author: Justice Brennan Justice O’Connor, Chief Justice Rehnquist,

text:
    MISSOURI et al. v. JENKINS, by her friend, AGYEI, et al.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
    No. 88-64.
    Argued February 21, 1989
    Decided June 19, 1989

      Bruce Farmer, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief were William L. Webster, Attorney General, Terry Allen, Deputy Attorney General, and Michael L. Boicourt and Bart A. Ma-tanic, Assistant Attorneys General.

      Jay Topkis argued the cause for respondents. With him on the brief were Julius LeVonne Chambers, Charles Stephen Ralston, Arthur A. Benson II, Russell E. Lovell II, and Theodore M. Shaw.

        John A. DeVault III filed a brief for the National Association of Legal Assistants, Inc., as amicus curiae urging affirmance.

   Justice Brennan

delivered the opinion of the Court.

This is the attorney’s fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, 488 U. S. 888 (1988), to resolve two questions relating to fees litigation under 90 Stat. 2641, as amended, 42 U. S. C. § 1988. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work?

I

This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 754 months during 1983 and 1984, the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See Jenkins v. Missouri, 807 F. 2d 657 (CA8 1986) (en banc), cert. denied, 484 U. S. 816 (1987); Jenkins v. Missouri, 855 F. 2d 1295 (CA8 1988), cert. granted, 490 U. S. 1034 (1989).

The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988. Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22-A43.

In calculating the hourly rate for Benson’s fees the court noted that the market rate in Kansas City for attorneys of Benson’s qualifications was in the range of $125 to $175 per hour, and found that “Mr. Benson’s rate would fall at the higher end of this range based upon his expertise in the area of civil rights.” Id., at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson’s services. Id., at A26-A27. The court also took account of the delay in payment in setting the rates for several of Benson’s associates by using current market rates rather than those applicable at the time the services were rendered. Id., at A28-A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. Id., at A33.

Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. Id., at A29-A31, A34. The Court of Appeals affirmed in all respects. 838 F. 2d 260 (CA8 1988).

II

Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney’s fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, Hutto v. Finney, 437 U. S. 678 (1978), and Library of Congress v. Shaw, 478 U. S. 310 (1986).

In Hutto v. Finney, the lower courts had awarded attorney’s fees against the State of Arkansas, in part pursuant to §1988, in connection with litigation over the conditions of confinement in that State’s prisons. The State contended that any such award was subject to the Eleventh Amendment’s constraints on actions for damages payable from a State’s treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between “retroactive monetary relief” and “prospective injunctive relief.” See Edelman v. Jordan, 415 U. S. 651 (1974); Ex parte Young, 209 U. S. 123 (1908). Attorney’s fees, we held, belonged to the latter category, because they constituted reimbursement of “expenses incurred in litigation seeking only prospective relief,” rather than “retroactive liability for prelitigation conduct.” Hutto, 437 U. S., at 695; see also id.,. at 690. We explained: “Unlike ordinary ‘retroactive’ relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief.” Id., at 695, n. 24. Section 1988, we noted, fit easily into the longstanding practice of awarding “costs” against States, for the statute imposed the award of attorney’s fees “as part of the costs.” Id., at 695-696, citing Fairmont Creamery Co. v. Minnesota, 275 U. S. 70 (1927).

After Hutto, therefore, it must be accepted as settled that an award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a “reasonable attorney’s fee” is to be calculated. See Hutto, supra, at 696-697.

Missouri contends, however, that the principle enunciated in Hutto has been undermined by subsequent decisions of this Court that require Congress to “express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985); Welch v. Texas Dept, of Highways and Public Transportation, 483 U. S. 468 (1987). See also Dellmuth v. Muth, ante, p. 223; Pennsylvania v. Union Gas Co., ante, p. 1. The flaw in this argument lies in its misreading of the holding of Hutto. It is true that in Hutto we noted that Congress could, in the exercise of its enforcement power under § 5 of the Fourteenth Amendment, set aside the States’ immunity from retroactive damages, 437 U. S., at 693, citing Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and that Congress intended to do so in enacting § 1988, 437 U. S., at 693-694. But we also made clear that the application of § 1988 to the States did not depend on congressional abrogation of the States’ immunity. We did so in rejecting precisely the “clear statement” argument that Missouri now suggests has undermined Hutto. Arkansas had argued that § 1988 did not plainly abrogate the States’ immunity; citing Employees v. Missouri Dept, of Public Health and Welfare, 411 U. S. 279 (1973), and Edelman v. Jordan, supra, the State contended that “retroactive liability” could not be imposed on the States “in the absence of an extraordinarily explicit statutory mandate.” Hutto, 437 U. S., at 695. We responded as follows: “[Tjhese cases [Employees and Edelman] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney’s fees ‘as part of the costs.’ Costs have traditionally been awarded without regard for the States’ Eleventh Amendment immunity.” Ibid.

The holding of Hutto, therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting § 1988, but rather that the Eleventh Amendment did not apply to an award of attorney’s fees ancillary to a grant of prospective relief. See Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980). That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today.

Missouri’s other line of argument is based on our decision in Library of Congress v. Shaw, supra. Shaw involved an application of the longstanding “no-interest rule,” under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States’ immunity from suit and from costs including reasonable attorney’s fees, it had not waived the Federal Government’s traditional immunity from any award of interest. We thus held impermissible a 30 percent increase in the “lodestar” fee to compensate for delay in payment. Because we refused to find in the language of Title VII a waiver of the United States’ immunity from interest, Missouri argues, we should likewise conclude that § 1988 is not sufficiently explicit to constitute an abrogation of the States’ immunity under the Eleventh Amendment in regard to any award of interest.

The answer to this contention is already clear from what we have said about Hutto v. Finney. Since, as we held in Hutto, the Eleventh Amendment does not bar an award of attorney’s fees ancillary to a grant of prospective relief, our holding in Shaw has no application, even by analogy. There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a “clear statement” requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Shaw. Rather, the issue here — whether the “reasonable attorney’s fee” provided for in § 1988 should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment — is a straightforward matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended — not whether it manifested “the clear affirmative intent ... to waive the sovereign’s immunity.” Shaw, 478 U. S., at 321.

This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a “reasonable attorney’s fee.” In Pennsylvania v. Delaware Valley Citizens’ Council, 483 U. S. 711 (1987), we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay:

“First is the matter of delay. When plaintiffs’ entitlement to attorney’s fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later .... Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra Club v. EPA, 248 U. S. App. D. C. 107, 120-121, 769 F. 2d 796, 809-810 (1986); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F. 2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue .... We do not suggest . . . that adjustments for delay are inconsistent with the typical fee-shifting statute.” Id., at 716.

The same conclusion is appropriate under § 1988. Our cases have repeatedly stressed that attorney’s fees awarded under this statute are to be based on market rates for the services rendered. See, e. g., Blanchard v. Bergeron, 489 U. S. 87 (1989); Riverside v. Rivera, 477 U. S. 561 (1986); Blum v. Stenson, 465 U. S. 886 (1984). Clearly, compensation received several years after the services were rendered — -as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment— whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of the statute.

To summarize: We reaffirm our holding in Hutto v. Finney that the Eleventh Amendment has no application to an award of attorney’s fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney’s fee under § 1988. An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment.

Ill

Missouri’s second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively “paralegals”) at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15—which it argued below corresponded to their salaries, benefits, and overhead—would be appropriate, rather than the market rates of $35 to $50. According to Missouri, § 1988 does not authorize billing paralegals’ hours at market rates, and doing so produces a “windfall” for the attorney.

We begin with the statutory language, which provides simply for “a reasonable attorney’s fee as part of the costs.” 42 U. S. C. § 1988. Clearly, a “reasonable attorney’s fee” cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the “reasonable attorney’s fee” provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney’s fee.

