Petition for Writ of Certiorari — International Brotherhood of Teamsters v. Southwest Airlines Co.
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA—
AIRLINE DIVISION AND TEAMSTERS LOCAL 19,
= Petitioners,
V.
SOUTHWEST AIRLINES COMPANY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JAMES L. HICKS, JR.
HICKS, GILLESPIE, JAMES,
ROZEN & PRESTON, P.C.
1420 W. Mockingbird Lane
Suite 760
Dallas, Texas 75247
(214) 630-8621
Counsel for Petitioners
International Brotherhood of
Teamsters, Chauffeurs,
Warehousemen and Helpers
of America—Airline Division
and Teamsters Local i)
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether a Change in Drug Use Detection Method-
ology Constitutes a “Major” Dispute Under the Rail-
way Labor Act?
2. Whether a Common Management Rights Clause
Waives the Right to Bargain Over What Would Other-
wise Be a “Major” Dispute?
3. Whether a Conclusion of Waiver Violates the Pol-
icy of the Railway Labor Act?
(i)
ii
LIST OF ALL PARTIES TO THE PROCEEDINGS
REQUIRED BY SUPREME COURT RULE 21.2(b)
Parties to the proceeding are as follows:
1. International Brotherhood of Teamsters
2. Teamsters Local 19
3. Southwest Airlines Company
4
. James L. Hicks, Jr., Esq.
Hicks, Gillespie, James, Rozen & Preston, P.C.
1420 W. Mockingbird Lane, Suite 760
Dallas, Texas 75247
5. J. Joe Harris
Matthews & Branscomb
106 8S. St. Mary’s Street -
One Alamo Center, Suite 800
San Antonio, Texas 78205
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. ...0.2.................cccccccccccessccceces i
LIST OF ALL PARTIES TO THE PROCEEDINGS
REQUIRED BY SUPREME COURT RULE
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LS I I oR 1
EL ee 2
STATUTES AND REGULATIONS .............0...0............ 2
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,_. sessamnsneuiebioasonannantonan
sna ntnnnonnnnnstnnnanninenee
a saasenanebeneananmaneness 3
REASONS FOR GRANTING THE WRIT ................... 6
I. The Fifth Circuit Decision Creates a Con-
flict Ameng the Circuits Concerning Whether
Changes in Drug Use Detection Methodology
Constitutes a Major Dispute ................................ 6
II. The Decision of the Fifth Circuit is Contrary
to This Court’s Decision in Conrail and Creates
a Division Among the Circuits Concerning
Waiver of the Right to Bargain ...............000....... 8
III. The Fifth Circuit Decision Violates the Scheme
of the Railway Labor Act..................................... 10
ESE 1l
iv
INDEX TO APPENDIX
Appendix A and B Page
Opinions of the Fifth Circuit 00000. la-93a
Appendix C
Order of the Fifth Circuit Granting Rehearing
IIE cetscnncenesincananiscseosssclbieliinensthdeiuaibsiaitidniieasilcatsbncted 94a
Appendix D
Order of the District Court Granting Preliminary
I aa ae enamel 95a-109a
Appendix E
Railway Labor Act, 45 U.S.C. § 151 et seq. ........ 110a-156a
Appendix F
Order Extending Time to File for Writ of Cer-
EEE CEA RSA i Aa EOE 157a
———a
v
TABLE OF AUTHORITIES
Cases
Brotherhood of Locomotive Engineers v. Burling-
ton Northern, 838 F.2d 1087, 1092-93 (9th Cir.
1988), cert. granted and remanded, 109 S. Ct.
Se GD Gis TEE ceticcsietetiieetsineesn
Brotherhood of Locomotive Engineers v. Burling-
ton Northern, 838 F.2d 1102, 1105-07 (9th Cir.
IIIT sciccnuisaicisindncasebiies ttmeadeahebadeanansennadaniaaeiean Maa aticce
Brotherhood of Maintenance of Way Employees
v. Burlington Northern, 802 F.2d 1016, 1022-23
RRR HEE An 5K Lewes
Consolidated Rail Corp. v. Railway Labor Execu-
tives’ Association, U.S. ——, 105 L.Ed.2d
i ORR At Oe.
Detroit and Toledo Short Line R.R. v. UTU, 396
Was EE UIUUUUI cidieesubiveninaonsiaubibashbtheoltiseineiebiestipladancinstebeiins
Transportation Workers Union v. SEPTA, 863
F.2d 1110, 1122-24 (3rd Cir. 1988) ............00000.....
United Industrial Workers v. Board of Trustees,
351 F.2d 183 and 368 F.2d 412 (5th Cir. 1966) ..
Statutes
19 U.S.C. § 186 {a) () and () ..................................
ie Be ie eins teenctinccecenencntioanaticmmandsialatiamis
Page
7, 10
10
© ©
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
No, ——- —
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA—
AIRLINE DIVISION AND TEAMSTERS LOCAL 19,
Petitioners,
Vv.
SOUTHWEST AIRLINES COMPANY,
> Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America—
Airline Division and Teamsters Local 19, pray that a
Writ of Certiorari issue to review the order of the United
States Court of Appeals for the Fifth Circuit entered in
the above-referenced matter on June 22, 1989.
OPINIONS BELOW
The opinions of the Fifth Circuit Court of Appeals in
the case at bar are reported at 842 F.2d 794 and 875
F.2d 1129. The opinions are reproduced in Appendices
A and B hereto. (App. la-63a; 67a-93a).
The trial court’s order granting preliminary injunction
which was orally entered on January 6, 1987 is repro-
duced in the Appendix as Appendix D. (App. 95a-109a).
JURISDICTION
This Petition seeks review of the order of the Court
of Appeals entered on June 22, 1989. By Order dated
September 5, 1989 Justice Byron R. White granted Peti-
tioner’s Motion for an Order Extending Time to File
Petition for Writ of Certiorari to and including October
20, 1989. (App. 157a). This Court’s jurisdiction is in-
voked under 28 U.S.C. 1254(1).
STATUTES AND REGULATIONS
The Appendix contains the Railway Labor Act 45
U.S.C. § 151 et seg. (App. 110a-156a).
STATEMENT OF THE CASE
A. Nature of the Case
This is a Railway Labor Act injunction case involving
disposition of whether the underlying dispute is “major”
or “minor.” Upon being notified of Respondent South-
west’s intention to unilaterally impose a comprehensive
drug testing program, Teamsters brought suit in the
United States District Court for the Northern District
of Texas, Dallas Division, alleging that such constituted
a “major” dispute and seeking an injunction to enjoin
implementation. Alternatively, Teamsters asserted that if
the dispute was “minor” an injunction should be entered
to preserve the status gud and jurisdiction of the parties’
system board of adjustment.
B. Proceedings Below
Teamsters filed their original Complaint against South-
west in December, 1986. On January 6, 1987 hearing was
held before the District Court on Teamsters’ Application
for a Preliminary Injunction to enjoin implementation
of the drug testing program. At the close of the hearing
District Court granted the injunction upon alternative
theories. First, the District Court concluded that the dis-
pute was “major” and, therefore, to be enjoined. Alter-
natively, the District Court concluded that even if
“minor” the dispute was to be enjoined, because under
the unique circumstances the involved licensed aircraft
mechanics would suffer irreparable harm if tested. (App.
95a-109a). Southwest appealed and initially a three-mem-
ber panel of the Fifth Circuit unanimously affirmed upon
the conclusion that the dispute was indeed “major.”
(App. 67a-93a).
Southwest sought rehearing en banc which was granted.
(App. 94a). On June 22, 1989 eleven of the sixteen sitting
Judges of the Fifth Circuit vacated the injunction while
five Judges dissented. (App. la-63a).
This Petition seeks review of the en bane decision of
the Fifth Circuit.'
STATEMENT OF FACTS
The only fact record was developed at a hearing on
preliminary injunction. Review of the decisions of the
Fifth Circuit reveals that there is no dispute about the
facts. (App. la-4a; 20a-23a; 68a-73a).
Southwest Airlines (“Southwest”) is a common car-
rier by air, subject to the Railway-Labor Act, 45 U.S.C.
§$ 151, et seg. Teamsters represent Southwest’s mechanics
The Fifth Circuit’s decisions each reviewed the District Court’s
granting of preliminary injunction. Based upon the Fifth Circuit's
en bane decision, the District Court entered an order of dismissal
on July 31, 1989 which Petitioners also appealed. There is presently
pending in the Fifth Circuit a Motion to Affirm the District Court’s
Final Dismissal in favor of Southwest. Upon affirmance by the
Fifth Circuit, Petitioners intend to move to consolidate that matter
with this Petition. At that juncture review of a final decision, as
opposed to a preliminary injunction, will be before this Court.
4
and related employees. Article 2, paragraph 4 of the par-
ties’ collective bargaining agreement provides:
Employees covered by this Agreement shall be
governed by all Company rules, regulations, and
orders previously or hereafter issued by proper au-
thorities of the Company which are not in conflict
with the terms and conditions of this Agreement, and
which have been made available to the employee
prior to becoming effective:
That collective bargaining agreement contains no rules
against drug and alcohol abuse. Prior to 1986 Southwest
had unilaterally imposed work rules including Rule G,
which prohibits and makes subject to discipline:
4. Reporting for or carrying on work while showing
any signs of the use of intoxicants or knowingly
permitting another employee to do so is strictly
prohibited.
5. Possession of or drinking of any intoxicant or il-
legal possession or use of illegal or dangerous drugs
on company premises or while in uniform and/or
habitual use of intoxicants or use of illegal or dan-
gerous drugs on or off duty will not be tolerated.
The District Court found that before October 1986, South-
west had no existing practice for detecting violation
Rules G(4) and G(5) other than visual observation. The
District Court also found Southwest had no history of
problems with drug and alcohol abuse and no history of
Rule G enforcement.
Nevertheless, on October 16, 1986 Southwest advised
Teamsters of its intention to unilaterally implement a
drug and alcohol testing program. The program is com-
prehensive, detailed and primarily consists of (App. 70a-
72a fn. 5-8) :
(1) A general work rule or policy which prohibits de-
tectible levels of illegal drugs, defines alcohol in-
toxication as a blood level of .05% and prohibits
5
use of over-the-counter and prescription drugs
which might impair performance;
(2) Mandatory pre-employment urine drug screens
and mandatory urine drug screens of employees
under certain defined circumstances;
(3) Detailed testing rules including employee releases,
confidentiality and chain of custody safeguards,
use of confirmatory tests in the event of positive
initial resllt and provisions for a second test at an
employee’s request; and
(4) Establishments of punishments and procedures to
be followed in the event of a violation of the policy.
Teamsters sought to bargain over the terms of the pro-
gram. While Southwest was willing to discuss the pro-
gram, it refused to bargain over its terms.
On January 1, 1987, Southwest implemented the pro-
gram. Teamsters brought this suit and sought a prelim-
inary injunction. The District Court enjoined the pro-
gram, concluding that its implementation constituted a
“major” dispute under the Railway Labor Act. The Dis-
trict Court supported its conclusion by finding that the
program constituted a comprehensive means of monitor-
ing, testing, and punishing violations of rules prohibiting
drug and alcohol use or possession, and that such was not
arguably justified by Rule G or a practice of enforcing
Rule G. The District Court further concluded that each
element of the program constituted a “major” change
warranting an injunction. Alternatively, the District
Court concluded that even if the disputes were deemed
“minor” there existed a substantial likelihood of irrepar-
able harm warranting an injunction to preserve the status
quo pending arbitration of the dispute under the terms
of the parties’ labor contract. (App. 95a-109a).
