Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Company

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: 1 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…

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…

dissenting:

I respectfully dissent. I would hold that BN’s testing practice is arguably permitted under the parties’ implied agreement. Therefore, the dispute is minor and should be referred to the National Railway Adjustment Board for resolution.

The majority’s opinion is contrary to the Eighth Circuit’s well-reasoned analysis of precisely the same issue in Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R.R., 802 F.2d 1016 (8th Cir.1986). Indeed, the only difference between the question presented in this matter and the issue before the Eighth Circuit is the identity of the union challenging the testing policy. In all other respects the facts and legal questions are identical. The majority’s opinion creates an intercir-cuit conflict. I would adopt the Eighth Circuit’s analysis and affirm the district court.

I cannot join in the majority opinion because I believe that the reasoning process employed by my esteemed colleagues is critically flawed. The majority acknowledges that the test for determining if a *1094 particular labor practice raises a major or minor dispute is whether the disputed action is “arguably permitted” by the collective…