dissenting:
I respectfully dissent. I would hold that BN’s testing practice is arguably permitted under the parties’ implied agreement. Therefore, the dispute is minor and should be referred to the National Railway Adjustment Board for resolution.
The majority’s opinion is contrary to the Eighth Circuit’s well-reasoned analysis of precisely the same issue in Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R.R., 802 F.2d 1016 (8th Cir.1986). Indeed, the only difference between the question presented in this matter and the issue before the Eighth Circuit is the identity of the union challenging the testing policy. In all other respects the facts and legal questions are identical. The majority’s opinion creates an intercir-cuit conflict. I would adopt the Eighth Circuit’s analysis and affirm the district court.
I cannot join in the majority opinion because I believe that the reasoning process employed by my esteemed colleagues is critically flawed. The majority acknowledges that the test for determining if a *1094particular labor practice raises a major or minor dispute is whether the disputed action is “arguably permitted” by the collective bargaining agreement. Thus, the issue presented in this matter is whether post-incident testing is arguably permitted by Rule G.
After correctly stating the applicable test, the majority proceeds to ignore it. Instead of determining whether post-incident testing is arguably permitted by Rule G, the majority abandons the proper test and applies the Fourth Amendment to an agreement between non-governmental actors. In determining whether the testing policy is arguably permitted by the agreement, the majority first inquires whether the Government could undertake the post-incident testing procedures prescribed by BN. The majority then responds to this false issue by arguing that if such tests were performed by the government they would violate the Fourth Amendment. The majority then concludes that post-incident testing is not encompassed within the collective agreement because it “decline[s] to assume that BLE members implicitly granted BN the authority to invade their privacy in ways the government could not.”
The Fourth Amendment has no bearing on the parties’ understanding of their rights and obligations under the collective bargaining agreement. The majority’s new test would make the intention of the parties irrelevant to a proper interpretation of their agreement. The law of this circuit, however, dictates that we focus on the collective bargaining agreement in determining whether post-incident testing is arguably permitted. Int’l Assoc. of Machinists & Aerospace Workers v. Aloha Airlines, Inc., 790 F.2d 727, 815-16 (9th Cir.1986) (Pregerson, J.), cert. denied — U.S. -, 107 S.Ct. 400, 93 L.Ed.2d 354. Private parties are free to enter into agreements in the interests of public safety and the welfare of co-workers that permit a limited intrusion into privacy rights. The Fourth Amendment is directed at governmental intrusions into privacy interests. United States v. Jacobsen, 466 U.S. 109, 113-14, 104 S.Ct. 1652, 1656-57, 80 L.Ed.2d 85 (1984). It has not previously been applied by any court to the conduct of private parties. Furthermore, neither party suggested in its briefs or at oral argument that a Fourth Amendment analysis can be applied to the interpretation of an agreement between a union and a private employer.
The majority has failed to explain why it did not request additional briefing and oral argument concerning this radical departure from fourth amendment analysis and the law of this circuit regarding the interpretation of collective bargaining agreements. The General Orders of this Circuit provide that “[i]f a panel determines to decide a case upon the basis of a significant point not raised by the parties in their briefs, it should give consideration to requesting additional briefing before issuing a disposition predicated on the particular point.” The United States Court of Appeals for the Ninth Circuit, General Order 13 (September, 1987).
I. FACTS AND PROCEDURAL HISTORY
This dispute arises out of BN’s change in the procedure used to detect violations of Rule G. Rule G provides:
The use of alcoholic beverages, intoxicants, narcotics, marijuana, or other controlled substances by employees subject to duty, or their possession or use while on duty or on company property, is prohibited. Employees must not report for duty under the influence of any marijuana or other controlled substances, or medication, including those prescribed by a doctor, that may in any way adversely affect their alertness, coordination, reaction, response or safety.
Any on-duty employee found to be in violation of Rule G is subject to suspension or discharge. Rule G has been in effect at BN and in the railroad industry in slightly varying forms for at least 40 years. The parties’ collective bargaining agreements are silent as to the methods of implementing Rule G or detecting and enforcing violations thereof.