A three-judge panel of the Fifth Circuit affirmed upon
a conclusion that the dispute was “major” and, therefore,
to be enjoined. Southwest sought rehearing en banc which
. 6
was granted. On June 22, 1989, the Fifth Circuit en
bane dissolved the injunction. The majority concluded
that Article 2, paragraph 4 of the parties’ contract
which grants the company the right to make rules and
regulations “arguably” constituted a “clear and un-
mistakable” waiver of Teamsters’ statutory right to bar-
gain over the terms of the drug testing policy. The ma-
jority concluded the dispute was therefore minor. The
Court also concluded that the irreparable harm found by
the District Court was not of the sort warranting a
status quo injunction pending submission of the dispute
to the parties’ agreed arbitration procedure. Five judges
dissented including the three that issued the initial deci-
sion. (App. la-63a). _
Only a few days separated issuance of this Court’s de-
cision in Consolidated Rail Corp. v. Railway Labor Ex-
ecutives’ Association, U.S. , 105 LEd.2d 250
(June 19, 1989) (“Conrail”) and the Fifth Circuit’s
June 22, 1989 en banc decision. The Fifth Circuit en-
tered a supplemental order upon notice of Conrail con-
cluding the same result obtained upon application of Con-
rail to the facts of this case. (App. 64a-66a).
REASONS FOR GRANTING THE WRIT
I. The Fifth Circuit Decision Creates a Conflict Among
The Circuits Concerning Whether Changes in Drug Use
Detection Methodology Constitutes a Major Dispute.
Prior to Southwest’s comprehensive program, the par-
ties’ written agreement was silent concerning drug test-
ing. However, the contract included an implied but un-
written provision embodied in Rules G(4) and G(5)
supra p. 4 and enforced only through visual observaticn.
Obviously, Southwest’s program here at issue radically
changed not only the rules pertaining to drug use but,
7
even more dramatically, the detection methodology. Three
other circuits have concluded that such changes constitute
a major dispute. Transport Workers Union v. SEPTA,
863 F.2d 1110, 1122-24 (3rd Cir. 1988) ; Brotherhood of
Locomotive Engineers v. Burlington Northern, 838 F.2d
1087, 1092-93 (9th Cir. 1988), cert. granted and re-
manded, 109 S.Ct. 3207 (June 26, 1989); Brotherhood
of Locomotive Engineers v. Burlington Northern, 838
F.2d 1102, 1105-07 (9th Cir. 1988) ; and Brotherhood of
Maintenance of Waxy Employees v. Burlington Northern,
802 F.2d 1016, 1022-23 (8th Cir. 1986). Conrail did not
resolve this issue.*
The majority decision ereates a conflict among the cir-
cuits with respect to whether a change from the parties’
agreed method of detection constitutes a “major” dis-
pute.
\
2 The Fifth Circuit majority before and separate from concluding
that the Management Rights Clause (supra, p. 4) waived Teamsters
right to bargain also and inexcusably concluded the Management
Rights Clause on its fact “arguably” permitted implementation of
the program. The Court concluded it was “undeniable” that the
Management Rights Clause gave Southwest the right to make and
implement rules and regulations under four conditions all of which
the Court concluded existed. One of those conditions is that the
rule must not conflict with a provision of the contract. However,
the District Court found that this contract had in place provisions
implied by practice (Rules G(4) and (5)), which were enforceable
through visual observation. Quite obviously, the new program con-
flicts dramatically with these implied contract provisions. The
majority is wrong by failing to take account of the fact that a
labor contract is both its written language and the practices arising
under it. Detroit and Toledo Short Line R.R. v. UTU, 396 U.S. 142
(1969) and Brotherhood of Maintenance of Way Employees v.
Burlington Northern R.R., 802 F.2d 1016, 1022 (8th Cir. 1986),
Clearly, the majority erred in this conclusion. (App. 9a-1lla),
8
II. The Decision of the Fifth Circuit is Contrary to This
Court’s Decision in Conrail and Creates a Division
Among the Circuits Concerning Waiver of the Right
to Bargain.
In Conrail this Court restated what most in the labor
relations community believed was the test to distinguish
“major” from “minor” disputes. That test is:
if the disputed action of one of the parties can
“arguably” be justified by the existing agreement or,
in somewhat different statement, if the contention that
the labor contract sanctions the disputed action is
not “obviously insubstantial,” the dispute is a
[minor dispute].
(at 105 L.Ed.2d 263)
In Conrail and every case previously decided applying
the test it adopted, the focus was upon whether an iden-
tified express or implied provision of the labor contract
“establishes or refutes the presence of a right to take the
disputed action.” id. That inquiry is to be focused upon
whether a provision—the interpretation of which is dis-
puted—permits the action in question. For example in
Conrail, the focus was upon whether a contract provision
inferred from a long standing practice of urine testing
“arguably” permitted drug testing of urine samples.
This case does not present the question answered by
Conrail. Here, there is no contract provision—either ex-
press or implied—which grants Southwest the right to
drug test. The Fifth Circuit concluded that a standard
Management Rights Clause permitting Southwest to make
rules and regulations “arguably” waived Teamsters stat-
utory right to bargain. No evidence other than the writ-
ten contract provision implies the existence of waiver.
But for the “arguable” waiver the dispute would have
been deemed major.*
3 See footnote 2 supra.
9
Conrail, its precursors and the “arguable” test have
the intent of requiring submission of disputes which in-
volve and can be resolved by interpretation of the parties
contract, to the dispute resolution mechanism of that con-
tract. None concluded or envisoned that the same “argu-
able” test would be extended to determinations of the
existence of legal or equitable defenses. To this extent
the Fifth Circuit’s decision is contrary to the Conrail
decision.
Perhaps the difference and inconsistency between Con-
rail and the Fifth Circuit decision can be made clearer
by noting the conceptual and lingusitic tortouring neces-
sary to reach the Fifth Circuit’s result. It is not difficult
to accept the notion that because honest men may differ,
different and “arguable” interpretations of a contract
clause may be held. Waiver of the dearly held right to
bargain granted in both §6 of the Railway Labor Act
(“RLA”) and the National Labor Relations Act,‘ as
statutory rights central to the purpose of each statute is
a matter of law, not mere contract interpretation. Hence,
a waiver of the right to bargain must be “clear and un-
mistakable.” By appending the Conrail test to waiver,
the almost silly sounding question which must be an-
swered is whether the contract is “arguably” “clear and
unmistakable” in giving away the Union’s right to bar-
gain.- “Arguable” is a term of ambiguity and uncer-
tainty; “clear and unmistakable” is a term of exacting
certainty and using the two together renders each lin-
quistically and conceptually meaningless.
Moreover, and as eloquently presented in the dissent
in the Fifth Circuit, waiver is a question of law not
suited to analysis of whether it “arguably” exists. Im-
portant statutory—not contract—rights are at stake here.
Referring legal issues pertaining to those statutory rights
to arbitration is beyond the intent of Conrail. (App. 32a-
42a).
#45 U.S.C. § 156, and 29 U.S.C. §158(a) (5) and (d),
10
The Fifth Circuit majority decision is also at odds
with other circuits—including one of its own earlier de-
cisions.
In both Transportation Workers Union v. SEPTA, 863
F.2d 1110, 1122-24 (8rd Cir. 1988) and United Indvus-
trial Workers v. Board of Trustees, 351 F.2d 188 and
368 F.2d 412 (5th Cir. 1966) those Courts rejected em-
ployer arguments that a broad management rights clause
granted it unfettered right to act where the labor con-
tract was otherwise silent. In particular, Transport
Workers v. SEPTA involved an employer’s claim to drug
test under a management rights clause much like that
in this case. There the employer retained “all manage-
ment functions and responsibilities which SEPTA has
not expressly modified or restricted by a specific provi-
sion of this Agreement.” The Third Circuit found no
basis in this language to effect the bargaining obligation
of the RLA and ruled the dispute major. Plainly, the
decision below is at odds with the Third Circuit. This
matter was thoroughly addressed by the dissent in t.re
Fifth Circuit. (App. 42a-47a).
Ill. The Fifth Circuit Decision Violates the Scheme oi the
Railway Labor Act.
Simply stated, “major” disputes are to be resolved in
bargaining or through use of economic force. “Minor”
disputes are for resolution through arbitration. If the
Fifth Circuit’s application of the “arguable” test to
waiver stands, the “major’”/“minor” distinction will prac-
tically cease to exist. Virtually all modern labor con-
tracts contain Management Rights Clauses which permit
the employer to unilaterally take action which is not ex-
pressly contrary to the parties’ contract.5 The parties
conceded at trial and the Fifth Circuit majority and dis-
sent acknowledged that if such Management Rights
5 See authorities cited at footnote 23 of the dissent. App. 38a.
11
Clauses constitute a waiver, there exist no “major” dis-
putes. That is, any employer action would be merely
“minor” because the union arguably waived its right to
bargain on every subject by agreeing to such manage-
ment rights clauses. (App. 13a, 34a).
Bargaining is central to the Railway Labor Act and
the national labor policy. It occurs under the Railway
Labor Act only when disputes are “major.” This whole
statutory and policy scheme evaporates when the “argu-
able” test is applied to determine the existence of waiver.
Virtually all labor contracts include a form of the clause
constituting the “arguable” waiver in this case. If “ar-
guable” is the test for waiver, then “major” disputes
cease to exist as does a central policy of the Railway
Labor Act.
CONCLUSION
For the foregoing reasons a Writ of Certiorari should
be issued to review the order of the Fifth Circuit issued
en banc,
Respectfully submitted,
JAMES L. HICKS, JR.
HICKS, GILLESPIE, JAMES,
ROZEN & PRESTON, P.C.
1420 W. Mockingbird Lane
Suite 760
Dallas, Texas 75247
(214) 630-8621
Counsel for Petitioners
International Brotherhood of
Teamsters, Chauffeurs,
Warehousemen and Helpers
of America—aAilirline Division
and Teamsters Local 19
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No.87-1085
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA-AIR-
LINE DIVISION AND TEAMSTERS LOCAL 19,
Plaintiffs-Appellees,
Vv.
SOUTHWEST AIRLINES COMPANY,
Defendant-A ppellant.
June 22, 1989
Appeal from the United States District Court
for the Northern District of Texas
Before CLARK, Chief Judge, GOLDBERG, GEE,
RUBIN, REAVLEY, POLITZ, KING, JOHNSON, WIL-
LIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH and DUHE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This case presents the question whether the union’s ob-
jection to the unilateral imposition of a comprehensive,
mandatory drug testing program constitutes a “major”
dispute under the Railway Labor Act that must be ne-
gotiated with the union before it can be implemented by
Southwest Airlines, or whether the drug testing program
was arguably justified by the existing collective bargain-
ing agreement and hence was a “minor” dispute that
must be arbitrated.
I
A.
Southwest Airlines Co. (“Southwest”) is a common
carrier subject to the Railway Labor Act (“RLA”). The
International Brotherhood of Teamsters (“the Team-
sters”) represents Southwest’s mechanics and related em-
ployees. Article 2, paragraph 4 of the relevant Teamsters
and Southwest collective bargaining agreement provides:
Employees covered by this Agreement shall be gov-
erned by all Company rules, regulations and orders
previously or hereafter issued by proper authorities
of the Company which are not in conflict with the
terms and conditions of this Agreement, and which
have been made available to the employee prior to
becoming effective.
Before 1986, Southwest’s drug and alcohol policy con-
sisted mainly of Rule G, a rule of many years’ standing
that had been unilaterally promulgated. Its provisions
defined “serious, unacceptable conduct” and included the
following:
4. Reporting for or carrying on work while showing
any signs of the use of intoxicants or knowingly
permitting another employee to do so is strictly
prohibited.
5. Possession of or drinking of any intoxicant or ille-
gal possession or use of illegal dangerous drugs on
Company premises or while in uniform and/or ha-
bitual use of intoxicants or use of illegal or danger-
ous drugs on or off duty will not be tolerated.
Rule G had no significant history of enforcement; nor
did Southwest have a known problem with employee use
of alcohol or drugs. Nevertheless, Southwest decided to
expand its drug policy. Specifically, it decided to imple-
ment a drug and alcohol testing program. The program
ee a Og aoe
3a
is comprehensive and detailed. It prohibits detectable
levels of illegal drugs, defined blood alcohol levels, and
any level of medication that could impair performance,
as well as any possession of illegal drugs. To enforce
these prohibitions, the program mandates pre-employment
urine drug screening, and urine drug screening of em-
ployees after accidents or if management has a reasonable
suspicion of drug or alcohol use. The program establishes
detailed testing procedures, and prescribes punishment,
including discharge, for violations of the policy.