The statute specifies a “reasonable” fee for the attorney’s work product. In determining how other elements of the attorney’s fee are to be calculated, we have consistently looked to the marketplace as our guide to what is “reasonable.” In Blum v. Stenson, 465 U. S. 886 (1984), for example, we rejected an argument that attorney’s fees for nonprofit legal service organizations should be based on cost. We said: “The statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant community . . . Id., at 895. See also, e. g., Delaware Valley, 483 U. S., at 732 (O’Connor, J., concurring) (controlling question concerning contingency enhancements is “how the market in a community compensates for contingency”); Rivera, 477 U. S., at 591 (Rehnquist, J., dissenting) (reasonableness of fee must be determined “in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a ‘reasonable’ attorney’s fee under § 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys”). A reasonable attorney’s fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i. e., “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” Blum, supra, at 896, n. 11, and one that grants the successful civil rights plaintiff a “fully compensatory fee,” Hensley v. Eckerhart, 461 U. S. 424, 435 (1983), comparable to what “is traditional with attorneys compensated by a fee-paying client.” S. Rep. No. 94-1011, p. 6 (1976).

If an attorney’s fee awarded under § 1988 is to yield the same level of compensation that would be available from the market, the “increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks,” Ramos v. Lamm, 713 F. 2d 546, 558 (CA10 1983), must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at “market rates.” In other words, the prevailing “market rate” for attorney time is not independent of the manner in which paralegal time is accounted for. Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at “cost.” Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom.

We reject the argument that compensation for paralegals at rates above “cost” would yield a “windfall” for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm’s partners or is otherwise improper under § 1988, merely because it exceeds the cost of the attorney’s services. If the fees are consistent with market rates and practices, the “windfall” argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress’ intent to provide a “fully compensatory fee” if the prevailing plaintiff’s attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699.

Nothing in § 1988 requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that § 1988 requires. Where, however, the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers’ fee requests in the same way is not only permitted by § 1988, but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours “encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes.” Cameo Convalescent Center, Inc. v. Senn, 738 F. 2d 836, 846 (CA7 1984), cert. denied, 469 U. S. 1106 (1985).

Such separate billing appears to be the practice in most communities today. In the present case, Missouri concedes that “the local market typically bills separately for paralegal services,” Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court’s decision to award separate compensation at these rates was fully in accord- with § 1988.

I — I

The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore

Affirmed.

Justice Marshall took no part in the consideration or decision of this case.

Justice O’Connor,

with whom Justice Scalia joins, and with whom The Chief Justice joins in part,

concurring in part and dissenting in part.

I agree with the Court that 42 U. S. C. §1988 allows compensation for the work of paralegals and law clerks at market rates, and therefore join Parts I and III of its opinion. I do not join Part II, however, for in my view the Eleventh Amendment does not permit enhancement of attorney’s fees assessed against a State as compensation for delay in payment.

The Eleventh Amendment does not, of course, provide a State with across-the-board immunity from all monetary relief. Relief that “serves directly to bring an end to a violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect” on a State’s treasury. Papasan v. Attain, 478 U. S. 265, 278 (1986). Thus, in Milliken v. Bradley, 433 U. S. 267, 289-290 (1977), the Court unanimously upheld a decision ordering a State to pay over $5 million to eliminate the effects of de jure segregation in certain school systems. On the other hand, “[rjelief that in essence serves to compensate a party injured in the past,” such as relief “expressly denominated as damages,” or “relief [that] is tantamount to an award of damages for a past violation of federal law, even though styled as something else,” is prohibited by the Eleventh Amendment. Papasan, supra, at 278. The crucial question in this case is whether that portion of respondents’ attorney’s fees based on current hourly rates is properly characterized as retroactive monetary relief.

In Library of Congress v. Shaw, 478 U. S. 310 (1986), the Court addressed whether the attorney’s fees provision of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e-5(k), permits an award of attorney’s fees against the United States to be enhanced in order to compensate for delay in payment. In relevant part, § 2000e-5(k) provides:

“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity Commission (EEOC)] or the United States, a reasonable attorney’s fees as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person.”

The Court began its analysis in Shaw by holding that “interest is an element of damages separate from damages on the substantive claim.” 478 U. S., at 314 (citing C. McCormick, Law of Damages § 50, p. 205 (1935)). Given the “no-interest” rule of federal sovereign immunity, under which the United States is not liable for interest absent an express statutory waiver to the contrary, the Court was unwilling to conclude that, by equating the United States’ liability to that of private persons in § 2000e-5(k), Congress had waived the United States’ immunity from interest. 478 U. S., at 314-319. The fact that § 2000e-5(k) used the word “reasonable” to modify “attorney’s fees” did not alter this result, for the Court explained that it had “consistently . . . refused to impute an intent to waive immunity from interest into the ambiguous use of a particular word or phrase in a statute.” Id., at 320. The description of attorney’s fees as costs in §2000e-5(k) also did not mandate a contrary conclusion because “[pjrejudgment interest... is considered as damages, not a component of ‘costs,’ ” and the “term ‘costs’ has never been understood to include any interest component.” Id., at 321 (emphasis added) (citing 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §§2664, 2666, 2670 (2d ed. 1983); 2 A. Sedgwick & G. Van Nest, Sedgwick on Damages 157-158 (7th ed. 1880)). Finally, the Court rejected the argument that the enhancement was proper because the “no-interest” rule did not prohibit compensation for delay in payment: “Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money.” 478 U. S., at 322.

As the Court notes, ante, at 281, n. 3, the “no-interest” rule of federal sovereign immunity at issue in Shaiu provided an “added gloss of strictness,” 478 U. S., at 318, and may have explained the residt reached by the Court in that case, i. e., that §2000e-5(k) did not waive the United States’ immunity against awards of interest. But there is not so much as a hint anywhere in Shaw that the Court’s discussions and definitions of interest and compensation for delay were dictated by, or limited to, the federal “no-interest” rule. As the quotations above illustrate, the Court’s opinion in Shaw is filled with broad, unqualified language. The dissenters in Shaw did not disagree with the Court’s sweeping characterization of interest and compensation for delay as damages. Rather, they argued only that §2000e-5(k) had waived the immunity of the United States with respect to awards of interest. See id., at 323-327 (Brennan, J., dissenting). I therefore emphatically disagree with the Court’s statement that “Shaw . . . does not represent a general-purpose definition of compensation for delay that governs here.” Ante, at 281, n. 3.

Two general propositions that are relevant here emerge from Shaw. First, interest is considered damages and not costs. Second, compensation for delay, which serves the same function as interest, is also the equivalent of damages. These two propositions make clear that enhancement for delay constitutes retroactive monetary relief barred by the Eleventh Amendment. Given my reading of Shaw, I do not think the Court’s reliance on the cost rationale of § 1988 set forth in Hutto v. Finney, 437 U. S. 678 (1978), is persuasive. Because Shaw teaches that compensation for delay constitutes damages and cannot be considered costs, see 478 U. S., at 321-322, Hutto is not controlling. See Hutto, supra, at 697, n. 27 (“[W]e do not suggest that our analysis would be the same if Congress were to expand the concept of costs beyond the traditional category of litigation expenses”). Furthermore, Hutto does not mean that inclusion of attorney’s fees as costs in a statute forecloses a challenge to the enhancement of fees as compensation for delay in payment. If it did, then Shaw would have been resolved differently, for § 2000e-5(k) lists attorney’s fees as costs.