*1095For many years, BN relied upon sensory observations to detect Rule G violations. Employees were suspected of Rule G violations if BN trainmasters and superintendents observed symptoms of intoxication such as staggering, slurred speech, bloodshot eyes, or alcoholic breath. If a BN officer detected alcohol or drug use by an employee, the worker was asked to take a urine test to clear himself. Under the prior practice, an employee was not requested to submit to a urine test until there was sufficient facts to establish “probable cause” to believe that the employee had violated Rule G. If the employee refused to take the urine test, he was not disciplined for insubordination. However, an employee could be suspended for violation of Rule G based solely on the presentation of evidence of a visual observation of objective symptoms of intoxication.
In 1984, two accidents occurred on BN trains in which several individuals were fatally injured. The evidence gathered by BN investigators pointed to controlled substance or alcohol impairment by the operating crews. Shortly after these tragic events, BN intensified use of urine testing.1 On November 5, 1984, Charles J. Bryan, BN’s Senior Vice-President of Operations, distributed a memorandum (hereinafter the Bryan Memorandum) to BN officers which “amplified] and restated] BN’s existing policy defining when ‘probable cause’ exists sufficient to require urinalysis tests to detect possible Rule G violations by BN operating employees.” Under the Bryan Memorandum’s interpretation of the sweep of Rule G, blood or urine testing became mandatory following an accident or operating rule violation. The Bryan Memorandum directed that “when responsibility is clearly identified,” a train’s entire operating crew, or separate individuals be sent to a clinic for a urinalysis sample after (1) a “major human factor accident,” i.e., a major collision involving more than one train or one switching movement, (2) a “minor human factor accident,” i.e., derailments in yard or industry switching, failures to respond to signals, run through switches or derails, and failures to secure, and (3) a BN supervisor detects an employee displaying abnormal behavior. Blood or urine testing is required only following a human-factor accident, not an equipment-related accident. An employee who refuses to submit to a blood or urine test is subject to discipline for insubordination.
BN also utilized trained dogs to detect the possession of controlled substances (hereinafter sniffer dogs) prohibited by Rule G. The Brotherhood filed a complaint on August 29, 1984, seeking declaratory and injunctive relief challenging the use of sniffer dogs. The district court determined that the dispute regarding the use of sniffer dogs was major and granted a permanent injunction. The issue raised by the random use of sniffer dogs is presented in a companion case filed this same date. Brotherhood of Locomotive Eng’rs v. Burlington Northern R.R., 838 F.2d 1102 (hereinafter the sniffer dog case.)2
In December 1984, Robert E. Pelava, the General Chairman for the Brotherhood, notified BN that the Brotherhood objected to the mandatory urine or blood testing practice. BN and the Brotherhood unsuccessfully attempted to resolve the dispute. The Brotherhood then sought to amend its complaint in the sniffer dog case to enjoin the mandatory blood or urine testing. The district court denied the motion to amend the pleading.
On January 7, 1985, BN filed a notice of intent to submit the blood or urine testing issue for arbitration as a “minor” dispute *1096with the Adjustment Board pursuant to 45 U.S.C. § 153, First (i), of the RLA.3 On February 6, 1985, BN filed its formal submission to the Adjustment Board.
On February 14, 1985, the Brotherhood filed a complaint in federal district court for declaratory and injunctive relief. The Brotherhood sought (1) an injunction prohibiting BN’s mandatory urine and blood testing practice, (2) an injunction prohibiting BN from proceeding with its submission before the Adjustment Board, and (3) a declaration that BN’s testing practice violated the parties’ collective bargaining agreements. On March 7, 1985, the Brotherhood filed a motion for a preliminary injunction. BN thereafter filed a motion to dismiss the Brotherhood’s complaint. BN alleged that the Adjustment Board has exclusive subject matter jurisdiction over the question because it was a “minor” dispute under the Act.
After conducting an evidentiary hearing, the district court treated BN’s motion to dismiss as a motion for summary judgment under Fed.R.Civ.P. 12(b)(6).4 Brotherhood of Locomotive Eng’rs, 620 F.Supp. at 174 n. 1, 175. In addition to considering the evidence presented at the hearing on the motion for a preliminary injunction and motion to dismiss, the court took judicial notice of the record and facts established in the sniffer dog case. Id. at 174.