On October 16, 1986, Southwest informed the Team-
sters of its intention to implement the program. The
Teamsters then sought to bargain over the terms of the
program. Southwest was willing to discuss the program,
but refused to negotiate with the Teamsters over it. Other
unions did participate in discussions with Southwest, and
these discussions affected ihe shape of the program.
B.
In December 1986, the Teamsters filed this action, seek-
ing to enjoin Southwest’s unilateral imposition of the
program. In January 1987, the district court granted a
preliminary injunction. The district court reasoned that
the implementation of the program was not arguably
justifi.a under the terms of the collective bargaining
agreement and that, therefore, the dispute was “major”
and thus subject to bargaining before implementation.
In the alternative, the district court held that even if the
dispute were “minor,” a preliminary injunction was war-
ranted by the likelihood of irreparable harm to employees
if the program were enforced before the union’s objections
to the program could be arbitrated.
Southwest appealed the preliminary injunction and it
was affirmed. 842 F.2d 794. The panel concluded that
the program was a mandatory subject of bargaining
under the RLA that had not been clearly and unmistak-
ably waived by the Teamsters in the management rights
4a
clause of the agreement. Next, the panel agreed with the
district court that the dispute was “major” because it
was not arguably justified by the management rights
clause, Rule G, or past practices of the parties. As a
major dispute, the matter was subject to bargaining and
could not be unilaterally imposed by Southwest.
Sitting en banc, we disagree that the dispute is major;
we thus reverse the district court and dissolve the
injunction.
C.
We first note that this case continues to present a
justiciable controversy. Although the agreement pre-
cipitating the suit has since terminated and a new one
has been negotiated, the parties did not bargain about
or agree upon a resolution to this dispute. The relevant
terms of the new agreement track those of the old. Fur-
thermcre, Southwest adheres to its position that it is
entitled to implement unilaterally its drug testing pro-
gram, and has expressed its intention to do so should
this court vacate the injunction. The union continues to
object to the unilateral imposition of the program. The
injunction has not expired of its own force.
Therefore, in deciding whether the injunction should
stand, we need not avoid the merits of the suit by finding
it moot. A case is not moot so long as “the prospect of
repetition may affect continuing relationships in clear
and tangible ways.” C. Wright, A. Miller, and E. Cooper,
138A Federal Practice and Procedure, § 3553.3 (2d ed.
1984). Labor litigation, which presents both the problem
of lapsed contracts and settled suits, has frequently re-
_ quired courts to determine whether such “clear and tangi-
ble” influence continues despite changes in the relation
between the parties. In order to deal with this problem,
there has arisen “a doctrine, apparently peculiar to labor
questions, that governs the determination of mootness
when parties agree on a new contract during the pend-
ency of the suit.” Division 580 v. Central New York
5a
RTA, 578 F.2d 29, 32 (2d Cir.1978). The special treat-
ment due labor questions has been recognized several
times by the Supreme Court. See, e.g., Jacksonville Bulk
Terminals, Inc. v. International Longshoremews Ass’n,
457 U.S. 702, 704 n. 1, 102 S.Ct. 2672, 2776, n. 1, 73
L.Ed.2d 327 (1982); Buffalo Forge Co. v. United Steel-
workers of America, 428 U.S. 397, 403 n. 8, 96 S.Ct.
3141, 3146 n. 8, 49 L.Ed.2d 1022 (1976); Super Tire
Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694,
40 L.Ed.2d 1 (1974). In Jacksonville Bulk Terminals,
the Court adjudicated a dispute arising out of a work
stoppage. The stoppage had been voluntarily abandoned
six months before the Court heard argument, but the
Court held the case justiciable nonetheless. It commented,
“(T]here remains a live controversy over whether the
collective-bargaining agreement prohibits politically mo-
tivated work stoppages, and the Union may resume such
a work stoppage at any time. As a result, this case is
not moot.” 457 U.S. at 704 n. 1, 102 S.Ct. at 2676 n. 1.
Similarly, the Court found a live controversy in Buffalo
Forge despite the fact that the collective bargaining agree-
ments in effect when the action arose had expired, where
the parties stipulated that those agreements governed
the resolution of that dispute. 428 U.S. at 403, n. 8, 96
S.Ct. at 3146 n. 8. In the same way, the parties here,
in effect, simply declined to settle this action when they
negotiated a new agreement without resolving this dis-
pute. Thus, our case is no less justiciable than Buffalo
Forge or Jacksonville Bulk Terminals.
II
A.
The premise of the Teamsters’ request for an injunc-
tion begins with Southwest’s duty to bargain with the
union before imposing terms of employment, including
rates of pay, rules, and working conditions. 45 U.S.C.
§ 152. First, Second. Once bargaining has resulted in
6a
an agreement, however, not all disputes over changes in
the terms of employment are subject to a continuing duty
to negotiate. Rather, the RLA distinguishes the proce-
dures for resolution of two different types of disputes that
arise under a collective bargaining arrangement, which
have come to be known as major and minor disputes. See
Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 722-28,
65 S.Ct. 1282, 1289-92, 89 L.Ed. 1886 (1945). “Major”
and “minor” do not necessarily refer to important and
unimportant disputes, or significant and insignificant
issues; rather, the terms refer to the bargaining context
in which a dispute arises. Major disputes involve pro-
posals for new agreements or for changes in existing
agreements. Jd at 723, 65 S.Ct. at 1289. Minor disputes,
on the other hand, involve grievances over the application
of an existing agreement. Jd. This distinction matters
because the RLA prescribes differing courses for the reso-
lution of these two types of disputes. Major disputes go
first to mediation: if not resolved, the parties may agree
voluntarily to arbitrate, or the President may intervene,
45 U.S.C. § 155, First, § 160. During these steps parties
must abide by the existing agreement; only if these steps
fail may the parties resort to strikes or other self-help
or, in the case of management, unilateral action. Bur-
lington Northern R.R. Co. v. Brotherhood of Maintenance
of Way Employees, 481 U.S. 429, 107 S.Ct. 1841, 1851,
95 L.Ed. 2d 381; 45 U.S.C. §§ 155, 156, 160. Until these
preliminary steps are exhausted, unilateral action can be
enjoined. International Association of Machinists v. Fron-
tier Airlines, Inc., 664 F.2d 538, 540-41 (5th Cir.1981).
Minor disputes are treated differently. If the parties
do not agree on the interpretation or application of an
agreement, the dispute is submitted to arbitration before
an adjustment board. 45 U.S.C. § 153. Unlike its policy
governing major disputes, the RLA does not prohibit
unilateral action based on a party’s own interpretation of
the agreement pending exhaustion of arbitration; only in
a narrow set of cases may unilateral action be enjoined
Ta
during resolution of a minor dispute. Frontier Airlines,
664 F.2d at 541. Thus, the propriety of the injunction
imposed by the district court turns on whether the dis-
pute over Southwest’s right under the agreement to im-
plement the drug testing program unilaterally is a major
or a minor dispute.
Case law has refined the test for whether a dispute is
minor. Under Fifth Circuit precedent, a dispute is minor
if the existing collective bargaining agreement affords
some arguable basis for the underlying action. REA Ex-
press, Inc. v. Brotherhood of Railway, Airline and Steam-
ship Clerks, 459 F.2d 226, 231 (5th Cir. 1972) (quoting
United Industrial Workers v. Board of Trustees, 351 F.2d
183, 188 (5th Cir.1965)). REA Express involved a claim
by management that an agreement provided a procedure
for altering truck runs. 459 F.2d at 230. According to
the court, “(t]he key word in this test is ‘arguable.’ If
the court finds an arguable basis it must defer to the
expertise of the Adjustment Board.” Jd. at 231. In a
similar, earlier case, where a railroad based its right to
abolish yardmaster positions on a clause (Rule 16(e))
providing that the agreement “shall not be construed as
. . restricting the Company’s right to discontinue yard-
master positions,” this circuit reversed a lower court de-
cision that the dispute was major. St. Louis, Santa Fe
and Topeka Ry. Co. v. Railroad Yardmasters of America,
328 F.2d 749, 751, 754 (5th Cir.1964).
Unless we are to ignore completely the language of
Rule 16(e) which on its face, according to the ordi-
nary understanding of the English language does au-
thorize the abolition of yardmaster positions, we are
at a loss to understand how it could be decided that
the rights of the union can be determined without a
construction of the employment contract or agree-
ment. We do not, of course, .. . attempt to construe
the contract. This is to be done by the appropriate
8a
tribunal. We do say that a defense based upon the
language of Rule 16(e) raises a substantial issue as
to the interpretation of the contract. It is not a
fictitious or merely colorable issue. Before a tribunal
ean decide that the terminations at issue were not
justified, it must construe the language of Rule 16
(e).
Id. at 753.
Other cases have also applied this test to disputes over
management’s right under an agreement to take certain
actions. See, e.g., Railway Express Agency, Inc. v. Broth-
erhood of Railway, Airline and Steamship Clerks, 437
F.2d 388 (5th Cir. 1971). In Railway Express Agency,
the Court described a dispute over a change in work
assignment as follows:
The dispute in reality is over the breadth of manage-
ment’s prerogative .... [T]here is no express provi-
sion allowing management to transfer the work uni-
laterally. However, the agreement does expressly
reserve “the right of management to determine
methods of operation and the utilization of the work-
ing forces. . . .” Moreover, there is an undisputed
history of such unilateral transfers of work with no
apparent objection from the union. It may be con-
cluded ... that this state of facts gave REA at least
the arguable right to make the transfer. .. . Whether
it actually has such a right must be determined by
the Special Adjustment Board.
Id. at 392. In reaching this conclusion, the court in Rail-
way Express Agency, id. at 393-94, relied heavily on
Rutland Ry. Corp. v. Brotherhood of Locomotive Engi-
neers, 307 F.2d 21 (2d Cir.1962). In Rutland, the Second
Circuit was faced with the question.
whether the railroad has the unilateral right to
make... changes [in train schedules] without nego-
tiating about them with the brotherhoods.
9a
Whether it be a major or a minor dispute, the
disagreement is a dispute over the scope of the
railroad’s managerial prerogative. It is a major
dispute if the present agreements between the rail-
road and the brotherhoods contain express provisions
contrary to the position taken by the railroad or if
the clear implication of these agreements is inconsist-
ent with the railroad’s proposals. It is a minor dis-
pute if there is a clearly governing provision in
the present agreements, although its precise require-
ments are ambiguous; and it is also minor if what
the railroad seeks to do is supported by customary
and ordinary interpretations of the language of the
agreements.
307 F.2d at 33-34 (citations omitted). The court there
went on to hold that the dispute was minor even though
no provision in the agreement explicitly granted the
railroad the right to make the challenged changes uni-
laterally. Jd. at 35-36 (citing cases where courts faced
with similar disagreements classified the disputes as
minor).
These cases clearly establish the rule that if the man-
agement’s underlying action is arguably justified by the
collective bargaining agreement, the dispute is minor.
Railway Express, 459 F.2d at 231. In other words, if
management’s construction of the collective bargaining
agreement and its unilateral action pursuant thereto cre-
ate an issue that is not fictitious or merely colorable, then
the issue should be resolved by the appropriate arbitration
board. St. Louis, S.F. & T. Ry., 328 F.2d at 753.
B.
(1)
Although the district court recited and applied this
standard, we cannot accept its conclusion that this clause
did not even arguably justify the program. On its face,
10a
this clause at least arguably grants management the right
to enforce its policy by unilaterally promulgating rules,
regulations, and orders such as this drug testing pro-
gram. The clause provides:
Employees covered by this Agreement shall be gov-
erned by all Company rules, regulations and orders
previously or hereafter issued by proper authorities
of the Company which are not in conflict with the
terms and conditions of this Agreement, and which
have been made available to the employee prior to
becoming effective.
In harmony with its provisions, the following facts
cannot be denied: (1) the program consists of rules,
regulations and orders within the meaning of this clause;
(2) the program was issued by the proper authorities
of the company; (3) no term or condition of the collective
bargaining agreement conflicts with the program; (4) the
program was made available to employees prior to becom-
ing effective. Thus, Southwest seems to have complied
fully with all conditions of the management rights clause
to which the union had agreed. As a result, it is arguable
that the program is a proper exercise of management’s
rights. The merits of the interpretation of the agreement
are clearly for the arbitrator to decide.
