Consolidated Rail Corporation v. Railway Labor Executives' Association/Dissent Brennan

Justice BRENNAN, with whom Justice MARSHALL joins, 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. #fn-s Such a contention, in my view, is not "arguable"-it is frivolous. I agree with the Court of Appeals that "[u]ltimately, Conrail's argument rests on the premise that testing urine for cannabis metabolites is no different in kind from testing urine for blood sugar. This ignores considerable differences in what is tested for and the consequences thereof." 845 F.2d 1187, 1194 (CA3 1988).

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-1, 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 sugges ing 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 understanding than does the Court of the relationship between drug testing and routine physical examinations. I respectfully dissent.