Petition for Writ of Certiorari — Chicago & North Western Transportation Co. v. Brotherhood of Maintenance of Way Employes

87-13 48)) rome

No. 87- i FES

' “a: SPAMIOL, JR,

IN THE iz

Supreme Court of the United Ststes

OCTOBER TERM, 1987

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY,

Petitioner,

V.

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JAMES P. DALEY RALPH J. MOORE, JR.

STUART F. GASSNER (Counsel of Record)

CHICAGO & NORTH WESTERN D. EUGENIA LANGAN

TRANSPORTATION COMPANY SHEA & GARDNER

One North Western Center 1800 Massachusetts Ave., N.W.

Chicago, Illinois 60606 Washington, D.C. 20036

(312) 559-6072 —(202) 828-2000

EDWARD M. GLENNON

THOMAS E. GLENNON

LINDQUIST & VENNUM

4200 IDS Center

80 South Eighth Street

Minneapolis, Minnesota 55402

(612) 371-3211

Counsel for Petitioner

February 11, 1988

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

a

ii

CLERK

QUESTION PRESENTED

Whether a court may enter an interlocutory injunc-

tion against a unilateral change by a carrier, allegedly

in violation of the “status quo” requirements of the Rail-

way Labor Act, before a trial on the merits with respect

to disputed issues of fact, without “balancing the equi-

ties” —-2.e., without determining (1) that emergency in-

junctive relief is necessary to prevent irreparable injury

to the plaintiff before the trial on the merits, and (2)

that any such injury outweighs injury to the public or

the carrier that will result from granting the injunction.

(i)

ii

LIST OF PARTIES

In addition to the parties listed in the caption to this

petition, the Chicago & North Western System Federa-

tion of respondent Brotherhood of Maintenance of Way

Employes was a party to the proceedings below.

Petitioner Chicago and North Western Transportation

Company is a wholly-owned subsidiary of the Chicago

and North Western Corporation. Petitioner’s subsidi-

aries and affiliates, apart from wholly-owned subsidiaries,

are:

Iowa Transfer Railway Company

Kansas City Terminal Railway Company

MT Properties, Inc.

Peoria & Pekin Union Railway Company

Trailer Train Company

Transportation Data Exchange, Inc.

ACE Limited

Railroad Association Insurance, Ltd.

Transportation & Railroad Assurance Company, Ltd.

TQGroup

West Parcel Venture

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................. i

LIST OF PARTIES ........ estates hededuiobebesssepueusinisicins il

I ST Ue ED oc snnccccensanaccsconsnatennnasnsacssnesansses iv

ss cschivcunabsndinnaibiaeetonctinanatnnes Se ]

JURISDICTION 2

STATUTE INVOLVED ................ pean 2

STATEMENT ................. RAW Ean ne Reson 3

REASONS FOR GRANTING THE WRIT .................. 9

CONCLUSION ......... eae eaelial Pes i8

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

American Mercury Vv. Kiely, 19 F.2d 295 (2d Cir.

5 RI ae Re UOT ate RETRO cel nn ae BAR 11

Amoco Production Co. Vv. Village of Gambell,

Alaska, 107 S. Ct. 1896 (1987).............................. 12, 14

Black Law Enforcement Officers Ass’n Vv. City of

Akron, 824 F.2d 475 (6th Cir. 1987) -.................... 13

Brotherhood of Railway, Airline & Steamship

Clerks v. Chicago & N.W. Transp. Co., N.R.A.B.

3d Div. Award No. 25032 (1984) ..........00....0..0...... 5, 6,8

Brown Vv. Chote, 411 U.S. 452 (19738) .................--.--. 12

Canal Authority v. Callaway, 489 F.2d 567 (5th

bes aaa RE A eRe KA ee Ssh ER Re ROLES 11, 13

Chicago & N.W. R. Co. v. Transportation Union,

RS et A ae see Oe 15

Dataphase Systems, Inc. v. C L Systems, Inc., 640

OP ae ee scene ccdhckecocenen 13

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) -....... 12

Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711

| ER CAP Baa ag Rs SSR NO 4

Foltz v. U.S. News & World Report, 760 F.2d 1300

8 Ae “Ry __RER RiaSTS enemy CN SC URDU NRC 13

Granny Goose Foods, Inc. v. Teamsters, 415 U.S.

I I lieth en cncars acai cea peaninaclatenantts 11

Hecht Co. v. Bowles, 321 U.S. 321 (1944) —............. 12, 14

Houghton v. Meyer, 208 U.S. 149 (1908) -.......-.. 11, 12

International Ass'n of Machinists v. Eastern Air

Lines, 826 F.2d 1141 (1st Cir. 1987) -................. 11

Local 553, Transport Workers v. Eastern Air

Lines, 544 F. Supp. 1315 (E.D.N.Y.), aff'd, 695

ep FF, bo ERC Reuter error 10

Local 553, Transport Workers v. Eastern Air

Lines, 695 F.2d 668 (2d Cir. 1982) ........................ 7,9, 10

Locomotive Engineers V. Missouri-K.-T. R. Co., 363

RR Pac aa accent conscnadceriuansblnhodaatannns 14, 15

Los Angeles Memorial Coliseum Comm’n Vv. Na-

tional Football League, 634 F.2d 1197 (9th Cir.

SBR Rese ecieil ae «seh Sed rae 17 Noe ON BA ENR RTO 13

Love v. Atchison, T. & S.F. Ry. Co., 185 F. 321 (8th

Cir.), cert. denied, 220 U.S. 618 (1911) .............. 11

Vv

TABLE OF AUTHORITIES—Continued

Page

North Carolina State Ports Authority v. Dart

Containerline Co., 592 F.2d 749 (4th Cir. 1979)... 13

Ohio Oil v. Conway, 279 U.S. 813 (1929) (per

Ye __ | Yee iW erates isa Mate N ner Oe Ue Ra Ne 6 Ny SIRO RAI 12

Pan American World Airways V. Flight Engineers’

International Ass’n, 306 F.2d 840 (2d Cir.

j INE REL TENE OM pare al wre oe NCS PIPE Dee ale 11

Planned Parenthood League v. Bellotti, 641 F.2d

Fy” 8: Re ee ein 13

Public Service Comm’n V. Wisconsin Tel. Co., 289

Wi ee CS 12

Punnet v. Carter, 621 F.2d 578 (3d Cir. 1980) _....... 13

Railway Labor Executives’ Ass’n Vv. Norfolk &

W. Ry., 833 F.2d 700 (7th Cir. 1987) ....................... 4

Roland Machinery Co. v. Dresser Industries, Inc.,

i BA § Be, Br 5h. | | een 13

Sampson V. Murray, 415 U.S. 61 (1974) 0.000... 12

Shatel Corp. v. Mao Ta Lumber & Yacht Corp.,

GO7 F.24 1268 (iith Cir. 1968) ............................. 13

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

See I ct De es CC iy MAE Sirs af tx ses lid 6,10, 15

Southern Ry. v. Brotherhood of Locomotive Fire-

men & Enginemen, 337 F.2d 127 (D.C. Cir.

DI ono a ne ee ee 10

Stormy Clime Ltd. v. Progroup, Inc., 809 F.2d 971

Ce ee Shieh a 13

Toledo, A.A. & N.M. Ry. Co. v. Pennsylvania oe

54 F. 730 (C.C. N.D. Ohio), appeal dutesed

sub nom. In re Lennon, 150 U.S. 393 (1895) 11

Tri-State Generation & Transmission Ass'n V.

Shoshone River Power, Inc., 805 F.2d 351 (10th

i es ce eA SS 11,13

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

"y.,_ | ARR SPORSPRSCR eccrine tnnen me or re) 5 4

United Industrial Workers v. Board of Tr ustees of

the Galveston Wharves, 100 F.2d 320 (5th Cir.

1968), cert. denied, 395 U.S. 905 (1969) 17

United States v. Adler’s Creamery, 107 F.2d 987

_ gi Se Reet sesthasisidintens Asaacididaeiess adeno 11

vi

TABLE OF AUTHORITIES—Continued

Page

University of Texas v. Camenisch, 451 U.S. 390

(1981) igh anak ine ieee cee 11

Virginian Ry. Co. Vv. System Fe deration, 300 U Ss.

515 (1937) . 13

Weinberger Vv. Romero-Barcelo, 456 U.S. 305

(1982) —_ 14

Yakus v. United States, 321 U.S. 414 (1944) re 13

Statutes:

Railway Labor Act, ch. 347, 44 Stat. 577 (1926),

as amended :

Section 2 Seventh, 45 U.S.C. § 152 Seventh . 23

Section 3 First(i), 45 U.S.C. § 153 First (i)... 1,5

Section 3 First(o), 45 U.S.C. § 153 First (o) 17

Section 5 First, 45 U.S.C. § 155 First —............. 15

Section 6, 45 U.S.C. § 156 . ae 2,3, 15

Section 10, 45 U.S.C. § 160 icaaleesepeteess “ 15

Section 201, 45 U.S.C. § 181 —.............. a 15

Federal Railroad Safety ror Pub. L. No. 91-458,

84 Stat. 971 (1970), as amended:

Section 202(a), 45 U.S.C. § 431(a) 16

Section 209, 45 U.S.C. § 438 ........ an dctadads 16

Interstate Commerce Act, ch. 104, 24 Stat. 379

(1887), as amended:

49 U.S.C.§$11101(a) ~. Renee 2 aa 16

28 U.S.C. § 1254 (1) ..............

to

Legislative History:

Airline and Rail Service Protection Act: Hearing

Before the Senate Committee on Commerce,

Science & Transportation, 100th Cong., Ist

Sess, (1987) ............. 7 =

Rail Safety: Hearing Before the Subcommittee on

Surface Transportation of the Senate Committee

on Commerce, Science & Transportation, 100th

Comes, 190 GGA, CEES estctnnennenue . 17

vil

TABLE OF AUTHORITIES—Continued

Miscellaneous:

11 C. Wright & A. Miller, Federal Practice & Pro-

cedure (1973)

Developments in the Law: Injunctions, 78 Harv.