The panel opinion nevertheless states that this clause
“does not speak at all to the right to bargain over rules,
only the willingness to abide by rules validly enacted.”
Although this may ultimately be the correct interpreta-
tion of the clause, we decline to say that the plausibility
of such interpretatiaon bars the contrary yiew that the
clause binds employees to any and all rules that do not
conflict with the agreement and that are promulgated
by management with advance notice. Since the outcome
thus turns on a choice between two arguable constructions,
the dispute is minor, and must be submitted to arbi-
tration.
lla
This conclusion is further supported by the history
of rule-making under the agreement. Southwest unilat-
erally promulgated Rule G, a rule establishing a drug
and alcohol policy. Although Rule G has not required sig-
nificant enforcement, its existence demonstrates a history
under the agreement of unilaterally promulgating rules
supporting a drug and alcohol policy. Thus, although the
drug testing program is more extensive than Rule G, the
unquestioned validity of Rule G, when considered in tan-
dem with the management rights clause, indicates that
the new program is arguably justified by the collective
bargaining agreement.
(2)
The Teamsters argue further, however, that South-
west’s unilateral implementation of the program will in-
fringe on the union’s statutory right to bargain. The
panel held, and we agree, that the program effects a
change in rules and working conditions and therefore is
a mandatory subject of bargaining. Of course, the same
is true of any new rule or order promulgated under the
management rights clause that affects working condi-
tions, however insignificant such rule might be. The
panel also held, however, that Southwest had to bargain
over the program because the management rights clause
does not constitute a waiver of the union’s right to bar-
gain about rules, regulations, and orders such as the
drug testing program.
In general, the contractual waiver of a statutory right
under federal labor law must be clear and unmistakably
expressed. Metrepolitan Edison Co. v. N.L.R.B., 460 U.S.
693, 707-708, 103 S.Ct. 1467, 1476-77, 75 L.Ed.2d 387
(19883). Metropolitan Edison concerned a_ no-strike
clause, but this general rule of construction has been ap-
plied to questions of waiver of the duty to bargain. See,
e.g., NL Industries, Inc. v. NLRB, 536 F.2d 786, 788-89
(8th Cir.1976); Pepsi-Cola Distributing Co., 241
N.L.R.B. 869 (1979); Ador Corp., 15 N.L.R.B. 1658
12a
(1965) ; General Motors Corp., 149 NLR.B. 396, 399-400
(1964). All of these cases, however, arose under the Na-
tional Labor Relations Act (“NLRA”). We are not cer-
tain that this rule of construction applies identically to
the RLA. The rule operates to protect rights defined
by statute. Thus, we turn to the RLA to examine the
nature of the bargaining right at issue here. The RLA,
like the NLRA, does create a duty to bargain. Unlike
the NLRA, however, the RLA distinguishes minor from
major disputes and thereby defines within the statute
the specific procedures governing the right to bargain, in-
cluding the proper forum for resolving disputes over the
extent of that right under an existing agreement. Thus,
the statutory right to bargain created by the RLA, unlike
that of the NLRA, is limited by the RLA’s precise regu-
lation of procedures for dispute resolution. We note, fur-
thermore, that none of this circuit’s cases involving con-
tractual claims to management rights (see discussion
above), discusses the issue in terms of a “clear and un-
mistakable waiver.” In fact, there appears to be a ten-
sion between deciding on the one hand whether a manage-
ment rights clause arguably permits management to take
some action, and deciding on the other hand whether such
a clause clearly and unmistakably waives the right to
bargain. Given the difference between the statutes, and
given our prior cases, we find it to be a debatable matter
of law whether, or to what extent, the rule of construc-
tion requiring that a waiver of bargaining rights under
the NLRA be clear and unmistakable applies in a case
arising under the RLA.
We find, however, that we are not squarely presented
at this time with the question of how the “clear and un-
mistakable” rule applies to RLA cases. Even assuming,
as the panel opinion assumes, that the management rights
clause can give Southwest the right unilaterally to imple-
ment the program only if the clause is a clear and un-
mistakable waiver, the construction proposed by South-
13a
west satisfies the minimal burden of arguably being a
clear and unmistakable waiver. As noted above, the
clause on its face binds employees, for the period of the
agreement, to all rules, regulations, and orders that are
issued by proper authorities, are not in conflict with other
terms of the agreement, and are published in advance.
Since there is no dispute that these conditions have been
satisfied here, it seems clear that the drug testing pro-
gram is a rule or regulation that falls within the terms
of the management rights clause. Thus, there is an obvi-
ous argument that this clause constitutes a clear waiver
of the union’s right to bargain over all rules, including
the new drug rules. We reiterate, of course, that we are
not actually deciding the applicability or scope of this
clause. We decide only that the arbitration board is the
forum authorized to construe the clause.
Ill
The district court held in the alternative that, even if
the dispute is minor, an injunction is nevertheless war-
ranted because of the potential harm of an improperly
implemented drug testing program. We review this al-
ternative holding under a deferential standard, and re-
verse only for abuse of discretion. Frontier Airlines, 664
F.2d at 542. We also note, however, that the proper
grounds for granting an injunction against action that
is the subject matter of a minor dispute under the RLA
are extremely narrow. Jd. at 541-42. Such injunctions
may issue only where necesary to preserve the jurisdic-
tion of the grievance procedure, or where a disruption
of the status quo would result in irreparable injury of
such magnitude that it would render any subsequent de-
cision meaningless. Jd. at 542. The district court found
that irreparable harm to an employee’s reputation could
result, for example, from disciplinary actions taken
against that employee or from an employee’s refusing
to be tested under the program. Since many employment
disputes involving discharge implicate the reputation of
l4a
an employee, we do not believe that this speculative pos-
sibility of irreparable harm is of the magnitude required
to support an injunction in the context of a minor dis-
pute. Accordingly, we hold that it was an abuse of dis-
cretion to issue an injunction on the facts of this case.
IV
The drug testing program implemented by Southwest
is arguably justified by the management rights clause in
the agreement. Thus, this dispute is minor, and the dis-
trict court’s injunction pending the dispute’s resolution
was improper. Accordingly, the injunction is
VACATED.
GOLDBERG, Circuit Judge, with whom POLITZ,
JOHNSON, and JERRE 8S. WILLIAMS, Circuit Judges,
join dissenting:
Old Mother Hubbard
Went to the cupboard,
To fetch her poor dog a bone;
But when she got there
The cupboard was bare,
And so the poor dog had none.
The panel opinion in this case stands in response to
the en banc majority’s decision today. 842 F.2d 794. I
add these dissenting words to emphasize that if the cup-
board is barren, it is only because the majority has de-
cided to empty it. Assuming the hegemony of manage-
ment prerogative, the majority dresses its holding in the
diaphanous garb of a Mother Hubbard Clause.' But the
‘Mother Hubbard is not well-known in the field of labor re-
lations. The term “zipper clause” is more commonly used to de-
scribe the type of management rights clause that the majority
assumes arguably controls this case. See Part IV(A) infra. Mother
Hubbard is widely recognized, however, among oil and gas liti-
gants, see, e.g., Paul Rochester Investment Co. v. United States,
692 F.Supp. 704, 710-11 (N.D.Tex.1988), not to mention children
the world around,
OP ete
ce ee
15a
majority has paid a high price for its chosen garment.
The decision clashes with the law of other circuits, and
leaves the fabrics of both the parties’ contract and the
Railway Labor Act torn and frayed.
This case simply concerns the relative volumes of a
Union’s and employer’s voices under a collective bargain-
ing agreement.2 We have no occasion to address either
the wisdom or propriety of drug testing. The Union is
not opposed to drug testing per se (R. 114). The Union’s
members simply wish to exercise their statutory right to
bargain over the program’s terms, and the Union right-
fully believes that its members’ ideas and interests are
properly expressed in the major dispute process in the
first instance, not weighed in the arbitral scales.*
2 See A. Hirchman, Exit, Voice and Loyalty (1970).
3In this age of the drug scourge, we cannot allow this labor
dispute to be colored by whether employees’ contractual rights should
or may be subordinated to employer or social interests in safety,
efficiency or property. Cf. Skinner v. Railway Labor Executives
Association, U.S. , 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)
(Federal Railway Administration drug testing regulations do not
violate Fourth Amendment).
The Federal Aviation Administration (“FAA”) has issued ex-
tensive drug testing regulations that impose requirements on air
carriers including Southwest, and the regulations appear to extend
only to some of the employees represented by the Union. 53 Fed.
Reg. 47024 (Nov. 21, 1988) (available on LEXIS, Genfed Library,
Fedreg file). Many aspects of these regulations appear to be con-
stitutional. See Skinner v. Railway Labor Executives Association,
— US. , 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).
Under the FAA regulations, Southwest was required to have
submitted a testing plan for approval to the FAA not later than
April 20, 1989. The FAA regulations require an air carrier to
implement preemployment testing of job applicants not later than
10 days after FAA approval of the carrier’s plan. Air carriers are
required to implement the remainder of their plans not later than
180 days after FAA approval. Pursuant to the reculations, FAA
approval makes the plans effective.
The FAA regulations do not sweep as widely as Southwest's
program in certain respects. Thus, if the parties reach the baryain-
l6a -
According to the majority, implementation of the test-
ing program would “effect[] a change in rules and work-
ing conditions.” Thus, this contest is subject to the major
dispute resolution process under the statute‘ unless the
Union has waived its right to bargain over the change.
The majority routes this dispute to the adjustment board,
holding that the Union has arguably waived its members’
bargaining rights.° The majority holds (1) that the con-
ing table, there will be elements of Southwest’s program that may
not be mandated or precluded by federal law. Southwest must
bargain over such elements if the Union has not waived its right
to bargain.
Although it is not difficult to comprehend that critical com-
ponents of the FAA regulations will impose on both parties as a
matter of law what the Union wished to negotiate when it filed this
lawsuit, I analyze the substance of Southwest's program as it has
reached this court in stating my position in this case. Whatever is
nonnegotiable as a result of the FAA regulations would become
apparent if the parties reach the bargaining table.
See also note 31 infra.
*An employer has a statutory duty to bargain in good faith
over proposed changes in working conditions. 45 U.S.C. §§ 152, 155,
156. Proposals to change or unilateral attempts to change rates of
pay, rules or working conditions are subject to the major dispute
process. 45 U.S.C. §§ 155, 156, 160; Elgin J. & E. Railway Co. v.
Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886
(1945); Order of Railroad Telegraphers v. Chicago & Nw. Ry.,
362 U.S. 330, 80 S.Ct. 761, 766, 4 L.Ed.2d 774 (1960); United In-
dustrial Workers v. Board of Trustees, 351 F.2d 183, 189-91 (5th
Cir.1965); Brotherhood of Locomotive Engineers v. Burlington
Northern, 838 F.2d 1087, 1093 (9th Cir.1988), cert. pending, 57
U.S.L.W. 3017 (July 19, 1988); see First National Maintenance v.
NLRB, 452 U.S. 666, 101 S.Ct. 2573, 2585 n. 23, 69 L.Ed.2d 318
(1981). See also infra Part IV.
5 Although the majority does not hold that a union may waive
its members’ privacy rights, the majority's cavalier treatment of a
management rights clause in this delicate area is s disturbing. There
are limitations on a union’s ability to bargain away employee rights.
See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94
S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974) (“an employee’s rights
under Title VII are not susceptible of prospective waiver”) (cita-
@*O Bt
17a
tract is materially silent,* which allows the management
rights clause to play a role in this case; and (2) that the
management rights clause is arguably a global zipper
tion omitted). There may be similar limitations on a union's at-
tempt to bargain away privacy rights guaranteed by state and fed-
eral common law statutes and constitutional provisions applying to
the conduct of non-state actors. See Lingle v. Norge Division of
Magic Chef, Inc.. —— U.S. ——, 108 S.Ct. 1877, 1883 n. 9, 100
L.Ed.2d 410 (1988) (“Whether a union may waive its members’
individual, nonpre-empted state law rights is ... [an] issue we
need not resolve today”) (emphasis in original); see also P. Levy,
State Regulation of Drug Testing: Are Organized Workplaces Ex-
empt?, 1988 U.Chi.Legal F. 141; but see Utility Workers v. South-
ern California Edison, 852 F.2d 1083, 1086 (9th Cir.1988) (“Reso-
lution of the issue whether [the union] has bargained away its
members’ claimed [privacy rights under the California Consti-
tution] must rest upon interpretation of the collective bargaining
agreement [and the claims are therefore preempted under 29 U.S.C.
