Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R. Co., s. 85-2360

• Decision Date: 01 October 1986
• Docket Number: Nos. 85-2360,85-2412,s. 85-2360
• Citation: 802 F.2d 1016
• Parties: 123 L.R.R.M. (BNA) 2593, 55 USLW 2222, 105 Lab.Cas. P 12,079, 1 Indiv.Empl.Rts.Cas. 789 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, LODGE 16, et al.; Brotherhood of Maintenance of Way Employees, Grand Lodge, et al., Intervenors, Appellants, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1016

802 F.2d 1016

123 L.R.R.M. (BNA) 2593, 55 USLW 2222,

105 Lab.Cas. P 12,079,

1 Indiv.Empl.Rts.Cas. 789

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, LODGE 16, et

al.; Brotherhood of Maintenance of Way Employees, Grand Lodge, et al., Intervenors, Appellants, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellee.

Nos. 85-2360, 85-2412.

United States Court of Appeals,

Eighth Circuit.

Submitted May 12, 1986.

Decided Oct. 1, 1986.

Harry W. Zanville, Cedar Falls, Iowa, for appellants.

Richard J. Schreiber, Fort Worth, Tex., for appellee.

Before ARNOLD, FAGG and WOLLMAN, Circuit Judges.

PER CURIAM.

This is a suit in equity for an injunction preventing the defendant, Burlington Northern Railroad Co., from putting into effect unilaterally certain methods for detecting drug use among its employees. In general, if a proposed practice by a rail carrier is a clear departure from the collective-bargaining agreement, a dispute over the practice is treated as a "major dispute" under the Railway Labor Act, and the carrier may not proceed without first negotiating with the employees' representative. But if the proposed practice is arguably justified by the collective-bargaining agreement (including settled past practices of the parties under the agreement), then a dispute is called "minor," and the carrier may proceed unilaterally, subject to an arbitration process before the National Railroad Adjustment Board.

This appeal involves two disputed proposed practices. First, the railroad wants to administer chemical drug testing to all employees who appear to be involved in any accident or other incident which seemingly stems from human error. Second, the railroad wants to administer similar tests to all employees who return to work after a furlough or similar absence. The District Court, 642 F.Supp. 41, held that the dispute over the first practice (post-incident testing) was minor. It therefore denied the injunction sought against the railroad's proposed initiation of this practice. But with respect to the second challenged practice (post-furlough testing), the Court held the dispute major and therefore granted the injunction.

Both sides appeal. The union seeks reversal of the denial of the injunction against post-incident testing. The railroad seeks reversal of the grant of the injunction against post-furlough testing.

As to the first issue, we affirm. As to the second, we reverse. The Court's reasons for these holdings are expressed in two opinions. An opinion by Judge Arnold, in which all Members of the Court join, explains our holding that the railroad may proceed with post-incident testing. An opinion by Judge Fagg, in which Judge Wollman joins, explains our holding that the railroad may proceed with post-furlough testing. Judge Arnold dissents from this latter holding.

The judgment of the District Court, insofar as it denied an injunction with respect to post-incident testing, is affirmed. Insofar as it granted an injunction with respect to post-furlough testing, the judgment is reversed, and the injunction is vacated and set aside.

It is so ordered.

ARNOLD, Circuit Judge, for a unanimous Court, concurring in part.

This case involves a dispute between the Burlington Northern Railroad Co. (BN) and the Brotherhood of Maintenance of Way Employees (employees or union) over BN's efforts to deal with drug and alcohol abuse on the job. In response to several serious accidents on the railroad, which were found to have been related to abuse of drugs on the job, BN began a program of mandatory drug testing of employees. Two aspects of this program are before us now: One is "post-incident testing," in which the company requires employees who are involved in accidents or other incidents in which human error could have been a factor to submit to urinalysis in order to determine whether alcohol or certain drugs are in their system. The other testing program involves addition of a drug screen to the standard urinalysis which is part of a required medical examination given to employees periodically and when they return from furlough. The employees take the position that both testing programs amount to major changes in working conditions and therefore should not be implemented without prior negotiation. The District Court ¹ agreed with the union as to the drug screen in required medical examinations, and enjoined its use. However, the Court held that the company's program of post-incident testing was at most a minor change in working conditions and therefore denied the injunction sought by the employees against this practice. Both parties have appealed. As already noted, the Court affirms as to post-incident testing and reverses as to the required medical examination on return to work. This opinion gives our reasons for affirming as to post-incident testing.