L. Rev. 994 (1965)

Note, Probability of Ultimate Success Held Unnec-

essary for Grant of Interlocutory Injunction, 71

Colum. L. Rev. 165 (1971)

19 C.F.R. § 219.1 (a)

16

IN THE

Siypreme Court of the United States

OCTOBER TERM, 1987

No. 87-

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY,

Petitioner,

Vv.

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner Chicago and North Western Transportation

Company respectfully requests that the Court issue a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. la) is re-

ported at 827 F.2d 330 (8th Cir. 1987). Its order deny-

ing rehearing (App. 26a) is unreported. The bench

ruling and order of the district court granting a pre-

liminary injunction (App. 14a, 20a) are unreported.

The district court’s opinion denying reconsideration of

its ruling on the preliminary injunction (App. 22a) is

unreported.

2

JURISDICTION

The judgment of the court of appeals (App. 25a) was

entered on August 25, 1987. A timely petition for re-

hearing was denied on November 13, 1987. (App. 26a.)

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTE INVOLVED

Section 2 Seventh of the Railway Labor Act, 45 U.S.C.

$ 152 Seventh, provides:

“Change in pay, rules, or working conditions con-

trary to agreement or to section 156 forbidden. No

carrier, its officers or agents shall change the rates

of pay, rules, or working conditions of its employees,

as a class, as embodied in agreements except in the

manner prescribed in such agreements or in section

156 of this title.”

Section 6 of the Railway Labor Act, 45 U.S.C. § 156,

provides:

“Procedure in Changing Rates of Pay, Rules and

Working Conditions. Carriers and representatives

of the employees shall give at least thirty days’ writ-

ten notice of an intended change in agreements af-

fecting rates of pay, rules, or working conditions,

and the time and place for the beginning of con-

ference between the representatives of the parties

interested in such intended changes shall be agreed

upon within ten days after the receipt of said notice,

and said time shall be within the thirty days pro-

vided in the notice. In every case where such notice

of intended change has been given, or conferences

are being held with reference thereto, or the services

of the Mediation Board have been requested by ei-

ther party, or said Board has proffered its services,

rates of pay, rules, or working conditions shall not

be altered by the carrier until the controversy has

been finally acted upon, as required by section 155

of this title, by the Mediation Board, unless a period

of ten days has elapsed after termination of con-

3

ferences without request for or proffer of the serv-

ices of the Mediation Board.”

STATEMENT

This case concerns the requisites for emergency in-

junctive relief in suits alleging Railway Labor Act vio-

lations.

Respondent Brotherhood of Maintenance of Way Em-

ployes (“BMWE”) commenced this action against peti-

tioner Chicago and North Western Transportation Com-

pany (“C&NW”) in federal court in the District of

Minnesota. BMWE is the collective bargaining represen-

tative of the C&NW’s track maintenance employees. It

alleged that C&NW had violated ‘‘status quo” obligations

under $$ 2 Seventh and 6 of the Railway Labor Act, 45

U.S.C. § 152 Seventh and 156, by unilaterally amending

company “Rule G” in 1986 to provide expressly that rail-

road employees were prohibited from drug offenses while

on or off duty.’

1QOn April 27, 1986, CQNW amended Rule G to provide as follows:

“Employes subject to call fur duty, reporting for duty, on duty

or on Company property are prohibited from using or being

under the influence of alcoholic beverages or intoxicants. Pos-

session of alcoholic beverages or intoxicants is prohibited while

on duty or on Company property.

Employes shall not report for duty, be on Company property or

be on duty under the influence of, or use while on duty or on

Company property any drug or other substance that may in

any way adversely affect their alertness, coordination reaction,

response or safety. This prohibition includes prescription

medications.

The illegal use, illegal possession or illegal sale of any drug

by employes while on or off duty is prohibited.” (Eighth Cir-

cuit Joint Appendix [“J.A.’’] 30.)

Prior to the amendment the rule did not contain the language in

the third paragraph, which expressly prohibits illegal off-duty drug-

related activities. (J.A. 29.)

4

The union moved for a preliminary injunction against

enforcement of the amended rule, and the railroad moved

to dismiss. The railroad argued that the amendment to

Rule G was at least arguably authorized by its estab-

lished past practices, and thus that the union’s challenge

to the amendment presented at most a “minor” dispute

over the interpretation of those practices.” The union’s

motion was not supported by any affidavits. The rail-

road’s motion was supported by an affidavit by its Vice

President of Labor Relations, who stated that rules gov-

erning employee abuse of drugs and alcohol had been

unilaterally issued and implemented by the railroad since

at least as early as 1910, and that Rule G and its prede-

cessors had been unilaterally amended by the railroad on

at least five occasions since then, in 1929, 1953, 1967,

1975 and 1980. (J.A. 19-21.) Copies of these different

versions of the rule attached to the affidavit showed that

the 1910 and 1929 versions provided that “the frequent-

ing of places where [intoxicants] are sold, is sufficient

cause for dismissal” (J.A. 24, 25), and that while the

“frequenting” provision was not contained in the 1953

version of the rule, the rule since 1953 had prohibited

the use of intoxicants or narcotics by employees “subject

to duty” or “subject to call for duty.” (J.A. 26, 27, 30.) *

Under the Railway Labor Act “minor disputes” over the ap-

plication or interpretation of collective bargaining agreements or

matters “omitted” from formal agreements but governed by estab-

lished relations between carriers and their employees are distin-

guished from “major disputes” over proposed changes in collective

bargaining agreements. See, e.g., Elgin, J. & E. R. Co. v. Burley,

325 U.S. 711, 723 (1945); Railway Labor Executives’ Ass’n V.

Norfolk & W. Ry., 833 F.2d 700, 705 & n.4 (7th Cir. 1987); see

45 U.S.C. § 153 First(i). The courts lack jurisdiction over minor

disputes because such disputes are committed to mandatory arbitra-

tion before adjustment boards established under §3. See, e.g.,

Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94 (1978).

’ Employees who are off duty but may be called are “subject to

duty.” Furloughed employees are not subject to duty.

5

The district court heard argument from the union on

August 14, 1986 and from both parties on September 23,

1986. (J.A. 35, 48-53, 61.) At the September 23 pro-

ceedings, in response to questions by the court as to

whether the railroad had regulated off-duty drug offenses

prior to 1986, the railroad’s attorneys advised the court

that it had done so under the “conduct unbecoming”

rule, and called the court’s attention to a 1984 decision

(83d Div. Award No. 25032) of the National Railroad

Adjustment Board under § 3 of the Railway Labor Act,

45 U.S.C. § 153 First(i), sustaining the dismissal of a

C&NW employee for off-duty sales of drugs. (J.A. 74-

76; App. 27a.)

During the September 23 proceedings the union con-

firmed that the court had copies of Rule G in effect be-

fore and after the April 1986 amendment and a copy of

a letter from BMWE to C&NW dated May 27, 1986,

protesting the change in the rule. (J.A. 63, 89-90; App.

15a.) The union presented no other evidence to the

court. Counsel for the union offered to present evidence,

' stating:

“Your Honor, you can’t have an injunction hearing

without some testimony. I mean, there is no factual

basis at this point in time.”

Counsel dropped the request, however, when the court re-

sponded: “As we used to say, watch me.” (Transcript

4 Rule 7, known as the “conduct unbecoming” rule, provided:

“Employes are prohibited from being careless of the safety of

themselves or others, disloyal, insubordinate, dishonest, im-

moral, quarrelsome or otherwise vicious or conducting them-

selves in such a manner that the railroad will be subjected to

criticism and loss of good will, or not meeting their personal

obligations.” (App. 10a n.3.)

5 The union had also attached to its reply to the railroad’s motion

to dismiss the record of the disciplinary proceeding of Michael

White, an employee who had been discharged following his arrest

for off-duty drug sales. The court ordered White reinstated with

back pay, and refused to stay that order pending the appeal below.

(App. 21a, J.A. 118.)

6

of September 23, 1986 Preliminary Injunction Hearing,

p. 6.)

After the argument the court granted the motion for

a preliminary injunction from the bench, enjoining the

railroad from enforcing the amended rule, and denied

the railroad’s motion to dismiss. (App. 15a, 18a-19a,

21a.) The court found that “although Rule G is not part

of a collective bargaining agreement,” it had regulated

“employee intoxicant use * * * for a sufficient period of

time with the knowledge and acquiescence of both the

company and the union to become in reality a demon-

strable part of the actual working conditions,” citing

Shore Line v. Transportation Union, 396 U.S. 142, 148

(1969). (App. 17a.) The court further found that

“Tsjinee 1910 the railroad has unilaterally regulated em-

ployees’ intoxicant use * * * under Rule G.” The court

nevertheless asserted (notwithstanding N.R.A.B. 3d Div.

Award No. 25032 and the express provisions of the dif-

ferent versions of Rule G described above) that the

“railroad has never regulated the off-duty conduct of an

employee while away from company property until the

change in Rule G, which it unilaterally promulgated

[in] April 1986.” (App. 17a.) Therefore, the court con-

cluded, Rule G, “prior to its change in April of 1986,

constitutes the status quo regarding the company’s regu-

lation of employee intoxicant use,” and that version of

Rule G could not be changed by the railroad unless it

first exhausted Railway Labor Act major dispute pro-

cedures with respect to a proposal to change the rule.

(App. 18a.)

The court’s order did not purport to make any deter-

mination as to the balance of the equities. The court did

not undertake any inquiry as to whether BMWE or its

members would suffer irreparable injury if the railroad

was not enjoined pending a trial on the merits. Nor did

it consider whether any such injury outweighed injury

that the public or the railroad might suffer if an inter-

7

locutory injunction was granted and it later turned out

at the trial on the merits that the union’s claims were

unfounded. (App. 14a-21a.)