Even if I accepted the narrow interpretation of Shaw proffered by the Court, I would disagree with the result reached by the Court in Part II of its opinion. On its own terms, the Court’s analysis fails. The Court suggests that the definitions of interest and compensation for delay set forth in Shaw would be triggered only by a rule of sovereign immunity barring awards of interest against the States: “Outside the context of the ‘no-interest rule’ of federal immunity, we see no reason why compensation for delay cannot be included within § 1988 attorney’s fee awards.” Ante, at 281, n. 3. But the Court does not inquire about whether such a rule exists. In fact, there is a federal rule barring awards of interest against States. See Virginia v. West Virginia, 238 U. S. 202, 234 (1915) (“Nor can it be deemed in derogation of the sovereignty of the State that she should be charged with interest if her agreement properly construed so provides”) (emphasis added); United States v. North Carolina, 136 U. S. 211, 221 (1890) (“general principle” is that “an obligation of the State to pay interest, whether as interest or as damages, on any debt overdue, cannot arise except by the consent and contract of the State, manifested by statute, or in a form authorized by statute”) (emphasis added). The Court has recently held that the rule of immunity set forth in Virginia and North Carolina is inapplicable in situations where the State does not retain any immunity, see West Virginia v. United States, 479 U. S. 305, 310-312 (1987) (State can be held liable for interest to the United States, against whom it has no sovereign immunity), but the rule has not otherwise been limited, and there is no reason why it should not be relevant in the Eleventh Amendment context presented in this case.

As Virginia and North Carolina indicate, a State can waive its immunity against awards of interest. See also Clark v. Barnard, 108 U. S. 436, 447 (1883). The Missouri courts have interpreted Mo. Rev. Stat. §408.020 (1979 and Supp. 1989), providing for prejudgment interest on money that becomes due and payable, and §408.040, providing for prejudgment interest on court judgments and orders, as making the State liable for interest. See Denton Construction Co. v. Missouri State Highway Comm’n, 454 S. W. 2d 44, 59-60 (Mo. 1970) (§408.020); Steppelman v. State Highway Comm’n of Missouri, 650 S. W. 2d 343, 345 (Mo. App. 1983) (§408.040). There can be no argument, however, that these Missouri statutes and cases allow interest to be awarded against the State here. A “State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” Penn-hurst State School and Hospital v. Halderman, 465 U. S. 89, 99, n. 9 (1984).

The fact that a State has immunity from awards of interest is not the end of the matter. In a case such as this one involving school desegregation, interest or compensation for delay (in the guise of current hourly rates) can theoretically be awarded against a State despite the Eleventh Amendment’s bar against retroactive monetary liability. The Court has held that Congress can set aside the States’ Eleventh Amendment immunity in order to enforce the provisions of the Fourteenth Amendment. See City of Rome v. United States, 446 U. S. 156, 179 (1980); Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). Congress must, however, be unequivocal in expressing its intent to abrogate that immunity. See generally Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985) (“Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself”).

In Hutto the Court was able to avoid deciding whether § 1988 met the “clear statement” rule only because attorney’s fees (without any enhancement) are not considered retroactive in nature. See 437 U. S., at 695-697. The Court cannot do the same here, where the attorney’s fees were enhanced to compensate for delay in payment. Cf. Osterneck v. Ernst & Whinney, 489 U. S. 169, 175 (1989) (“[U]nlike attorney’s fees, which at common law were regarded as an element of costs, . . . prejudgment interest traditionally has been considered part of the compensation due [the] plaintiff”).

In relevant part, § 1988 provides:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

In my view, § 1988 does not meet the “clear statement” rule set forth in Atascadero. It does not mention damages, interest, compensation for delay, or current hourly rates. As one federal court has correctly noted, “Congress has not yet made any statement suggesting that a § 1988 attorney’s fee award should include prejudgment interest. ” Rogers v. Okin, 821 F. 2d 22, 27 (CA1 1987). A comparison of the statute at issue in Shaw also indicates that § 1988, as currently written, is insufficient to allow attorney’s fees assessed against a State to be enhanced to compensate for delay in payment. The language of § 1988 is undoubtedly less expansive than that of § 2000e-5(k), for § 1988 does not equate the liability of States with that of private persons. Since § 2000e-5(k) does' not allow enhancement of an award of attorney’s fees to compensate for delay, it is logical to conclude that § 1988, a more narrowly worded statute, likewise does not allow interest (through the use of current hourly rates) to be tacked on to an award of attorney’s fees against a State.

Compensation for delay in payment was one of the reasons the District Court used current hourly rates in calculating respondents’ attorney’s fees. See App. to Pet. for Cert. A26-A27; 838 F. 2d 260, 263, 265 (CA8 1988). I would reverse the award of attorney’s fees to respondents and remand so that the fees can be calculated without taking compensation for delay into account.

Chief Justice Rehnquist,

dissenting.

I agree with Justice O’Connor that the Eleventh Amendment does not permit an award of attorney’s fees against a State which includes compensation for delay in payment. Unlike Justice O’Connor, however, I do not agree with the Court’s approval of the award of law clerk and paralegal fees made here.

Title 42 U. S. C. § 1988 gives the district courts discretion to allow the prevailing party in an action under 42 U. S. C. § 1983 “a reasonable attorney’s fee as part of the costs.” The Court reads this language as authorizing recovery of “a ‘reasonable’ fee for the attorney’s work product,” ante, at 285, which, the Court concludes, may include separate compensation for the services of law clerks and paralegals. But the statute itself simply uses the very familiar term “a reasonable attorney’s fee,” which to those untutored in the Court’s linguistic juggling means a fee charged for services rendered by an individual who has been licensed to practice law. Because law clerks and paralegals have not been licensed to practice law in Missouri, it is difficult to see how charges for their services may be separately billed as part of “attorney’s fees.” And since a prudent attorney customarily includes compensation for the cost of law clerk and paralegal services, like any other sort of office overhead — from secretarial staff, janitors, and librarians, to telephone service, stationery, and paper clips — in his own hourly billing rate, allowing the prevailing party to recover separate compensation for law clerk and paralegal services may result in “double recovery.”

The Court finds justification for its ruling in the fact that the prevailing practice among attorneys in Kansas City is to bill clients separately for the services of law clerks and paralegals. But I do not think Congress intended the meaning of the statutory term “attorney’s fee” to expand and contract with each and every vagary of local billing practice. Under the Court’s logic, prevailing parties could recover at market rates for the cost of secretaries, private investigators, and other types of lay personnel who assist the attorney in preparing his case, so long as they could show that the prevailing practice in the local market was to bill separately for these services. Such a result would be a sufficiently drastic departure from the traditional concept of “attorney’s fees” that I believe new statutory authorization should be required for it. That permitting separate billing of law clerk and paralegal hours at market rates might “ ‘reduc[e] the spiraling cost of civil rights litigation’ ” by encouraging attorneys to delegate to these individuals tasks which they would otherwise perform themselves at higher cost, ante, at 288, and n. 10, may be a persuasive reason for Congress to enact such additional legislation. It is not, however, a persuasive reason for us to rewrite the legislation which Congress has in fact enacted. See Badaracco v. Commissioner, 464 U. S. 386, 398 (1984) (“Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement”).

I also disagree with the State’s suggestion that law clerk and paralegal expenses incurred by a prevailing party, if not recoverable at market rates as “attorney’s fees” under § 1988, are nonetheless recoverable at actual cost under that statute. The language of § 1988 expands the traditional definition of “costs” to include “a reasonable attorney’s fee,” but it cannot fairly be read to authorize the recovery of all other out-of-pocket expenses actually incurred by the prevailing party in the course of litigation. Absent specific statutory authorization for the recovery of such expenses, the prevailing party remains subject to the limitations on cost recovery imposed by Federal Rule of Civil Procedure 54(d) and 28 U. S. C. § 1920, which govern the taxation of costs in federal litigation where a cost-shifting statute is not applicable. Section 1920 gives the district court discretion to tax certain types of costs against the losing party in any federal litigation. The statute specifically enumerates six categories of expenses which may be taxed as costs: fees of the court clerk and marshal; fees of the court reporter; printing fees and witness fees; copying fees; certain docket fees; and fees of court-appointed experts and interpreters. We have held that this list is exclusive. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437 (1987). Since none of these categories can possibly be construed to include the fees of law clerks and paralegals, I would also hold that reimbursement for these expenses may not be separately awarded at actual cost.

