Amicus Curiae Brief — Burlington Northern Railroad v. Brotherhood of Locomotive Engineers

i Suprems Lourt, US,

(4 | REILED

AFR 29 1388

No. 87-1631

vSSlPh F. SPANHOL, UR,

2

—— - 2E

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

Vv.

BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

RICHARD T. CONWAY

(Counsel of Record)

RICHARD M. WYNER

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

Davin P. LEE

Vice Chairman &

General Counsel

er NATIONAL RAILWAY LABOR

CONFERENCE

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for Amicus Curiae

National Railway Labor

Date: April 29, 1988 Conference

WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

——

TABLE OF CONTENTS

Page

STATOMEN: OF THE CAQS ............................:.......... 2

1. The Statutory Framework ....................0000000000... 2

BI EI IE onda hecckc et cacansccsncessossnsecccscns 5

INTEREST OF AMICUS CURIAE ................0.00000000.... 7

REASONS FOR GRANTING THE WRIT ................. 11

A. There Is A Conflict of Decision by Two Courts

of Appeals in Regard to an Important Issue........ 11

B. The Decision Below Raises Important Issues as

to the Interpretation of Past Practices in Cir-

cumstances Where There Is No Applicable

Written Collective Agreement _.......0000000000000000... 13

RR, Cd ra nan ices aks cusaetesqnencascmmatacics seesads 16

ii

TABLE OF AUTHORITIES

Cases: Page

Andrews V. Louisville & Nashville R. Co., 406 U.S.

SRO (1GTE) 02ers 2

Bro. of Locomotive v. Atchison, Topeka & Santa

Fe, 768 F.2d 914 (7th Cir. 1985) —......2..00.. 4

Bro. of Maintenance v. Buriington Northern R.,

642 F. Supp. 41 (N.D. Iowa 1985) ...................... 5

Brotherhood of Maintenance Vv. Burlington North-

ern, 892 F.2d 1016 (8th Cir. 1986) -....000000....... 3, 5, 7, 11

Broth. of Loco. Eng. v. Boston & Maine Corp.,

788 F.2d 794 (1st Cir. 1986), cert. denied, 55

US.L.W. 3282 (1960) eee 3

Burlington Northern Railroad Co. v. Brotherhood

of Maintenance of Way Employes, US.

, 5 USL. 4076 (iit e a 3, 4

Elgin, Z & E. R. Co. v. Burley, 325 U.S.

(1945), on hearing, 327 U.S. 661 (1946) 0... oe 4,5

Gunther v. San Diego & A. E. R. Co., 382 U.S. 257

CQ ) os nsinsinisncn'ssananuchneneitheabecunmubeneeneaeaeeeaaeeaeenn 15

Ind. Fed. of Flight Attendants v. Trans World,

Etc., 655 F.2d 155 (8th Cir. 1981) ...................... 4

Local 1477 United Transportation Union v. Baker,

482 F.2d 228 (@th Cir. 1978) 0. 4

Locomotive Engineers Vv. L.@N.R. Co., 373 U.S. 33

(| | EE Sms eg ok 2

Order of Conductors v. Pitney, 326 U.S. 561

Ci | | EME ee 15

Railroad Trainmen v. Terminal Co., 394 U.S. 369

C:. ) ERECT Ee 3

Railway Clerks v. Florida E.C.R. Co., 384 U.S. 238

C | Ne Pm 3

Railway Labor Executives v. Norfolk & Western

Ry., 833 F.2d 700 (7th Cir. 1987) ......................... 3

Railway Labor Executives’ Ass’n v. Burnley, 839

F.2d 575 (9th Cir. 1988), cert. pet. pending,

INO. CFsRGBS nn ecccsncccece ee 7,8,9,11

Railway Labor Executives’ Association v. Chicago

and North Western Transportation Company,

Case No. 87-CV-60302AA (E.D. Mich.) ........... ll

iii

TABLE OF AUTHORITIES—Continued

Page

Shore Line v. Transportation Union, 396 U.S. 142

NN ca ye ig ct hsindiics ncn sbvemdancnscsecndsioienans 3, 14

Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239

Tee acer cecsuasummnastucinnede 12,15

Southern Pacific Transportation Co. v. Locomotive

Engineers, 96 Labor Cases { 14,016 (N.D. Cal.