The district court noted that the collective bargaining agreements between the parties made no reference to Rule G, nor to any specific method of detecting alcohol and controlled substance abuse, or to blood or urine tests. The court found, however, that the procedure for the detection and investigation of alcohol or controlled substance abuse adopted by the railroad, and acquiesced in by the union, had existed over a substantial period of time and had become an implied provision or condition of the collective bargaining agreement. Id. at 175; Brotherhood of Locomotive Eng’rs, 620 F.Supp. at 170. As described above, the procedure employed by the railroad to implement Rule G consisted of sensory observation by a supervisor of objective symptoms of alcohol or substance abuse, such as slurred speech, staggered walk, alcoholic breath, followed by a voluntary blood or urine test, if the employee wished to clear himself of suspicion. The district court held that because the facts alleged in the Brotherhood’s complaint and the evidence presented at the hearing demonstrated that BN employees were requested to submit to blood or urine tests when a specific worker was believed to have been involved in an accident or operating rule violation, the challenged mandatory blood or urine testing procedure was “arguably justified” under the terms of the “implied agreement extant between the parties.” Brotherhood of Locomotive Eng’rs, 620 F.Supp. at 175. The district court held that it lacked subject matter jurisdiction because the dispute was minor. Id.
The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions ... shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo, in the light most favorable to the nonmoving party, to determine whether there are any *1097genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).
III. RESOLUTION OF DISPUTES UNDER THE ACT
The fundamental issue raised in this action is whether BN’s implementation of its mandatory urine and blood testing practice to detect Rule G violations, following an accident or an operating rule violation, constitutes a change in working conditions accomplished in violation of the notice, negotiation, and mediation requirements imposed by sections 2 and 6 of the RLA, 45 U.S.C. §§ 152, Seventh, and 156.5 Resolution of this issue depends on whether the controversy between the Brotherhood and BN is a “major” or “minor” dispute under the Act.6
Major disputes involve
the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
325 U.S. at 723, 65 S.Ct. at 1290; 790 F.2d at 730 n. 1. In contrast, minor disputes presuppose the existence of an agreement or “a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case.” Elgin, 325 U.S. at 723, 65 S.Ct. at 1290; Aloha Airlines, 790 F.2d at 730 n. 1. The distinction between major and minor disputes is imprecise and has plagued the courts. O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1146 (9th Cir.1977).
A. Major Disputes
The distinction between major and minor disputes has important consequences regarding the applicable procedures for dispute resolution and the authority of the courts to intervene. Id.. The railroad must give at least, 30 days notice of a proposed change in the “rates of pay, rules, or working conditions.” 45 U.S.C. § 156. A dispute arising from the proposed change is known as a major dispute. O’Donnell, 551 F.2d at 1146. The parties are required to confer and “to exert every reasonable effort” to settle disputes. 45 U.S.C. § 152, First.7 If conference fails, either party may invoke the services of the National Mediation Board. 45 U.S.C. § 155. If mediation fails, the Mediation Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can only take place if both parties consent. 45 U.S.C. §§ 155, First, 157. If arbitration is rejected, the parties *1098are relegated to self-help in adjusting the dispute. Brotherhood of Locomotive Eng’rs v. Baltimore & O.R.R. Co., 372 U.S. 284, 291, 83 S.Ct. 691, 695, 9 L.Ed.2d 759 (1963) (per curiam); Trans Int’l Airlines, Inc. v. Int’l Brotherhood of Teamsters, 650 F.2d 949, 960 (9th Cir.1980), cert. denied sub. nom., Air Line Pilots Assoc. Int’l v. Trans Int’l Airlines, Inc., 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981). If the dispute threatens “substantially to interrupt interstate commerce,” the President may create an emergency board to investigate and report on the dispute. 45 U.S.C. § 160.