I would therefore reverse the award of reimbursement for law clerk and paralegal expenses.

       Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982,1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U. S. C. § 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U. S. C. §2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       The holding of the Court of Appeals on this point, 838 F. 2d, at 265-266, is in conflict with the resolution of the same question in Rogers v. Okin, 821 F. 2d 22, 26-28 (CA1 1987), cert. denied sub nonz. Commissioner, Massachusetts Dept, of Mental Health v. Rogers, 484 U. S. 1010 (1988).

       Our opinion in Shaiu does, to be sure, contain some language that, if read in isolation, might suggest a different result in this case. Most significantly, we equated compensation for delay with prejudgment interest, and observed that “[p]rejudgment interest... is considered as damages, not a component of ‘costs.’ . . . Indeed, the term ‘costs’ has never been understood to include any interest component.” Library of Congress v. Shaiu, 478 U. S. 310, 321 (1986). These observations, however, cannot be divorced from the context of the special “no-interest rule” that was at issue in Shaw. That rule, which is applicable to the immunity of the United States and is therefore not at issue here, provides an “added gloss of strictness,” id., at 318, only where the United States’ liability for interest is at issue. Our inclusion of compensation for delay within the definition of prejudgment interest in Shaiu must be understood in light of this broad proscription of interest awards against the United States. Shaw thus does not represent a general-purpose definition of compensation for delay that governs here. Outside the context of the “no-interest rule” of federal immunity, we see no reason why compensation for delay cannot be included within § 1988 attorney’s fee awards, which Hutto held to be “costs” not subject to Eleventh Amendment strictures.
      We cannot share Justice O’Connor’s view that the two cases she cites, post, at 293, demonstrate the existence of an equivalent rule relating to state immunity that embodies the same ultrastrict rule of construction for interest awards that has grown up around the federal no-interest rule. Cf. Shaiu, supra, at 314-317 (discussing historical development of the federal no-interest rule).

       In Shaio, which dealt with the sovereign immunity of the Federal Government, there was of course no prospective-retrospective distinction as there is when, as in Hutto and the present case, it is the Eleventh Amendment immunity of a State that is at issue.

        Delaware Valley was decided under § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d). We looked for guidance, however, to § 1988 and our cases construing it. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U. S. 711, 713, n. 1 (1987).

       The Courts of Appeals have taken a variety of positions on this issue. Most permit separate billing of paralegal time. See, e. g., Save Our Cumberland Mountains, Inc. v. Hodel, 263 U. S. App. D. C. 409, 420, n. 7, 826 F. 2d 43, 54, n. 7 (1987), vacated in part on other grounds, 273 U. S. App. D. C. 78, 857 F. 2d 1516 (1988) (en banc); Jacobs v. Mancuso, 825 F. 2d 559, 563, and n 6 (CA1 1987) (collecting cases); Spanish Action Committee

        of Chicago v. Chicago, 811 F. 2d 1129, 1138 (CA7 1987); Ramos v. Lamm, 713 F. 2d 546, 558-559 (CA10 1983); Richardson v. Byrd, 709 F. 2d 1016, 1023 (CA5), cert. denied sub nom. Dallas County Commissioners Court v. Richardson, 464 U. S. 1009 (1983). See also Riverside v. Rivera, 477 U. S. 561, 566, n. 2 (1986) (noting lower court approval of hourly rate for law clerks). Some courts, on the other hand, have considered paralegal work “out-of-pocket expense,” recoverable only at cost to the attorney. See, e. g., Northcross v. Board of Education of Memphis City Schools, 611 F. 2d 624, 639 (CA6 1979), cert. denied, 447 U. S. 911 (1980); Thornberry v. Delta Air Lines, Inc., 676 F. 2d 1240, 1244 (CA9 1982), vacated, 461 U. S. 952 (1983). At least one Court of Appeals has refused to permit any recovery of paralegal expense apart from the attorney’s hourly fee. Abrams v. Baylor College of Medicine, 805 F. 2d 528, 535 (CA5 1986).

       This delay, coupled with the fact that, as we recognized in Delaivare Valley, the attorney’s expenses are not deferred pending completion of the litigation, can cause considerable hardship. The present case provides an illustration. During a period of nearly three years, the demands of this case precluded attorney Benson from accepting other employment. In order to pay his staff and meet other operating expenses, he was obliged to borrow $633,000. As of January 1987, he had paid over $113,000 in interest on this debt, and was continuing to borrow to meet interest payments. Record 2336-2339; Tr. 130-131. The LDF, for its part, incurred deficits of $700,000 in 1983 and over $1 million in 1984, largely because of this case. Tr. 46. If no compensation were provided for the delay in payment, the prospect of such hardship could well deter otherwise willing attorneys from accepting complex civil rights cases that might offer great benefit to society at large; this result would work to defeat Congress’ purpose in enacting § 1988 of “encourag[ing] the enforcement of federal law through lawsuits filed by private persons.” Delaware Valley, supra, at 737 (Blackmun, J., dissenting).
      We note also that we have recognized the availability of interim fee awards under § 1988 when a litigant becomes a prevailing party on one issue in the course of the litigation. Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 791-792 (1989). In economic terms, such an interim award does not differ from an enhancement for delay in payment.

       The attorney who bills separately for paralegal time is merely distributing her costs and profit margin among the hourly fees of other members of her staff, rather than concentrating them in the fee she sets for her own time.

       A variant of Missouri’s “windfall” argument is the following: “If paralegal expense is reimbursed at a rate many times the actual cost, will attorneys next try to bill separately — and at a profit — for such items as secretarial time, paper clips, electricity, and other expenses?” Reply Brief for Petitioners 15-16. The answer to this question is, of course, that attorneys seeking fees under § 1988 would have no basis for requesting separate compensation of such expenses unless this were the prevailing practice in the local community. The safeguard against the billing at a profit of secretarial services and paper clips is the discipline of the market.

       It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate. Such work might include, for example, factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal. To the extent that fee applicants under § 1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation.
      Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”

        Amicus National Association of Legal Assistants reports that 77 percent of 1,800 legal assistants responding to a survey of the association’s membership stated that their law firms charged clients for paralegal work on an hourly billing basis. Brief for National Association of Legal Assistants as Amicus Curiae 11.


source: Caselaw Access Project

author: Justice Blackmun Justice White, Justice Brennan,

license: Public Domain

text:
    CONSOLIDATED RAIL CORPORATION v. RAILWAY LABOR EXECUTIVES’ ASSOCIATION et al.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
    No. 88-1.
    Argued February 28, 1989
    Decided June 19, 1989

      Dennis J. Morikawa argued the cause for petitioner. With him on the briefs were Harry A. Rissetto, Michael J.

      Ossip, Sarah A. Kelly, Bruce B. Wilson, and Jeffrey H. Burton.

      John O’B. Clarke, Jr., argued the cause for respondents. With him on the brief were Lawrence M. Mann, William G. Mahoney, Laurence Gold, and Cornelius C. O’Brien, Jr.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Laurence S. Robbins, and Leonard Schaitman; and for the National Railway Labor Conference by Richard T. Conway, Ralph J. Moore, Jr., and David P. Lee.

        Martin C. Seham filed a brief for the Allied Pilots Association as amicus curiae.

   Justice Blackmun

delivered the opinion of the Court.

In this case, we must examine the concepts of “major” and “minor” disputes in the area of railway labor relations, articulate a standard for differentiating between the two, and apply that standard to a drug-testing dispute.

