BROTH. OF LOCOMOTIVE ENG. v. Burlington Northern Railroad Co.

• Decision Date: 31 July 1985
• Docket Number: No. CV-84-213-GF.,CV-84-213-GF.
• Parties: BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Montana

620 F. Supp. 163

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

No. CV-84-213-GF.

United States District Court, D. Montana, Great Falls Division.

July 31, 1985.

COPYRIGHT MATERIAL OMITTED

Joseph Prekop, Harold A. Ross, Cleveland, Ohio, Benjamin W. Hilley, Hilley & Loring, Great Falls, Mont. for plaintiff.

Thomas W. Spence, Billings, Mont., Alexander Blewett III, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., Edward W. Mullen, Deacy & Deacy, Kansas City, Mo., Richard J. Schreiber, Chicago, Ill., for defendant.

MEMORANDUM

HATFIELD, District Judge.

The present action for injunctive and declaratory relief has its genesis in a dispute between the plaintiff, Brotherhood of Locomotive Engineers ("Brotherhood") and the Burlington Northern Railroad Company ("BN") concerning the validity of the BN's unilateral implementation of a program designed to deter the on-duty use of intoxicating substances by train crew personnel. The Brotherhood and the BN are parties to a collective bargaining agreement, subject to the provisions of the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151 et seq. Jurisdiction of this action vests with this court under authority of 28 U.S.C. § 1331 and § 1337.

On October 5, 1984, the court entered a preliminary injunction maintaining the status quo of the relationship between the parties pending resolution of this matter upon the merits. Trial upon the facts without a jury commenced on November 13, 1984. After the Brotherhood completed the presentation of the case in chief, the parties informed the court that settlement of the controversy appeared imminent. At the request of the parties, trial was recessed pending negotiations between the parties. When the anticipated settlement never materialized, the court reconvened trial on February 13, 1985.

Having considered the evidence presented by the parties, and applying the pertinent law to the facts as found to exist, the court enters the present memorandum as its findings of fact and conclusions of law, pursuant to Rule 52, Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

The plaintiff Brotherhood is a labor organization representing the craft of locomotive engineers employed by the BN. The defendant BN is a corporation engaged in transporting goods and commodities by rail. Both parties are subject to the provisions of the RLA.

At all times material to this action, and for a period of at least forty years, the Brotherhood and BN have been parties to various collective bargaining agreements governing the rates of pay, rules and working conditions as negotiated between the parties. During that same period of time, the BN has had a unilaterally implemented safety rule in effect, denominated Rule G, which provides:

The use of alcoholic beverages, intoxicants, 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 marijuana, or other controlled substances, or medication, including those prescribed by a doctor, that may in anyway adversely affect their alertness, coordination, reaction, response or safety.

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. Prior to May 1984, the BN relied primarily upon the sensory observations of security personnel to detect violations of Rule G. If a supervisor had reason to believe that a particular on-duty employee was under the influence of an intoxicating substance, the supervisor would further investigate and, if warranted, remove the employee from service, pending a formal investigation via established procedures.

In May 1984, shortly after several tragic accidents occurred on its rail system, the BN intensified its efforts to enforce Rule G. At that time, the BN unilaterally implemented a surveillance and search program designed to curtail or prevent the "on-duty" use of alcohol and controlled substances by its employees. That surveillance-search program was based primarily, if not exclusively, on the use of dogs trained to detect the presence of drugs or controlled substances. The BN utilized the dogs to inspect the personal effects, including automobiles, of on-duty employees to detect the presence of substances prohibited by the terms of Rule G. The employees subjected to such inspections were chosen on a random basis. Although the BN may have chosen a particular locale to conduct an inspection on the basis of a suspected high incidence of violations, the existence of a reasonable belief that a particular employee was in violation of Rule G was not a prerequisite to inspection.

Upon receiving a positive indication from a dog that a controlled substance was in a particular employee's possession, BN's security personnel would ask that employee to consent to a physical search of his personal effects. If an employee refused to submit to inspection in the first instance, or to sign a consent form permitting a physical search after a positive indication, the employee was removed from service, charged with a violation of Rule G and threatened with discipline and loss of employment.

