BRO. OF MAINTENANCE OF WAY EMPLOYEES v. BURLINGTON NORTHERN R.

• Decision Date: 11 October 1985
• Docket Number: No. C 85-4072.,C 85-4072.
• Citation: 642 F. Supp. 41
• Parties: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, LODGE 16, et al., Plaintiffs, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

642 F. Supp. 41

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, LODGE 16, et al., Plaintiffs, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant.

No. C 85-4072.

United States District Court, N.D. Iowa, W.D.

October 11, 1985.

COPYRIGHT MATERIAL OMITTED

Harry W. Zanville, Cedar Falls, Iowa, and Lawrence Kudej, Sioux City, Iowa, for plaintiffs.

Richard J. Screiber and Thomas Knapp, Fort Worth, Tex., for defendant.

ORDER

DONALD E. O'BRIEN, Chief Judge.

The Court has before it plaintiffs' motion for a preliminary injunction. Also before it is defendant's motion to dismiss or stay this action. An evidentiary hearing was held on this matter in Sioux City, Iowa.¹ After carefully considering the briefs, oral arguments, and testimony and evidence presented at the hearing, the Court grants plaintiffs' motion for preliminary injunction in part and denies it in part. The Court also grants defendant's motion to dismiss or stay this action in part.

This dispute arises out of defendant's change in methods of detecting violations of the railroad industry's Rule G policy, which states:

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 beverages, 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.

At all material times, defendant had in effect its safety rules 565 and 566, which are the first and second sentences of Rule G, respectively. Any on-duty employee found to be in violation of the proscriptions contained in Rule G would be subject to suspension or discharge in accordance with established procedure.

The issue before this Court is whether the changes in detection methods for determining Rule G violations constitute "major" disputes. There are basically three different types of detection methods that are being challenged. First, the railroad has used sniffer dogs on its property to determine the presence of drugs.² Second, the defendant has utilized blood and urine testing on an employee following an incident in which a rule violation and/or accident occurred for the purpose of determining the presence of drugs and/or alcohol in the employee. Finally, defendant has begun screening for drug and alcohol usage in urine samples given during physicals to its returning furloughed employees.³

After reviewing the factual and legal background on this matter, the Court will address each of the testing methods separately.

Plaintiff Brotherhood of Maintenance of Way Employees (BMWE) is a railway labor organization that represents in collective bargaining the craft of maintenance of way employees, employed by defendant and is a "representative" of the employees within the meaning of the Railway Labor Act, 45 U.S.C. § 151. Defendant, a corporation duly qualified to do business in Iowa, is engaged in the transportation of goods and commodities by rail in interstate commerce, subject to the Interstate Commerce Act, 49 U.S.C. § 10101, et seq., and the Railway Labor Act, 45 U.S.C. § 151, et seq. Both plaintiffs and defendant are parties subject to the provisions of the Railway Labor Act.

For years, the plaintiffs and defendant have been parties to collective bargaining agreements governing rates of pay, rules and working conditions of BMWE members. For several of those years, BMWE employees have been required to comply with Rule G (and rules 565 and 566).

Due to railroad accidents which took several lives, defendant, on and after December 7, 1984, unilaterally began to change the methods of rule detection now in dispute before this Court.

Plaintiffs contend that the collective bargaining agreement between the parties was violated when defendant unilaterally implemented changes in detection methods for Rule G violations. Plaintiff further argues that the implementation of these changes were changes in the "working conditions" and, therefore, constituted "major" disputes. Under section 6 of the Railway Labor Act, a major dispute requires notice, conferences, or reference to the Mediation Board. 45 U.S.C. section 156. Because defendant has done none of these, plaintiffs claim defendant should not be able to implement such changes until it complies with the Railway Labor Act.