§ 185(a)] (1982)"), cert. denied, U.S. , 109 S.Ct. 1530,
103 L.Ed.2d 835 (1989); Jackson v. Liquid Carbonic Corp., 863
F.2d 111, 119 (1st Cir.1988) (“the underlying issues raised by
[appellant’s}] privacy claims . . . depend to a great extent upon the
concessions the unions made regarding working conditions during
collective bargaining”). Whiie I do not agree with the language
concerning waiver in either Utility Workers or Jackson, the cases
demonstrate that employees in some jurisdictions may have little
to rely on in the area of drug and alcohol policy enforcement apart
from the bargain their union has struck for them.
The majority routes this dispute to the arbitral forum. If the
arbitral forum concludes that Southwest must baryain over the
terms of the programs, then there may be limitations on the Union’s
ability to bargain away employee privacy rights. There may be
limitations in any case, apart from federal labor law, on Southwest's
ability to impose certain terms of the testing program on the em-
ployees. But see Federal Aviation Administration Drug Testing
Regulations, 53 Fed. Reg. 47024 (Nov. 21, 1988); Skinner, ——
U.S. , 109 S.Ct. 1402.
* The majority states that “the following fact[] cannot be denied:
. ho term or condition of the collective bargaining agreement
conflicts wiith the [testing] program” (emphasis added). I assume
arguendo in Part 1V below that the testing program at least
arguably conflicts with existing contractual terms.
18a
clause cutting solely in Southwest’s favor. Under both
the Railway Labor Act and the facts of this case, the
majority’s holding is sweeping and unjustified, but at
Jeast one point must be clear: the majority does not hold
simply that the Union has arguably waived its right to
bargain over the terms of a drug testing program, which
would be disturbing enough; the majority holds that the
Union has arguably waived its right to bargain over any
change in working conditions when the contract is silent.
My opinion is divided into five parts. In Part I, I
briefly describe the facts. Part II addresses why this case
is not moot, and why abstention would not be prudent. In
Part 1II, I outline the none-too-simplistic statutory scheme
controlling our inquiry.
Part IV addresses the majority’s ratio decidendi: that
the bargaining agreement’s management rights clause is
arguably a zipper clause by which the Union has argu-
ably waived its members’ bargaining rights. The major-
ity’s ratio decidendi stems from a cavalier treatment of
deeply-embedded waiver principles. Absolutely nothing
in the record below, apart from the language of the man-
agement rights clause itself, suggests waiver, arguable
or otherwise. No less important, the majority’s result
is inconsistent with both the statutory scheme and case
authority.
Finally, in Part V, I demonstrate that the majority
should not even reach its ratio decidendi because the man-
agement rights clause should play no role in this case.
The clause does not apply by its own terms, whatever it
means, if a unilaterally attempted or proposed change in
working conditions would conflict with existing terms of
the bargaining agreement. An industry work rule, Rule
G, contains the parties’ contemplated drug and alcohol
policy under the contract. Visual observation’ is the par-
7 The phrase “visual observation” describes relatively nonintrusive
supervisorial and co-worker observation of employee behavior to
19a
ties’ contemplated method of Rule G enforcement under
the contract. The testing program contains both a re-
vised policy ® and a radically different method of policy
enforcement: blood alcohol testing and urinalysis.
Nothing in the record suggests that the Union has
acquiesced in the extremely intrusive method of policy
enforcement constituted by blood alcohol testing and uri-
nalysis.* Blood alcohol testing and urinalysis, if imple-
mented unilaterally, would conflict with, and utterly vio-
late, contractually protected rights of the Union’s mem-
bers that were created, and are protected, by the con-
tract’s existing, relatively nonintrusive enforcement
methodology of visual observation. Three other circuits,
like the now-vacated panel opinion, 842 F.2d 794, have
decided the issue of methodological difference at the
determine whether the employee may reasonably be suspected of
being impaired or intoxicated, or whether the employee demon-
strates signs of habitual drug or alcohol use.
Trained supervision “can detect those who chronically abuse any
type of drug and who are impaired at work.” Taylor v. O’Grady,
669 F.Supp. 1422 (N.D.II1.1987). Thus, proper instruction of work-
ers and supervisors concerning the signs of impairment and chronic
drug use can be an effective method of identifying drug and alcohol
abuse in the workplace to enforce a drug and alcohol policy such
as Rule G; but cf. Skinner, USS. , 109 S.Ct. 1402.
8 Because the program irreconcilably conflicts with the nonintru-
sive methcdology of visual observation, which should itself send
this contest to the major dispute process, I do not reach the issue
of conflict between the policy contained in Rule G and the revised
policy contained in the testing program.
®TIf drug and alcohol policies and enforcement methodologies are
fungible, it would seem that implementation of the testing program
would at most arguably give rise to a change in working conditions
under the statute. Because my position is responsive, I assume
arguendo that it is possible to hold simultaneously that (i) the
methodologies do not conflict; and (2) implementation of the test-
ing methodology would constitute a change in working conditions.
20a
threshold as a question of law.*® The majority abdicates
its responsibility to undertake an identical inquiry. Be-
cause the testing program’s methodology conflicts with
existing terms of the collective bargaining agreement,
this dispute does not belong before an adjustment board
under any circumstances.
DISCUSSION
I. Factual Summary
The panel opinion recounts the facts fully. 842 F.2d
at 796-98. This summary outlines the panel’s full expo-
sition.
Southwest Airlines Co. (“Southwest”) is a common
earrier by air subject to the Railway Labor Act. The
International Brotherhood of Teamsters (“Union”) rep-
resents Southwest’s mechanics and related employees.
Southwest advised the Union on October 16, 1986 that
it desired to implement unilaterally a drug and alcohol
testing program “program” or “testing program’). The
Union sought to bargain over the program’s terms. South-
west refused to bargain and unilaterally attempted to
implement the program on January 1, 1987. The Union
immediately sought a preliminary injunction. The dis-
trict granted the injunction on January 9, 1987 (R. 263).
See 842 F.2d at 798. The panel affirmed the district
court on April 21, 1988. Id. at 794.
The terms and conditions of a labor contract include
both express terms and implied terms created by the past
10 Transport Workers Union v. SEPTA, 863 F.2d 1110, 1122-24
(3d Cir.1988) ; Brotherhood of Locomotive Engineers v. Burlington
Northern, 838 F.2d 1087, 1092-93 (9th Cir.1988), cert. pending, 57
U.S.L.W. 3017 (July 19, 1988); Brotherhood of Locomotive Engi-
neers v. Burlington Northern, 838 F.2d 1102, 1105-07 (9th Cir.
1988); Brotherhood of Maintenance of Way Employees v. Burling-
ton Northern, 802 F.2d 1016, 1022-23 (8th Cir.1986) (Arnold, J.,
concurring in part for a unanimous panel).
2la
practices of the parties. See Detroit & Toledo S.L.R. Co.
v. United Transportation Union, 396 U.S. 142, 90 S.Ct.
294, 301, 24 L.Ed.2d 325 (1969). The district court
found that before Southwest attempted to implement the
testing program, Southwest’s drug and alcohol policy was
contained in Rule G, a unilaterally imposed work rule in
which the Union had acquiesced."* Rule G prohibits em-
ployees from “reporting for or carrying on work while
showing any signs of the use of intoxicants or knowingly
permitting another employee to do so” [sic]. Rule G also
prohibits “possession of or drinking any intoxicant or
illegal possession or use of illegal or dangerous drugs on
company premises or while in uniform and/or habitual
use of intoxicants or use of illegal or dangerous drugs
on or off duty.”
Before Southwest attempted to implement the program
unilaterally, Southwest’s sole method of enforcing Rule
G had been visual observation of employee behavior. The
district court also found that there has been no applica-
tion of the enforcement method because there is no his-
tory of problems with drug or alcoho! abuse.
The testing program contains both a revised drug and
aleohol policy and an extremely intrusive means of en-
forcing the revised policy.'’? The revised policy prohibits
employees from working with detectable levels of drugs,
defines a blood alcohol level of .65% as evidencing alcohol
intoxication, and prohibits the use of over-the-counter
and prescription drugs that may impair performance. The
testing program establishes punishment up to and includ-
ing discharge for violations of the policy.
11 Rule G was promulgated many years ago by the Association of
American Railroads. Skinner, U.S. at , 109 §.Ct. at 1407.
12 The terms of the program are outlined in full at 842 F.2d 797-
98. Regulations recently promulgated by the Federal Aviation Ad-
ministration do not immediately bear on this dispute. See note 3
supra and note 31 infra.
22a
The testing program’s intrusive methodology is un-
precedented in the parties’ bargaining history. The pro-
gram requires mandatory urine screens and/or blood
alcohol tests (1) “[a]fter each vehicular equipment and/
or aircraft damage accident unless management waives
the test” (emphasis in original); (2) whenever South-
west has reasonable suspicion that an employee has vio-
lated the program’s policy; and (3) “whenever a pre-
viously non-physicalled [sic] employee successfully inter-
views for a position within the company which requires
a physical examination.” The program also contains test-
ing procedures giving Southwest absolute discretion (1)
to determine the testing laboratories to be used; con-
cerning (2) chain-of-custody safeguards; (3) confiden-
tiality; and (4) concerning use of employee releases.
Southwest has attempted to implement a program uni-
laterally which by its terms provides for urinalysis or
blood alcohol testing of any company employee at South-
west’s discretion “after each vehicular equipment and/or
aircraft damage accident.” The program, then, requires
no suspicion of a particular employee or even group of
employees in such circumstances, and therefore gives
Southwest absolute discretion after any accident to re-
quire any male or female company employee to be sub-
jected to the puncturing of his or her skin in search of
blood, and/or to urinate into a container, which must be
performed in full view of a witness to prevent the sub-
stitution of fraudulent samples.
In addition, the program gives Southwest absolute dis-
cretion to provide for specimen chain of custody proce-
dures and to contract with any outside laboratory.’* Error
13 The quality of a testing laboratory determines the accuracy of
a testing program. Laboratories are not subject to rigorous licens-
ing requirements. Some are professional. Skinner, U.S. at
, 109 S.Ct. at 1409. Some are incompetent. Elaine Shoben,
Test Defamation in the Workplace, 1988 U. Chi. Legal F. 181, 183
nn. 11 and 12 (discussing articles that describe laboratory incom-
petence in equipment use and specimen custody procedures).
23a
in either of these areas of discretion, which is inherent in
the methodology to a certain degree, would have a dra-
matic impact on the employees’ workaday world. Fur-
thermore, while Southwest’s program contains confiden-
tiality provisions, the results of any test are both re-
stricted to and absolutely available to “the Vice Presi-
dent of the respective department and the Review Board.”
Thus, Southwest has unrestricted access to information
having nothing to do with drug or alcohol use that is
contained in blood or urine samples to which the com-
pany, testing only for drug use, may not otherwise be
entitled. Blood and urine samples may disclose the ex-
istence of pregnancy, epilepsy and diabetes, Skinner,
U.S. at , 109 S.Ct. at 1413, and may even disclose
clinical depression. Jd at 1429 (Marshall, J., dissenting).
II. Mootness and Abstention.
I agree with the majority that this case is not moot
even though the parties have bargained a new contract
without resolving their dispute."* My additional discus-
sion also addresses Judge Rubin’s alternative suggestion
that we should abstain from deciding this case, even as-
suming it is not moot, based on his belief that we are
being manipulated in the parties’ bargaining process.
