On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-2698.
Sloviter and Becker Circuit Judges, and Cowen, District Judge*fn*
The issue presented by the Unions' appeal is whether the railroad's unilateral addition of a drug-screening component to its employees' medical examinations gives rise to a "minor" dispute under the Railway Labor Act over which the district court had no subject matter jurisdiction or to a "major" dispute which would entitle the parties to an injunction maintaining the status quo while they bargain over the change. This case concerns only the process pursuant to which drug screening may be introduced; it has nothing to do with whether drug screening is a good idea.
The district court concluded that the parties' prior practice with respect to medical examinations "arguably justified" the railroad's unilateral imposition of uniform drug screening and dismissed the Unions' action for want of jurisdiction. We will reverse.
Plaintiffs, the Railway Labor Executives ' Association, whose members head railway labor unions representing all crafts, and eighteen unions representing those crafts (hereinafter "Unions"), and defendant Consolidated Rail Corporation ("Conrail"), a railroad, have stipulated to the essential facts in this case. Since its formation in 1976, Conrail has required all employees to undergo periodic physical examination at intervals varying between one and three years depending on the employee's age and job classification, and has required an examination upon the return to duty of all employees operating trains and engines who were out of service thirty days or longer and of all other employees out of service ninety days or longer "due to furlough, leave, suspension or similar causes." App. at 71. These examinations have routinely included urinalysis for blood sugar and albumin.
Conrail employees always have been subject to Rule G or its equivalent, an industry-wide rule, which prohibits the use or possession of "intoxicants, narcotics, amphetamines or hallucinogens" by employees on duty or the use of such substances by employees subject to duty, and which requires employees under medication to be certain that their safe performance of duty is not compromised. This rule has been enforced in the past principally by supervisory observation.
Conrail has routinely used drug screening urinalysis as part of the return-to-duty medical examination of any employee previously taken out of service because of a drug-related problem, and in both periodic and return-to-duty examinations, when the examining physician suspected drug abuse. In applying Rule G. Conrail "encourag[ed] employees who are suspected of being drug or alcohol abusers to voluntarily agree to undergo blood, urine, or other diagnostic tests." See App. at 70; cf. Brotherhood of Locomotive Eng'rs v. Burlington Northern R.R. Co., 838 F.2d 1087, 1089 (9th Cir. 1988) (railroad's employee suspected of drug use could avoid suspicion by voluntarily submitting to urinalysis); Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R. Co., 802 F.2d 1016, 1018 (8th Cir. 1986) (Arnold, J., for a unanimous court, concurring in part) (same).
In February 1986, the regulations of the Federal Railway Administration on "Control of Alcohol and Drug Use in Railroad Operations" became effective. 49 C.F.R. § 219 (1987). These regulations require post-accident drug screening by urinalysis, breathalizer and/or blood testing for all employees covered by the Hours of Service Act, 45 U.S.C. § 61-66 (1982), i.e., for operating employees.*fn1 Employees reasonably suspected of being under the influence of a prohibited substance may also be tested if they are involved in an operating rule violation or contribute to an accident. The application of these regulations to covered employees is not at issue on this appeal.
On February 20, 1987, Conrail announced its unilateral decision to include a drug screen as part of the urinalysis in all periodic and return-to-duty examinations, and in any special examinations deemed necessary by the physician after a return from a drug-related absence from duty. The Unions filed suit in district court alleging that Conrail's action violated Section 6 of the Railway Labor Act, 45 U.S.C. § 156 (1982), and the Fourth Amendment's prohibition of unreasonable search and seizure and sought to enjoin Conrail from instituting the drug testing.
All parties moved for summary judgment. The district court, based on the facts set forth above, concluded that "Conrail's decision to expand its use of drug testing is arguably justified under terms of the parties' long-standing medical policy." See Railway Labor Executives' Ass'n v. Conrail, No. 86-2698, slip op. at 3 (E.D. Pa. April 28, 1987). It therefore found the dispute to be a "minor" one and dismissed the counts of the complaint based on the Railway Labor Act. The court also dismissed the Fourth Amendment claim on the ...