ETT eg 12

Trainmen V. Chicago R. & I.R. Co., 406 U.S. 320

a wean eslenansinas 2

Union Pacific R. Co. v. Sheehan, 439 U.S. 89

A ESS Ea oe a 2

Statutes:

Federal Railroad Safety Act, 45 U.S.C. §§ 421 et

Neen es ssc sasunaneesonoanivsncvesaatasonins 6

Hours of Service Act, 45 U.S.C. §§ 61 et seq......... 10

Railway Labor Act, 45 U.S.C.:

§ 153 First (h)

Nels Nepccandacessereesshuodousne

8 I

§ 153 First (0)

Neen nn ee cewiadavdiustbetaceslexcane

osc p secs cocccisudaceskcesiess

§ 153 Second

Neen en ee cncaussuuenanacsaatdconss

ne ci csadgonaupsusdannaneceas

NOWNNNWH WD DW

—

Miscellaneous:

ny covwnacenanssuavsnuensseeccceusnes 6, 7, 10

. ee

“— > 7 ss

alia aie le 7 7 7 mou a

eee | Pama ncaa 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1631

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

Vv.

BROTHERHOOD OF LOCOMOTIVE E\NGINEERS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

The National Railway Labor Conference represents

most of the nation’s Class I railroads in national collec-

tive bargaining and in regard to various other matters

involving the Railway Labor Act. Because this case pre-

sents issues concerning the application of that Act that

are of large importance to the railroad industry, this

amicus brief is being filed with the written consent of

the parties pursuant to Supreme Court Rule 36.1.

2

STATEMENT OF THE CASE

1. The Statutory Framework. This case arises under

the Railway Labor Act (“RLA’”’), 45 U.S.C. §$ 151 et

seq. Under § 3 First (i) of that Act, “disputes between

an employee or group of employees and a carrier or car-

riers growing out of grievances or out of the interpreta-

tion or application of agreements concerning rates of

pay, rules, or working conditions” may be submitted by

either party to the National Railroad Adjustment Board

(“NRAB”) if the dispute is not adjusted through the

grievance procedures established by the carrier. 45

U.S.C. § 153 First (i).' Such disputes commonly are re-

ferred to as “minor” disputes, in accordance with termi-

nology adopted by this Court in Elgin, J. & E. R. Co. V.

Burley, 325 U.S. 711, 723 (1945), on rehearing, 327

U.S. 661 (1946). The arbitration remedy thus provided

for minor disputes is mandatory and exclusive. The

courts do not have jurisdiction to decide such a dispute,”

and a union may not lawfully strike over such a dispute,

either before or after the decision of the adjustment

1 The NRAB is composed of four divisions, each of which has a

membership divided equally between those “selected by the car-

riers” and by “the national labor organizations of the employees.”

45 U.S.C. §153 First (h). In the event of a deadlock, a neutral

“referee” agreed upon by the members of the division or appointed

by the National Mediation Board sits with the division so as to

make an award. 45 U.S.C. $153 First (1). The “findings and

order of the divison” are “conclusive on the parties,” subject to

limited judicial review on grounds specified in 45 U.S.C. §§ 151

First (p) and (q). See, e.g., Union Pacific R. Co. v. Sheehan, 439

U.S. 89 (1978). A carrier and a union also may establish special

boards of adjustment, or so-called “Public Law Boards,” to decide

such disputes in lieu of the NRAB. 45 U.S.C. § 153 Second. Those

alternate adjustment boards generally consist of a carrier member,

a union member, and a neutral member designated by the National

Mediation Board.

2 See, e.g., Andrews Vv. Louisville & Nashville R. Co., 406 U.S.

320 (1972).