I

Since its formation in 1976, petitioner Consolidated Rail Corporation (Conrail), has required its employees to undergo physical examinations periodically and upon return from leave. These examinations include the testing of urine for blood sugar and albumin and, in some circumstances, for drugs. On February 20, 1987, Conrail announced unilaterally that urinalysis drug screening would be included henceforth as part of all periodic and return-from-leave physical examinations. Respondent Railway Labor Executives’ Association (the Union), an unincorporated association of chief executive officers of 19 labor organizations which collectively represent Conrail’s employees, opposes this unilateral drug-testing addition.

The parties agree that Conrail’s inclusion of drug testing in all physical examinations has created a labor dispute the resolution of which is governed by the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq.' The question presented by this case is what kind of labor dispute we have before us: whether Conrail’s addition of a drug screen to the urinalysis component of its required periodic and return-to-duty medical examinations gives rise to a “major” or a “minor” dispute under the RLA.

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.” 845 F. 2d 1187, 1193 (1988). Although we find the question to be a close one, we agree with the District Court, and with those Courts of Appeals that have held, on similar facts, that disputes concerning the addition of a drug-testing component to routine physical examinations are minor disputes. See, e. g., Railway Labor Executives Assn. v. Norfolk & Western R. Co., 833 F. 2d 700, 705-706 (CA7 1987); Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R. Co., 802 F. 2d 1016, 1024 (CA8 1986).

I — i I — I

This Court has not articulated an explicit standard for differentiating between major and minor disputes. It adopted the major/minor terminology, drawn from the vocabulary of rail management and rail labor, as a shorthand method of describing two classes of controversy Congress had distinguished in the RLA: major disputes seek to create contractual rights, minor disputes to enforce them. Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 723 (1945).

The statutory bases for the major dispute category are §2 Seventh and § 6 of the RLA, 48 Stat. 1188, 1197, 45 U. S. C. § 152 Seventh and § 156. The former states that no carrier “shall 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 through the mediation procedures established in §6. This statutory category

“relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.” Burley, 325 U. S., at 723.

In the event of a major dispute, the RLA requires the parties to undergo a lengthy process of bargaining and mediation. §§5 and 6. Until they have exhausted those procedures, the parties are obligated to maintain the status quo, and the employer may not implement the contested change in rates of pay, rules, or working conditions. The district courts have subject-matter jurisdiction to enjoin a violation of the status quo pending completion of the required procedures, without the customary showing of irreparable injury. See Detroit & T. S. L. R. Co. v. Transportation Union, 396 U. S. 142 (1969) (upholding status quo injunction without discussing equitable constraints); Division No. 1, Detroit, Brotherhood of Locomotive Engineers v. Consolidated Rail Corp., 844 F. 2d 1218 (CA6 1988). Once this protracted process ends and no agreement has been reached, the parties may resort to the use of economic force.

In contrast, the minor dispute category is predicated on § 2 Sixth and § 3 First (i) of the RLA, which set forth conference and compulsory arbitration procedures for a dispute arising or growing “out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” This second category of disputes

“contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e. g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future.” Burley, 325 U. S., at 723.

A minor dispute in the railroad industry is subject to compulsory and binding arbitration before the National Railroad Adjustment Board, § 3, or before an adjustment board established by the employer and the unions representing the employees. § 3 Second. The Board (as we shall refer to any adjustment board under the RLA) has exclusive jurisdiction over minor disputes. Judicial review of the arbitral decision is limited. See §3 First (q); Union Pacific R. Co. v. Sheehan, 439 U. S. 89, 93 (1978). Courts may enjoin strikes arising out of minor disputes. Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30 (1957). Although courts in some circumstances may condition the granting of a strike injunction on a requirement that the employer maintain the status quo pending Board resolution of the dispute, see Locomotive Engineers v. Missouri-K.-T. R. Co., 363 U. S. 528, 534 (1960), this Court never has recognized a general statutory obligation on the part of an employer to maintain the status quo pending the Board’s decision. Cf. id., at 531, n. 3 (leaving open the question whether a federal court can require an employer to maintain the status quo during the pendency of a minor dispute at the union’s independent behest, where no strike injunction has been sought by the employer).

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; see also Trainmen, supra. Thus, the formal demarcation between major and minor disputes does not turn on a case-by-case determination of the importance of the issue presented or the likelihood that it would prompt the exercise of economic self-help. See National Railway Labor Conference v. International Assn, of Machinists and Aerospace Workers, 830 F. 2d 741, 747, n. 5 (CA7 1987). Rather, the line drawn in Burley looks to whether a claim has been made that the terms of an existing agreement either establish or refute the presence of a right to take the disputed action. The distinguishing feature of such a case is that the dispute may be conclusively resolved by interpreting the existing agreement. See Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L. J. 567, 568, 576 (1937).

To an extent, then, the distinction between major and minor disputes is a matter of pleading. The party who initiates a dispute takes the first step toward categorizing the dispute when it chooses whether to assert an existing contractual right to take or to resist the action in question. But the Courts of Appeals early recognized that there is a danger in leaving the characterization of the dispute solely in the hands of one party. In a situation in which the party asserting a contractual basis for its claim is “insincere” in so doing, or its “position [is] founded upon . . . insubstantial grounds,” the result of honoring that party’s characterization would be to undercut “the prohibitions of § 2, Seventh, and § 6 of the Act” against unilateral imposition of new contractual terms. Norfolk & Portsmouth Belt Line R. Co. v. Brotherhood of Railroad Trainmen, Lodge No. 514, 248 F. 2d 34, 43-44, n. 4 (CA4 1957), cert. denied, 355 U. S. 914 (1958); see also United Industrial Workers of Seafarers Int’l Union, AFL-CIO v. Board of Trustees of Galveston Wharves, 351 F. 2d 183, 188-189 (CA5 1965). In such circumstances, protection of the proper functioning of the statutory scheme requires the court to substitute its characterization for that of the claimant.

To satisfy this need for some degree of judicial control, the Courts of Appeals uniformly have established some variant of the standard employed by the Third Circuit in this case:

“ ‘[I]f the disputed action of one of the parties can “arguably” be justified by the existing agreement or, in somewhat different statement, if the contention that the labor contract sanctions the disputed action is not “obviously insubstantial,” the controversy is a [minor dispute] within the exclusive province of the National Railroad Adjustment Board.’” 845 F. 2d, at 1190, quoting Local 1477 United Transportation Union v. Baker, 482 F. 2d 228, 230 (CA6 1973).

Verbal formulations of this standard have differed over time and among the Circuits: phrases such as “not arguably justified,” “obviously insubstantial,” “spurious,” and “frivolous” have been employed. See, e. g., Brotherhood of Locomo tive Engineers v. Burlington Northern R. Co., 838 F. 2d 1087, 1091 (CA9 1988) (reviewing different formulations used in the Ninth Circuit), cert, pending, No. 87-1631. “These locutions are essentially the same in their result. They illustrate the relatively light burden which the railroad must bear” in establishing exclusive arbitral jurisdiction under the RLA. Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R. Co., 802 F. 2d, at 1022; see also Maine Central R. Co. v. United Transportation Union, 787 F. 2d 780, 783 (CA1) (“The degree of scrutiny, while ill-defined, is clearly light”), cert. denied, 479 U. S. 848 (1986).

“To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language adopted by these . . . Courts of Appeals is correct.” Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978). Where an employer asserts a contractual right to take the contested action, the ensuing dispute is minor if the action is arguably justified by the terms of the parties’ collective-bargaining agreement. Where, in contrast, the employer’s claims are frivolous or obviously insubstantial, the dispute is major.