We are not being manipulated by the parties. Private
parties impermissibly attempt to manipulate federal
courts when, for example, they contract to place juris-
diction in a particular court, which would otherwise have
no power to decide a dispute that might arise under the
14 Labor contracts commonly have a fairly short duration. The
contract in this case was in effect from August 16, 1982 to August
16, 1987 (R. 87). Southwest gave notice of its intent to implement
the testing program on October 16, 1986 (R. 186). Southwest
implemented the program on January 1, 1987. Thus, only seven
and one-half months after Southwest’s attempt to implement the
program unilaterally, which the Union challenged immediately, the
bagaining agreement expired.
24a
parties’ contract. In this case, neither party had a
reason to bargain over the testing program after the
district court issued the injunction.
Southwest will bargain only if coerced by a court or
board of adjustment. From the moment this dispute
arose, Southwest has refused to bargain over the testing
program. Southwest still refuses to concede that it has
a statutory duty to bargain over the testing program’s
terms.
More important, the Union’s position results from the
incentive structure created by the district court’s issu-
ance of the injunction. While the parties were still bound
by their original agreement, the district court enjoined
Southwest from implementing the testing program “pend-
ing both appeal and final disposition” (R. 264). No pre-
existing legal rule suggested to the parties that the relief
explicitly granted by the district court would dissipate
before judicial resolution of the labor dispute. Thus,
from the moment the district court issued the injunction,
the Union reasonably could have expected that its mem-
bers would continue to be entitled to equitable relief.
The Union consequently had no incentive to bargain
away other issues in an attempt to bargain over the
program’s terms with Southwest, which absolutely has
refused to bargain anyway. In short, the material in-
centives governing the parties’ behavior offered no reason
for a resolution of this particular dispute through bar-
gaining or any other forum outside of the federal court
proceeding in equity to which the parties were committed.
Labor disputes are not simply private squabbles. They
have a substantial public cast because of pervasive, laby-
rinthine federal regulation. The district court’s predicate
role in this case is an integral part of that public cast.
We therefore should decide this controversy, although I
am quite disturbed by the result.
25a
III. Mother Hubbard’s Kitchen.
Before analyzing this case, one must understand the
distinctive, in some respects puzzling, framework of fed-
eral labor regulation under the Railway Labor Act
(“RLA”). In the 1920s, railroad unions demonstrated
an unparalleled solidarity among American workers be-
fore either the rejuvenation of other AFL unions or the
conception of the CIO."* Concerned with the effect of
strikes on the transportation system, Congress passed
the RLA in 1926, almost a decade before passage of the
National Labor Relations Act, 29 U.S.C. §§ 151 et seq.
(“NLRA”).'® The RLA constituted an innovative step
15 For a recent discussion of the AF'L’s resurgence in the 1930s
and the role of the CIO, see Christopher Tomlins, The State and the
Unions (1987). For a traditional account, see Walter Galenson,
The CIO Challenge to the AFL (1960).
16 The RLA’s remarkable drafting history reflects its unusual
character. “The bill was introduced as the product of negotiations
and conferences between a representative committee of railroad
presidents and a representative committee of railroad labor organ-
ization executives, extending over several months, which were
concluded with the approval of the bill, respectively, by the Asso-
ciation of Railway Executives and by the executives of 20 railroad
labor organizations.” H.R.Rep. No. 328, Committee on Interstate
and Foreign Commerce to the House of Representatives, 69‘h Cong.,
Ist Sess., quoted in Texas & N.O. R. Co. v. Brotherhood of Ry. &
S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 431, 74 L.Ed. 1034 (1930).
See also Elgin, J. & E. Railway Co. v. Burley, 325 U.S. 711, 753
n. 1, 65 S.Ct. 1282, 1803 n. 1, 89 L.Ed. 1886 (Frankfurter, J., dis-
senting) (quoting December 25, 1925 message of President Coo-
lidge: “I am informed that the railroad managers and their em-
ployees have reached a substantial agreement as to what legislation
is necessary to regulate and improve their relationship. Whenever
thev bring forward such proposals, which seems sufficient to pro-
tect the interests of the public, they should be enacted into law’’).
Cf. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537,
55 S.Ct. 837, 846, 79 L.Ed 1570 (1935) (“[Wlould it be seriously
contended that Congress could delegate its legislative authority to
trade or industrial associations or groups so as to empower them
to enact the laws they deem to be wise and beneficient for the
rehabilitation and expansion of their trade or industries?”).
26a
in the history of labor relations, embodying a statutory
policy of strike prevention and quasi-judicial dispute res-
olution almost a half century before the Supreme Court’s
decisions in the Steelworkers trilogy... The RLA was
amended in 1934 to provide for binding arbitration of
certain disputes. See Brotherhood of Railway Trainmen
v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 640,
1 L.Ed.2d 622 (1957). In 1936, Congress extended the
RLA to common carriers by air with the exception of 45
U.S.C. § 153, which provides for a National Railroad Ad-
justment Board, the arbitral forum. 45 U.S.C. § 181.
Common carriers by air are subject to the provisions of
45 U.S.C. § 184, which provides for an arbitration sys-
tem separate from the Railroad Adjustment Board.
A. Major and Minor Disputes. Unions and employers
subject to the RLA primarily encounter two types of
disputes arising from the collective bargaining agree-
ments to which they are parties. In Elgin, J. & E. Rail-
way Co. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282,
1289-90, 89 L.Ed. 1886 (1945), the Supreme Court at-
tached the pregnant labels “major” and “minor” to the
two tvpes of disputes. A major dispute results from a
party’s proposed or unilaterally attempted “change” in
the terms of a collective bargaining agreement “affecting
rates of pay, rules or working conditions.” 45 U.S.C.
§§ 155, 156 (emphasis added); Elqin, J. & E. Railway
Co. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-
90, 89 L.Ed. 1886 (1945). Minor disputes grow out of
“grievances, or out of the interpretation or application
of agreements concerning rates of pay, rules, or work-
ing conditions.” 45 U.S.C. § 184 (emphasis added) : Elgin,
325 U.S. at 723-24, 65 S.Ct. at 1289-90 (“minor disputes,
17 United Steelworkers v. American Manufacturing Co., 363 U.S.
564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v.
Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409
(1960) ; United Steelworkers v. Enterprise Wheel Corp., 363 U.S.
593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). These cases made clear
the federal labor policy favoring arbitration under the NLRA.
0 «eo | a re
27a
. involving grievances . . . represent specific malad-
justments of a detailed or individual quality”); see also
id. at 723 n. 16, 65 S.Ct. at 1290 n. 16 (quoting legis-
lative history emphasizing that minor disputes commonly
concern grievances).
Whether a dispute is major or minor is not necessarily
a result of its importance. A grievance may be quite
important, although the dispute is minor, and a pro-
posed change in the agreement may be relatively trivial,
although the dispute is major. One’s inquiry must always
focus on whether a unilateral act or proposal would
effect a change in rates of pay, rules or working condi-
tions, because such a unilaterally attempted or proposed
change gives rise to a major dispute. See Part IV infra
and note 4 supra.
Major disputes and minor disputes are subject to quite
different dispute resolution processes. Minor disputes are
resolved through binding arbitration by a board of ad-
justment. 45 U.S.C. § 184. Parties may not resort to
economic weapons while a minor dispute is pending be-
fore a board of adjustment. Brotherhood of Railway
Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77
S.Ct. 635, 640, 1 L.Ed.2d 622 (1957)."* Major disputes
18 The RLA “contains ‘no general provision prohibiting a party
from acting unilaterally upon its interpretation of the contract
pending exhaustion of the grievance procedures,’ if indeed the dis-
pute is a ‘minor’ one involving disagreement on the interpretation
of the collective bargaining agreement, as to which strike action
interrupting commerce is precluded by the statutory scheme.” I/n-
ternational Association of Machinists v. Frontier Airlines, 664 F.2d
538, 541 (5th Cir.1981) (quoting Brotherhood of Locomotive Fire-
men and Enginemen v. Southern Pacific Co., 447 F.2d 1127, 1132
(5th Cir.1971) (additional citation omitted). Injunctions may be
appropriate to preserve the status quo pending arbitration under
the RLA in certain limited instances. See note 38 infra; Frontier
Airlines, 664 F.2d at 541.
The Norris-LaGuardia Act, 29 U.S.C. §§$ 101, 104, bars federal
courts from issuing injunctions against unions in labor disputes.
Under the NLRA, the Court has carved narrow exceptions out of
28a
result in a judicially-enforced status quo during which
time the parties are subject to complex bargaining pro-
cedures. 45 U.S.C. §§ 155, 160. These procedures are not
binding, however, and once they are exhausted, the par-
ties may resort to their economic weapons without fear
of a federal court injunction. Burlington Northern v.
Brotherhood of Maintenance of Way Employees, 481 U.S.
429, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987). Thus,
whether a federal court labels a dispute “major” or
“minor” when the parties contest the issue will have
quite important consequences.
Determining whether a dispute deserves the grand
label of “major” or “minor” is sometimes simple but may
be a conceptually frustrating task. An employer’s pro-
posal to cut wages in half, or a union’s proposal to double
wages, of course, would constitute a proposed change
in the rate of pay and would therefore constitute a
major dispute. And most grievances, for example, simply
involve straightforward questions concerning whether a
contract term should apply to an employee’s act for
the Norris-LaGuardia Act. See Boys Markets, Inc. v. Retail Clerks
Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). The
structure of the RLA demands federal court involvement to pre-
serve the status quo in major disputes pending completion of the
mediation process, and in narrow instances pending arbitration.
Thus, the Court has held carefully that the Norris-LaGuardia Act
“does not deprive [a] federal court of jurisdiction to enjoin com-
pliance with various mandates of the Railway Labor Act.” Vir-
ginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57
S.Ct. 592, 81 L.Ed 789 (1937), quoted in Burlington Northern v.
Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 445,
107 S.Ct. 1841, 1851, 95 L.Ed.2d 381, 398 (1987).
1® The March, 1989 strike of Eastern Airlines by the International
Association of Machinists resulted from the exhaustion of proce-
dures in the major dispute process. See, e.g., Daily Labor Report
No. 44 (March 8, 1989) (available on LEXIS, Labor Library,
Diabrt file).
29a
which the employer attempts to impose discipline.” But
other nominally minor disputes may ultimately appear to
be major disputes because a definitive interpretation of
a contract may seem to be substantively indistinguishable
from alteration of the contract. One court has addressed
the conceptual difficulty by stating that the “difference
on the one hand between the interpretation and applica-
tion of an existing agreement, and, on the other hand,
a change in the original intended basis of agreement is
often a question of degree.” Rutland Railway v. BLE,
307 F.2d 21, 33 (2d Cir.1926), cert. denied, 372 U.S.
954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963).
The courts of appeals have articulated substantively
similar standards to decide whether disputes are “major”
or “minor” under the RLA scheme when the parties dis-
agree. Under our circuit’s standard, the dispute we
confront is minor if Southwest’s unilateral act is “ar-
guably justified” by the terms of the parties’ collective
bargaining agreement. Railway Express Agency v.
BRAC, 437 F.2d 388, 392 (5th Cir.), cert. denied, 403
U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971). The
“arguably justified” standard imposes a relatively light
burden on Southwest, but the term “arguable” has con-
tent. As Judge Tuttle has well-articulated, even colorable
2° For example, under a hypothetical collective bargaining agree-
ment, an employer may discipline employees for tardiness. A pro-
viso allows employees to punch their time cards “reasonably late”
once a month without fear of discipline. An employee punches in
thirty minutes late on the last day of the month. The employee
otherwise has been on time all month. The employer attempts to
discipline the employee for tardiness. The union grieves the issue,
and the parties ultimately appear before the adjustment board.
The hypothetical dispute is minor, because it merely involves the
application of the contractual standard to particular facts, and the
outcome will ride on the interpretation of the term “reasonable”
under the agreement. Such interpretation is an arbitral function.
These sorts of disputes arise all the time under collective bargain-
ing agreements, with both the employer’s representative—the union
—and the employer agreeing that the dispute is minor.
30a
contentions are not equivalent to the arguable conten-
tions giving rise to a minor dispute. St. Louis, S.F. & T.
Railway v. Railroad Yardmasters of America, 328 F.2d
749, 753 (5th Cir.), cert. denied, 377 U.S. 980, 84 S.Ct.