3

board.* A carrier ordinarily may implement its inter-

pretation prior to the decision of the adjustment board,*

but if found to be wrong, the “Board shall make an or-

der, directed to the carrier, to make the award effective”

which may include reinstatement and “a requirement for

the payment of money” to compensate the employee for

lost wages or other monetary loss caused by the carrier’s

action found to be erroneous. 45 U.S.C. § 153 First (0).

Such minor disputes are to be contrasted with so-called

“major” disputes in which a party to a collective bar-

gaining agreement seeks to change that agreement. Sec-

tion 6 of the RLA requires a carrier or union to give

“written notice of an intended change in agreements af-

fecting rates of pay, rules, or working conditions,” 45

U.S.C. § 156, and the Act further provides for confer-

ences, mediation by the National Mediation Board and,

at the discretion of the President, investigation of the

dispute and recommendations for a settlement by an

emergency board. See, e.g., Railroad Trainmen v. Termi-

nai Co., 394 U.S. 369, 378 (1969). Those procedures

have been characterized by this Court as “long and drawn

out,” Railway Clerks v. Florida E.C.R. Co., 384 US.

238, 246 (1966), as “almost interminable,” Shore Line v.

Transportation Union, 396 U.S. 142, 149 (1969), and as

“virtually endless,” Burlington Northern Railroad Co. v.

Brotherhood of Maintenance of Way Employes,

US. , 55 U.S.L.W. 4576, 4580 (1987). While a ma-

jor dispute is working its way through those procedures

the parties are required to maintain the status quo,

Shore Line, supra. But once they are exhausted without

3 See, e.g., Trainmen v. Chicago R. & 1.R. Co., 353 U.S. 30 (1957)

(before) ; Locomotive Engrs. v. L. & N. R. Co., 373 U.S. 33 (1962)

(after).

* See, e.g., Railway Labor Executives v. Norfolk & Western Ry.,

833 F.2d 700, 708 (7th Cir. 1987); Brotherhood of Maintenance v.

Burlington Northern, 802 F.2d 1016, 1021-1022 (8th Cir. 1986);

Broth. of Loco. Eng. Vv. Boston & Maine Corp., 788 F.2d 794, 797

n.l (1st Cir. 1986), cert. denied, 55 U.S.L.W. 3232 (1986).

4

agreement being reached, the parties may resort to self

help including a strike of the carrier involved in the

dispute and secondary picketing of any or all other rail-

roads, Burlington Northern, supra.

Although the foregoing principles are well established

by many decisions in addition to those cited, it is often

necessary for a court to decide whether a particular dis-

pute is major or minor in nature. Such litigation usually

arises—as here— when a railroad claims that its actions

accord with existing agreements so as to give rise to a

minor dispute while a union contends that the carrier is

attempting to impose unilaterally a new working condi-

tion, and thus to change its existing agreements, so as to

give rise to a major dispute. “Confronted by such op-

posing characterizations of particular disputes, the courts

of appeals have consistently ruled that if the disputed

action of one of the parties can ‘arguably’ be justified

by the existing agreement, or, in somewhat different

statement, if the contention that the labor contract sanc-

tions the disputed action is not ‘obviously insubstantial,’

the controversy is within the exclusive province of the

National Railroad Adjustment Board.” Local 1477

United Transportation Union v. Baker, 482 F.2d 228,

230 (6th Cir. 1973). The “burden on the carrier to show

such arguable justification is ‘relatively light,’” Ind.

Fed. of Flight Attendants v. Trans World, Etc., 655 F.2d

155, 159 (8th Cir. 1981), and “‘when in doubt, the courts

construe disputes as minor.” Bro. of Locomotive v. Atch-

ison, Topeka & Santa Fe, 768 F.2d 914, 920 (7th Cir.

1985).

The foregoing principles are applicable to disputes

about a carrier’s actions in regard to a matter as to

which its written agreements are silent—referred to by

this Court in Elgin, J. & E. R. Co. v. Burley as an

“omitted case,” 325 U.S. at 723—the situation that is

involved here. We note, however, that the reasons for the

general presumption in favor of arbitration—and thus

for classfying a dispute as minor rather than major—

5

are particularly strong and fully justify the Court’s ref-

erence in Elgin, J. & E. R. Co. v. Burley to an omitted

case as one type of minor disputes for an adjustment

board to decide, 325 U.S. at 723. See pp. 15-16 infra.