Ill

In this case, the Union appears to agree that the “arguably justified” standard generally is the appropriate one for distinguishing between major and minor disputes. Brief for Respondents 35, n. 29. But it argues that the dispute in this case, properly viewed, is neither a major dispute nor a minor dispute. According to the Union, where an employer has made a clear “change [in] . . . working conditions ... as embodied in agreements,” but asserts that it has made the change “in the manner prescribed in such agreements,” §2 Seventh, because it has a contractual right to make the change, the ensuing dispute is a “hybrid case.” Brief for Respondents 34-35, 40, n. 32.

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.” §2 Seventh (emphasis added). Stated more simply, the Union’s position is that, while a dispute over the right to make the change would be a minor dispute, the actual making of the change transforms the controversy into a major dispute.

This approach unduly constrains the freedom of unions and employers to contract for discretion. Collective-bargaining agreements often incorporate express or implied terms that are designed to give management, or the union, a degree of freedom of action within a specified area of activity. See NLRB v. American National Insurance Co., 343 U. S. 395 (1952); Rutland Railway Corp. v. Brotherhood of Locomotive Engineers, 307 F. 2d 21, 35-36 (CA2 1962), cert. denied, 372 U. S. 954 (1963). Cf. Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 580 (1960); see generally Cox & Dunlop, Regulation of Collective Bargaining by the National Labor Relations Board, 63 Harv. L. Rev. 389, 401 (1950). We have held under the National Labor Relations Act (NLRA) that no principle of labor law prohibits “[bargaining for . . . flexible treatment” and requires instead that, for each working condition, the employer “agre[e] to freeze a standard into a contract.” American National Insurance Co., 343 U. S., at 408. We find no difference between the NLRA and the RLA in this respect. Yet the Union would subject to especially strict scrutiny the bona fides of contractual claims arising out of contract terms that grant management the power to respond flexibly to changing circumstances. The effect of a selectively heightened level of scrutiny (a “clear and patent” rather than an “arguably justified” standard) would be to limit the enforceability of such contract terms, by requiring employers rigidly to maintain the status quo pending arbitration of their right to be flexible. That result is odd in itself, cf. Rutland Railway Cory., 307 F. 2d, at 40 (requiring parties to negotiate over whether they have a duty to negotiate is “a solution sounding a lot like an exercise in theoretical logic”), and has unacceptable implications. To accept the bifurcated standard the Union advocates would, in effect, be impermissibly to “pass upon the desirability of the substantive terms of labor agreements,” American National Insurance Co., 343 U. S., at 408-409, by affording flexible terms a less favored status, cf. International Assn, of Machinists and Aerospace Workers v. Northeast Airlines, Inc., 473 F. 2d 549, 555 (CA1), cert. denied, 409 U. S. 845 (1972).

Accordingly, we shall not aggravate the already difficult task of distinguishing between major disputes and minor disputes by adding a third category of hybrid disputes. We hold that if an employer asserts a claim that the parties’ agreement gives the employer the discretion to make a particular change in working conditions without prior negotiation, and if that claim is arguably justified by the terms of the parties’ agreement (i. e., the claim is neither obviously insubstantial or frivolous, nor made in bad faith), the employer may make the change and the courts must defer to the arbi-tral jurisdiction of the Board.

The effect of this ruling, of course, will be to delay collective bargaining in some cases until the arbitration process is exhausted. But we see no inconsistency between that result and the policies of the RLA. The core duties imposed upon employers and employees by the RLA, as set forth in §2 First, are to “make and maintain agreements” and to “settle all disputes ... in order to avoid any interruption to commerce.” Referring arbitrable matters to the Board will help to “maintain agreements,” by assuring that collective-bargaining contracts are enforced by arbitrators who are experts in “the common law of [the] particular industry.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S., at 579. Full utilization of the Board’s procedures also will diminish the risk of interruptions in commerce. Failure of the “virtually endless” process of negotiation and mediation established by the RLA for major disputes, Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U. S. 429, 444 (1987), frees the parties to employ a broad range of economic self-help, which may disturb transportation services throughout the industry and unsettle employer-employee relationships. See TWA, Inc. v. Flight Attendants, 489 U. S. 426 (1989). Delaying the onset of that process until the Board determines on the merits that the employer’s interpretation of the agreement is incorrect will assure that the risks of self-help are not needlessly undertaken and will aid “[t]he peaceable settlement of labor controversies.” Virginian R. Co. v. Railway Employees, 300 U. S. 515, 552 (1937).

> h-1

This case, then, turns on whether the inclusion of drug testing in periodic and return-from-leave physical examinations is arguably justified by the parties’ collective-bargaining agreement. Neither party relies on any express provision of the agreement; indeed, the agreement is not part of the record before us. As the parties acknowledge, however, collective-bargaining agreements may include implied, as well as express, terms. See, e. g., Northwest Airlines, Inc. v. Air Line Pilots Assn., Int’l, 442 F. 2d 251, 253-254 (CA8), cert. denied, 404 U. S. 871 (1971). Furthermore, it is well established that the parties’ “practice, usage and custom” is of significance in interpreting their agreement. See Transportation Union v. Union Pacific R. Co., 385 U. S. 157, 161 (1966). This Court has observed: “A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts which control such private contracts. ‘. . . [I]t is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. . ! . The collective agreement covers the whole employment relationship. It calls into being a new common law — the common law of a particular industry or of a particular plant. ’ ” Id., at 160-161 (citation omitted) (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S., at 578-579).

In this case, Conrail’s contractual claim rests solely upon implied contractual terms, as interpreted in light of past practice. Because we agree with Conrail that its contractual claim is neither frivolous nor obviously insubstantial, we conclude that this controversy is properly deemed a minor dispute within the exclusive jurisdiction of the Board.

A

The essential facts regarding Conrail’s past practices — the facts in support of the positions of both Conrail and the Union — are not disputed. Since its founding in 1976, Conrail routinely has required its employees to undergo physical examinations under the supervision of its health services department. The parties agreed in the Court of Appeals, and the District Court found, that Conrail’s authority to conduct physical examinations is an implied term of the collective-bargaining agreement, established by longstanding past practice and acquiesced in by the Union.

Conrail conducts physical examinations in three categories of cases. First, it always has required its employees to undergo periodic physical examinations, which have routinely included a urinalysis for blood sugar and albumin. These periodic examinations are conducted every three years for employees up to the age of 50, and every two years thereafter. Second, Conrail has required train and engine employees who have been out of service for at least 30 days due to furlough, leave, suspension, or other similar cause to undergo return-to-duty physical examinations. These also routinely include urinalysis. Conrail employees in other job classifications are required to undergo return-to-duty physical examinations that include urinalysis for blood sugar and albumin, but are required to submit to examinations only after absences of 90 days or more. Third, when justified by the employee’s condition, Conrail has routinely required a follow-up physical examination. For example, such an examination has been required for an employee who has suffered a heart attack, or has been diagnosed as having hypertension or epilepsy. Any employee who undergoes a periodic, return-to-duty, or follow-up physical examination and who fails to meet Conrail’s established medical standards may be held out of service without pay until the condition is corrected or eliminated.

Conrail has implemented medical standards for all three types of physical examination. Over the years, procedures for hearing tests, lung-capacity tests, eye tests, and cardio-logical tests have been modified to reflect changes in medical science and technology. These changes have been made by Conrail unilaterally, without consulting the Union.

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 addition, drug testing is included whenever the examining physician thinks the employee may have been using drugs.

On April 1, 1984, Conrail issued a Medical Standards Manual stating that a drug screen would be included in all periodic and return-to-duty physicals. For budgetary reasons, however, this policy then was applied only in Conrail’s eastern region and was discontinued after six months.

