Brotherhood of Locomotive Engineers v. Burlington Northern R. Co., 85-4137

• Citation: 838 F.2d 1087
• Decision Date: 11 February 1988
• Docket Number: No. 85-4137,85-4137
• Parties: 127 L.R.R.M. (BNA) 2812, 45 Empl. Prac. Dec. P 37,755, 56 USLW 2512, 108 Lab.Cas. P 10,301, 13 O.S.H. Cas.(BNA) 1659 BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1087

838 F.2d 1087

127 L.R.R.M. (BNA) 2812, 45 Empl. Prac. Dec. P

37,755,

56 USLW 2512, 108 Lab.Cas. P 10,301,

13 O.S.H. Cas.(BNA) 1659

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee.

No. 85-4137.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 8, 1986.

Decided Feb. 11, 1988.

Harold A. Ross, Cleveland, Ohio, for plaintiff-appellant.

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

Appeal from the United States District Court for the District of Montana.

Before TANG, PREGERSON, and ALARCON, Circuit Judges.

PREGERSON, Circuit Judge:

In this appeal, we must decide whether the Railway Labor Act ("RLA") bars Burlington Northern Railroad Company ("BN") from unilaterally implementing a mandatory urine testing program designed to restrict alcohol and narcotics use by on-duty railroad workers. The program requires the entire operating crew of a train to submit to urinalysis when the train is involved in a "human factor" accident unless "responsibility [for the accident] is clearly identified." When responsibility it clearly identified, only those responsible for the accident are tested.

Our resolution of this matter hinges on whether the challenge of the Brotherhood of Locomotive Engineers ("BLE") to BN's urine testing program is a major or minor dispute under the RLA. The district court held that it is a minor dispute because it is "arguably justified" under an implied provision of the collective agreement between BN and BLE. We disagree.

FACTS

For at least 40 years, BN, like many railroads, has enforced a unilaterally implemented safety rule, Rule G. Rule G prohibits BN employees from using alcohol or narcotics while on duty, from possessing such substances while on company property, and from reporting for duty in a state of intoxication that may impede their ability to perform their work safely. ¹ The collective bargaining agreements between BN and its employees' unions do not expressly or implicitly refer to Rule G Undisputed evidence presented to the district court indicated that, before May 1984, BN relied primarily upon sensory surveillance to enforce Rule G. If an employee's gait, breath, odor, slurred speech, bloodshot eyes, or errant behavior suggested to a supervisor or security officer that the employee was intoxicated, BN suspended the employee pending a formal investigation under established procedures. An employee could avoid suspension by voluntarily submitting to urinalysis.

On April 15, 1984, a train crash in Wiggins, Colorado killed five BN employees and caused $2 million in property damage. The National Transportation Safety Board implicated alcohol abuse by an engineer as a possible cause of the accident. On April 21, a train disobeyed an "absolute stop" signal and crashed into a standing train at Newcastle, Wyoming. Two BN employees died. Property damage totaled $1 million. A toxicology report indicated that three crew members had marijuana traces in their body fluids.

Following these two serious crashes, BN intensified its efforts to enforce Rule G by introducing two new programs. First, BN contracted for trained sniffer dogs to detect narcotics on its premises. ² Second, it began requiring all crew members involved in a human factor accident or operating rule violation to attend a clinic immediately and submit to urinalysis for the presence of narcotics, unless responsibility for the accident or violation otherwise has been clearly identified. Under the new rule, an employee who refuses to submit to mandatory urinalysis after being involved in a human factor accident or operating rule violation is subject to discipline for insubordination.

BLE strenuously opposed BN's new urine testing program and urged BN to end it. BN refused to negotiate. BLE then balloted its branch chairmen on whether to strike on the urinalysis issue. The majority of respondents voted in favor of a strike. BLE filed suit under the RLA. The district court found that BN's urine testing program was "arguably justified" under the collective agreement as amended by custom and practice, and thus constituted a "minor dispute" under the RLA. Brotherhood of Locomotive Eng'rs v. Burlington N.R.R., 620 F.Supp. 173, 175 (D.Mont.1985). Accordingly, the court concluded that it lacked jurisdiction over the dispute, and granted summary judgment in favor of BN. BLE appeals. We reverse.

STANDARD OF REVIEW

Whether a matter constitutes a mandatory subject of bargaining under the RLA is a question of law which we review de novo. See Japan Air Lines Co. v. IAM, 538 F.2d 46, 52-53 (2d Cir.1976); cf. NLRB v. Int'l Harvester Co., 618 F.2d 85, 87 (9th Cir.1980).