2. The Proceedings Below. Petitioner, Burlington

Northern Railroad Company (“BN”), has an operating

and safety rule denominated Rule G. It prohibits the

use or possession by an employee of drugs or alcohol

while on duty or on company property, and the reporting

to duty by an employee while under the influence of

drugs or alcohol. Pet. App. 74a-75a, 82a. Rule G was

adopted many years ago and from time-to-time has been

revised unilaterally by BN, it applies to all BN employ-

ees regardless of their union representative, and it has

never been a part of a written collective agreement.

Pet. App. at 75a, 82a-83a. Rule G does not prescribe

or proscribe any particular means of detecting vioia-

tions. BN introduced evidence that it historically has

“used various means and procedures to enforce Rule G,”

which “always have been unilaterally promulgated by the

carrier.” Pet. App. at 82a-83a. Pursuant to that past

practice, at least since 1978, the BN had utilized “post-

accident testing including the use of urine, blood or

breath test,” without objection from Respondent, Brother-

hood of Locomotive Engineers (“BLE”). [bid.

In 1984, following two catastrophic train accidents,

BN intensified its program for enforcing Rule G. Post-

accident urine testing of employees may be required fol-

lowing major and certain minor human-factor accidents

or when a BN supervisory official detects abnormal be-

havior on the part of an employee. Pet. App. at 75a,

77a-78a, 83a. The parties stipulated that this “post-

accident testing policy applies only when there is a causal

connection between the accident and an employee’s re-

sponsibility for the accident,” and “is not required when

the cause of the accident is clearly related to other than

employee error....” Pet. App. at 78a.

6

Two unions representing BN employees objected to

this intensified program for detecting violations of Rule

G and brought litigation to enjoin its implementation:

the Brotherhood of Maintenance of Way Employes

(“BMWE”), which represents employees that maintain

the BN’s tracks, and the BLE, which represents BN’s

locomotive engineers. In the litigation brought by the

BMWE, a district court held that its objections gave

rise to a minor dispute for an adjustment board to de-

cide and thus refused to enjoin implementation of the

program in regard to employees represented by that

union.® The Eighth Circuit unanimously affirmed that

aspect of the district court’s decision. Brotherhood of

Maintenance v. Burlington Northern, 802 F.2d 1016,

1020-1023 (1986). In the litigation brought by the BLE,

the district court similarly held that its objections gave

rise to a mino» dispute and refused to enjoin implemen-

tation of the program as to employees represented by

that union.® In the decision now before this Court, how-

ever, the Ninth Circuit reversed over a dissent by Judge

Alarcon. Pet. App. at la-3la, reported as Broth. of Loco-

motive Eng. Vv. Burlington Northern, 838 F.2d 1087

(1988).

The same panel of the Ninth Circuit on the same day

by the same 2-1 majority also held that regulations is-

sued by the Federal Railroad Administration (“FRA”),

pursuant to the Federal Railroad Safety Act (45 U.S.C.

$$ 421 et seq.), violate the Fourth Amendment to the

Constitution insofar as they require that covered rail-

road employees undergo alcohol and drug testing (in-

cluding urinalysis) if involved in major train accidents,

certain impact accidents, or fatal incidents (49 C.F.R.

5 Bro. of Maintenance v. Burlington Northern R., 642 F. Supp

41, 46-48 (N.D. Iowa 1985).

®* Pet. App. at 33a-35a, reported as Brotherhood of Locomotive

Eng. Vv. Burlington Northern, 620 F. Supp. 173 (D. Mont. 1985).

7

§ 219.201(a)); or authorize the railroads to require such

testing of employees involved in certain other reportable

train accidents, incidents, or certain operating rule vio-

lations (49 C.F.R. §§ 219.801). Railway Labor Execu-

tives’ Ass’n V. Burnley, 839 ¥.2d 575 (9th Cir. 1988),

cert. pet. pending, No. 87-1555.