The railroad moved for reconsideration, filing a fur-

ther affidavit by its Vice President of Labor Relations

that sought to show that it had in fact engaged in ex-

tensive regulation of off-duty conduct, including off-duty

drug offenses, prior to the 1986 amendment of Rule G,

under a number of unilateral company safety and operat-

ing rules, particularly Rule 7.° (J.A. 78-87.) The court

denied the motion, however, on the ground that facts

regarding the practice under other rules had not been

before it when it granted the preliminary injunction:

“In its reconsideration motion, the railroad fervently

argues that it has traditionally regulated off-duty

conduct through Rule 7, known as the “conduct un-

becoming” rule, as well as through various other

company rules. * * * [O]nly Rule G was before this

court when considering the underlying motion for a

preliminary injunction * * *.” (App. 24a.)

On appeal, the Eighth Circuit affirmed. The railroad

contended that the district court erred in granting the

preliminary injunction in the absence of any showing of

irreparable harm to the plaintiff or determination that

the balance of the equities favored the union. The rail-

road called the court’s attention to Local 553, Transport

Workers v. Eastern Air Lines, 695 F.2d 668, 677 (2d

Cir. 1982), in which the Second Circuit had held that

while there was uncertainty about the showing required

for a permanent injunction in a Railway Labor Act

status quo case following a trial on the merits, there is

“no doubt that a finding of irreparable harm [is] neces-

sary” where a preliminary injunction is sought in such a

6 The affidavit noted two instances in which employees had been

discharged for off-duty drug offenses, as well as several instances of

discharge for other off-duty criminal conduct, e.g., theft, rape, and

passing bad checks. (J.A. 80-81.)

8

case; the very purpose of interlocutory injunctive relief

is to prevent irreparable harm to the plaintiff outweigh-

ing the interests of the public and the defendant until a

trial can be had. The Eighth Circuit rejected that con-

tention, however, holding that such an injunction “may

issue without regard to the usual balancing of the equi-

ties * * *.” (App. 5a, n.2.)

The further holdings of the court of appeals serve to

emphasize the provisional nature of the factual founda-

tion for the preliminary injunction. The railroad con-

tended that the district court’s finding that the “railroad

has never regulated the off-duty conduct of an employee

while away from company property” was clearly erro-

neous, because the union had not presented evidence, and

the railroad’s evidence, including N.R.A.B. 3d Div.

Award No. 25032, was to the contrary. The Eighth Cir-

cuit rejected that contention, however, stating that “al-

though the parties will have the right to supplement the

record in any further proceedings with respect to past

practice under Rule 7, on the basis of the record before

it at the time it granted the preliminary injunction” the

district court’s determination was not clearly erroneous.

(App. 10a, 1la n.4 (emphasis added) ).

The court of appeals rested its holding on the merits

on that provisional foundation. The court rejected the

railroad’s contention that the controversy over the amend-

ment to Rule G was a minor dispute, because in the

court’s view the district court’s findings—that Rule G,

although not a part of the collective bargaining agree-

ment, had regulated employee intoxicant use since 1910,

but the railroad had “never” before regulated off-duty

conduct—“‘elevated [the supposed practice under Rule G

prior to the April amendment} to an implied term of the

collective bargaining agreement,” so that the railroad’s

amendment gave rise to a major dispute. (App. 3a, 7a.)

The court thus rested its legal conclusion entirely on a

factual predicate that it recognized had not yet been

9

finally established, and that will be vigorously contested

when this case is tried on the merits.

REASONS FOR GRANTING THE WRIT

This case presents an important issue, as to which

there is a direct conflict between the Second Circuit and

the court below, regarding the requisites for interlocu-

tory injunctive relief in Railway Labor Act status quo

cases prior to the trial on the merits of the underlying

factual issues.

1. The court below held squarely, in a case in which

the underlying factual issues are hotly disputed, that in

a suit to enjoin an alleged violation of the status quo re-

quirements of the Railway Labor Act, a preliminary in-

junction “may issue without regard to the usual balanc-

ing of the equities” (App. 5a n.2.). Indeed, according to

respondent, the court below held that in such a case, if

the district court’s preliminary view of the merits sup-

ports the plaintiff, an “injunction is mandatory without

consideration of the equities.” 7

That holding is directly in conflict with Local 553,

Transport Workers v. Eastern Air Lines, 695 F.2d 668

(2d Cir. 1982). In that case, the district court granted

a preiiminary injunction under § 6 of the Railway Labor

Act, finding, as the district court did here, that the union

was likely to succeed on the merits of its claim that the

carrier’s actions constituted a unilateral change in the

status quo. The Second Circuit affirmed that aspect of

the decision, but then went on to consider whether “the

District Court was entitled to find Local 553’s showing

of irreparable harm sufficient to support a preliminary

injunction * * *-’ 695 F.2d at 677. Noting that “there

is some question whether a showing of irreparable harm

is even necessary before enjoining,a carrier in a major

7 Appellees’ Response to Suggestion for Rehearing En Banc, p. 2.

10

dispute,” the court squarely held that “because the Dis-

trict Court was ordering a preliminary injunction rather

than a final injunction, there is no doubt that a finding of

irreparable harm was necessary.” Jd. at 677, 679 n.11.°

In short, the Second Circuit held that the traditional

equitable criteria governing injunctive relief pendente

lite are applicable in Railway Labor Act status quo cases.

The court then went on to vacate aspects of the prelimi-

nary injunction that were not necessary to prevent ir-

reparable injury during the period prior to trial and af-

firmed the injunction as modified. Jd. at 677-78, 679-

80. Thus the decision below is squarely in conflict with

the decision of the Second Circuit in the Eastern Air

Lines case.

2. The decision below is contrary to fundamental prin-

ciples of equity jurisprudence.

a. The decision below is at war with the fundamental

purpose of an interlocutory injunction: to prevent ir-

8 The district court in the Eastern Air Lines case had quoted from

a decision of the District of Columbia Circuit holding that “a show-

ing of irreparable harm is not required before [a permanent] status

quo injunction may issue, particularly because the question be-

fore us is concerned with far more than the private rights and

duties of the parties.” Southern Ry. v. Brotherhood of Locomotive

Firemen & Enginemen, 337 F.2d 127, 133-34 (D.C. Cir. 1964), quoted

in Local 553, Transport Workers v. Eastern Air Lines, 544 F. Supp.

1315, 1827 (E.D.N.Y. 1982). The basis for that rule, however, is

that once it has been established that a major dispute exists, the

statutory policy favoring “peaceful settlement” of such disputes

supersedes the private interests of the parties. Southern Ry., 337

F.2d at 133-34. In such a case maintenance of the status quo is

obligatory to prevent “the union from striking and management

from doing anything that would justify a strike.” Shore Line v.

Transportation Union, supra, 396 U.S. at 150. But, as the Second

Circuit recognized in Eastern Air Lines, that rationale does not

extend to the preliminary injunction context, where it has not yet

been established that a major dispute that could culminate in a

strike exists, or that the railroad’s actions would frustrate the

ultimate resolution of any such dispute.

| |

11

reparable harm until the case can be tried on the merits.

An interlocutory injunction

“is a drastic procedure. It is a temporary remedy

allowed at a time when the parties have not had full

opportunity to present their case to the court, nor

has the court, conversely, had the benefit of a full

trial and deliberation.”

International Ass’n of Machinists v. Eastern Air Lines,

826 F.2d 1141, 1144 (1st Cir. 1987).°

The only justification for such an injunction, therefore,

is to preserve the “relative positions of the parties until

a trial on the merits can be held.” University of Texas

v. Camenisch, 451 U.S. 390, 395 (1981); Granny Goose

Foods, Inc. v. Teamsters, 415 U.S. 423, 434-35 (1974).

Its purpose is “to preserve the court’s ability to render

a meaningful decision on the merits.” Canal Authority V.

Callaway, 489 F.2d 567, 573 (5th Cir. 1974).

Accordingly, this Court has held repeatedly that the

very basis for the entry of interlocutory injunctions “has

always been irreparable harm and inadequacy of legal

® Accord, Canal Authority v. Callaway, 489 F.2d 567, 573 (5th

Cir. 1974); Pan American World Airways v. Flight Engineers

Ass'n, 306 F.2d 840, 843 (2d Cir. 1962).

10 Accord, Houghton v. Meyer, 208 U.S. 149, 156 (1908) (con-

struing statutory predecessor to Federal Rule of Civil Procedure

65); Toledo, A.A. & N.M. Ry. v. Pennsylvania Co., 54 F. 730, 741

(C.C. N.D. Ohio) (Taft, J.), appeal dismissed sub nom. In re

Lennon, 150 U.S. 393 (1893); Tri-State Generation & Transmission

Ass'n V. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.

1986); United States v. Adler’s Creamery, 107 F.2d 987, 990 (2d

Cir. 1939); American Mercury v. Kiely, 19 F.2d 295, 297 (2d Cir.

1927); Love v. Atchison T. & S.F. Ry., 185 F. 321, 331 (8th Cir.

1911). See 11 C. Wright & A. Miller, Federal Practice & Procedure,

§ 2947 at 424 (1973); Note, Probability of Ultimate Success Held

Unnecessary for Grant of Interlocutory Injunction, 71 Colum. L.

Rev. 165 (1971); Developments in the Law: Injunctions, 78 Harv.

L. Rev. 994, 1056 (1965).

12

remedies,” '' and has therefore rejected suggestions that

at the interlocutory injunction “stage the District Court

need not [conclude] that there was actual irreparable

injury.” Sampson v. Murray, 415 U.S. 61, 88 (1974)

(citations omitted). Accord, Amoco Production Co. V.

