This action was brought by "Amtrak" who moved for and obtained a temporary restraining order against the International Association of Machinists and others. The issue is one of the propriety of Amtrak in its Boston and Maine operation requiring as a matter of policy that an employee who is injured in the course of work submit to a drug test. If an employee refused to submit to a test he would be placed "out of service" according to the policy. It's the position of the Union that this constituted a change in policy and that the requirement was a violation of the Railway Labor Act; that Amtrak would have to serve a notice and bargain before such a change in policy could become effective. A hearing was ordered on the motion of the Union to dissolve the temporary restraining order. There the plaintiff argued that the wording of subsection (b) of Rule 65 of the Rules of Civil Procedure precluded defendants from moving to dissolve the restraining order because plaintiff did not obtain the T.R.O. "without notice". Parenthetically it is true that "notice" was given to the defendants of the application which would be heard by Justice Nelson of this Court inasmuch as he was serving as Miscellaneous Business Docket Court at the time but there is a real question as to whether the responding party had an opportunity to prepare adequately for the matter which was to be heard. I resolved the issue in favor of defendants and ruled that I would hear the motion to dissolve the restraining order.

Evidence was taken - in the same manner as it would be taken at a hearing on the issuance of a preliminary injunction. James Robert Mc Carthy president of Local 318 and chair of the Federated Craft Union was first to testify. He stated that prior to March of 1988 he had never known Amtrak to require an employee involved in an accident to have been tested for drugs although 75 to 100 such accidents had occurred while he was at Amtrak. An employee of the engineering department he said had hit himself in the eye and the company insisted on a test for drugs and alcohol. The test was done over protest by the witness. Next said he on April 25th (while the witness was away) an electrician was hurt. Then on April 27th a directive was issued by Robert Bourget the facility manager attached to paychecks stating that the company had instituted a nationwide policy to test employees injured in accidents. On May 9th said Mr. McCarthy he spoke to Mr. Bourget and complained that the policy was a change of the collective bargaining agreement causing a major dispute under the Railway Labor Act. On May 9th a Mr. Cassese's injury led to another drug testing incident and Frank Newcomb the "car cleaner representative" protested to Mr. Bourget over the planned drug test. At first said Mr. Mc Carthy a decision was made not to enforce the test (at one o'clock); then (at one thirty) Mr. Bourget announced a test would be done. A meeting followed which said Mr. Mc Carthy ended with Mr. Bourget who "probably got sick and tired of hearing me say (that he Bourget was causing a major dispute)" announced that "as of 20 minutes of two all employees are off the clock". He said he went out of the room met the other local chairmen and told them what Bourget had said. The majority of the employees Mr. McCarthy testified had left the premises when he returned to Mr. Bourget's office with Frank Newcomb and Tony Labollita and Mr. Bourget said that if Cassese refused the test he'd be out of service for insubordination. Cassese took the test. After seven p.m. Mr. Mc Carthy was informed by Jeff Pierce Mr. Bourget's superior that he (Mr. Mc Carthy) was "out of service". Mr. Mc Carthy said he never threatened to call a strike. I find Mr. Mc Carthy called one whether he intended to or not.

On cross examination Mr. Mc Carthy said that he like all others took a pre hiring drug test at Amtrak.

Frank Newcomb testified also. He is local vice chair of the TCU's Commerce Division and works as a carman. He said that the first he heard of the drug testing policy was the notice with his paycheck on April 27th. He said he did not know of any testing for an injured employee before Mr. Cassese although there were 18 car men related accidents and four coach cleaner accidents. He backed Mr. McCarthy stating that Mr. Bourget announced that the men would be off the clock at 1:40 P.M. He didn't see any pickets (as Mr. McCarthy had also testified). I cannot accept Mr. Newcomb's testimony that Mr. Bourget took the men off the clock; nor that there were no pickets.

Next to take the stand was John S. Bosco local chair of the IBEW. His memory was that an agreement was made in 1986 that new hires would take a urinalysis test at Amtrak but that before March of 1988 no test was given an employee involved in an accident.

Paul O'Riley was next the local committeeman for the boilermakers who "got in there at the tail end of the argument" over whether Kevin Cassese should be tested on May 24th. He said the union representatives told Mr. Bourget that "a severe job action might be taken". (Transcript page 56). He then changed it to "major dispute". "Nothing about a job action no. I'm sorry." Mr. O'Riley's slip of the tongue (if that it was) influenced Court's findings that the action was called by Mr. McCarthy.

Robert Bourget took the stand. He is and was the facility manager at the Boston Engine Terminal (BET). He took the job February 18th 1988 and first applied the Amtrak "drug and alcohol policy" April 18th in the case of Kenneth Pelton an electrician who was hurt in an accident. He said that Mr. Pelton's injury was an "FRA reportable accident" one that involved more than simple first aid. Next came the injury to Mr. Cassese. He said that he interviewed Mr. Cassese who said "he had no problem" with the drug testing policy. It was decided by Mr. Bourget and his superior Jeffrey Pierce that this was an FRA reportable accident and that reasonable cause existed to believe that Mr. Cassese contributed to his injury by failing to take an alternate (safe) path to his equipment locker - a judgment call. He said he spoke to Cassese with Newcomb and explained the decision which was objected to not by Cassese but by Newcomb. He said he met with the three members of the Shop Crafts Messrs. McCarthy Newcomb and O'Riley explained the decision and that then Mr. McCarthy used the phone. Mr. McCarthy said: "District 22 this is 318. I'd like to leave a message for Bill and Joe that commuter service mechanical north and south shut down because of Amtrak's drug and alcohol testing policy. When Mr. McCarthy hung up Mr. Bourget said: "One forty-five Jim. Do you want to call it that and shut the service down?" Mc Carthy replied affirmatively.