On February 20, 1987, Conrail implemented the Medical Standards Manual in all of its regions, requiring drug testing as part of its periodic and return-to-duty physicals and, in addition, requiring follow-up examinations for all employees returning to duty after disqualification for any reason associated with drug use. An employee who tests positive for drugs will not be returned to service unless he provides a negative drug test within 45 days of the date he receives notice of the positive test. An employee whose first test is positive may go to Conrail’s Employee Counseling Service for evaluation. If the evaluation reveals an addiction problem, and the employee agrees to enter an approved treatment program, the employee will be given an extended period of 125 days to provide a negative test.

The problem of drug use has been addressed by Conrail not only as a medical concern, but also as a disciplinary one. This Court noted earlier in the present Term that the railroad industry has adopted operating “Rule G,” which governs drug use by employees. Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 606-607 (1989). As currently implemented by Conrail, Rule G provides: “The use of intoxicants, narcotics, amphetamines or hallucinogens by employees subject to duty, or their possession or use while on duty, is prohibited. Employees under medication before or while on duty must be certain that such use will not affect the safe performance of their duties.” See App. 63. At Conrail, as elsewhere in the industry, an employee may be dismissed for violating Rule G. Skinner, 489 U. S., at 607; Tr. of Oral Arg. 43. 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.

In addition, Conrail has implemented the Federal Railroad Administration regulations recently upheld in Skinner against a Fourth Amendment challenge. Since March 1986, Conrail has required all employees covered by the Hours of Service Act, 45 U. S. C. §61 et seq., to undergo postaccident drug and alcohol testing, pursuant to 49 CFR §219 et seq. (1987).

B

The dispute between the parties focuses on the meaning of these past practices. 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. Conrail contends, specifically, that past practice reflects that drug use has been deemed relevant to job fitness, and that Conrail’s physicians have the discretion to utilize drug testing as part of their medical determination of job fitness. The expansion of drug testing in February 1987, Conrail argues, represents no more than a diagnostic improvement in its medical procedures, similar to diagnostic improvements Conrail unilaterally made in the past.

The Union contends that, even using the “arguably justified” standard, “it is simply not plausible” to conclude that the parties’ agreement contemplated that Conrail had the authority to include drug screens in all routine physical examinations. The Union argues that Conrail has departed materially from the parties’ agreement, as reflected by Conrail’s past medical practice, in several respects. First, the Union states that past practice limited the use of drug testing in physical examinations to circumstances in which there was cause to believe the employee was using drugs; the current program, on the other hand, includes testing without cause. Second, in the Union’s view, Conrail’s general medical policy permits Conrail to remove an employee from active service until the employee’s physical condition improves, but does not permit Conrail to discharge an employee for failure to get well within a specified time; the current drug-testing program includes a fixed time limit, and results in discharge rather than removal from active service. Third, the Union contends that the expansion of drug testing constitutes, for the first time, regulation by Conrail of the private, off-duty conduct of its employees.

In addition to pointing to these asserted departures from past practice, the Union argues that the absence of a “meeting of the minds” on the particulars of testing and confidentiality procedures renders untenable Conrail’s claim that the parties tacitly have agreed to Conrail’s current use of drug testing. Finally, the Union presents an alternative view of what Conrail has done: Conrail has expanded the disciplinary use of drug testing to employees not covered by the Federal Railroad Administration regulations, an expansion which impermissibly adds drug testing to the list of available means for the enforcement of Rule G.

C

In the end, the Union’s arguments distinguishing drug testing from other aspects of Conrail’s medical program, and asserting that Conrail’s true motive is disciplinary, conceivably could carry the day in arbitration. But they do not convince us that Conrail’s contractual arguments are frivolous or insubstantial. Conrail’s interpretation of the range of its discretion as extending to drug testing is supported by the general breadth of its freedom of action in the past, and by its practice of including drug testing within routine medical examinations in some circumstances.

In the past, the parties have left the establishment and enforcement of medical standards in Conrail’s hands. Conrail long has treated drug use as a matter of medical concern. Cf. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 163-179 (3d ed. 1980) (substance abuse disorders); BNA Special Report, Alcohol & Drugs in the Workplace: Costs, Controls, and Controversies 1 (1986) (disciplinary and therapeutic approaches to drugs in the workplace); T. Denenberg & R. Denenberg, Alcohol & Drugs: Issues in the Workplace 18 (1983) (drug and alcohol abuse as treatable disorders); cf. Traynor v. Turnage, 485 U. S. 535, 562-564 (1988) (opinion concurring in part and dissenting in part) (alcohol dependence as medical problem). 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.

There need be no “meeting of the minds” between the parties on the details of drug-testing methods or confidentiality standards for Conrail’s current drug-testing program arguably to be justified by the parties’ agreement. As we have noted, labor laws do not require all the details of particular practices to be worked out in advance. Conrail’s claim that drug testing is an area in which Conrail retains a degree of discretion finds some support in the fact that the Union never before has intervened in the procedural details of Conrail’s drug testing: such testing has been performed — like other medical tests — according to standards unilaterally promulgated by Conrail. Thus, the absence of a specific agreement between the parties regarding testing procedures and confidentiality does not sufficiently undermine Conrail’s contractual claim to require that this dispute be classified as “major.”

Conrail’s well-established recognition of the relevance of drug use to medical fitness substantially weakens the Union’s claim that Conrail now, for the first time, is engaging in medical testing that reveals facts about employees’ private off-duty conduct. Indeed, the fact that medical testing often detects physical problems linked to off-duty behavior makes it difficult to draw a bright line for jurisdictional purposes between testing which does, and that which does not, reflect upon private conduct.

As to the relevance of “cause,” we do not doubt that there is a difference between Conrail’s past regime of limiting drug testing to circumstances in which there is cause to believe that the employee has used drugs and Conrail’s present policy of including drug tests in all routine physical examinations. Indeed, the difference between testing with and without cause perhaps could be of significance to arbitrators in deciding the merits of drug-testing disputes. See generally Denenberg & Denenberg, Drug Testing from the Arbitrator’s Perspective, 11 Nova L. Rev. 371, 387-392 (1987); 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 to 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.

As Conrail pointed out and urged at oral argument, “particularized suspicion” is not an accepted prerequisite for medical testing. Tr. of Oral Arg. 21. A physician’s decision to perform certain diagnostic tests is likely to turn not on the legal concept of “cause” or “individualized suspicion,” but rather on factors such as the expected incidence of the medical condition in the relevant population, the cost, accuracy, and inherent medical risk of the test, and the likely benefits of detection. 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.

We turn next to the alleged disciplinary consequences of a positive drug test. It is clear that Conrail is not claiming a right, under its medical policy, to discharge an employee because of a single positive drug test, a right many railroads assert under Rule G. See Skinner, 489 U. S., at 607. Furthermore, an employee has the option of requesting a period of rehabilitative treatment. Thus, it is surely at least arguable that Conrail’s use of drug testing in physical examinations has a medical, rather than a disciplinary, goal.

The fact that for drug problems, unlike other medical conditions, Conrail’s standards include a fixed time period in which the employee’s condition must improve does serve to distinguish Conrail’s drug policy from its response to other medical problems. Conrail has argued that it needs, for medical purposes, to require employees who deny that they are drug dependent to demonstrate that they are capable of producing a drug-free sample at will. Tr. of Oral Arg. 13. In our view, that argument has sufficient merit to satisfy ConraiTs burden of demonstrating that its claim of contractual entitlement to set a time limit for successful recovery from drug problems is not frivolous.

V

Because we conclude that ConraiTs contractual arguments are not obviously insubstantial, we hold that the case before us constitutes a minor dispute that is within the exclusive jurisdiction of the Board. We make clear, however, that we go no further than to hold that Conrail has met the light burden of persuading this Court that its drug-testing practice is arguably justified by the implied terms of its collective-bargaining agreement. We do not seek to minimize any force in the Union’s arguments that the discretion afforded Conrail by the parties’ implied agreement, as interpreted in light of past practice, cannot be understood to extend this far. Thus, in no way do we suggest that Conrail is or is not entitled to prevail before the Board on the merits of the dispute.