I.

For a number of years, BN has had among its operating rules a rule (which is uniform throughout the railroad industry) prohibiting employees from using, possessing, or being under the influence of alcohol or other drugs while at work or subject to duty. This rule, known as Rule G, reads as follows:

The use of alcoholic beverages, intoxicants, and narcotics, marijuana, or other controlled substances by employees subject to duty, or their possession or use while on duty or on Company property, is prohibited. Employees must not report for duty under the influence of any alcoholic beverage, intoxicant, narcotic, marijuana, or other controlled substance, or medication, including those prescribed by a Doctor, that may in any way adversely affect their alertness, coordination, reaction, response or safety.

Designated Record (D.R.) at 217b. The prohibitions of Rule G are also incorporated in BN's safety rules. D.R. at 217a. Any on-duty employee found in violation of these rules is subject to suspension or discharge.

The District Court found that the accepted method of enforcing Rule G in the past had depended primarily on the watchfulness and sensory observation of supervisors. If a supervisor detected abnormal behavior in an employee which led the supervisor to suspect that the employee was working under the influence of alcohol or drugs, then the supervisor would report his suspicion to an officer of the railroad, who would conduct further investigation. In determining that an employee appeared to be under the influence, the supervisor would rely on how the employee walked, talked, or smelled as well as on other physical manifestations of impairment. In recent years the company began to use breathalyzer, blood-alcohol, and urinalysis testing in connection with its enforcement of Rule G. Prior to December 1984, however, these tests were used only as a means for the employee to clear himself of an accusation that he was working while impaired. The BN policy in effect before that date stated in part:

Intoxilator, breathalyzer, blood alcohol tests, or urinalysis may not be administered without probable cause. Probable cause exist [sic] only when there is an outward manifestation of intoxication. Examples of such outward manifestations include the odor of alcohol on the breath, slurred or thick speech, apparent loss of coordination, unsteady gait. If such probable cause exists, the employee should be offered the opportunity to submit to intoxilator, breathalyzer, blood testing, and/or urinalysis. Again, before the administration of any such test, the employee must sign a Consent Form. If the employee refuses to submit to such testing after a determination that probable cause exists, he or she should be taken out of service and charged with violation of Rule G.

D.R. at 144-45.

Beginning around December of 1984, BN modified its Rule G enforcement methods. It redefined the events which would trigger the use of chemical tests; it also began to use these tests, particularly urinalysis, as a primary means for establishing the possibility of drug abuse in employees, whereas in the past the tests had been available as a means for employees to exonerate themselves of a charge of alcohol or drug abuse on the job. The revised policy allowed supervisors to screen employees for drug abuse not only when the employee showed physical manifestations of impairment, but also when the employee was involved in an accident, an on-the-job injury, a rule violation, or an unsafe act. D.R. at 201. When an accident or other incident involved more than one person and responsibility could not be attributed to a particular individual, the entire crew was to be subjected to urinalysis (whether or not any member of the crew showed signs of intoxication or impairment). D.R. at 68. BN contracted with an outside laboratory for the performance of these urinalyses. Results of the tests were to be returned to the BN medical department. However, when the supervisor requesting the test had immediate need of the results, he was authorized to use local medical facilities which would report the results directly to him. D.R. at 202-03.

Dr. Michael A. Evans, the director of the laboratory hired by BN for urinalysis testing of employees, testified by affidavit and submitted exhibits explaining the purpose, accuracy, and techniques used in drug testing of urine. The primary method used is called the Enzyme Multiplied Immunoassay Technique (EMIT). This test is designed to detect the presence of certain drugs or their metabolites (breakdown products) in a urine sample. The test does not purport to measure intoxication or impairment. D.R. at 193. The EMIT test is highly accurate, producing no more than 5% false positives. The laboratory confirms positive results through use of a gas chromatography/mass spectrometry test (GC/MS), which is considered to be the most accurate available. Although Dr. Evans testified that the EMIT test was calibrated to screen for marijuana at a level above the lowest amount which will produce an effect in a human being (see D.R. at 173), he submitted as an exhibit material describing...