Bourget then notified his superiors of an imminent job action. He said that at no time did he tell McCarthy to send the workers home. No official at Amtrak authorized the employees to leave that afternoon. There were six pickets and a sign at the Rollin Street entrance that afternoon and a picket line without signs at the Southampton Street yard. He was made aware of the existence of the picketing by "John Borman and Kevin Lydon".

Between 3:30 and 4:00 P.M. Mr. Bourget walked the Terminal grounds and didn't observe a single person from the second shift working or present for that matter. That was May 24th. The workers returned to BET at seven the next morning. At Southampton Street the second shift (beginning at 4:00 P.M.) came in at 6:31 P.M. when the picket line at the entrance dispersed. Justice Nelson had issued the restraining order.

On cross examination Mr. Bourget stated that the drug testing policy had been in effect since August of 1987. He stated frankly that he didn't know when the policy became first known to the people at BET and the memo of April 27th 1988 may have constituted first notice to them as far as he was concerned. He said that he (Transcript page 79) became aware of the policy shortly after becoming facility manager. It was established on redirect exam that from January 1, 1988 there were 25 accidents at BET in the commuter service mechanical department 13 of which were reportable and seven of which involved lost time. Only the two men mentioned were tested.

Edward J. Brown having been sworn said he was Assistant Manager Quality Control and Cleaning at BET and that he was there while Mr. Mc Carthy was on the phone; that Mr. McCarthy shut the work down by telephone as testified by Mr. Bourget.

By questions to the witnesses but not by reason of their answers Court was made aware of the fact that there is other litigation going on including an action in the District of Columbia concerning Amtrak's drug and alcohol test policy.

David Beatty General Superintendent Boston Division was sworn and said that he was deeply involved in the takeover by Amtrak of Boston and Maine's services He stated that the Amtrak policy on drug testing was communicated to employees as long ago as October of 1987 when it was "put out in various types of bulletins...posted on bulletin boards." He said that there have been fifteen tests involving FRA reportable injuries. He was notified of the job action taken on May 24th the only such incident as a result of implementation of the Amtrak policy.

I find that the alcohol and drug testing policy is a nationwide policy of Amtrak; that it was set forth in a procedures manual in August of 1987 (Exhibit 2) and that in October of that year an information booklet was distributed as well as one sheet publications as testified by Mr. Beatty. It is not possible to determine whether the policy reached all the employees at BET.

Larry Hriczak Director of Labor Relations for Amtrak was involved in negotiating the agreements for the takeover by Amtrak of BET having negotiated with the General Chairman of the Brotherhood of Railroad Signalmen and Maintenance of Way Employees. Amtrak enacted its drug testing policy January 1 1987 but changed the form in which the policy was published in August of 1987. All General Chairmen were sent copies of the policy that became effective August 15 1987 and the unions involved in this case were "copied". The unions have filed about 50 grievances over this policy -a normal procedure for handling minor disputes under the Railway Labor Act. The policy is (and I accept Mr. Hriczak's testimony in toto) that when there is an FRA reportable accident if the supervisor has a reasonable suspicion that the employee's conduct contributed to the incident or to its severity it is appropriate to test.

In the light of the testimony I am constrained to (and do) find that the unions were made aware of the existence of the policy as of its publication in August of 1987. There's no question that there was confusion subsequently but the notice was there. The fact of the application of the policy to "new hires" (when for example) B & M employees were accepted by Amtrak) is indicative of the existence of the policy.

Roman Numeral VI capital A 3 page 9 of 19 Exhibit 1 contains the policy. The employees should have received it. It was not a new policy with Amtrak prior to January 1 1987. It was not a change in policy as of the time of the job action. There was no need although defendants claim otherwise for bargaining to take place. There was no major dispute. This was a "minor" one: a controversy over how an existing collective bargaining agreement should be applied. Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad 353 U.S. 30 1 L. Ed. 2d 622 77 S. Ct.635 (1957); hence when the job action shut down the commuter service the temporary restraining order was called for. It must not and shall not be dissolved. The resolution of minor disputes lies in grievance procedures. This court cannot decide such a controversy. Union Pacific Railroad v. Sheehan 439 U.S. 89 94 58 L. Ed. 2d 354 99 S. Ct.399 (1978).

Since plaintiff has shown a substantial likelihood of succeeding on the merits of its claim that the job action violated the Railway Labor Act (a strike in support of a "minor" dispute) as well as irreparable injury if the restraint were not enforced (operating the terminal with less than two dozen persons) and harm to the public interest (cancellation of important commuter service) and since the defendants would simply be enjoined from engaging in unlawful activity the order must be and is:

Motion to dissolve the restraining order denied.

John J. McNaught

United States District Court