In the instant case, that panel majority did not see fit

even to mention the earlier decision by the Eighth Cir-

cuit in the BMWE case holding that the identical BN

post-accident testing program in connection with the

identical Rule G is at least arguably justified by the

BN’s past practices in enforcing Rule G so that the

BMWE’s objections thereto gave rise to a minor dispute

for an adjustment board to decide. Although recognizing

that the dispute is minor if the BN’s testing program “is

‘arguably justified’ by ... a term implied by past prac-

tice” (Pet. App. at 9a), the panel majority minimized

BN’s past practice of unilaterally enforcing Rule G, and

relied almost entirely upon its Burnley decision for its

holding that the BN did not have even arguable justifica-

tion for that program. In its view, “the focus of our in-

quiry—both under the fourth amendment and under an

implied provision of a collective agreement—is the ex-

pectation of privacy of those who will be subject to urine

testing.” Pet. App. at lla. It held, apparently as a mat-

ter of law, that “/a]lthough the source of the invasion

is different, the privacy interest is the same,” and “de-

cline{d] to assume that BLE members implicitly granted

BN the authority to invade their privacy in ways the gov-

ernment could not.” Ibid.’

INTEREST OF AMICUS CURIAE

The National Railway Labor Conference (‘“NRLC’’)

is an unincorporated association that includes almost all

of the nation’s class I railroads among its members.

7 The court below further noted that its Burnley decision obvi-

ated arguments by the BN that the FRA regulations also provided

support for its drug testing program. Pet. App. at 12a.

8

They employ over 90% of all railroad employees. Those

members include the National Railroad Passenger Cor-

poration (Amtrak), which provides intercity passenger

service (for the most part over track maintained by

other railroads and used also for freight operation).

Other members (including BN) provide commuter as

well as freight service, and most are solely freight rail-

roads (although Amtrak passenger trains may operate

over some of their tracks). NRLC represents member

railroads in multi-employer collective bargaining with

unions representing their employees (including the BLE),

and in regard to a variety of other labor-management

relations matters of interest to the railroads generally.”

This case involves an issue of critical importance to

the railroad industry: whether a railroad that historic-

a'ly has enforced unilaterally safety rules prohibiting em-

ployees’ on-duty aleohol and drug impairment can im-

plement more effective detection measures without pre-

cipitating a major dispute under the RLA. There can

be ne-question about the importance of railroad safety,

or about the importance to railroad safety of preventing

on-duty alcohol and drug impairment of employees oper-

ating trains or maintaining railroad equipment and

tracks. Those matters obviously are highly important to

the railroads as well as to railroad employees, passengers,

shippers and members of the general public who may be

affected by railroad accidents. And, of course, the pre-

vention of on-duty alcohol and drug impairment by other

employees also is important to the railroads.

As the record in this case reveals, Rule G for many

years has “existed throughout the railroad industry”

® Among other things, the Association of American Railroads

generally represents the railroad industry in FRA matters, as in the

Burnley case, while NRLC generally performs that role in matters

related to collective ‘argaining or labor-management relations, as

in this case.

9

(Pet. App. at 82a), and “BN’s post-accident testing pro-

gram is similar to programs being conducted on other

railroads” (Pet. App. at 83a). The enforcement of Rule

G has been the railroads’ main line of defense against

on-duty aleohol or drug impairment. The means or

methods of enforcement traditionally has been left to the

unilateral discretion of management, on other railroads

as well as on BN.” Thus, the railroads have been able

to adapt those means or methods of enforcement from

time-to-time in the light of the seriousness of the problem

and ‘or technological developments such as improved test-

ing methods or techniques, without previously invoking

the “almost interminable” major dispute procedures of

the RLA in an effort to reach agreement with the unions

—which in any event could lead to strikes if no agree-

ment is reached.