The RLA requires both parties to maintain the status quo of a major dispute during the mediation and conference process. 45 U.S.C. §§ 152, 155, 156, 160; see Detroit & T.S.L.R.R. v. United Transp. Union, 396 U.S. 142, 149, n. 14, 90 S.Ct. 294, 298, n. 14, 24 L.Ed.2d 325 (1969). A district court may enjoin either party from violating the status quo. See O’Donnell, 551 F.2d at 1146. The procedures of the RLA to resolve major disputes are purposely long and drawn out in the hope that reason and practical considerations will in time provide an agreement that resolves the dispute. Brotherhood of Ry. & S.S. Clerks v. Florida E.C. Ry., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424, 16 L.Ed.2d 501 (1966).
B. Minor Disputes
If a railroad takes action arguably permitted under the collective bargaining agreement, not entaibng a change in rates of pay, rules, and working conditions, a union’s opposition based on a differing interpretation of the agreement is considered .to be a minor dispute subject to binding adjudication by the Adjustment Board. O’Donnell, 551 F.2d at 1146-47. Either party may submit the dispute to the Adjustment Board for decision, provided the party has discharged the initial duty of attempting to resolve the issue through negotiation. 45 U.S.C. § 153, First (i). The Adjustment Board is an administrative tribunal composed of workers and management, 45 U.S.C. § 153, First (a), (h), created to secure the prompt, orderly, and final settlement of minor disputes that arise between employees and railroads regarding rates of pay, rules, and working conditions. Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). The Adjustment Board has exclusive jurisdiction to resolve minor disputes. 45 U.S.C. § 153, First (i); accord Slocum v. Delaware, L. & W.R.R., 339 U.S. 239, 244-45, 70 S.Ct. 577, 580, 94 L.Ed. 795 (1950); Brotherhood of R.R. Trainmen v. Denver & R.G.W.R.R., 290 F.2d 266, 269 (10th Cir.), cert. denied, 366 U.S. 966, 81 S.Ct. 1925, 6 L.Ed.2d 1256 (1961). The federal courts have no jurisdiction to adjudicate the merits of a minor dispute. Aloha Airlines, 776 F.2d at 815.
In establishing the procedures for dispute resolution, Congress considered it essential to keep “minor” disputes within the Adjustment Board and out of the courts. Sheehan, 439 U.S. at 94, 99 S.Ct. at 402. In Slocum, the Supreme Court stated that the Adjustment Board is better suited to resolve minor disputes in the railroad industry involving the application or interpretation of an agreement than federal courts:
The Act thus represents a considered effort on the part of Congress to provide effective and desirable administrative remedies for adjustment of railroad-employee disputes growing out of the interpretation of existing agreements. The Adjustment Board is well equipped to exercise its eongressionally imposed functions. Its members understand railroad problems and speak the railroad jargon. Long and varied experiences have added to the Board’s initial qualifications. Precedents established by it, while not necessarily binding, provide opportunities for a desirable degree of uniformity in the interpretation of agreements throughout the nation’s railway systems.
339 U.S. at 243, 70 S.Ct. at 579 (footnote omitted); see Order of Ry. Conductors v. Pitney, 326 U.S. 561, 567, 66 S.Ct. 322, 325, 90 L.Ed. 318 (1946).
A controversy arises, as in the present case, when a union believes a railroad has unilaterally changed working conditions in *1099violation of the bargaining and mediation procedures imposed by 45 U.S.C. §§ 152, Seventh, and 156, thus creating a major dispute, and a railroad believes its challenged action is arguably permitted by the terms of the parties’ agreements, and is therefore, subject to resolution only by the Adjustment Board under 45 U.S.C. § 153, First (i), as a minor dispute.
C. The Test To Determine a Minor Dispute
As a threshold issue, the Brotherhood contends the use of the “arguably justified” test by the district court to determine if the dispute is major or minor is “questionable.” The question whether a district court applied the correct test to determine if a dispute is minor or major under the Act is a question of law which we review de novo. See Aloha Airlines, 776 F.2d at 815 (the question whether a dispute is major or minor is a “narrow question of law.”).