1886, 12 L.Ed.2d 748 (1964) .*"
B. Duty to Bargain. Under the Railway Labor Act,
employers and Unions have a duty to bargain in good
faith over “rates of pay, rules and working conditions.”
45 U.S.C. §$ 152, 155, 156; Chicago & Northwestern
Ry. Co. v. United Transportation Union, 402 U.S. 570,
91 S. Ct. 1731, 1735, 29 L.Ed.2d 187 (1971); Order of
Railroad Telegraphers v. Chicago & Nw. Ry., 362 US.
330, 80 S.Ct. 761, 766, 4 L.Ed.2d 774 (1960). A “change
in working conditions governed by the collective agree-
ment . .. [is] by definition . . . a major dispute.”
21 Under 45 U.S.C. §§ 153, 184, boards of adjustment are the
proper fora to interpret the terms of a collective bargaining agree-
ment. But courts, of course, must read a collective bargaining
agreement, consider evidence of past practices, and apply rules of
construction to characterize a contested dispute as major or minor.
At a high level of generality, any conclusion concerning the mean-
ing of language constitutes interpretation. But although a decision-
maker’s analysis implicates interpretive choice at a high level of
generality, the application of constructive rules in determining
whether a dispute is “major” or “minor” does not constitute “inter-
pretation” under the RLA scheme as explained in Elgin, 325 U.S.
711, 65 S.Ct. 1282.
Courts face similar analytical difficulties in myriad contexts.
See, e.g., United Steelworkers of America v. Warrior & Gulf, 363
U.S. 574, 80 S.Ct. 1847, 1853 n. 7, 4 L.Ed.2d 1409 (1960) (in § 301
actions under NLRA, court may not determine substance of arbi-
trable issue, but must make inquiry to determine at threshold
whether dispute is arbitrable). Also, for example, in deciding
whether a state law judgment is based on adequate and independent
state law grounds, the Supreme Court must anaiyze a state court
decision to reach its conclusion, although the distinction between
proper analysis of a state court decision and improper interpreta-
tion of a state court’s reasoning is sometimes difficult to discern.
See, .g., Murdock v. Memphis, 87 U.S. (20 Wall.) 590, 22 L.Ed.
429 (1873).
nar. eee) athens
3la
Brotherhood of Locomotive Evgineers v. Burlington
Northern, 838 F.2d 1087, 1093 ‘9th Cir. 1988) ; Order of
Railroad Telegraphers, 80 S.Ct. at 764-66; United Indus-
trial Workers v. Board of Trustees of Galveston Wharves,
351 F.2d 183 (5th Cir.1965); 45 U.S.C. $$ 155, 156.
Thus, if Southwest’s drug testing program would effect a
change in working conditions, Southwest must bargain
over the content of the program in the major dispute
process, unless the Union has waived its right to bargain.
The majority holds that implementation of the testing
program would “effect! | a change in rules and working
conditions” over which the employer has a duty to bar-
gain. This dispute, then, is a major dispute by definition.
Unless the Union has waived its right to bargain over
the change in working conditions, this contest should be
routed to the major dispute process.
Beth the en banc majority and the panel opinion use
the phrase “mandatory subject of bargaining” to describe
the employer’s duty to bargain over proposed changes in
working conditions. It should be clear from the panel
opinion and the en banc majority opinion that the term
“mandatory” is a shorthand for the duty to bargain over
a unilaterally attempted or proposed change in rates of
pay, rules or working conditions under the RLA. As I
have discussed, the duty to bargain under the RLA at-
taches to a change in rates of pay, rules and working
conditions unless the parties’ agreement properly pro-
vides otherwise. See, e.g., United Industrial Workers, 351
F.2d 183; sze also, e.g., Order of Railway Telegraphers,
80 S.Ct. at 764-67 (employer had duty to bargain about
job preservation issue despite employer’s contention that
decision was not bargainable and was within manage-
ment prerogative) ; First National Maintenance, 101 S.Ct.
at 2585 n. 23 (rejecting application of the duty to bargain
under the RLA to an NLRA dispute, citing Order of
Railroad Telegraphers, 80 S.Ct. 761).
32a
The distinction between mandatory and permissive sub-
jects of bargaining is a concept confined to labor rela-
tions under the NLRA. Under the NLRA, employers have
a duty to bargain only over mandatory subjects of bar-
gaining. See, e.g., First National Maintenance, 101 S.Ct.
at 2580-81 (employer that terminated contract with cus-
tomer had duty to bargain only over effects of its decision
to terminate and not the decision itself). An employer
subject to the NLRA may choose to bargain over permis-
sive subjects of bargaining, but is under no obligation to
do so.
IV. Waiver and the Proper Decisionmaking Forum.
The majority holds that Southwest has a duty to bar-
gain because implementation of the program would “eff-
ect[] a change in rules and working conditions.”” Because
this dispute is major by definition, the majority’s ratio
decidendi is that (1) the Union has arguably made a
clear and unmistakable waiver of its right to bargain
over changes in contractual terms where the contract is
materially silent; (2) the contract is materially silent;
and (3) the board of adjustment should decide whether
the Union has arguably waived its bargaining rights.
Thus raising the term “arguable” to talismanic status,
the majority relentlessly Hubbardizes a clause that on its
face allows mere interstitial rulemaking into an arguable
zipper clause of global scope that cuts only in favor of
Southwest. We may have to look at waiver through per-
manently seratched lenses after today.”
No ambiguity suggests “arguable waiver’ in this case.
The panel was correct in determining the waiver issue as
a question of law. In any event, the determination is re-
served for a federal court, not an adjustment board. In
22 For purposes of my discussion in this section, I assume that
the contract is materially silent, although I demonstrate in Part V
infra that it is not silent and the management rights clause should
play no role in this case.
33a
~~
this major dispute, the majority’s holding concerning
waiver is inconsistent with both the statutory scheme and
controlling case authority.
The majority also states, amidst a cloud of dicta, that
we need not decide whether waiver analysis applies to
RLA cases. As I shall discuss below, waiver analysis is a
generic rule of construction that certainly applies in RLA
cases because there is no alternative except fiat.
We face one controlling question today: whether a fed-
eral court or a board of adjustment in these circumstances
should decide if the Union has clearly and unmistakably
waived its right to bargain. But an answer to the ques-
tion requires a thorough understanding of the role of
waiver in labor contracts because management rights
clauses appear in almost every labor contract subject to
both the RLA and the NLRA.
A. What is a Zipper Clause? Although the majority
uses different phraseology, the majority holds that the
Union has arguably bargained away a zipper clause to
Southwest. The management rights clause in this case
provides that
Employees covered by this Agreement shall be gov-
erened by all Company rules, regulations and orders
previously or hereafter issued by proper authorities
of the Company which are not in conflict with the
terms and conditions of this Agreement... .
Management rights clauses are ubiquitous in labor con-
tracts. A Bureau of National Affairs survey indicates
that approximately 99% of all labor contracts contain
management rights clauses.”
23 Donald P. Rothschild, Leroy S. Merrifield & Harry T. Edwards,
Collective Bargaining and Labor Arbitration 501 (2d Ed.1979)
(“BNA’s survey of 400 out of 5,000 sample contracts kept on file
indicate [sic] that all but 4 contained management (and union)
rights provisions” (citation omitted) ).
34a
In this case, the majority holds that the Union has
arguably waived its right to bargain although nothing in
the parties’ bargaining history suggests that the Union
has waived its rights, and the language of the agreement
states nothing specific concerning a waiver of the right to
bargain. Absolutely nothing in the record below, apart
from the language of the management rights clause itself,
suggests waiver. The majority thus holds that unions
subject to the RLA have arguably waived their statutory
right to bargain in every dispute under the RLA involv-
ing a boilerplate management rights clause like this one
when the contract is arguably silent in material respects.
The majority’s holding will sweep widely.**
Management rights clauses most commonly allow inter-
stitial rulemaking. Unions are not interested in bargain-
ing over day-to-day management decisions that do not
change the conditions of employment in the bargaining
unit. But in some cases, management rights clauses may
also allow unilateral changes in working conditions by
management during the life of the contract when the
language of the clause or the parties’ bargaining history
demonstrates that the union has ceded the right to the
employer. In the labor arena, these clauses are often
termed “zipper clauses.”
A zipper clause receives its name from the image of the
self-contained bargain, where the contract contains every-
thing the parties could possibly bargain over in the
world, where nothing lies outside the scope of the con-
tract, where neither contractual vacuum nor silence ex-
24The majority’s treatment of waiver is particularly disturbing
because of the uncertain privacy rights of employees subject to
collective bargaining agreements, particularly in the area of drug
testing. See Jackson, 863 F.2d at 119; Utility Workers, 852 F.2d
at 1086; see note 5 supra; but see Federal Aviation Administration
drug testing regulations, 50 Fed.eg. 47024 (Nov. 21, 1988);
Skinner, U.S. , 109 S.Ct. 1402; note 3 supra.
85a
ists. The zipper clause contains all of the content of the
parties’ bargain that is not otherwise expressed or im-
plied by past practice.
One may interpret a zipper clause in two ways. First,
and most logically, a zipper clause may mean that neither
party to the agreement may change rates of pay, rules or
working conditions during the life of the agreement, un-
less the contract contains a specific reopener clause or re-
opener clauses. because express and implied terms solely
guide the parties’ conduct. See United Automobile Work-
ers v. NLRB, 765 F.2d 175, 180 (D.C.Cir.1985) (Ed-
wards, J.). More commonly zipper clauses are interpreted
to allow management to act unilaterally to change the con-
ditions of employment. If the management rights clause
in this case is a zipper clause, it would carry the latter
meaning because it speaks in terms of discretionary man-
agement rule-making.
B. The Rule of Construction. Deciding whether a
Union has clearly and unmistakably waived its statutory
bargaining rights in the form of a zipper clause involves
the application of a straightforward rule of construction
in contract analysis. The majority, for no substantive
reason, decides that the rule of construction may not ap-
ply under the RLA: “the difference between the [NLRA
and RLA] creates a “debatable matter of law” concern-
ing whether waiver analysis even “implies in a case aris-
ing under the RLA.”’
The majority does not and could not reject waiver anal-
ysis as a rule of construction under the RLA. Waiver is
a generic concept. and its evidentiary predicates have deep
roots in the law. “A waiver is a voluntary and intentional
relinquishment of a known right or conduct that war-
rants an inference of such a relinquishment.” FDIC v.
Condit, 861 F.2d 853, 857 (5th Cir.1988) (citations
omitted) ; see, e.g., St. Louis Electric Light & Power Co.
». Edison Genera! Electric, 64 F. 997, 1001 (Circuit Court,
36a
E.D.Mo. 1894) (“It is elementary law that, to constitute
a waiver, the party upon whom it operates must have full
knowledge of all the essential or material facts ... and
the party relying upon such waiver assumes the burden
of proof as to the knowledge of the party making the
waiver”); see also, e.g., Cordova v. Hood, 84 U.S. (17
Wall.) 1, 21 L.Ed. 587, 589 (1873) (‘Waiver is a thing
of intention as well as of action’’).
In the labor context, voluntary relinquishment of the
statutory right to bargain exists either in a contract’s
specific language or where the parties’ bargaining history
suggests that the parties discussed the subject and the
Union “consciously yielded” its right to bargain over a
proposed change in working conditions. NL Industries,
Inc., 220 N.L.R.B. 41, 43-44 (1975), enforced, 536 F.2d
786 (8th Cir. 1976). A union’s waiver must be clear and
unmistakable. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387
(1983) ; see also Lingle v. Norge Division of Magic Chef,
— U.S. ——, 108 S.Ct. 1877, 1883 n. 9, 100 L.Ed.2d 410
(1988). In a sense, the phrase “clear and unmistakable”
is superfluous because a waiver in any context must be un-
ambiguously evidenced. The terms “clear and unmistak-
able’ merely make emphatic the inherently strict re-
quirements predicating any conclusion that a party has
waived its rights.