Village of Gambell, Alaska, 107 8S. Ct. 1396, 1402 (1987).

b. Further, the decision below nullifies the established

principle of equity jurisprudence that even when the

plaintiff can show that it will be injured irreparably

during the period preceding trial, the court nevertheless

may deny an interlocutory injunction in the exercise of

sound equitable discretion unless the threatened injury

to the plaintiff outweighs injuries to other parties and

the public interest that may result from a grant of an

injunction pendente lite. As this Court has held, “(t]he

essence of equity jurisdiction has been the power of the

Chancellor to do equity and to mould each decree to the

necessities of the particular case. Flexibility rather than

rigidity has distinguished it.” Hecht Co. v. Bowles, 321

U.S. 321, 329 (1944). Accordingly,

“The award of an interlocutory injunction by courts

of equity has never been regarded as strictly a mat-

ter of right, even though irreparable injury may

otherwise result to the plaintiff. * * * Even in suits

in which only private interests are involved the

award is a matter of sound judicial discretion, in

the exercise of which the court balances the con-

veniences of the parties and possible injuries to them

according as they may be affected by the granting

or withholding of the injunction.

* * * But where an injunction is asked which will

adversely affect a public interest for whose impair-

ment, even temporarily, an injunction bond cannot

11 See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975); Brown

v. Chote, 411 U.S. 452, 456 (1973); Public Serv. Comm'n v. Wis-

consin Tel. Co., 289 U.S. 67, 70-71 (1933); Ohio Oil v. Conway,

279 U.S. 813, 815 (1929) (per curiam); Houghton v. Meyer, supra,

208 U.S. at 156.

13

compensate, the court may in the public interest

withhold relief until a final determination of the

rights of the parties, though the postponement may

be burdensome to the plaintiff. * * * This is but

another application of the principle, declared in Vir-

ginian Ry. Co. v. System Federation, 300 U.S. 515,

552, that ‘Courts of equity may, and frequently do,

go much farther both to give and withhold relief in

furtherance of the public interest than they are ac-

customed to go when only private interests are in-

volved.’” Yakus v. United States, 321 U.S. 414, 440-

41 (1944) (internal citations omitted) .™

12 These equitable concerns haveeled virtually all of the courts of

appeals, including the Eighth Circuit, to hold that the district

courts’ exercise of their power to grant injunctive relief pendente

lite must be conditioned upon consideration of “four factors”: “(1)

whether there is a substantial probability movant will succeed at

trial; (2) whether the moving party will suffer irreparable injury

absent the injunction; (3) the harm to other interested parties if

the relief is granted; and (4) the effect on the public interest.”

Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 112

(8th Cir. 1981). Accord Foltz v. U.S. News & World Report, 760

F.2d 1300, 1305 (D.C. Cir. 1985); Planned Parenthood League of

Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981);

Punnet Vv. Carter, 621 F.2d 578, 582 (3d Cir. 1980); North Carolina

State Ports Authority v. Dart Containerline Co., 592 F.2d 749, 750

(4th Cir. 1979); Canal Authority v. Callaway, supra, 489 F.2d at

572 (5th Cir. 1974); Black Law Enforcement Officers Ass'n v. City

of Akron, 824 F.2d 475, 479 (6th Cir. 1987); Roland Machinery Co.

Vv. Dresser Industries, Inc., 749 F.2d 380, 382-83 (7th Cir. 1984); Los

Angeles Memorial Coliseum Comm'n vy. National Football League, ©

634 F.2d 1197, 1200 (9th Cir. 1980); Tri-State Generation & Trans-

mission Ass'n V. Shoshone River Power, Inc., 805 F.2d 351, 355

(10th Cir. 1986); Shatel Corp. v. Mao Ta Lumber & Yacht Corp.,

697 F.2d 1352, 1354-55 (11th Cir. 1983). See also Stormy Clime Ltd.

v. Progroup, Inc., 809 F.2d 971, 973 (2d Cir. 1987) (“[A] party

seeking a preliminary injunction must establish both possible ir-

reparable injury and either (1) a likelihood of success on the

merits or (2) sufficiently serious questions going to the merits to

make a fair ground for litigation and a balance of hardships tipping

decidedly in the movant’s favor.”’).

14

3. There is no provision in the Railway Labor Act

that deals with injunctive relief, much less that suggests

that Congress intended to allow injunctions before trial

without regard to the necessity of such relief. The deci-

sion below therefore cannot be reconciled with this

Court’s decisions that “such a major departure” from

“the requirements of equity practice with a background

of several hundred years of history” is not to be “lightly”

assumed," and that the Railway Labor Act does not limit

the traditional equitable powers of courts."

a. Just this past term this Court reversed a Ninth

Circuit holding that a preliminary injunction against a

threatened violation of an environmental statute should

be granted without consideration of the traditional equi-

table factors:

““'T)he grant of jurisdiction to ensure compliance

with a statute hardly suggests an absolute duty to

do so under any and all circumstances, and a federal

judge sitting as chancellor is not mechanically obli-

gated to grant an injunction for every violation of

the law. * * * Of course, Congress may intervene

and guide or control the exercise of the courts’ dis-

cretion, but we do not lightly assume that Congress

has intended to depart from established principles

* * * [u]nless a statute in so many words or by a

necessary and inescapable inference, restricts the

court’s jurisdiction in equity * * *.’” Amoco Pro-

duction Co., supra, 107 S. Ct. at 1402-03."

b. Moreover, in Locomotive Engineers v. Missouri-

K.-T. R. Co., 363 U.S. 528 (1960), this Court held that

the Railway Labor Act does not deprive courts enforcing

13 Hecht Co. Vv. Bowles, supra, 321 U.S. at 329-30; Amoco Produc-

tion Co., supra, 107 S. Ct. at 1403.

14 Locomotive Engineers V. Missouri-K.-T. R. Co., 363 U.S. 528

(1960).

15 Quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313

(1982) (internal citations omitted).

15

the Act of their traditional equitable powers, and that

courts could impose traditional equitable conditions on

injunctions against strikes over minor disputes subject to

arbitration under the Act. The Court stated that this Act

“contains no express provisions circumscribing the equit-

able powers of the court,’’ and laid down the rule that

the courts are presumed to retain “the power to * * *

ensure that extraordinary equitable remedies will not be-

come the engines of injustice,” unless it can be shown

by “clear implication” from a particular provision that

Congress intended to “truncate” that power. 363 U.S.

at 531-32.

ec. No such “clear implication” can be gleaned from

the status quo provisions of the Railway Labor Act."

Indeed, the Act says nothing about injunctive relief.

Congress omitted any such reference precisely because

it wished to leave the courts free to exercise their tra-

ditional remedial powers flexibly to suit the needs of

particular cases. Chicago & N.W. R. Co. v. Transpor-

tation Union, 402 U.S. 570, 577 (1971). Courts called

upon to enforce the Act by interlocutory injunction ac-

cordingly may exercise traditional equitable powers, and

have no warrant to nullify the very considerations that

are the basis for the exercise of these powers.

4. The issue is of great importance to the railroad

and airline industries,’ warranting this Court’s atten-

tion.

a. Our survey of the federal reporters and labor serv-

ices shows that in recent years unions have called upon

16 These include, in addition to § 6, the provisions in §$ 5 First

and 10 for the mediation and emergency board phases of a major

dispute. 45 U.S.C. $§155 First, 160. These status quo provisions are

all “identical” in their purpose and effect. Shore Line, supra, 396

U.S. at 152.

17 Air carriers are subject to the Railway Labor Act and thus to

the same status quo obligations as railroads are. 45 U.S.C. § 181.

.

¥

———

16

the federal courts in dozens of cases each year seeking

relief for alleged Railway Labor Act status quo violations

by rail or air carriers. Federal courts have enough to do

without the burden of preliminary injunction applica-

tions by such plaintiffs who cannot show that they will

be harmed irreparably during the period prior to trial

if such an injunction is not granted.

b. More fundamentally, the mechanical grant of inter-

locutory injunctions before a trial has established the

facts regarding claimed violations of the Railway Labor

Act, without regard to the balance of harms and the

very purpose of such injunctions, will do serious and

far-reaching mischief; it will cause at least as much ir- |

reparable harm as it prevents. This case illustrates the

matter.

For the past year and a half the railroad has been en-

joined from implementing a rule that, as the record

showed, was part of a code of operating and safety rules

placed into effect by the railroad, in accordance with es-

tablished custom and practice throughout the railroad

industry, to ensure that it will be able to fulfill its stat-

utory duties under the Interstate Commerce and Federal

Railroad Safety Acts to conduct safe operations.” (J.A.

21-22.) The Department of Transportation and the Fed-

eral Railroad Administration have consistently recog-

nized that drug abuse by rail and airline employees poses

a grave threat to safe transportation operations. 49

C.F.R. § 219.1(a); Airline and Rail Service Protection

Act of 1987: Hearing Before the Senate Committee on

Commerce, Science & Transportation, 100th Cong., 1st

Sess. 21 (1987) ‘Statement of Hon. Elizabeth Dole, Sec-

retary of Transportation). Indeed, these agencies and

members of Congress have recently called for more

stringent regulation of drug abuse by carrier employees,

in the wake of the deaths and injuries caused by the

18 See 49 U.S.C. § 11101(a) ; 45 U.S.C. §§ 431(a), 438.

17

catastrophic drug-related Amtrak/ConRail crash at

Chase, Maryland in January 1987, while this case was

pending. See id.; Rail Safety: Hearing Before the Sub-

committee on Commerce, Science & Transportation, 100th

Cong., 1st Sess. 1-4 (1987) (Statements of Senators

Exon, Rockefeller, Danforth, and Pressler) ; id. at 23-24

(Statement of Hon. John Riley, Administrator, Federal

Railroad Administration) ; id. at 51 (Statement of Hon.

James Burnett, Chairman, National Transportation

Safety Board). The district court in this case recognized

that the safety concerns that led the railroad to amend

Rule G in April 1986 were “matters of much grav[i]ty.”

(App. 14a.) Yet the court below deemed irrelevant the

railroad’s contention that the risk of drug-related acci-

dents might increase if it were enjoined from implement-

ing a rule designed to eliminate the possibility that any

of its employees would come to work under the influence

of illegal drugs.

The decision below leaves the public interest out of

consideration. Yet it is not required to prevent ir-

reparable harm to employees. They will be protected,

through an award of backpay if necessary, if a full

hearing on the merits shows that a carrier has unlaw-

fully changed the status quo.” If, on the other hand,

a union’s complaint turns out to present a minor dispute

subject to arbitration by an adjustment board, that board

can order a full make-whole remedy. See 45 U.S.C. § 153

First (o).