This court has consistently followed the rule in Switchmen’s Union of N. Amer. v. Southern Pacific Co., 398 F.2d 443 (9th Cir.1968) in determining whether a dispute is major or minor. O’Donnell, 551 F.2d at 1147. A dispute is minor if the position of at least one of the parties is arguably predicated on the terms of the collective bargaining agreement. Switchmen’s Union, 398 F.2d at 447; O’Donnell, 551 F.2d at 1146. Stated another way, a dispute is minor if the parties’ agreement is “reasonably susceptible” to the railroad’s interpretation. Southern Pacific Transp. Co. v. United Transp. Union, 491 F.2d 830, 833 (9th Cir.), cert. denied, 416 U.S. 985, 94 S.Ct. 2389, 40 L.Ed.2d 762 (1974). On the other hand, “if it can be said that the change being imposed by one side on the other is in nowise contemplated or arguably covered by the agreement,” the dispute is major. Switchmen’s Union, 398 F.2d at 447. The test “is not a stringent one in view of the substantial and longstanding interest in removing labor disputes from the federal courts and placing them in the expert hands of the various arbitration and mediation facilities.” O’Donnell, 551 F.2d at 1146-47.
In the instant case, the district court posed the issue as follows: “[WJhether the urinalys[i]s practice is ‘arguably justified’ by the implied agreement, regarding Rule G, found to exist between the Brotherhood and the BN . . . .” Brotherhood of Locomotive Eng’rs, 620 F.Supp. at 175. Thus, the district court applied the appropriate test to determine whether the dispute was major or minor.
IV. THE PARTIES’ IMPLIED AGREEMENT
The Brotherhood contends the district court erred in concluding that BN’s mandatory blood or urine testing practice is “arguably justified” by the parties’ implied agreement regarding the procedure to be followed in the detection of Rule G violations because the testing practice (1) eliminates elements of the parties’ implied agreement, (2) creates a new condition of employment, and (3) is completely distinguishable from the company’s prior procedure.
A railroad is not limited to the four corners of the collective bargaining agreement to show that a change in a working condition does not constitute a major dispute. Brotherhood of Locomotive Eng’rs v. Boston & Main Corp., 788 F.2d 794, 799 (1st Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 111, 93 L.Ed.2d 59. This rule is particularly applicable to the railroad industry:
It would be virtually impossible to include all working conditions in a collective-bargaining agreement. Where a condition is satisfactorily tolerable to both sides, it is often omitted from the agreement, and it has been suggested that this practice is more frequent in the railroad industry than in most others.
Shore Line, 396 U.S. at 154-55, 90 S.Ct. at 301-2 (footnote omitted). The railroad can rely on “ ‘those actual, objective working conditions out of which the dispute arose, and clearly these conditions need not be covered in an existing agreement.’ ” Brotherhood of Locomotive Eng’rs v. Boston & Main Corp., 788 F.2d at 799 (quoting Shore Line, 396 U.S. at 153, 90 S.Ct. at 301). Accordingly, past practices and *1100working conditions may become part of the collective bargaining agreement notwithstanding silence in the agreement itself. Maine Central R.R. v. United Transp. Union, 787 F.2d 780, 782 (1st Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 169, 93 L.Ed.2d 107; cf. Switchmen’s Union, 398 F.2d at 447 (“where the position of one or both of the parties is expressly and arguably predicated on the terms of the agreement, as illuminated by long-standing practices, the question of whether the position is well taken involves a minor dispute”) (emphasis added). For a past practice to be considered an “actual, objective working condition[ ],” it must have occurred “for a sufficient period of time with the knowledge and acquiescence of the employees to become in reality a part of the actual working conditions.” Shore Line, 396 U.S. at 153, 154, 90 S.Ct. at 301; Brotherhood of Locomotive Eng’rs v. Boston & Maine Corp., 788 F.2d at 799.
