Only "long standing practices" can be considered part of a collective bargaining agreement in determining whether a proposed change is "arguably justified" by the parties' agreement. Switchmen's Union v. Southern Pacific Co., 398 F.2d 443, 447 (9th Cir. 1968).
SEPTA proposes to test 45 percent of its operating employees at least once each year. The incidence, focus, rationale for, and employee impact of such testing is substantially different from 85-1, and it obviously will affect the working relationship of the parties. The proposal cannot be "arguably justified" by the terms of prior agreements or the parties' prior practice. The unions are correct that the proposed program constitutes a "major dispute," precipitating the notice and administrative requirements of 45 U.S.C.A. § 156. Brotherhood of Locomotive Eng'rs. v. Burlington Northern R.R., 620 F. Supp. 163, 170-172 (D. Mont. 1985), appeal pending, No. 85-4138 (9th Cir. argued July 8, 1986). See Railway Labor Executives v. Norfolk & Western Ry., 833 F.2d 700, 707 n.6 (7th Cir. 1987). The status quo rule of Section 156, which is the centerpiece of the Act, is intended to encourage resolution through mediation and, if necessary, arbitration. Detroit & Toledo Shoreline R.R. v. United Transp. Union, 396 U.S. 142, 148-51, 90 S. Ct. 294, 298-99, 24 L. Ed. 2d 325 (1969). See Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1021.
The railway unions, for these reasons, are entitled to an injunction preserving the status quo.
Local 1594 of the UTU represents the bus and trolley operators of SEPTA's Red Arrow division under the Pennsylvania Public Employe Relations Act, 43 Pa.S.A. § 1101 et seq. Under 43 Pa.S.A. § 1101.701, public employers must bargain in good faith with the representative of their employees over wages, hours and other terms and conditions of employment. Local 1594 requests an injunction requiring SEPTA to fulfill that statutory duty before implementing the program. However, a failure to bargain in good faith is an unfair labor practice under 43 Pa.S.A. § 1101.1201. Under 43 Pa.S.A. § 1101.1301, exclusive jurisdiction to prevent unfair labor practices is given to the Pennsylvania Labor Relations Board. See Philadelphia Federation of Teachers v. Board of Education, 24 Pa. D. & C. 3d 211, 214-15 (1981). Federal courts lack subject matter jurisdiction over unfair labor practice claims that come within the board's jurisdictional purview. Sellers v. Local 1598, Dist. Council 88, AFSCME, 600 F. Supp. 1205, 1212-13 (E.D. Pa. 1984), aff'd, 810 F.2d 1164 (3d Cir. 1987). Local 1594's request for injunctive relief must be denied for lack of jurisdiction.
An order follows.
AND NOW, this 19th day of January, 1988 it is ordered:
1. The preliminary injunction entered February 9, 1987 is dissolved.
2. The request of plaintiffs Transport Workers' Union of Philadelphia, Local 234 and Transport Workers' Union of America, Local 2013 for a permanent injunction of SEPTA order no. 87-1, as revised, is denied, subject to the following:
a. "Operating Employees" shall not include "Conductors and Passenger Attendants" unless it is established that these are safety sensitive positions.
b. SEPTA order no. 87-1, as finally revised, shall be submitted to this court for review before it is promulgated, and random testing shall not be begun until after court review occurs.
c. This court shall retain jurisdiction to supervise the implementation of 87-1.
3. The request of all plaintiffs for a permanent injunction of SEPTA order no. 87-2 is granted.
4. The request of the Railroad Brotherhood plaintiffs for a permanent injunction of SEPTA order no. 87-1, as finally revised, is granted until such time as SEPTA complies with Section 156 of the Railway Labor Act, 45 U.S.C. § 151 et seq.
5. The request of the plaintiff Local 1594 of the United Transportation Union for a permanent injunction of SEPTA orders nos. 87-1 and 87-2 because of SEPTA's alleged noncompliance with the Pennsylvania Public Employe Relations Act is denied.