Harry Blackmun

“ 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 t decide the merits of the parties' dispute. Our role is limited to determining where the "arguably justified" line is to be drawn. For the limited purpose of determining whether Conrail's claim of contractual right to change its medical testing procedures must be rejected as obviously insubstantial, that line cannot reasonably be drawn between testing for cause and testing without cause. ”

“ 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." ”

“ Thus, the National Mediation Board is required to "endeavor . . . to induce the parties to submit their controversy 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. ”

“ 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. ”

“ Indeed, although the scope of drug testing within physical examinations has changed over time, drug testing has always played some part (in appropriate circumstances) in Conrail's medical examinations. In short, there is no established "rule" between the parties that drug use is solely a disciplinary, and never a medical, concern. ”

“ 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. ”

“ 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 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." ”

“ Conrail has relied chiefly on supervisory observation to enforce Rule G. An employee suspected of drug or alcohol use is encouraged voluntarily to agree to undergo diagnostic tests, but is not required to do so. ”

“ Although experience in the rail industry suggested to Congress that the second category of disputes involved "comparatively minor" issues that seldom led to strikes, the Court recognized in Burley that this was not invariably the case. See 325 U.S., at 724, 65 S.Ct., at 1290; see also Trainmen, supra. ”

“ By the time the District Court ruled, however, the focus of the dispute had shifted to the addition of drug testing to routine physical examinations. That is the question framed by Conrail's petition for certiorari here.↑ Cf. Brotherhood of Locomotive Engineers v. Burlington Northern R. Co., 838 F.2d 1087, 1089-1090 (CA9 1988) (employer took position that drug testing is not a mandatory subject of bargaining and thus that drug-testing disputes are not "labor disputes" subject to the dispute-resolution processes of the RLA) , cert. ”