Defendant rejects such contentions by arguing that the method of enforcing Rule G is not a matter subject to a collective bargaining process, but rather a matter within the management prerogative of the defendant. Even if the Court is not convinced that such changes are within defendant's prerogative, defendant claims that the changes, at most, constitute a minor dispute. Since defendant has submitted the issue of the changes to the National Railroad Adjustment Board, which both parties agree is the proper forum to resolve minor disputes, 45 U.S.C. § 153, defendant claims it is in compliance with the Railway Labor Act.

Defendant has also submitted a motion to dismiss or stay this action. Besides arguing that this Court has no jurisdiction over the matters since, at most, the changes constitute minor disputes, the defendant originally prayed that this action should be stayed pending determination of very similar cases, Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 620 F.Supp. 163 (D.Mont. 1985) (hereinafter referred to as BLE I); and Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co., 620 F.Supp. 173 (D.Mont.1985) (hereinafter referred to as BLE II). Since the date of our hearing on the above set out motions, the Montana district court has made rulings in both cases before it. It is now defendant's position that those Montana rulings govern this case.

In BLE I, the issue before the Montana court was whether defendant's use of sniffer dogs on defendant's property created a major dispute. In BLE II, the issue before the Court was whether defendant's post-accident testing for drugs and alcohol constituted a major dispute. From reviewing the two decisions, it is clear to this Court that the factual and legal issues presented in them are very similar to those now before this Court.

Whether a dispute is major or minor is important for two reasons. First, this Court has only jurisdiction of the dispute if it is "major" since resolutions of minor disputes are within the exclusive jurisdiction of the Railroad Adjustment Board or the mediation procedures on which the parties have agreed. 45 U.S.C. § 153. Second, and as already pointed out, the mechanisms available for dealing with the two types of disputes are significantly different.

As was the situation in BLE I and II, before this Court can reach the question of whether the changes in detection methods for enforcing Rule G constitute major disputes, it must first determine whether the methods are properly a matter of negotiation and therefore a working condition within the meaning of the Railway Labor Act. The term "working condition" is to be broadly interpreted. Independent Federation of Flight Attendants v. Trans World Airlines, 655 F.2d 155, 157 (8th Cir.1981); United Transportation Union v. St. Paul Union Depot Co., 434 F.2d 220, 223 (8th Cir.1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971). Thus, where a collective bargaining agreement fails to expressly cover a particular condition, but that condition has existed over time because it is tolerable to both sides, it may still be considered a "working condition." See Detroit and Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 153-54, 90 S.Ct. 294, 301, 24 L.Ed.2d 325 (1969). The test is whether an employer's past practices "achieved the level of established practices." Independent Federation of Flight Attendants v. Trans World Airlines, 655 F.2d at 157. To establish a long-standing custom and practice, the conduct of the parties must encompass a continuity, interest, purpose and understanding which elevates a course of action to an implied contractual status. General Committee of Adjustment v. Burlington Northern, Inc., 620 F.2d 161, 162 (8th Cir.1980).

The parties agree that Rule G has been in effect for many years. The evidence is clear that the terms of Rule G have been a condition of employment for as long as defendant has followed the rule, with employees found to be in violation of its provisions being subjected to suspension or discharge. While Rule G, by itself, does not indicate a method of enforcement, the Court finds, as did the court in BLE I and II, that the parties acquiesced over time in a particular method by which defendant could detect violations of Rule G.

There is a factual dispute as to whether the challenged detection methods were utilized by defendant prior to December 7, 1984. The Court finds that the more credible evidence indicates that the enforcement of Rule G was then done primarily through sensory surveillance by certain supervisory personnel of defendant. If an employee at work was acting abnormally, it would be reported to a carrier officer. That officer would investigate further and, if necessary, ultimately initiate the appropriate disciplinary procedures. In determining whether an employee was acting abnormally, the supervisory personnel would rely on how the employee walked, talked, smelled as well as on other sensory observations. Thus, there must have been some modicum of evidence of possible drug and/or alcohol usage before supervisory personnel took any action. The Court finds that such practice, which existed over a substantial period of time, became the only acceptable method of detection to both parties. The Court agrees with the Montana court's finding that:

Affording the term "working condition" the liberal construction

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