The decision below threatens to interfere with that

desirable flexibility of approach in enforcing Rule G, and

for that reason, among others, its reversal is important

to the NRLC and member railroads in addition to the

BN. The importance of that decision transcends what-

ever this Court may do with the Burnley case, and thus

the instant petition should be granted whether the peti-

tion in that case is granted or denied. Even if this

Court should review and reverse the Burnley decision, as

NRLC believes should be done, that will neither suffice

to contain the railroads’ problems with alcohol and drug

impairment nor correct the Ninth Circuit’s erroneous

interpretation of the RLA.

*As on the BN, the carriers generally have determined uni-

laterally the manner in which Rule G is to be enforced. CSX Trans-

portation (“CSXT”), however, has entered into agreements for drug

and alcohol testing with several of its unions and does not intend

unilaterally to impose such testing. CSXT is concerned with pre-

serving a carrier's right unilaterally to promulgate changes in

Rule G and othe + operating rules.

10

Rule G applies to all employees while the FRA regu-

lations cover only employees who perform service subject

to the Hours of Service Act (45 U.S.C. §§ 61 et seq.).

49 C.F.R. § 219.5(d) and (e).1° The FRA regulations

prescribe “minimum Federal safety standards for con-

trol of alcohol and drug use,” with respect to covered

employees, and expressly do not “restrict a railroad from

adopting and enforcing additional or more stringent re-

quirements not inconsistent with” those regulation. 49

C.F.R. § 219.1(b). In our view, enforcement of Rule G

is not limited by Fourth Amendment doctrines, and thus

can be more flexible and responsive to general as well as

to particular problems and to conditions that exist on

the particular carrier. Indeed, the Ninth Circuit’s hold-

ing that the “focus of . . . inquiry” is the same under

the Fourth Amendment and under the RLA is in itself

a very important issue. The adoption of safety regula-

tions by the FRA is a time-consuming process, and those

regulations are drafted for application to all railroads.

Unless hampered by the decision below in this case, an

individual railroad under the RLA may tailor its enforce-

ment of Rule G to the severity of its problems with al-

cohol or drug impairment without substantial delay. If

an improved means of detecting employees under the in-

fluence of drugs should be developed, for example, the

decision below could substantially delay the use of that

new means by a railroad pending exhaustion of the long

and drawn out major dispute procedures of the RLA.

10 This includes employees “actually engaged in or connected with

the movement of any train,” 45 U.S.C. § 61(b)(2), dispatchers and

other employees participating in the transmission of orders affect-

ing train movements, 45 U.S.C. § 63(a), and employees “engaged

in installing, repairing or maintaining signal systems.” 45 U.S.C.

§ 64(d). It does not include, among others, maintenance of way

employees who primarily maintain railroad tracks and mechanical

employees who primarily maintain or repair locomotives, cars or

other railroad equipment (apart from signa! equipment).

11

In short, it is in the interest of the NRLC and mem-

ber railroads to urge this Court to grant the petition and

reverse the decision below, regardless of what this Court

may do in the Burnley case.

REASONS FOR GRANTING THE WRIT

The decision below squarely conflicts with a decision

by the Eighth Circuit in regard to an important issue,

and the Ninth Circuit has wrongly decided that issue in

a manner that also raises important questions about the

application of the RLA in circumstances where there is

no express provision either authorizing or prohibiting

a railroad’s disputed actions in any applicable written

collective bargaining agreement.

A. There Is A Conflict of Decision by Two Courts of Ap-

peals in Regard to an Important Issue.

As Judge Alarcon stated in dissent to the decision

below (Pet. App. at 18a), the “majority’s opinion is

contrary to the Eighth Circuit’s well-reasoned analysis

of precisely the same issue” in the BMWE case (see p. 6

supra); apart from the identity of the union challenging

the BN’s post-accident testing program, “the facts and

legal questions are identical,” so that the “majority’s

opinion creates an intercircuit conflict.” Those decisions

address a recurring issue. For example, the Chicago and

North Western has adopted a post-accident testing pro-

gram similar to the BN program at issue here. All the

major rail labor unions, including BLE and BMWE,

have sued to enjoin that program. Railway Labor Execu-

tives’ Association Vv. Chicago and North Western Trans-

portation Company, Case No. 87-CV-60302AA (E.D.

Mich.), which is now pending."