DISCUSSION:

The Brotherhood contends that the collective bargaining agreement extant between the parties¹ was violated by the BN's unilateral implementation of its surveillance-search program, the cornerstone of which is the random utilization of dogs trained to detect the presence of drugs, or controlled substances, in the possession of "on-duty" employees, i.e., an employee who has reported for work.

The unilateral implementation of the surveillance-search program, the Brotherhood submits, constitutes a change in "working conditions" accomplished in violation of the notice, negotiation and mediation requirements imposed by § 2 in conjunction with § 6 of the Railway Labor Act ("RLA"), 45 U.S.C. §§ 152 and 156.²

The BN counters by vehemently asserting that the method of enforcing the proscriptions contained in its long standing safety rule regarding the use of intoxicating substances by employees, i.e., Rule G, is not a matter subject to the collective bargaining process. Rather, the BN submits, the implementation of safety rules like Rule G and the method by which those rules are enforced is a matter within the prerogative of the employer. In the alternative, the BN takes the position that even if the method by which Rule G is enforced is viewed as a matter properly determined through collective bargaining, the propriety of its unilateral implementation of the surveillance-search program presents a dispute which must be resolved in accordance with the procedures established by Section 3, First (i), of the RLA, 45 U.S.C. 153.³ In that regard, the BN contends that the dispute revolves around the interpretation and application of the collective bargaining agreement extant between the parties.

The issue of whether a particular dispute arising under the RLA falls within the purview of § 2 or § 3 of that act is a classic one which has spawned extensive litigation in the federal courts. The litigation emanates from the fact that the distinction between the two classes of disputes, the former being referred to as "major," the latter as "minor," is important from both a substantive and procedural standpoint.⁴ The classification has far reaching consequences in respect to the timing and role of the judicial function, including the jurisdiction of the courts themselves. O'Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1145 (9th Cir.1977). Section 3 of the RLA commits resolution of minor disputes to the exclusive jurisdiction of the Railroad Adjustment Board, or to mediation procedures on which the parties have agreed, thereby depriving the parties of access to federal court for resolution of the dispute. 25 U.S.C. § 153 First (i); see, Brotherhood of Railroad Carmen v. Pacific Fruit Express Company, 651 F.2d 651 (9th Cir. 1981).

Section 2 in conjunction with § 6, on the other hand, establishes a distinct mechanism for settlement of major disputes, designed to encourage resolution through mediation under the auspices of the National Mediation Board, and ultimately arbitration, if necessary. 45 U.S.C. §§ 152 Seventh and 156; see, Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. at 724-25, 65 S.Ct. at 1290-91. The mechanism for resolving major disputes is deliberately designed to be a long and drawn out, almost interminable, process during which the parties are obligated to maintain the status quo. Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 148-49, 90 S.Ct. 294, 298-99, 24 L.Ed.2d 325 (1969). Because the status quo requirement of § 6 is central to the RLA's design, the parties to a major dispute have immediate access to federal court for the purpose of obtaining injunctive relief, to prevent the adverse party from attempting to alter the status quo pending exhaustion of the dispute resolution mechanism contained in § 6. 396 U.S. at 150-51, 90 S.Ct. at 299; see also, O'Donnell v. Wien Air Alaska, Inc., 551 F.2d at 1148. An injunction may issue under such circumstances regardless of whether a showing of irreparable harm has been made by the moving party. 396 U.S. at 150-51, 90 S.Ct. at 299.

In the case at bar, the court is called upon to determine whether the dispute between the Brotherhood and the BN, concerning the latter's unilateral implementation of its surveillance-search program, is properly characterized as a major or minor dispute. Resolution of that issue, in turn, determines the propriety of maintaining the status quo pending resolution of the dispute in accordance with the appropriate provisions of the RLA. Disposition of the issue requires the court to undertake a two step analysis. First, the court must address...