The Eighth Circuit rule factoring out of the interlocu-

tory injunction calculus any consideration of carrier and

public concerns such as the safety issues in this case,

even where no injunction is needed to safeguard employee

rights pendente lite, will have grave and substantial

effects on carriers and the public that they serve. Thus,

19 See, e.g., United Industrial Workers v. Board of Trustees of

the Galveston Wharves, 400 F.2d 320, 323 (5th Cir. 1968).

Le —

18

the question whether the status quo requirements of the

Railway Labor Act are among those rare statutory pro-

visions that curb the equitable jurisdiction of the federal

courts to withhold preliminary injunctive relief where

the interests of the public or the defendant overwhelm-

ingly disfavor it is an important one warranting review

by this Court. The conflict between the Second Circuit

and the court below should be resolved.

CONCLUSION

For the foregoing reasons, the writ of certiorari should

be granted.

Respectfully submitted,

JAMES P. DALEY RALPH J. MOORE, JR.

STUART F. GASSNER (Counsel of Record)

CHICAGO & NORTH WESTERN D. EUGENIA LANGAN

TRANSPORTATION COMPANY SHEA & GARDNER

One North Western Center 1800 Massachusetts Ave., N.W.

Chicago, Illinois 60606 Washington, D.C. 20036

(312) 559-6072 (202) 828-2000

EDWARD M. GLENNON

THOMAS E. GLENNON

LINDQUIST & VENNUM

4200 IDS Center

80 South Eighth Street

Minneapolis, Minnesota 55402

(612) 371-3211

Counsel for Petitioner

February 11, 1988

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-5403

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, and

CHICAGO AND NORTH WESTERN SYSTEM FEDERATION,

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,

Appellees,

v.

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY,

Appellant.

Appeal from the United States District Court

for the District of Minnesota

Submitted: January 15, 1987

Filed: August 25, 1987

Before LAY, Chief Judge, and HEANEY and ARNOLD,

Circuit Judges.

HEANEY, Circuit Judge.

The Chicago & Northwestern Transportation Company

(CNW) appeals an order of the district court granting

2a -

the Brotherhood of Maintenance of Way Employees

(BMWE) a preliminary injunction prohibiting enforce-

ment of one of the CNW’s employee rules subjecting em-

ployees to discipline for possession, use, or sale of illegal

drugs while off duty until such time as the CNW com-

plies with section 6 of the Railway Labor Act (RLA),

45 U.S.C. § 156.

I

On April 27, 1986, the CNW unilaterally implemented

an amendment to its “Operating Rule G” (hereinafter

Rule G) prohibiting use, possession or sale of any illegal

drug by an employee while off duty. The BMWE in-

formally protested the rule change. On June 17, 1986,

Michael White, a BMWE member and CNW employee,

was arrested for possession of marijuana. On June 20,

1986, White was informed that he was suspended from

employment with the CNW. On July 22, 1986, before

White had an opportunity to enter a plea in local court to

the charges against him, the CNW held a hearing to de-

termine whether he had violated Rule G. At the hearing,

White vigorously denied the charges against him. None-

theless, relying solely upon the criminal complaint in the

matter, the CNW terminated White for violating Rule

G on July 25, 1986."

1 Aside from White’s denial of the charges against him, the

only evidence introduced at the hearing pertaining to the violation

of Rule G is found in the testimony of Donald G. Mundth, inspector

of police for the CNW who testified :

Q. Mr. Mundth, in what way did you become involved in

this incident?

A. On Thursday, June 18, 1986, Mr. Terbell approached me

and requested that I assist him in the investigation of an em-

ployee who was arrested at Mankato, Minnesota for possession

of controlled substance. I told Mr. Terbell that I would follow

up and investigate the matter.

Q. In your follow-up did you have any contact with the

local Civil Authorities here at Mankato?

A. Yes, I did.

[Continued]

3a

On July 28, 1987, the BMWE brought a motion in

district court for a preliminary injunction prohibiting

the CNW from enforcing Rule G until it had fully com-

plied with the notice, negotiation, and mediation proce-

dures of the RLA, 45 U.S.C. §§ 151-188. The BWME also

sought to have White reinstated with back pay. After

hearing arguments on the motion on August 14, 1986,

and September 23, 1986, and considering affidavits and

exhibits submitted by the parties, the district court granted

the BMWE’s motion in an oral ruling from the bench.

The court found that although Rule G is not part of the

written collective bargaining agreement of the parties,

the knowledge and acquiescence of the parties over a long

period of time in the rule has elevated it to an implied

term of the collective bargaining agreement of the parties

affecting the actual working conditions at the CNW. In

addition, the court found that the amendment of Rule G

represented a formal change in the agreement of the par-

ties rather than a reinterpretation or application of the

agreement. It concluded that the action represented a

1 [ Continued ]

Q. Did you discuss the charges against Mr. White with the

Civil Authorities?

A. Yes, I did.

Q. And do you have any information of what these charges

are?

A. Yes Ido. Mr. Irwin, I have a copy of the District Court’s

Criminal Complaint which charges Mr. Michael Bruce White

with various charges.

Q. Would you please, for the record, read what these charges

are?

A. The Criminal Complaint consists of three pages. The

first page establishing facts of the matter and determining

what probable cause exists to make the charges. The second

page is actually the page on which the charges are listed * * *.

* * * *

Q. Mr. Mundth * * * are these charges filed against Mr.

White a violation of Rule G?

A. Yes, they are.

4a

major dispute in which it was obliged to enter a status

quo injunction pursuant to section 6 of the RLA, 45

U.S.C. § 156. Finally, as a result of the injunction re-

quiring maintenance of the pre-amendment status quo,

. the court ordered White reinstated with back pay from

the date of his discharge. The CNW appeals.

II

Relations between the BMWE and the CNW are gov-

erned by the RLA, 45 U.S.C. §§ 151-188. Under the RLA,

both sides have an obligation to negotiate whenever a

dispute arises. See 45 U.S.C. § 152 first and second. If

such negotiations prove fruitless, the dispute may take

one of two settlement routes depending upon whether it

is a major or minor dispute. If a dispute is major, the

parties must follow an “almost interminable process”

beginning with the National Mediation Board. See 45

U.S.C. § 155; Detroit and Toledo Shore Line R.R. Co.

v. United Transportation Union, 396 U.S. 142, 149

(1969). If, on the other hand, the dispute is minor, it

must be submitted to arbitration by the National Rail-

road Adjustment Board. See 45 U.S.C. § 153. Addi-

tionally,

[t]he question whether a dispute is major or minor

determines the degree to which a federal court may

become involved in the dispute. If the dispute is

major, the courts have broad powers to enjoin uni-

lateral action by either side in order to preserve

the status quo while settlement procedures go for-

ward. Such an injunction may issue without regard

to the usual balancing of the equities. But if the

dispute is only minor, the court’s power is more lim-

ited since the NRAB has exclusive jurisdiction over

such minor disputes. The traditional power to enjoin

under equitable principles remains, but in the usual

case it is inappropriate to exercise this power since

irreparable loss and inadequacy of the legal remedy

TT

5a

cannot plainly be shown until the NRAB has had an

opportunity to act.

Brotherhood of Maintenance of Way Employees, Lodge

16 v. Burlington Northern R.R. Co., 802 F.2d 1016, 1021

(8th Cir. 1986) (citations omitted) .?

The terms major and minor dispute are not found in

the RLA. Rather, major dispute is a shorthand term

for a dispute falling under 45 U.S.C. § 156 which speaks

of “change|{s] in agreements affecting rates of pay, rules,

or working conditions,” and minor dispute is a shorthand

term for a dispute falling under 45 U.S.C. § 153(i) which

speaks of “disputes . . . growing out of grievances or

out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions.”

Determining whether a dispute is major or minor is

often a question of degree and turns: upon the facts in

each case. Missouri Pacific Joint Protective Board v.

Missouri Pacific R.R. Co., 730 F.2d 533, 536-37 (8th Cir.

1984). At base, the question is whether the dispute may

be resolved by interpretation or application of the exist-

ing agreement of the parties. If so, it is a minor dispute.

In contrast, if the dispute arises out of an area not con-

templated by the agreement or arises because a party

is seeking to change a term of the agreement, it is a

major dispute. See Elgin, Joliet & Eastern Ry. Co. v.

Burley, 325 U.S. 711, 723-24 (1945); Brotherhood of

Maintenance of Way Employees, Lodge 16, 802 F.2d at

1021 n.3; Independent Federation of Flight Attendants

2In its brief, the CNW contends that the district court erred

as a matter of law in failing to engage in the traditional balancing

of the equities prior to granting the injunction. As the quoted

passage indicates, however, an injunction pursuant to 45 U.S.C.

§ 156 “may issue without regard to the usual balancing of the

equities.” Brotherhood of Maintenance of Way Employees, Lodge

16, 802 F.2d 1016, 1021 (8th Cir. 1986). Therefore, we reject the

CNW’s contention.

6a

v. Trans World Airlines, Inc., 655 F.2d 155, 157-58 (8th

Cir. 1981).

It is not, however, for the courts to interpret the

agreement of the parties for the purpose of finally ad-

judicating a dispute between employees and the carrier.

See Order of Railway Conductors of America v. Pitney,

326 U.S. 561, 564 (1946). The RLA clearly leaves this

task to the National Railroad Adjustment Board. See

45 U.S.C. § 153(i). Thus, although for purposes of de-

ciding whether a section 6 injunction should issue a court

must first determine what the agreement of the parties is,

Brotherhood of Maintenance of Way Employees, Lodge

16, 802 F.2d at 1022, this Court has held that a dispute

must be considered minor and a status quo injunction

should not ordinarily issue if the agreement of the parties

is “reasonably susceptible” of the interpretations sought

by both the employer and the employees. Independent

Federation of Flight Attendants, 655 F.2d at 158. On

review, questions as to the content of the agreement of

the parties are factual, and may be reversed only if

clearly erroneous, while the susceptibility of the inter-

pretations of the agreement sought by the employer and

the employees presents an issue of law.

