Consolidated Rail Corporation v. Railway Labor Executives' Assn.

1989-06-19

Headline: Court allows railroad to add routine drug testing by treating the dispute as a minor labor disagreement, sending the matter to arbitration and letting the company keep the testing while the labor Board decides.

Holding: The Court held that because the employer’s claim that implied contract terms and past practice authorized drug testing is not obviously insubstantial, the dispute is a minor one for the adjustment board and must be sent to arbitration.

Real World Impact:

Lets employers start workplace rules plausibly covered by past agreements while arbitration proceeds.
Sends drug-testing disputes to the railroad adjustment board instead of federal courts.
May leave testing programs in place during arbitration, delaying full collective bargaining.

Topics: drug testing, workplace safety, labor arbitration, railroad labor, employee discipline

Summary

Background

A large freight railroad and a union representing its workers fought over Conrail’s decision to add urine drug tests to all routine periodic and return-to-duty medical exams. Conrail had long given physical exams and sometimes used drug tests in particular situations; on February 20, 1987 it announced drug screening for all such exams. The union sued, and lower courts split about whether this change was a "major" change that requires full bargaining or a "minor" dispute for the industry adjustment board to decide.

Reasoning

The Court framed the question as whether the employer’s claim that implied contract terms and past practice allowed the change was “arguably justified.” The Justices held that if an employer’s contractual claim is not frivolous or obviously insubstantial, the dispute is a minor one and belongs to the railroad adjustment board for arbitration. The Court concluded Conrail’s argument, based on implied terms and past practice, met that light threshold and reversed the court of appeals, without deciding who will win the underlying dispute on the merits.

Real world impact

Practically, the ruling sends this and similar workplace drug-testing disputes to the industry’s adjustment board instead of resolving them in federal court. Employers that can plausibly point to implied contract terms or long-standing practice may implement changes while arbitration proceeds. The decision is not a final judgment on whether the testing is lawful or proper; the Board or future proceedings could still rule against the company.

Dissents or concurrances

A concurring justice emphasized the parties’ agreement that physical exams are covered by the implied contract and that the Board should resolve the issue. A dissent warned that suspicionless, systemwide drug testing that can lead to discharge is a substantial change and not merely arguable.