386-397 (1960); cf. Air Line Pilots Assn., Int’l v. Eastern Air Lines, Inc., 276 U. S. App. D. C. 199, 202, n. 2,
The Union suggests in passing that § 2 First provides a status quo obligation applicable to all minor disputes. See Brief for Respondents 21, 30-31. It relies on Detroit & T. S. L. R. Co. v. Transportation Union,
See, e. g., National Railway Labor Conference v. International Assn, of Machinists and Aerospace Workers,
Even if the Union’s approach had merit in the abstract, it would be unworkable in practice. As discussed below, collective-bargaining agreements often contain implied, as well as express, terms. The Union conceded at oral' argument that an employer would have the authority, without engaging in collective bargaining or statutory mediation, to open its locker room 15 minutes later than it had in the past without first establishing its contractual right to do so through a separate arbitration proceeding. Tr. of Oral Arg. 47-48, 50. That acknowledgment stemmed from the assumption that, although a change in opening time was indeed a “change,” and although access to the locker room was a “working condition,” the precise time the locker room opened was not an issue of sufficient significance to have become the subject of an implied contractual agreement, even if the existence of the locker room was itself an implied term of the contract. The Union recognizes, then, that the general framework of a collective-bargaining agreement leaves some play in the joints, permitting
In most cases where the Board determines that the employer’s conduct was not justified by the contract, the Board will be able to fashion an appropriate compensatory remedy which takes account of the delay. See, e. g., Order of Conductors v. Pitney,
This is not to say that the legal significance of these practices is undisputed. In particular, the parties take different views of how a court is to determine whether a particular past practice has risen to the level of an implied contractual term. Compare Brief for Respondents 42-43 with Brief for Petitioner 19. The precise definition of this standard, however, is of no particular significance to this case. As will become clear, the parties have agreed that Conrail’s power to conduct physical examinations is an implied contractual term. The District Court made no factual findings that Conrail’s specific practices had themselves become implied terms of the contract, and we do not suggest otherwise in the discussion that follows.
The Union suggests that Conrail’s decision to implement its current drug-testing program resulted from a serious Conrail accident in January 1987, in which the engineer and conductor of the train admitted smoking marijuana in the cab just prior to the collision. Brief for Respondents 6.
It was the implementation of the Federal Railroad Administration regulations that precipitated the instant lawsuit, Brief for Respondents 7, but no issue regarding Conrail’s implementation of those regulations is presently before us.
Conrail argued in the District Court that the parties’ implied agreement regarding Rule G enforcement justified its current drug-testing practice, but abandoned that position on appeal. See
We note that Conrail does not seek to rely on the 1984 limited implementation of routine drug testing as evidence of a past practice acquiesced in by the Union. See id., at 1193, n. 3.
Concurrence Opinion
concurring.
I join the opinion and judgment of the Court. I add these remarks only to emphasize that the parties agree and the courts below held that giving physical examinations is a matter covered by an implied agreement between Conrail and the Union. The company claims that although instituting drug testing is a change in conditions, the implied contract authorizes the change. I agree that this claim has substance and that the dispute is a minor one for the Adjustment Board to resolve. If the Board decides that the company is wrong about its authority under the contract, the
Dissenting Opinion
dissenting.
I would affirm the judgment of the Court of Appeals for the reasons stated by that court. The routine medical examinations Conrail relies on as precedent for its drug-testing program could result, at most, in an employee being held out of service until his or her health improved. Conrail would have us believe that, in accepting such medical testing, the Union (arguably) agreed to testing for use of an illegal substance that could result in the employee’s firing. It is unsurprising that the Union agreed to nonpunitive medical testing, and that it acquiesced in the employer making such unilateral changes in testing procedures as it determined were advisable on the basis of current medical technology. But it is inconceivable to me that in so doing the Union was also agreeing to the systematic, suspicionless testing, on such terms and in such manner as the employer alone prescribed, of all employees for evidence of criminal activity that, under the employer’s plan, could result in discharge.
It may be helpful to note what the general counsel of the National Labor Relations Board had to say in addressing the somewhat similar question whether, under the National Labor Relations Act, the addition of drug testing to a previously required physical examination constitutes a “substantial change in working conditions”:
“In cases where an employer has an existing program of mandatory physical examinations for employees or applicants, an issue arises as to whether the addition of drug testing constitutes a substantial change in the employees’ terms and conditions of employment. In general, we conclude that it does constitute such a change. When conjoined with discipline, up to and including discharge, for refusing to submit to the test or for testing positive, the addition of a drug test substantially changes the nature and fundamental purpose of the existing physical examination. Generally, a physical examination is designed to test physical fitness to.perform the work. A drug test is designed to determine whether an employee or applicant uses drugs, irrespective of whether such usage interferes with ability to perform work.” NLRB General Counsel’s Memorandum on Drug and Alcohol Testing, Memorandum GC 87-5 (Sept. 8,1987), reprinted in BNA Daily Labor Report, No. 184, pp. D-l, D-2 (Sept. 24, 1987) (emphasis in original).
The general counsel similarly concluded that “a union’s acquiescence in a past practice of requiring applicants and/or current employees to submit to physical examinations that did not include drug testing . . . does not constitute a waiver of the union’s right to bargain over drug testing.” Ibid.
Without suggesting that the NLRA question of a “substantial change in working conditions” is precisely the same as the one before us, I do think the general counsel has a better un
The Court rests its holding that the purpose of Conrail’s drug tests is — arguably—medical rather than disciplinary solely on the ground that Conrail will not discharge an employee on the basis of one positive drug test standing alone and that it will permit the employee “a period of rehabilitative treatment” prior to a second test. Ante, at 319. I do not agree that these factors even arguably bring Conrail’s drug-testing program within the realm of the existing medical examinations. Beyond this, however, I note that under the Court’s reasoning the outcome of the ease should be different if the employer’s policy were indeed “to discharge an employee because of a single positive drug test.” Ibid.