Ill

In applying the RLA to the facts of this case, the

district court found that although not part of the written

collective bargaining agreement, Rule G has regulated

employee intoxicant use for a sufficient period of time

with the knowledge and acquiescence of the CNW and

the BMWE to become part of the implied agreement of

the parties. The CNW contends that this finding is clearly

erroneous. In support of its contention, the CNW argues

that its explicit collective bargaining agreement with the

BMWE is completely silent on employee alcohol or drug

use and that the effect of this silence is to commit the

subject to its discretion. More specifically, the CNW

a

7a

argues that the district court erroneously invoked section

6 of the RLA, 45 U.S.C. § 156, because

[t]here is no * * * agreement between the parties—

written or unwritten—concerning employee drug

involvement, or illegal off duty conduct, since these

subjects * * * historically have been left to C & NW

as a matter of managerial prerogative.

CNW reply brief at 8-9.

We cannot, on the basis of the record before us, accept

the CNW’s argument. As this Court has recently stated:

Since, as a practical matter, it is impossible for the

written collective bargaining agreement to describe

every possible permutation of working conditions

which might arise, it is not unusual for the parties

to a labor agreement to develop working relation-

ships, customs, and practices which are understood to

be the norm, but which are nowhere reduced to a

formal contract term. When longstanding practice

ripens into an established and recognized custom

between the parties, it ought to be protected against

sudden and unilateral change as though it were a

part of the collective bargaining agreement itself.

Brotherhood of Maintenance of Way Employees, Lodge

16, 802 F.2d at 1022.

After reviewing the record existing at this stage in the

case, we find that the district court did not err in holding

that Rule G, by virtue of the parties’ longstanding and

recognized custom and practice, has become an implied

term in the agreement of the parties.

Having found that Rule G constitutes an implied term

in the agreement of the parties, it is necessary to deter-

mine whether the pre-amendment version of the parties’

agreement (the implied term under the “old Rule G’’) is

“reasonably susceptible” to being interpreted in a manner

consistent with the post-amendment version (the implied

term under the “new Rule G”). If the pre-amendment

8a

version is reasonably susceptible to such an interpreta-

tion, the dispute is a minor one and an injunction should

issue only in rare circumstances. See Brotherhood of

Maintenance of Way Employees, Lodge 16, 802 F.2d at

1022; Independent Federation of Flight Attendants v.

Trans World Airlines, 655 F.2d at 158.

In this respect, the district court held that, “[s]ince

the grievances at issue grew out of a formal change to

Rule G rather than out of an interpretation or applica-

tion of that rule, the grievance is a major dispute.” The

CNW contends that this holding is erroneous. The CNW

argues that the amendment to Rule G served only to make

explicit that which was already prohibited by its operat-

ing Rule 7, the “conduct unbecoming rule.” Although we

recognize that the evidence on the issue is not as clear

and complete as the parties may wish, the district court

was correct in rejecting the CNW’s argument with re-

spect to Rule 7 on the basis of the evidence properly

before it when it granted the preliminary injunction.

Determining the state of the record before the district

court at the time it granted the motion for a preliminary

injunction is difficult due to the procedural history of the

case. On August 14, 1986, a hearing was held before the

district court on the BMWE’s motion for a preliminary

injunction and the CNW’s cross motion to dismiss. Both

parties presented briefs in support of their motions. In

its brief, the CNW referred to the conduct unbecoming

rule but focused primarily on its right to unilaterally

amend Rule G. In addition, the CNW presented an affi-

davit of Ronald Cuchna, vice president of labor relations

for the CNW (8/1/86 affidavit). The affidavit made no

mention of any past practice of regulating off duty em-

ployee drug use, possession, or sale under the conduct

unbecoming rule. Attached to the affidavit were copies of

portions of the CNW’s past and present disciplinary rules

depicting the evolution of Rule G and a copy of a board

of adjustment decision in a dispute between Southern

9a

Pacific Transportation Company and Brotherhood of Loco-

motive Engineers holding a rule similar to the amended

Rule G applicable to off duty sale of drugs.

At the August hearing, the BMWE presented its argu-

ment in full to the court. Before the CNW could present

its argument, however, the trial judge suggested that the

remainder of the proceeding be stayed pending efforts by

the parties to resolve their differences privately. On

September 23, 1986, after efforts to settle the dispute

failed, the hearing before the district court was resumed

and the CNW presented its argument. Also at the Sep-

tember hearing, the BMWE offered to supplement the

record with additional exhibits and live testimony. The

trial judge refused the offer and granted the BMWE’s

motion for the preliminary injunction.

The CNW subsequently brought a motion urging the

district court to reconsider its decision. Appended to that

motion was another affidavit by Ronald Cuchna (9/29/86

affidavit) stating:

The Rule G provisions, as promulgated by the C@ONW

on April 27, 1986, regarding the illegal use, posses-

sion or sale of drugs while on or off duty are merely

a specification of General Rule 7 provisions which

are applicable to employees of the C&NW. * * *

General Rule 7 would also prohibit the conduct cited

in the complaint concerning Mr. White.

The district court denied CNW’s motion stating:

In its reconsideration motion, the Railroad fervently

argues that it has traditionally regulated employee

off-duty conduct through Rule 7, known as the “con-

duct unbecoming” rule, as well as through various

other company rules. It is clear, of course, that only

Rule G was before this Court when considering the

underlying motion for a preliminary injunction.

Simply put, the propriety of the company’s regula-

10a

tion of off duty conduct by means other than Rule G

is not at issue in this case.

Although the parties will have the right to supplement

the record in any further proceedings with respect to

past practice under Rule 7, on the basis of the record

before it at the time it granted the preliminary injunc-

tion, we hold that the district court was correct in deter-

mining that Rule 7 was not at issue in the case. At the

time the district court granted the injunction, the record

did not reflect that the CNW applied Rule 7 and the

amended Rule G in a manner that would suggest the two

rules covered the same territory. On the contrary, several

factors strongly suggested that this was not the case.

First, the CNW had found it necessary to amend Rule

G and to insist on the amendment despite strong opposi-

tion in the form of this action. If the two rules actually

covered the same conduct in the same manner, it would be

senseless for the CNW to waste time, energy and money

attempting to enforce amended Rule G. Second, in the

proceedings the CNW brought against him, White was

only charged with violating Rule G and not Rule 7. If

the rules are coextensive, one would think White would

have been charged with violating both. Third, and most

importantly, Rule 7, on its face, is limited to instances

in which the employee’s conduct has an adverse effect on

the carrier, i.e., a loss of good will, potential danger to

other employees, or reduced work performance.’ Rule

G is not so limited. In fact, White’s case provides an

example of the distinction. White was discharged solely

on the basis of a criminal complaint. The CNW, by the

3 Rule 7, in its entirety, states:

Employees are prohibited from being careless of the safety of

themselves or others, disloyal, insubordinate, dishonest, immoral,

quarrelsome, or otherwise vicious or conducting themselves in

such a manner that the railroad will be subjected to criticism

and loss of good will, or not meeting their personal obligations.

Affidavit of Ronald J. Cuchna dated September 29, 1986, exhibit 2.

lla

terms of Rule G, did not have to show loss of good will,

danger to other employees, or reduced job performance.

Alternatively, the CNW argues that Rule G is at most

a minor change in the implicit agreement of the parties

because the past practice of the parties, which itself is

part of the implicit agreement of the parties, shows that

the CNW always possessed the right to make unilateral

changes in Rule G. In other words, the CNW contends

that the agreement of the parties consists not only of

the Rule G in effect at any given time, but also consists

of the right of the CNW to change the rule unilaterally.

The district court, in defining the status quo to be main-

tained during the preliminary injunction, rejected this

position as unreasonable. It stated:

Since 1910 the Railroad has unilaterally regulated

employee’s intoxicant use while on duty, subject to

duty, or on company property, all under Rule G.

The Railroad has never regulated the off duty con-

duct of an employee while away from company

property until the change in Rule G, which it uni-

laterally promulgated in April 1986.

In support of its position, the CNW cites United

Transportation Union, Lodge No. 31 v. St. Paul Union

Depot Co., 434 F.2d 220 (8th Cir. 1970), for the proposi-

tion that an implied term in a bargaining agreement may

include the unilateral power to change the term.* What-

*The CNW also argues that the district court’s factual finding

that “[{t}]he Railroad has never regulated the off duty conduct of

an employee while away from company property until the change

in Rule G” is clearly erroneous. We disagree. The statement must

be taken in the light of the record before the court at the time it

granted the preliminary injunction as well as in the context of the

case. Clearly the court did not intend by the statement that the

CNW had never before regulated off duty employee conduct in any

way. Rather, in the context of the case, it is clear that the district

court was considering only regulation of that off duty conduct

that would be regulated under the amendment to Rule G, that is,

off duty possession, use, or sale of illegal drugs. So understood, the

district court’s finding is not clearly erroneous.

12a

ever the merit of the proposition, St. Paul Union Depot

also requires that an implied term, “demonstrate not only

a pattern of conduct but also some kind of mutual under-

standing, either express or implied.” The case goes on to

state that factors to consider in determining whether a

past practice has become an implied term of a bargain-

ing agreement are, “the mutual intent of the parties,

their knowledge of and acquiescence in the prior acts,

along with evidence whether there was joint participation

in the prior course of conduct, all to be weighed with

the facts and circumstances in the perspective of the

present dispute.” Jd. at 223.