11 The BN has cited a number of district court decisions which

reached conflicting decisions in regard to an air or rail carrier’s

unilateral adoption of new alcohol or drug tests. Pet. at 14-16. See,

also, Southern Pacific Transportation Co. v. Locomotive Engineers,

— ————————

12

We have shown (pp. 8-10 supra) that the enforce-

ment of Rule G is important to the safety and efficiency

of railroad operations, which in turn is important to

railroad passengers, shippers, employees and to the gen-

eral public as well as to the railroads. Moreover, resolu-

tion by this Court of that intercircuit conflict has an

additional importance. Most major railroads operate in

more than one circuit, and separate crafts or classes of

their employees generally have separate union represen-

tation. The existence of conflicting lines of authority

in the lower courts not only will invite litigation, but

could also result—as already has happened to the BN—

in the same program for enforcing the same Rule G by

the same railroad being enjoined in one circuit as to one

union but not in another circuit as to another union.

Permissible techniques for detecting possible on-duty

alcohol or drug impairment could vary in regard to dif-

ferent crew members involved in the same human-factor

accident, for example, depending upon which union is an

employee’s representative.

One of the advantages of having such controversies

decided by the NRAB, as would be done under the

Eighth Circuit’s decision, is that “[p]recedents estab-

lished by it, while not necessarily binding, provide op-

portunities for a desirable degree of uniformity .. .

throughout the nation’s railway system.” Slocum v. Dela-

ware, L. & W. R. Co., 339 U.S. 239, 243 (1950). Now,

only this Court can assure that ‘desirable degree of uni-

formity” by resolving the conflict created by the Ninth

Cireuit, reversing the decision below, and ruling that

such disputes over the implications of past practices in

enforcing Rule G are arbitrable by the NRAB. Thus,

review of that decision obviously is important to the

future application of the RLA to other railroads and rail-

96 Labor Cases § 14,016 (N.D. Cal. 1980), which held that the BLE’s

objections to the railroad’s unilateral use of intoxilyzer tests to de-

tect violations of Rule G created a minor dispute.

—

13

road unions as well as to the BN and the BLE. In addi-

tion, the same kind of issues can arise in regard to the

airlines and their unions that also are subject to the

RLA. 45 U.S.C. $§ 181 et seq.

B. The Decision Below Raises Important Issues as to

the Interpretation of Past Practices in Circumstances

Where There Is No Applicable Written Collective

Agreement.

Both Rule G and the means for enforcing that rule

heretofore have been established by the BN unilaterally,

and are not part of an express collective bargaining

agreement with the BLE or any other union. We do net

quarrel with the majority opinion below, however, inse-

far as it pointed out that a “railroad collective agree-

ment includes not only express terms, but terms implied

by past practice and by law” (Pet. App. at 8a), and

acknowledged that the “arguably justifiable” test is ap-

plied by the courts in separating minor from major dis-

putes regarding the implications of past practice as well

as in other circumstances (Pet. App. at 9a). But as

Judge Alarcon stated in dissent (Pet. App. at 13a), after

“correctly stating the applicable test, the majority pro-

ceed[ed] to ignore it.”

The court below should have focussed upon the record

evidence of BN’s past practices in enforcing Rule G,

including evidence that historically that Rule has been

enforced by various means deemed appropriate by the

carrier. If that had been done, that Court should have

coneluded, as did the Eighth Circuit, that this evidence

at least arguably supports BN’s contention that its more

effective enforcement measures are permissible under an

implied term in its agreements with the union and there-

fore sent the matter to arbitration as a minor dispute

under the RLA. Instead, the majority below focussed its

inquiry, not on whether BN’s arguments from past prac-

tice were too frivolous or insubstantial even to merit

14

consideration by an adjustment board, but rather upon

“the expectation of privacy of those who will be subject

to urine testing.” We assume that such a “focus” to

some extent may be appropriate “under the fourth

amendment,” but there is no support whatever of which

we are aware for the proposition that it is equally ap-

propriate in applying the “arguably justifiable” test in

regard to ‘an implied provision of a collective agreement

....” See Pet. App. at lla.”

