833 F.2d 700 (7th Cir. 1987), 87-1323, Railway Labor Executives Ass'n v. Norfolk and Western Ry. Co.

Docket Nº87-1323.
Citation833 F.2d 700
Party NameRAILWAY LABOR EXECUTIVES ASSOCIATION, et al., Plaintiffs-Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.
Case DateNovember 17, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 700

833 F.2d 700 (7th Cir. 1987)

RAILWAY LABOR EXECUTIVES ASSOCIATION, et al., Plaintiffs-Appellants,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.

No. 87-1323.

United States Court of Appeals, Seventh Circuit

November 17, 1987

Argued Sept. 22, 1987.

Page 701

[Copyrighted Material Omitted]

Page 702

Lawrence M. Mann, Alper & Reiser, Washington, D.C., for plaintiffs-appellants.

Linzey D. Jones, Sidley & Austin, Chicago, Ill., for defendant-appellee.

Before HARLINGTON WOOD, Jr., FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Railway Labor Executives Association, et al. ("the unions") appeal from the district court's denial of their motion for a preliminary injunction and its grant of summary judgment for Norfolk and Western Railway Company ("N & W"), 659 F.Supp. 325. This appeal turns on whether the dispute between the unions and N & W is a major or minor dispute for purposes of Sections 2, Seventh, 3 and 6 of the Railway Labor Act. 45 U.S.C. Secs. 152, Seventh, 153 and 156 (1982). The unions sought to enjoin N & W's imposition of a drug screen urinalysis as part of its routine employee medical examinations. The district court concluded that the unions' claim constituted a minor dispute and thus was subject to the exclusive jurisdiction of the National Railroad Adjustment Board. The district court therefore denied the unions' motion for a preliminary injunction and granted N & W's motion for summary judgment. We affirm.

I.

In October, 1984, N & W's medical department added a drug screen urinalysis test to all routine employee medical examinations. N & W employees are required to undergo medical examinations on a regular basis, and employees must pass such a physical examination before they can return to work following a furlough or other extended absence. The purpose of these medical examinations is to insure that employees are physically fit for their jobs. With the exception of the recently implemented drug screen urinalysis, the unions have never objected to these routine physicals or to any other specific test employed as part of these examinations.

For at least the past twenty years, N & W employees have been required to provide a urine specimen to the examining doctor during their medical examination. The urine sample is tested to determine the level of albumen, or sugar, in the employee's body. Since October, 1984, however, N & W has also sent a portion of the same urine sample to a drug testing center where it is tested for evidence of drug use by the employee. 1 If the laboratory tests reveal the presence of drugs, N & W notifies the employee that he or she cannot return to work until he or she provides a urine sample that tests negative for drugs. The employee is given 45 days from the date of notification to provide a clean, drug-free urine sample. If he or she fails to provide a clean sample within the 45 day period, N & W can dismiss the employee for failure to obey instructions. The employee may return to work immediately after a drug-free urine sample is provided.

Alternatively, an employee who tests positive for drugs may elect to participate in the Norfolk Southern Drug and Alcohol

Page 703

Rehabilitation Services Program ("DARS"). An employee who participates in this program is not required to submit a clean urine sample within the 45 day time limit. Rather, employees who participate in the DARS program are given five days from the end of the program in which to provide a drug-free sample.

N & W began notifying the unions and the N & W employees of its new drug testing program shortly after it began implementing these tests in October, 1984. On March 25, 1986, the unions filed this action in the district court seeking to enjoin N & W from continuing to conduct drug tests on its employees. The unions alleged that N & W's unilateral addition of the drug screen urinalysis to all routine employee medical examinations constituted an unlawful unilateral change in the employees' "working conditions" in violation of Section 2, Seventh and Section 6 of the Railway Labor Act ("RLA"). 45 U.S.C. Secs. 152, Seventh and 156 (1982). 2 The unions asserted that the district court had jurisdiction over their claims because they constituted a major dispute under the RLA. N & W moved for summary judgment on the ground that the district court lacked subject matter jurisdiction because the unions' objections to its drug testing program were a minor dispute and thus within the exclusive jurisdiction of the National Railway Adjustment Board ("NRAB") pursuant to 45 U.S.C. Sec. 153 (1982). 3 The district court held that the dispute was minor and therefore granted N & W's motion for summary judgment and denied the unions' motion for a preliminary injunction. The unions appealed to this court. Because we conclude that the unions' objection to N & W's drug testing program constitutes a minor dispute, we affirm.

II.

A.