Common sense and this Court’s prior cases indicate

that there are limits on the extent to which the CNW

may amend Rule G consistent with the history and ac-

quiescence of the parties in past amendments. In this

light we agree with the district court that the agreement

of the parties (including any terms necessarily implied

as a result of established past practices and working con-

ditions) is not reasonably susceptible to the CNW’s

proposed interpretation whereby it has the right to uni-

laterally extend its operating rules to regulate off duty

use, possession, or sale of illegal drugs in the manner

contemplated by the amendment to Rule G.°

Thus, we hold that the CNW has failed to meet its

“relatively light burden” of showing that the pre-amend-

ment agreement of the parties, including both express and

implied terms, is reasonably susceptible of being inter-

preted to allow the amendment to Rule G the CNW seeks

to implement unilaterally. See Brotherhood of Mainte-

5 The CNW additionally contends that because it has retained

the right to unilaterally amend Rule G since its inception, the

status quo imposed pursuant to 45 U.S.C. § 156 must also include

that right. The district court rejected this contention. On the basis

of our rejection of the CNW’s assertion that any implied term must

include the absolute power to amend Rule G unilaterally, we affirm

the district court in this regard.

13a

nance of Way Employees, Lodge 16, 802 F.2d at 1022.

The district court correctly concluded that the action rep-

resents a major dispute in which it could issue a status

quo injunction pursuant to 45 U.S.C. § 156.°®

IV

As a final matter, the CNW argues that the district

court exceeded its jurisdiction by entering an order that

enjoins enforcement of Rule G against any of the CNW’s

employees, not just against employees represented by the

BMWE. Since the BMWE did not seek to enjoin the

CNW from enforcing Rule G as amended against any

parties other than those it represents, the district court’s

order, shall be amended to enjoin enforcement of Rule G

only against those represented by the BMWE.

Accordingly, as modified by part IV of this opinion,

the judgment and order of the district court are affirmed.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

6 In so holding we note that this case comes to the Court on appeal

from a grant of a preliminary injunction. In the present posture

of the case our review is limited to the record before the district

court at the time it issued the preliminary injunction.

l4a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil Case No. 4-86-575

BROTHERHOOD OF MAINTENANCE, OF WAY EMPLOYEES,

CHICAGO AND NORTHWESTERN SYSTEM FEDERATION,

Plaintiffs,

VS.

CHICAGO AND NORTHWESTERN TRANSPORTATION Co.,

Defendant.

TRANSCRIPT OF PROCEEDINGS had before the

Hor rable James M. Rosenbaum, on the 23rd day of

Septe:.ber, 1986, in Minneapolis, Minnesota, commencing

at 2:00 o’clock p.m.

7 * * *

[27] THE COURT: The Court as is well known by

the parties heard this matter approximately a month

ago.

After having read and reviewed the briefs and heard

the opening presentation of the Brotherhood of Main-

tenance of Way Employees, the Court prevailed upon

Mr. Glennon as counsel for Northwestern Transportation

Company and on Mr. McClow to avail themselves of an

opportunity to try and resolve these matters between

themselves.

The Court then and the Court again today indicated

that these are matters of much gravety, and matters of

great interest. At the same time issues of concern, how-

ever great, cannot be taken to provide a means whereby

orderly procedures may be circumvented.

With those thoughts in mind it was then and remains

today a matter of concern and the Court hoped that

De eae)

15a

reasoned opponents could resolve things in a fashion both

more amicable and in many cases more expeditious than

the judicial process. The parties for reasons best known

to themselves and as to which the Court makes no inquiry

have found that they were unable to resolve these [28]

matters and so the issues are squarely framed for the

Court’s attention.

The Court has considered the arguments of counsel

and considers the late submissions of the union only for

the purpose of validating the dates which the Court un-

derstood had been in effect and acknowledged previously,

the Court again has been able to obtain the agreement

and concurrence of counsel for the railroad which indi-

cate that the dates were not significantly questioned and

those dates are that there was an effort to promulgate

an amendment to Rule G on April 27, 1986.

At a time subsequent thereto but prior to June 20,

1986, the Plaintiff Brotherhood took informal steps which

did not acknowledge the existence of the newly promul-

gated or newly offered rule but brought to the attention

of the railroad their claim that it was of significance.

It had not been an affirmatively agreed upon rule.

The event concerning Mr. White, however, unquestion-

ably took place well after the notice to the railroad that

there would be a challenge to Rule G as promulgated on

April 27th.

The event of interest regarding Mr. White took place

on June 20, 1986.

[29] The Court having the arguments of counsel, these

facts, the affidavits appended to the briefs and the briefs

in mind the Court determines that the Plaintiff’s motion

for a preliminary status quo injunction is granted.

The Defendant’s motion to dismiss for lack of subject

matter jurisdiction and for failure to state a claim upon

which relief may be granted is denied.

This Court determines that it has subject matter juris-

diction over the action, the Federal Courts have jurisdic-

tion over injunction actions to preserve the status quo

16a

between parties in a major dispute. This was set forth

in a number of places but the Court would indicate

Missouri Pacific Joint Protective Board versus Missouri

Pacific Railroad 730 F 2nd 533, an Eighth Circuit case,

and Independent Federation of Flight Attendants versus

Trans World, et cetera, that’s 650 F2d 155, also an

Eighth Circuit case.

A major dispute is one arising out of the formation

or change of collective agreements covering rates of pay,

rules, or working conditions, which principle is elucidated

in Detroit and Toledo Shore Line Railroad Company

versus United [30] Transportation Union, 396 U.S. 142,

particularly on 145 in the footnote number seven.

Further, of course, I could cite the same Missouri

Pacific and Flight Attendant cases previously noted.

A dispute over working conditions which does not arise

out of a collective bargaining agreement as was acknowl-

edged again today in oral argument may still be char-

acterized as a major dispute subject to a status quo in-

junction so long as it arises out of actual, objective work-

ing conditions which have achieved the level of estab-

lished practice and custom, once again Detroit and Toledo

and Flight Attendants.

For a working condition to have achieved that level

of establish practice and custom the conduct of the par-

ties must encompass a continuity, interest, purpose and

understanding which elevates a standard course of action

to an implied contractual status, once again citing Flight

Attendants.

In this case, the union protests the railroad’s unilateral

change, on April 27, 1986, of Rule G. This new rule

regulates intoxicants used by—or this rule regulates

intoxicant use by [31] Employees. The union asserts

that the rule as changed regulates for the first time an

Employee’s off duty conduct and no longer allows an

employee’s personal physician to determine whether pre-

scription medicines affect his ability to safely perform

his duties.

sco: a inet a taal ammmmmna

17a

The Court determines and finds that this constitutes

a major dispute. Although Rule G is not a part of a

collective bargaining agreement, it does regulate em-

ployee intoxicant use and has done so for a sufficient

period of time with the knowledge and acquiescence of

both the Company and union to become in reality a

demonstrable part of the actual working conditions at

Chicago and Northwestern. See here Detroit and Toledo.

Since the grievances at issue grew out of a formal

change to Rule G rather than out of an interpretation

or application of that rule the grievance is a major dis-

pute and the Court has jurisdiction to hear the Plain-

tiffs motion for a status quo injunction. Cite there

would be Elgin versus Burley, 325 U.S. 711, 1945.

Major disputes must be resolved according to the

notice, negotiation, and mediation procedures outlined in

the Railroad Labor Act, 45 [32] U.S.C. 151, et. seq.

While the Act’s remedies are being exhausted, the status

quo regarding the working conditions at issue must be

maintained, citing again both Detroit and Toledo.

The question here is what is the status quo regarding

the Railroad’s regulation of the employee intoxicant use.

The Railroad maintains that it has unilaterally changed

Rule G without objection by the union on a number of

times since it’s inception in 1910 and as such the status

quo is that the Company may unilaterally change the

rule during the dispute settlement procedures outlined

by the Railway Labor Act. \

The Court concludes that the characterization of the

status quo and Rule G is not reasonably—is not a reason-

able interpretation, cited the United Transportation

Union versus Burlington Northern at 458 F 2nd 354.

Since 1910 the Railroad has unilaterally regulated em-

ployee’s intoxicant use while on duty, subject to duty,

or on company property, all under Rule G. The Railroad

has never regulated the off duty conduct of an employee

while away from company property until the change in

Rule G, which it unilaterally promulgated April 1986.

18a

[33] Therefore, the Court concludes that Rule G prior

to it’s change in April of 1986 constitutes the status quo

regarding the company’s regulation of employee intoxi-

cant use and that the status quo prior to April 27,

1986, is and must be maintained throughout the parties

exhaustion of the settlement procedures mandated by the

Railway Labor Act.

The Court finds it unnecessary and declines to rule

regarding the status quo as to who has the power to

determine whether prescription medicines affect an Em-

ployee’s ability to safely perform his duties, whether it

is his own personal physician or the company’s physician.

This is based on the affidavit of Doctor Thomas Cook and

the Defendant’s memorandum. In that memorandum and

affidavit the Railroad indicates that, to the Court, that

the new rule G has made no change in the status quo.

The Court takes the Railroad at it’s word.

Finally, since the Railroad’s unilateral change of rule

G, or since the Railroad unilaterally changed Rule G

without following the dispute resolution procedures of

the Railway Labor Act and since the company’s unilat-

eral change of [34] Rule G changed or upset the status

quo, the company’s discharge of Mark White, pursuant

to Rule G as they have amended it on their own, is im-

proper and must be rescinded. This is made both because

of the fact of the Rule G change, which the Court has

determined unlawfully changed the status quo—or, I’m

sorry, wrongfully changed the status quo, and secondly

because the Union’s grievance was not a gerrybuilt pro-

cedure designed to try to institute or reinstitute the

employment of it’s brother, the Court determines that the

schedules presently asserted by the Court and agreed to

by the parties are an indication that the challenge to Rule

G well predated Mr. White’s purported transgressions.

On that basis, therefore, Mark White must be reinstated

with back pay from the date of his discharge. The Court

makes it clear that by this ruling it makes no determina-

|

19a

tion regarding Mr. White’s allege involvement in crimi-

nal activity.

Further, the Court makes no ruling in any regard as

to whether or not any other applicable work rule may

be applied or have been applied such that Mr. White

might otherwise have been terminated from the service

of the Railroad.