The majority below acknowledged that “BN is not a

government agency and, therefore, is not subject to the

restrictions of the fourth amendment.” Pet. App. at lla.

But the majority utilized its focus on the privecy inter-

ests of employees so as in effect to apply the restrictions

of the Fourth Amendment to the private actions of the

BN. It did so by issuing the ipse dixit that the “privacy

interest is the same” regardless of whether measured by

an employee’s “expectations regarding whether the gov-

ernment may invade his or her privacy” or “whether an

employer may engage in a similar invasion of privacy

. 2’ Pet. App. at lla. Hence, the majority below

“decline[d] to assume that BLE members implicitly

granted BN authority to invade their privacy in ways

the government could not.” Jbid. Insofar as appears,

the majority did not even consider whether that bold

proposition is at least “arguably” wrong. The majority

cited no facts and no authority for thus equating an

employee’s expectations of privacy in dealing with his

employer with his expectations of privacy in dealing with

his government.

12The court below cited Shore Line v. Transportation Union,

supra, 396 U.S. at 153, for the proposition that “the terms of a

collective agreement include ‘actual, objective working conditions

and practices, broadly conceived ....,’” but nothing in that propo-

sition (or elsewhere in the Shore Line decision) either holds or

suggests that a court should focus on employees’ “expectation of

privacy” in determining what those working conditions may be.

15

We do not believe and the record does not establish that

the usual railroad worker (or union leader, or super-

visor, or labor-relations officer) has an informed under-

standing of Fourth Amendment jurisprudence, or the

same expectation of privacy vis-a-vis his or her employer

as compared to governmental bodies. In short, we think

that the Ninth Circuit’s perceptions in regard to the

privacy interests of railroad workers are unrealistic, as

well as improperly embroiling the interpretation of past

practices in the railroad industry with the complexities

and permutations of Fourth Amendment jurisprudence.

But however that may be, this points up the funda-

mental error of the decision below—the usurpation by

the court of the jurisdiction of the NRAB. The Congress

in providing for arbitration of minor disputes “intended

to leave a minimum of responsibility to the courts,” for

the very reason, among others, that the interpretation

of collective agreements often requires consideration of

“usage. practice and custom” which “must be taken into

account and properly understood.” Order of Conductors

v. Pitney, 326 U.S. 561, 566, 567 (1946). The NRAB

was created as “an agency especially competent” to deal

with such issues. Jd. at 567. “Its members understand

railroad problems and speak the railroad jargon. Long

and varied experiences have added to the Board’s initial

qualifications.” Slocum v. Delaware, L. & W. R. Co..

supra, 339 U.S. at 243. Its members include “represen-

tatives of management and labor . . . peculiarly familiar

with the thorny problems and the whole range of griey-

ances that constantly exist in the railroad world,” as

they are “in daily contact with workers and employers,

and know[] the industry’s language, customs, and prac-

tices.” Gunther v. San Diego & A. E. R. Co., 382 USS.

257, 261 (1965).

Hence, the decision below establishes a precedent for

avoiding the jurisdiction of the NRAB in the very area

where its special competence is most important—where

16

there is no written agreement and decision turns al-

together upon the implications to be drawn from custom

and practice, including any relevant perception of the

privacy expectations of railroad workers. That prece-

dent, if allowed to stand, undermines the role that the

Congress intended the NRAB to perform in regard to

resolving a wide range of railroad labor-management

controversies in addition to controversies over the en-

forcement of Rule G. The decision below, therefore, is of

general importance to the operation of the RLA and

should be reviewed by this Court.

CUNCLUSION

For the reasons stated above and in the BN’s Petition,

this Court should grant a writ of certiorari and review

the decision by the Ninth Circuit.

Respectfully-submitted,

RICHARD T. CONWAY

(Counsel of Record)

RICHARD M. WYNER

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

DAVID P. LEE

Vice Chairman &

General Counsel

NATIONAL RAILWAY LABOR

CONFERENCE

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for Amicus Curiae

National Railway Labor

Conference

Date: April 29, 1988