Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Company

838 F.2d 1102 127 L.R.R.M. (BNA) 2824 , 56 USLW 2512 , 108 Lab.Cas. P 10,302 , 13 O.S.H. Cas.(BNA) 1700 BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant. No. 85-4138. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 8, 1986. Decided Feb. 11, 1988. Harold A. Ross, Ross & Kraushaar Co., L.P.A., Cleveland, Ohio, for plaintiff-appellee. Edward W. Mullen, Deacy & Deacy, Kansas City, Mo., Richard J. Schreiber, Fort Worth, Tex., for defendant-appellant. Appeal from the United States District Court for the District of montana. Before TANG, PREGERSON, and ALARCON, Circuit Judges. ALARCON, Circuit Judge: 1 Defendant/appellant Burlington Northern Railroad Company (hereinafter BN) appeals from the district court's grant of a permanent injunction in favor of plaintiff/appellee Brotherhood of Locomotive Engineers (hereinafter BLE). BLE had sought declaratory and injunctive relief to enjoin BN from using dogs (hereinafter sniffer dogs) trained to detect the presence of controlled substances on the person or in the personal effects of railroad employees in violation of the notice, negotiation, and…

Defendant/appellant Burlington Northern Railroad Company (hereinafter BN) appeals from the district court’s grant of a permanent injunction in favor of plaintiff/appellee Brotherhood of Locomotive Engineers (hereinafter BLE). BLE had sought declaratory and injunctive relief to enjoin BN from using dogs (hereinafter sniffer dogs) trained to detect the presence of controlled substances on the person or in ■ the personal effects of railroad employees in violation of the notice, negotiation, and mediation requirements imposed by the Railway Labor Act (hereinafter RLA), 45 U.S.C. §§ 152 , Seventh and 156 (1982). The question we must resolve is whether BN’s random use of sniffer dogs to detect the presence of controlled substances on the person or in the personal effects of railroad employees presents a “minor” or “major” dispute under the Act, 45 U.S.C. §§ 151-188 . This case was consolidated for argument with Brotherhood of Locomotive Eng’rs v. Burlington N. R.R. (9th Cir.1986) [ 838 F.2d 1087 ] (hereinafter the Chemical Testing Case), wherein we reviewed BN’s practice of mandatory urine and blood testing practice following an accident or operating rule violation. We affirm because…

concurring.

In this appeal, we are called on to decide whether the Railway Labor Act (“RLA”) bars Burlington Northern from unilaterally implementing a sniffer dog program designed to restrict alcohol and narcotics use by on-duty railroad workers. The program requires engineers, before embarking on trains from certain yards, to submit their grips to a trained dog to sniff for the presence of controlled substances. Although I concur in the result arrived at by Judge Alarcon’s opinion, I get there by a somewhat different route. First of all, I deal more extensively with the management perogative issued raised by Burlington Northern. Second, I explicitly reject the district court’s “modicum of evidence” approach for determining whether the sniffer dog program is arguably justified by the collective agreement’s implied sensory surveillance provision. Instead, I base my analysis on the arguable intentions of the parties as manifested by custom and practice. I conclude that the program is not justified. Finally, because Burlington Northern raised the “omitted case” doctrine before the district court, I have sought to clarify the doctrine and show that it is inapplicable to the dog sniff…