Further, by this ruling the Court [35] does not pre-

clude the Railroad from discharging Mr. White in ac-

cordance with the provisions of rule G in the form of

the status quo, if applicable, or in accordance with any

other provisions of any agreement among the parties.

Lastly, the Court’s ruling does not prevent the Com-

pany from discharging Mr. White at the end of the

settlement procedures outline by the Railway Labor Act

if Rule G is changed to contemplate such discharge. The

Court simply would reserve the last since the issue is in

no regard ripe and makes no determination at this time.

With this guidance in mind the Court directs the

Plaintiff to prepare an order for preliminary injunction.

It is so ordered. We’ll be in recess.

( Recess)

20a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil No. 4-86-575

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES, AND

CHICAGO AND NORTH WESTERN SYSTEM FEDERATION,

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

Ve

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY

[Filed Oct. 7, 1986]

ORDER

The above-entitled matter came on for hearing before

the Court on August 14, 1986, and September 23, 1986,

upon the motion of plaintiffs Brotherhood of Maintenance

of Way Employes, and Chicago and North Western Sys-

tem Federation, Brotherhood of Maintenance of Way

Employes for a preliminary injunction and upon defend-

ant Chicago and North Western Transportation Com-

pany’s motion to dismiss the complaint, pursuant to Rule

12(b) (1) and 12(b)(6) of the Federal Rules of Civil

Procedure.

Roger J. McClow, Esq., Klimist, McKnight, Sale &

McClow, P.C., Southfield, Michigan, and William Garber,

Esq., Peterson, Engberg & Peterson, Minneapolis, Minne-

sota, appeared for and on behalf of plaintiffs. Edward

M. Glennon, Esq. and Thomas E. Glennon, Esq., Lind-

quist & Vennum, Minneapolis, Minnesota, appeared for

and on hehalf of defendant.

2la

Based upon the parties’ respective motions, memo-

randa, supporting affidavits, arguments of counsel, the

files, records, proceedings and factual stipulations, and

for the reasons stated on the record, the Court finds that

defendant violated the status quo provisions of the Rail-

way Labor Act by, on April 27, 1986, unilaterally im-

plementing a new Rule G that applies to off duty conduct,

and that Michael White was thereafter dismissed pursu-

ant to that Rule. Therefore, IT IS ORDERED that:

1. Plaintiffs’ motion for a preliminary injunction is

granted, and defendant’s motion to dismiss the complaint

is in all respects denied.

2. Defendant, its officers, employees, agents, servants,

and all those in active concert or participation with

defendant, are preliminarily enjoined from enforcing

Rule G as promulgated by defendant on April 27, 1986,

until such time as defendant complies with Section 6 of

the Railway Labor Act, 45 U.S.C. 156.

3. Defendant’s termination of Michael White, pursu-

ant to the terms of Rule G as promulgated on April 27,

1986, is hereby rescinded and he is hereby restored to his

former position with full back pay from the date of his

removal from service, but without prejudice to any action

which may be otherwise available to the defendant pur-

suant to any Railroad or work rules or regulations in

effect prior to April 28, 1986.

4. This preliminary injunction shall be effective upon

the plaintiffs’ filing with the Clerk of this Court a bond

pursuant to Rule 65(c), Federal Rules of Civil Proce-

dure, in the amount of $5,000.

Dated: October 7th, 1986

/s/ James M. Rosenbaum

JAMES M. ROSENBAUM

United States District Judge

22a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil No. 4-86-575

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES, and

CHICAGO AND NORTH WESTERN SYSTEM FEDERATION,

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

V.

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY

ORDER

This matter is before the Court on defendant’s motion

to reconsider the grant of a preliminary injunction on

October 7, 1986. Defendant further seeks a stay of the

injunction pending reconsideration. Based on the files,

records and proceedings herein, the Court denies both of

defendant’s motions and reaffirms its October 7, 1986,

order.

The Court, today, specifically considers the recent de-

cision in Brotherhood of Maintenance of Way Employees,

Lodge 16, et al. v. Burlington Northern Railroad Com-

pany, Nos. 85-2360, 85-2412 (8th Cir. October 1, 1986).

The Court finds its reasoning inapposite in the present

case.

In Burlington Northern, the company invoked new

drug testing procedures in order to implement its exist-

ing Rule G, which regulated intoxicant use by employees

while on duty. (This is not the Rule G to which challenge

23a

is made in the case at bar.) The Eighth Circuit found

that the use of new chemical testing procedures con-

stituted only a minor change in working conditions. As

such, the appellate court found that these testing changes

could be implemented unilaterally by the company.

In this case, Chicago and North Western Transporta-

tion Company (CNW) also has a Rule G which regulates

employee intoxicant use. The rule was in place up to

April 27, 1986. The rule was changed by CNW, uni-

laterally and without notice, on April 27, 1986. As

changed, it purports to regulate, for the first time, em-

ployee intoxicant use or possession while off duty and

not subject to duty or on company property. This change

goes far beyond the “minor change in working condi-

tions” challenged in the Eighth Circuit’s recent Burling-

ton Northern case. The Rule G amendment under chal-

lenge here would allow CNW to discharge an employee

when that employee posed absolutely no threat to the

safe operation of the railroad.

The safe operation of the railroad is of primary con-

cern to defendant. It is so now and was so in 1910, when

the railroad first enacted the predecessor to Rule G. But

this concern for safe operation must be differentiated

from the company’s regulation of an employee’s off duty

conduct when that employee is neither subject to duty nor

near company property. This new effort at lifestyle regu-

lation, without first affording the employee the notice,

negotiation, and mediation procedures outline in the Rail-

way Labor Act, 45 U.S.C. 151, et seq., constitutes an im-

permissible invasion into the private lives of CNW em-

ployees.

Therefore, the Court previously concluded, and today

affirms, that CNW’s unilateral change of Rule G on

April 27, 1986, constitutes a major change in working

conditions. Such a change requires the use of the Rail-

way Labor Act procedures before it can be implemented.

24a

Until those procedures are exhausted, the status quo, pre-

April 27, 1986, Rule G, remains in effect. See, 45 U.S.C.

156.

In its reconsideration motion, the Railroad fervently

argues that it has traditionally regulated employee off-

duty conduct through Rule 7, known as the “conduct un-

becoming” rule, as well as through various other company

rules. It is clear, of course, that only Rule G was before

this Court when considering the underlying motion for

a preliminary injunction. Simply put, the propriety of

the company’s regulation of off duty conduct by means

other than Rule G is not at issue in this case. The Court

made this clear in paragraph 3 of its October 7, 1986,

order, when it excluded its consideration of any rule or

working condition save Rule G and expressed no opinion

concerning any other railroad work rule or regulation.

For the reasons set forth above, in the October 7, 1986,

order, and at the August 14, 1986, and September 23,

1986, hearings, IT IS ORDERED that:

1. Defendant’s motion for reconsideration is denied.

2. Defendant’s motion for a stay pending reconsidera-

tion is denied.

Dated: October 16th, 1986

/s/ James M. Rosenbaum

JAMES M. ROSENBAUM

United States District Judge

25a

UNITED STATES CUURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-5403MN

BROTHERHOOD OF MAINTENANCE OF

Way EMPLOYEES, et al.,

Appellees,

ve

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY,

Appellant.

Appeal from the United States District Court

for the District of Minnesota

JUDGMENT

This appeal from the United States District Court was

submitted on the record of the district court, briefs of

the parties and was argued by counsel.

After consideration of the premises, it is adjudged and

decreed that, as modified by part IV of this opinion, the

judgment and order of the district court are affirmed.

August 25, 1987

Order entered in accordance with opinion.

/s/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit.

26a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-5403MN

BROTHERHOOD OF MAINTENANCE OF

WAY EMPLOYEES, et al.,

Appellees,

VS.

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY,

Appellant.

Appeal from the United States District Court

for the District of Minnesota

Appellant’s petition for rehearing en banc has been

considered by the Court and is denied.

Petition for rehearing by the panel is also denied.

November 13, 1987

Order entered at the Direction of the Court:

/s/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit.

27a

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Eckehard Muessig, Referee

Award Number 25032

Docket Number CL-25158

PARTIES TO DISPUTE:

Brotherhood of Railway, Airline and Steamship Clerks

Chicago and North Western Transportation Company

STATEMENT OF CLAIM:

Claim of the System Committee of the Brotherhood

(GL-9750) that:

1. Carrier violated the Agreement Rules, particularly

Rule 21, when it dismissed Mr. R. E. Rhodes from its

service, and,

2. Carrier shall now be required to retirn Mr. Rhodes

to its service with all rights unimpaired and compensate

him for all lost time including compensation for any and

all fringe benefits he has been deprived of under any

group health, dental and life insurance plans now in ef-

fect for clerical employes on this property.

OPINION OF BOARD:

The Claimant was dismissed from the service of the

Carrier, after investigation, on the finding that his con-

duct was unbecoming an employee, by being in the pos-

session of marijuana and L.S.D. and selling marijuana

to two youths on September 4, 1981.

While the Board is not unmindful of the Organization’s

assertions, in its advancement of this claim, we find that

Carrier has met its burden with respect to the charges.

This Division has held on numerous occasions that deal-

ee

28a

ing in drugs is a serious matter that may result in nu-

merous adverse consequences with respect to the health

and safety of Carrier’s employes and the public. Given

the facts of record, there is no proper basis for interfer-

ing with the discipline imposed by the Carrier, and the

claim is denied.

FINDINGS:

The Third Division of the Adjustment Board, upon the

whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this

dispute are respectively Carrier and Employes within

the meaning of the Railway Labor Act, as approved

June 21, 1934;

That this Division of the Adjustment Board has juris-

diction over the dispute involved herein; and

That the Agreement was not violated.

AWARD

Claim denied.

NATIONAL RAILROAD

ADJUSTMENT BOARD

By Order of Third Division

Attest: /s/ Nancy J. Deyer

NANCY J. DEYER

Executive Secretary

Dated at Chicago, Illinois this 26th day of September

1984.

iii... :