The judgment is reversed.

It is so ordered.

Justice White,

concurring.

I join the opinion and judgment of the Court. I add these remarks only to emphasize that the parties agree and the courts below held that giving physical examinations is a matter covered by an implied agreement between Conrail and the Union. The company claims that although instituting drug testing is a change in conditions, the implied contract authorizes the change. I agree that this claim has substance and that the dispute is a minor one for the Adjustment Board to resolve. If the Board decides that the company is wrong about its authority under the contract, the result will be that the company has sought a change in the contract without invoking the procedures applicable to major disputes.

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. Such a contention, in my view, is not “arguable” — it is frivolous. I agree with the Court of Appeals that “[ujltimately, 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-l, 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 suggesting 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.

       The Union filed suit against Conrail on May 1, 1986, well before Conrail unilaterally added drug testing to its physical examinations. See App. 3. The Union’s complaint challenged Conrail’s use of drug testing to enforce its disciplinary Rule G and to comply with federal drug-testing regulations affecting the railroad industry. 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, pending, No. 87-1631.

       In addition, the RLA provides for arbitration of a major dispute in the event that mediation fails. Thus, the National Mediation Board is required to “endeavor ... to induce the parties to submit their controversey 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. 49 Stat. 1189, 45 U. S. C. § 184. See Machinists v. Central Airlines, Inc., 372 U. S. 682 (1963). In both the airline and railroad industries, the National Mediation Board has a limited role to play in resolving a minor dispute: under § 5 Second, the Board may be called upon by a party to interpret “any agreement reached through mediation under the provisions of this Act.” See also 49 Stat. 1189, 45 U. S. C. § 183 (applying §5 to airlines).

       See generally Comment, Enjoining Strikes and Maintaining the Status Quo in Railway Labor Disputes, 60 Colum. L. Rev. 381, 386-397 (1960); cf. Air Line Pilots Assn., Int’l v. Eastern Air Lines, Inc., 276 U. S. App. D. C. 199, 202, n. 2, 869 F. 2d 1518, 1520, n. 2 (1989); International Assn, of Machinists and Aerospace Workers v. Northeast Airlines, Inc., 473 F. 2d 549, 555, n. 7 (CA1) (expressing the view that a “union [might] be able to enjoin changes in working conditions if it would be impossible otherwise later to make the workers whole”), cert, denied, 409 U. S. 845 (1972); Division No. 1, Detroit, Brotherhood of Locomotive Engineers v. Consolidated Rail Corp., 844 F. 2d 1218, 1224, n. 10 (CA6 1988) (leaving open the question of injunction based on showing of irreparable harm). As the Union in the present case has not based its claim for injunctive relief on an allegation of irreparable injury, we decline to resolve the question whether a status quo injunction based on a claim of irreparable injury would be appropriate.
      The Union suggests in passing that § 2 First provides a status quo obligation applicable to all minor disputes. See Brief for Respondents 21, 30-31. It relies on Detroit & T. S. L. R. Co. v. Transportation Union, 396 U. S. 142, 151 (1969), but, as we read that case, it does not support the Union’s position. The language upon which the Union relies (a reference to “the implicit status quo requirement in the obligation imposed upon both parties by §2 First, ‘to exert every reasonable effort’ to settle disputes without interruption to interstate commerce”) appears in the context of explaining that the express status quo requirements applicable to a major dispute must be broadly interpreted. It has no direct application to a minor dispute.

       See, e. g., National Railway Labor Conference v. International Assn, of Machinists and Aerospace Workers, 830 F. 2d 741, 746 (CA7 1987) (not frivolous or obviously insubstantial); Maine Central R. Co. v. United Transportation Union, 787 F. 2d 780, 782 (CA1) (even arguable), cert, denied, 479 U. S. 848 (1986); International Brotherhood of Electrical Workers v. Washington Terminal Co., 154 U. S. App. D. C. 119, 136, 473 F. 2d 1156, 1173 (1972) (reasonably susceptible), cert. denied, 411 U. S. 906 (1973); Ruby v. Taca International Airlines, S. A., 439 F. 2d 1359, 1363, n. 5 (CA5 1971) (wholly spurious).

       Even if the Union’s approach had merit in the abstract, it would be unworkable in practice. As discussed below, collective-bargaining agreements often contain implied, as well as express, terms. The Union conceded at oral' argument that an employer would have the authority, without engaging in collective bargaining or statutory mediation, to open its locker room 15 minutes later than it had in the past without first establishing its contractual right to do so through a separate arbitration proceeding. Tr. of Oral Arg. 47-48, 50. That acknowledgment stemmed from the assumption that, although a change in opening time was indeed a “change,” and although access to the locker room was a “working condition,” the precise time the locker room opened was not an issue of sufficient significance to have become the subject of an implied contractual agreement, even if the existence of the locker room was itself an implied term of the contract. The Union recognizes, then, that the general framework of a collective-bargaining agreement leaves some play in the joints, permitting management some range of flexibility in responding to changed conditions. The effect of adopting the Union’s “hybrid dispute” proposal would be to require the trial court to make a nonexpert generalized judgment regarding the “importance” of a particular working condition, and to use that judgment as the basis for deciding whether a particular working condition is or is not within the parties’ agreed range of discretion. We decline to put courts to that task.

       In most cases where the Board determines that the employer’s conduct was not justified by the contract, the Board will be able to fashion an appropriate compensatory remedy which takes account of the delay. See, e. g., Order of Conductors v. Pitney, 326 U. S. 561, 566 (1946); In re Aaxico Airlines, Inc., 47 Lab. Arb. 289, 316 (1966); In re Trans World Airlines, Inc., 34 Lab. Arb. 420, 425 (1959). There may be some circumstances, however, where the delay inherent in permitting the Board to consider the matter in the first instance will lead to remedial difficulties. See generally Comment, 60 Colum. L. Rev., at 394.

       This is not to say that the legal significance of these practices is undisputed. In particular, the parties take different views of how a court is to determine whether a particular past practice has risen to the level of an implied contractual term. Compare Brief for Respondents 42-43 with Brief for Petitioner 19. The precise definition of this standard, however, is of no particular significance to this case. As will become clear, the parties have agreed that Conrail’s power to conduct physical examinations is an implied contractual term. The District Court made no factual findings that Conrail’s specific practices had themselves become implied terms of the contract, and we do not suggest otherwise in the discussion that follows.

       The Union suggests that Conrail’s decision to implement its current drug-testing program resulted from a serious Conrail accident in January 1987, in which the engineer and conductor of the train admitted smoking marijuana in the cab just prior to the collision. Brief for Respondents 6.

       It was the implementation of the Federal Railroad Administration regulations that precipitated the instant lawsuit, Brief for Respondents 7, but no issue regarding Conrail’s implementation of those regulations is presently before us.

       Conrail argued in the District Court that the parties’ implied agreement regarding Rule G enforcement justified its current drug-testing practice, but abandoned that position on appeal. See 845 F. 2d, at 1194.

       We note that Conrail does not seek to rely on the 1984 limited implementation of routine drug testing as evidence of a past practice acquiesced in by the Union. See id., at 1193, n. 3.

      The Court rests its holding that the purpose of Conrail’s drug tests is — arguably—medical rather than disciplinary solely on the ground that Conrail will not discharge an employee on the basis of one positive drug test standing alone and that it will permit the employee “a period of rehabilitative treatment” prior to a second test. Ante, at 319. I do not agree that these factors even arguably bring Conrail’s drug-testing program within the realm of the existing medical examinations. Beyond this, however, I note that under the Court’s reasoning the outcome of the ease should be different if the employer’s policy were indeed “to discharge an employee because of a single positive drug test.” Ibid.