Whether past conduct constitutes custom and practice sufficient to be incorporated as an implied term in a collective agreement covered by the RLA is a question of fact. See Missouri Pac. Joint Protective Bd., Bhd. Railway Carmen of the United States and Canada v. Missouri Pac. R.R., 730 F.2d 533, 537 (8th Cir.1984); cf. Hass v. Darigold Dairy Prods. Co., 751 F.2d 1096, 1101 (9th Cir.1985) (implied terms in collective agreement under NLRA). We accept a district court's determination of questions of fact unless clearly erroneous. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Whether a dispute constitutes a major dispute or a minor dispute under the RLA is a matter of law which we review de novo. IAM v. Aloha Airlines, Inc., 776 F.2d 812, 815 (9th Cir.1985).

ANALYSIS

BN presents alternative arguments in support of its contention that the district court may not enjoin the mandatory urine testing program. First, BN contends that the enforcement of Rule G is a matter

entirely within its managerial prerogative. Alternatively, BN contends that the challenged procedure presents only a minor dispute--over which the district court lacks jurisdiction--because it is arguably justified by implied-in-fact and implied-in-law terms of the collective agreement. We address these arguments in turn.

I. Management Prerogative

Neither party disputes that Rule G itself is an implied term of the collective agreement. BN asserts, however, that selection of the method used to enforce a safety rule like Rule G is entirely a matter of management prerogative, not subject to collective bargaining under the RLA. Thus, BN contends, its prior enforcement practice cannot be an implied condition of the collective agreement or give rise to a labor dispute within the terms of the RLA.

Under the RLA, certain matters are always subject to collective bargaining; other matters fall within the scope of management prerogative, and are not subject to collective bargaining. The RLA requires railroads "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." 45 U.S.C. Sec. 152 (emphasis added). No court has comprehensively explained the scope of the statutory phrase "working conditions."

In Japan Air Lines Co. v. IAM, 538 F.2d 46, 52 (2d Cir.1976), the second circuit upheld an employer's management prerogative to determine whether to cease subcontracting ground work at certain airports because the "primary impact" of the union's proposal did not affect the working conditions of the union's present members. 538 F.2d at 52. In so holding, the court distinguished the facts of the case before it from those presented in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), and Order of Railroad Telegraphers v. Chicago & North Western Railway Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960), in which "the critical question was whether those who were working were to lose their jobs." 538 F.2d at 52-53.

Thus, the Japan Air Lines court set forth a simple and pragmatic approach: The RLA requires parties to bargain over any proposal whose primary impact is the loss--or potential loss--of existing employment or employment-related benefits. We now adopt this approach as the rule of this circuit. Under BN's chemical testing program, a Rule G violation, however discovered, could result in an employee's discharge. Because jobs of present employees are jeopardized, BN's mandatory urine testing program is a mandatory subject of bargaining under the RLA and may not be implemented unilaterally. Thus, BN's management prerogative claim is unfounded.

II. Major vs. Minor Dispute

Under the Railway Labor Act, all disputes between railroads and their employees are either "major disputes" or "minor disputes." These two categories are "sharply distinguished." See Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711, 722, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 (1945), aff'd on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946); O'Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1145-46 (9th Cir.1977) (tracing historical development of RLA). ³

Major disputes "concern [either] the formation of collective bargaining agreements or efforts to secure new rights and incorporate them into future agreements." Aloha, 776 F.2d at 815 (citing Elgin, 325 U.S. at 723, 65 S.Ct. at 1290). Minor disputes involve the interpretation or application of existing collective bargaining agreements. Elgin, 325 U.S. at 723, 65 S.Ct. at 1290; Aloha, 776 F.2d at 815.

Generally, major disputes are "left for settlement entirely to the processes of noncompulsory adjustment." Elgin, 325 U.S. at 723-24, 65 S.Ct. at 1290. A detailed procedure is provided in 45 U.S.C. Secs. 152, 155, 156, 157, and 160 for moving the dispute In contrast, minor disputes are subject to compulsory and binding arbitration. See 45 U.S.C. Sec. 153(first)(i). This task is performed by the National Railroad Adjustment Board or a privately established arbitration panel. See generally Seidenberg, Grievance Adjustment in the Railroad Industry in The Railway Labor Act at Fifty 229-35...