It is undisputed that the parties’ collective bargaining agreements are silent as to the procedure to be followed in detecting and testing for alcohol and substance abuse. The evidence amply demonstrates, however, that the Brotherhood has acquiesced in the procedure followed by BN in the detection and enforcement of Rule G violations for many years. The undisputed evidence established that prior to the Bryan Memorandum, BN relied upon the existence of objective indicators of alcohol or substance abuse as a prerequisite to the investigation of a possible Rule G violation. The triggering event for the investigation of a Rule G violation was the observation that a specific employee’s speech was slurred, his gait was staggered, his eyes were bloodshot, or his breath smelled of alcohol. A worker observed in such a condition was cited for a Rule G violation and advised that a further investigation and a hearing might follow. When viewed in the light most favorable to the Brotherhood, the evidence supports the district court’s determination that “the practice of detecting Rule G violations by means of sensory observation ... has achieved the level of an established practice, deserving of an implied contractual status.”
V. THE EXPANDED TESTING PROCEDURE WAS ARGUABLY JUSTIFIED
The next inquiry should be whether the implied agreement — that BN could require further investigation for a Rule G violation after the perception of facts that a specific worker had exhibited symptoms of alcohol or substance abuse — arguably includes the right to conduct blood or urine testing, after an accident or operating rule violation, to confirm or disprove a violation of Rule G. If blood or urine testing following an accident or operation rule violation is arguably included in the implied terms of the collective bargaining agreement, the procedure set forth in the Bryan Memorandum presents a minor dispute.
The Brotherhood contends that the district court erred in granting summary judgment because material facts are in dispute. The Brotherhood argues that the evidence shows that the mandatory blood or urine testing practice is not “arguably justified” by the parties’ implied agreement because prior to the release of the Bryan Memorandum, (1) no employee was subjected to a compulsory body fluid test solely because he was involved in an accident or operation rule violation, (2) agents of BN admitted that the mandatory testing practice was “new,” and (3) the testing after the perception of symptoms of alcohol or substance abuse was optional, not mandatory.
Summary judgment is appropriate if the plaintiff cannot prevail as a matter of law when the facts are viewed in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted”). Under this court’s test to determine if a dispute is minor, the challenged conduct need not exactly mirror the practices which have become an implied provision of the collective bargaining agreement. The challenged conduct need only be arguably covered by the parties’ implied agreement to be a minor dispute. *1101Switchmen's Union, 398 F.2d at 447; O’Donnell, 551 F.2d at 1146; see Southern Pacific Transp. v. United Transp. Union, 491 F.2d at 833; accord Brotherhood of Ry. Carmen v. Norfolk & W. Ry. Co., 745 F.2d 370, 376-77 (6th Cir.1984) (“courts are called upon to determine only whether the railroad’s contention is arguable, not to determine whether that contention is correct”).
While it is true that as a result of the Bryan Memorandum, blood or urine testing became mandatory following an accident or operating rule violation, I agree with the district court that the testing practice nonetheless is arguably permitted under the parties’ implied agreement. Both the old and the new procedure involve similar triggering events: the discovery of objective facts suggesting alcohol or substance abuse followed by the use of blood or urine testing to determine if the employee had violated Rule G. Whether mandatory testing is arguably consistent with the prior practice of affording an employee the opportunity to clear himself by a chemical test presents a minor dispute outside the jurisdiction of a federal court. Once a railroad has presented evidence of a past practice that was accepted by the union which, arguably, could support its interpretation of the agreement, the court's inquiry must end; the duty to weigh and decide who has the better argument is the arbitrator’s function. Maine Cent. R.R. v. United Transp. Union, 787 F.2d at 782.
The fact that management referred to the blood or urine test procedure as “new” is not controlling. The major-minor dispute dichotomy does not turn on the terminology employed by the parties, but on the substance of the dispute. Switchmen’s Union, 398 F.2d at 447. It is undisputed that the mandatory blood or urine testing practice following an accident or rule violation was an innovation. I agree with the district court that it is arguable that because the present procedure does not come into play unless there is an objective triggering event which justifies the investigation of a suspected Rule G violation, the urine or blood testing falls within the implied contractual condition of the collective bargaining agreement.
Since there is no genuine issue of material fact that might affect the outcome of the suit, Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2510-11, the district court correctly concluded that the mandatory urine or blood testing practice presents a minor dispute.