The primary issue on appeal is whether the unions' objection to N & W's unilateral addition of a drug screen urinalysis to its routinely required employee medical examinations constitutes a major or a minor dispute for the purposes of the Railway Labor Act. The distinction between major and minor disputes, although imprecise, see Local 553, Transport Workers Union of America v. Eastern Airlines, Inc., 695 F.2d 668, 673 (2d Cir.1983), is essential because it determines the procedures

Page 704

the parties must follow to resolve their dispute. If a dispute is major, the parties must attempt to resolve it through negotiation, mediation and possible presidential intervention. See Railroad Trainmen v. Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344, reh. denied, 394 U.S. 1024, 89 S.Ct. 1622, 22 L.Ed.2d 51 (1969). If a major dispute cannot be resolved, the union can strike in support of its position. National Ry. Labor Conference v. International Ass'n of Machinists and Aerospace Workers, 830 F.2d 741, 745 (7th Cir.1987); Chicago and North Western Transp. Co. v. International Bhd. of Electrical Workers, Local Union No. 214, 829 F.2d 1424, 1428 (7th Cir.1987). If a dispute is minor, the parties first must attempt to resolve their dispute through negotiation. If negotiation fails, however, the parties must submit their minor dispute to the National Railway Adjustment Board for resolution. Labor Conference, at 745; Atchison, Topeka and Santa Fe Ry. v. United Transp. Union, 734 F.2d 317, 320 (7th Cir.1984). The NRAB's jurisdiction over minor disputes is exclusive. Andrews v. Louisville and Nashville Ry., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). A minor dispute cannot be the subject of a strike. Local Union No. 214, at 1428; Brotherhood of R.R. Signalmen v. Burlington Northern R.R., 829 F.2d 617, 619 (7th Cir.1987); Atchison, 734 F.2d at 320.

The terms "major" and "minor" dispute do not appear in the Railway Labor Act. The Supreme Court created this distinction to explain the difference between challenges under Sections 2 and 3 of the RLA. Elgin, Joliet and Eastern Ry. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), aff'd, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946). In Elgin, the Supreme Court defined major and minor disputes as follows:

The first [major] 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.

The second class [minor], however, 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.

Id. at 723, 65 S.Ct. at 1290. In short, "[a] minor dispute is a dispute over interpretation of an existing contract; a major dispute is an attempt to create a contract or change the terms of a contract." Local Union No. 214, at 1427.

To ascertain if a dispute is major or minor, the court must determine whether or not the dispute can be resolved by reference to an existing collective agreement. If, as here, the parties disagree as to whether or not reference to their existing agreement can resolve the dispute, "the dispute is minor unless the carrier's claims of contractual justification are 'frivolous' or 'obviously insubstantial.' " Atchison, 734 F.2d at 321; see also Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R., 802 F.2d 1016, 1017 (8th Cir.1986); Chicago and Northwestern Transp. Co. v. United Transp. Union, 656 F.2d 274, 279 (7th Cir.1981). The court does not consider the merits of the underlying dispute; its role is limited to determining whether the dispute can be characterized as involving the proper application or meaning of a contract provision.

The primary objectives of the RLA are to promote stability in labor relations in the railroad industry and prevent strikes.

Page 705

Detroit and Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 154, 90 S.Ct. 294, 301, 24 L.Ed.2d 325 (1969); Leu v. Norfolk and Western Ry., 820 F.2d 825, 827 (7th Cir.1987). Because a major dispute can escalate into a strike, if there is any doubt as to whether a dispute is major or minor a court will construe the dispute to be minor....

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48 practice notes
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    ...a dispute is major or minor a court will construe the dispute to be minor." Railway Labor Executives Ass'n v. Norfolk & W. Ry., 833 F.2d 700, 705 (7th B In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the plaintiff, as required by his......
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    ...Bonnell/Tredegar Indus., Inc. v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995); Railway Labor Executives Ass'n v. Norfolk & Western Ry. Co., 833 F.2d 700, 705 (7th Cir. 1987); Brotherhood of Maintenance of Way Employees v. Chicago & North Western Transp. Co., 827 F.2d 330, 334 (8th Cir. Id......
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48 cases
  • 10 F.3d 1142 (5th Cir. 1994), 92-5753, Hirras v. National R.R. Passenger Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • January 7, 1994
    ...a dispute is major or minor a court will construe the dispute to be minor." Railway Labor Executives Ass'n v. Norfolk & W. Ry., 833 F.2d 700, 705 (7th B In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the plaintiff, as required by his......
  • BLET GCA UP v. Union Pacific Railroad Co., 021221 FED7, 20-2092
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    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 12, 2021
    ...299 (1989) ("Conrail") and our decision in Railway Labor Executives Ass'n v. Norfolk & Western Railway Co., 833 F.2d 700 (7th Cir. 1987) ("Railway Labor Executives Ass'n 1987"). Those decisions make plain, the district court reasoned, th......
  • 874 F.2d 901 (2nd Cir. 1989), 1093, Long Island R. Co. v. International Ass'n of Machinists
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    ...the dispute is minor and within exclusive adjustment jurisdiction"); Railway Labor Executives Ass'n v. Norfolk & Western Ry. Co., 833 F.2d 700, 705 (8th Cir.1987) ("if there is any doubt as to whether a dispute is major or minor a court will construe the dispute to be We note ......
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    ...Bonnell/Tredegar Indus., Inc. v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995); Railway Labor Executives Ass'n v. Norfolk & Western Ry. Co., 833 F.2d 700, 705 (7th Cir. 1987); Brotherhood of Maintenance of Way Employees v. Chicago & North Western Transp. Co., 827 F.2d 330, 334 (8th Cir. Id......
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