My conclusion that post-incident testing poses only a minor dispute is supported by the Eighth Circuit’s recent decision in Brotherhood of Maintenance of Way Employees. In that case, BN’s maintenance of way workers also sought to enjoin application of BN’s post-incident testing policy contending that it presented a major dispute under the RLA.
The district court found that the union had acquiesed in BN’s non-random "sensory surveillance” method of enforcing Rule G, and thus that that practice became an implied term of the collective agreement. Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R.R., 642 F.Supp. 41, 45 (N.D.Iowa, 1985). It held post-incident testing “arguably” could be seen as a refinement of the accepted enforcement policy because “post-accident testing ... [is] not done randomly since it ... [is] performed after an incident which ... [gives] rise to the possibility of usage of drugs and/or alcohol.” Id. at 46-47. Accordingly, the court held that the dispute over post-incident testing was minor and thus it refused to issue the injunction. Id. at 47-48.
The Eighth Circuit affirmed the denial of the injunction. Inasmuch as the testing policy was not implemented randomly, it did not constitute “such a serious departure from past practice as to give rise to a major dispute.” Brotherhood of Maintenance of Way Employees, 802 F.2d at 1023.
VI. CONSTITUTIONAL CLAIMS
The Brotherhood finally contends that the district court erred in granting summary judgment because the federal and state constitutional claims in the complaint were not resolved. The Brotherhood suggests *1102that this court should remand the case to the district court for resolution of these claims.
To adjudicate the constitutional issues presented in the Brotherhood’s pleading, the district court would have had to reach the merits of the dispute. This minor dispute must be resolved initially by the arbitration procedures set forth under the Act before judicial intervention. The district court lacks subject matter jurisdiction to intervene until the minor dispute is resolved. The district court properly stayed its hand.
VII. MANAGEMENT PREROGATIVE
The BN contends that since no provision of the collective bargaining agreement between the parties restricts the BN with regard to the methods or procedures for detecting violations of Rule G, the method of detection is a matter within BN’s managerial prerogative. Therefore, BN reasons, its unilateral implementation of a particular method of detection does not rise to the level of a labor dispute within the Act.
The mere absence of any reference in the collective bargaining agreements to a particular method or detection, standing alone, does not establish that the method which may be utilized to detect violations is a matter within the prerogative of management. The absence of specific language may reflect, as in this case, the fact that particular practices have, through acquiescence, become an implied part of the collective bargaining agreement. Shore Line, 396 U.S. at 155, 90 S.Ct. at 302.
CONCLUSION
I would affirm the judgment of the district court. I would hold that BN’s blood or urine testing practice is a minor dispute arguably permitted by Rule G.
. On April IS, 1984, a train crash in Wiggins, Colorado killed five BN employees and caused $2 million property damage. The National Transportation Safety Board (hereinafter NTSB) implicated alcohol abuse by an engineer as a possible cause of the accident. On April 21, 1984, a train disobeyed an absolute stop signal and crashed into a standing train at Newcastle, Wyoming. Two BN employees died and property damage totalled $1 million. A NTSB toxicology report indicated that three crew members had marijuana traces in their body fluids.
. The district court referred to the sniffer dog case as BLE I, Bhd. of Locomotive Eng’rs v. Burlington Northern R.R., 620 F.Supp. 173, 174 (D.Mont.1985).
. 45 U.S.C. § 153, First (i) provides:
. Fed.R.Civ.P. 12(b)(6) provides in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted----If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....
. 45 U.S.C. § 152, Seventh, provides: "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.”
45 U.S.C. § 156 provides in pertinent part:
Carriers and representatives of the employees shall give at least thirty days’ written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference....
. The RLA does not use the terms "major” and "minor” to distinguish disputes. Int’l Assoc. of Machinists v. Aloha Airlines, Inc., 776 F.2d 812, 815 n. 2 (9th Cir.1985). The terminology was utilized by the Supreme Court in Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 722-28, 65 S.Ct. 1282, 1289-92, 89 L.Ed. 1886 (1945).
.The RLA treats major and minor disputes alike in requiring negotiation as the first step toward settlement. 45 U.S.C. § 152, First, Second. 45 U.S.C. § 152 provides:
First. It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise....
Second. All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.