Whether the decisionmaker is a federal court or an ar-
bitral forum, someone has to decide if a union has bar-
gained away, in the form of a zipper clause, its statutory
right to bargain over proposed changes in working condi-
tions where the contract is materially silent. Implicitly
recognizing this in its holding, the majority does not offer
an alternative to waiver analysis because no alternative
exists. Major disputes arise from unilaterally attempted
or proposed changes in working conditions. If a union has
bargained away its statutory right to bargain over
changes in working conditions, no major disputes may
37a
arise during the life of the contract concerning an em-
ployer’s unilateral changes in working conditions when
the contract is materially silent. Without waiver analysis
as a rule of construction, one is left with fiat.
Even if it were possible that a coherent alternative to
waiver analysis existed, there would be no reason to treat
the RLA and NLRA differently in deciding whether the
Union has bargained away a zipper clause. It is true that
NLRA principles do not apply uniformly to RLA disputes
because the statutory schemes are different. First Na-
tional Maintenance, 101 S.Ct. at 2585 n. 23. But the ma-
jority’s flow of words points to no material distinction
between the Acts that suggests the statutory right to bar-
gain under the RLA is any more subject to waiver than
the right to bargain under the NLRA.
The majority notes only general distinctions in the
Acts that make no difference in this context. In fact, at
least three RLA policies mandate the use of waiver
analysis. First, both the content of and the animating
spirits behind the two magna cartas of federal labor pol-
icy insure the right to bargain. 45 U.S.C. § 152, First;
28 U.S.C. § 158. Second, the statutory duty to bargain
is at least as broad under the RLA as it is under the
NLRA. See, e.g., First National Maintenance, 101 S.Ct.
at 2585, n. 23; see Rockwood & Co., 285 N.L.R.B. No. 138
(1987) (National Labor Relations Board held a drug
and alcohol testing program a mandatory subject of bar-
gaining under NLRA; opinion of Administrative Law
Judge, adopted by Board, rejected employer’s argument
that Union had waived its right to bargain). And finally,
although both statutes were passed to insure industrial
peace, only the RLA, not the NLRA, contains a statutory
“no-strike” policy. Texas & N.O. R. Co. v. Brotherhood
of Ry. & S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 432, 74
L.Ed. 1034 (1930) (“the major purpose of Congress in
passing the Railway Labor Act was ‘to provide a ma-
chinery to prevent strikes’”); Buffalo Forge v. Steel-
88a
workers, 428 U.S. 397, 96 S.Ct. 3141, 3148, 49 L.Ed.2d
1022 (1976) (“‘[T]here is no general federal anti-strike
policy [under the NLRA]’” (quoting Sinclair Refining
Co. v. Atkinson, 370 U.S. 195, 25, 82 S.Ct. 1828, 1344, 8
L.Ed.2d 440 (Brennan, J., dissenting))). Yet the RLA
carefully preserves a party’s ultimate access to its strike
rights in major disputes. 45 U.S.C. §§ 155, 156, 160;
Elgin, 325 U.S. at 723-24, 65 S.Ct. at 1289-90. Thus, we
should be particularly wary in RLA cases of claims that
a union has waived its already limited access to economic
weapons.
C. The Panel Properly Decided the Waiver Issue.
Waiver analysis must apply to RLA disputes. The ma-
jority’s ratio decidendi appears in its holding that “we
are not squarely presented at this time with the question
of how the ‘clear and unmistakable’ rule applies to RLA
cases [because even assuming it does]... the construction
lof the management rights clause] proposed by South-
west satisfies the minimal burden of arguably being a
clear and unmistakable waiver” of the Union’s right to
bargain.” According to the majority’s reasoning, the
Union’s “arguable waiver” transforms a dispute that is
by definition major into a so-called minor dispute appro-
priate for the arbitral forum.
The majority’s holding is disturbing because it treats
only casually the uncertain privacy rights of employees
in an area of law riddled with waiver and preemption
difficulties.2° Moreover, the majority’s holding fails to
make explicit the severe consequences of sending this
otherwise major dispute to the arbitral forum. The ma-
257 reiterate that the management rights clause, whatever it
means, only plays a role in this case if the contract is at least
arguably silent in material respects. The majority assumes that the
contract’s material silence is “undeniable fact.” I assume arguendo
that the contract is arguably silent.
26 See notes 5 and 24 supra and note 38 infra; but see note 3
supra.
39a
jority leaves it to the adjustment board to decide the fate
of employee strike rights in an otherwise major dispute,
thus at best temporarily denying and perhaps erasing the
Union’s access to economic weapons.
The majority’s opinion contains three fatal analytical
errors. It ignores the unambiguous facts of this case;
it is inconsistent with the statutory scheme; and it is
inconsistent with RLA case authority. The panel con-
cluded correctly that the union has not waived anything,
arguably or otherwise, and that this controversy should
be routed to the major dispute process.
1. Question of Law. The “arguably justified” standard
concerns the relationship between the content of contrac-
tual terms and a party’s disputed act. The standard
should not apply to-questions of law that are brought to
bear on the terms of the contract in an otherwise major
dispute. A federal court should determine in the first
instance whether a party has waived its statutory bar-
gaining rights under the RLA.
The majority’s holding conflicts with the statutory
scheme. As I have discussed, the RLA provides for two
types of dispute resolution. Disputes over proposed
changes in working conditions are major disputes—the
types of disputes from which strikes ordinarily result.
Major disputes are subject to a complex mediation proc-
ess, at the end of which the parties may resort to their
economic weapons. Minor disputes are often grievances,
and concern the proper application or interpretation of
agreements. Boards of adjustment decide minor disputes.
Parties may not resort to the use of economic weapons
in minor disputes.
When a party contests which type of dispute the em-
ployer and union confront, the party may sue for an in-
junction in federal court, invoking the federal question
jurisdiction of 28 U.S.C. § 1331, to preserve the status quo
40a
if the court determines that the dispute is major.” After
analyzing the parties’ contentions, the federal court
routes the dispute to one of the two channels of dispute
resolution.
The majority improperly places in an adjustment board
the power to determine whether a Union has waived its
right to bargain (and ultimately its access to economic
weapons) over an issue that is by definition a major
dispute. The majority’s holding gives one channel of the
dispute resolution process (the adjustment board) the
power to decide whether the alternative channel (the
Mediation Board process that may ultimately lead to use
of economic weapons) is the appropriate forum for dis-
pute resolution. But federal courts, not adjustment
boards, are at the apex of the triangle in contested forum
cases because unlike adjustment boards, federal courts
are relative strangers to the actual dispute resolution
process.
The federal interest in ensuring the proper relation-
ship between courts and arbitrators further demonstrates
the majority’s error. A court sends a signal concerning
the merits of an already determined major dispute when
it routes the dispute to an adjustment board, which de-
cides minor disputes, to determine whether a union has
waived its right to bargain. As the Supreme Court has
noted in an analogous context, “[Ijt is difficult to believe
that the arbitrator would not be heavily influenced or
wholly preempted by judicial views. .. .” Buffalo Forge,
96 S.Ct. at 3150.
The “judicial influence” argument may appear to prove
too much. It does not. Although courts send disputes to
adjustment boards as “minor,” which may imply judicial
views on the merits, the difference between such common
cases and this case is that minor disputes belong before
27In certain circumstances, an injunction may be appropriate
in minor disputes. See note 38, infra.
4la
an adjustment board. The adjustment board may correct
judicial error in characterizing a dispute as “minor” by
nevertheless concluding that a duty to bargain exists be-
cause the proposed issue or contested unilateral act con-
stitutes a change in rates of pay, rules or working condi-
tions. In contrast, the majority in this case has already
concluded as a matter of law that the dispute is major
absent waiver of the right to bargain. The most that the
adjustment board may do is ratify the majority’s legal
conclusion.
2. No Ambiguity. Even assuming the majority is cor-
rect in applying the “arguably justified” standard to
waiver analysis, its application is incoherent in this case
because no material evidence supports a finding of
waiver, arguable or otherwise. Southwest’s waiver argu-
ment, which depends solely on the language of the man-
agement rights clause, is not even colorable, much less
arguable. Absolutely nothing in the record, apart from
the language of the management rights clause itself, sup-
ports a determination that the Union has even arguably
waived its right to bargain. See St. Louis, S.F. & T.
Railway, 328 F.2d at 753 (“arguable” means more than
“merely fictitious” or even ‘colorable”’) (Tuttle, J.).
Ambiguity, not clarity or unmistakability, gives rise
to arguability. Even assuming that a party may “argu-
ably waive” a known right where the factual context of-
fers conflicting or uncertain evidence, this case, as I have
probably stated emphatically enough, involves nothing
more than the language of a common management rights
clause. Because we have been presented with the ma-
terial information necessary to decide the question of
law, we confront no potential ambiguity resulting from
any evidence or contract language, and neither would an
arbitrator. In this context, a board of adjustment would
have no discretion to decide the issue differently from this
court because both decisionmakers would be presented
with identical, unambiguous information. Mother Hub-
42a
bard cannot be arguably pregnant after application of an
ultrasound test.
It is instructive to compare the language of the man-
agement rights clause in this case with the management
rights clause rejected by the court in a controlling case
in this circuit, United Industrial Workers v. Board of
Trustees, 351 F.2d 183, 187 n. 18 (5th Cir.1965), and
with the management rights clause rejected by the court
in Transport Workers Union v. SEPTA, 863 F.2d 1110,
1124 (3d Cir.1988). I discuss both of these cases imme-
diately below.**
3. Case Authority. The majority’s cavalier approach
to waiver not only conflicts with the statutory scheme, the
facts of this case, and reasoned analysis, it is inconsistent
with RLA authority both in this circuit and in the Third
Circuit. The law of this circuit supports the Union’s
position, although the majority would have one believe
that management prerogative is enshrined in our prece-
dent. Failing to cite a controlling case, United Industrial
Workers, 351 F.2d 183 (5th Cir.1965), the majority mis-
places its reliance on Railway Express Agency v. BRAC,
487 F.2d 388 (5th Cir. 1971), cert. denied, 403 U.S. 919,
91 S.Ct. 2230, 29 L.Ed.2d 696 (1972). The court in
United Industrial Workers completely rejected a manage-
ment rights argument in a case involving a management
rights clause with language explicitly favoring employer
discretion in the area at issue. Railway Express Agency
v. BRAC is distinguishable because past practices, not
the management rights clause, determined the result. In
28ST note that it is not difficult for two parties, bargaining at
arm’s length, to include an unambiguous zipper clause in their
contract stating, for example, that “The Union has waived its right
to bargain over changes in rates of pay, rules and working condi-
tions unless a change would conflict with an existing express or
implied term of the agreement.” If an employer wishes to exer-
cise such unfettered discretion an employer should insist on such
language during bargaining.
a
43a
Railway Express, unlike in this case, the employer’s uni-
lateral act was arguably justified by prior union acqui-
escence.
In United Industrial Workers, 351 F.2d 183 (5th Cir.
1965), a union served notice on a dock owner and opera-
tor that it wished to open an existing contract for nego-
tiation concerning a grain elevator facility that employed
the union’s members. On the same day, the employer ad- PS
vised the union that it would not negotiate, “presumably”
because it had leased the elevator facility to a third
party, and posted a notice that all employees would be
permanently laid off. 351 F.2d at 185. The court, in an
opinion by Judge Brown, held that the dispute was major
and that the employer had to bargain before it could put
the lease into effect.
The court rejected all of the employer’s arguments
that the contract’s terms made the dispute a minor one.
In particular, the court rejected the employer’s manage-
ment rights argument. 351 F.2d at 189. The contract’s
broad management rights clause provided that “The man-
agement of the [grain] elevator and the direction of the
working force, including, but not limited to the right to
. . . inerease and decrease the working force ... are
vested exclusively in the carrier.” 351 F.2d at 187 n. 18.
The court in United Industrial Workers did not infer
waiver, arguable or otherwise, even when the language of
the management rights clause might appear to have
given rise to an arguable issue. The United Industrial
Workers court rejected a clause that on its face gave
management the right to decrease the workforce in a
case that concerned layoffs. The clause in this case is
quite less specific than the unspecific management rights
clause in United Industrial Workers. In addition, the
United Industrial Workers court emphasized that an em-
ployer’s duty to bargain is extremely broad in the RLA
context, relying on Order of Railroad Telegraphers, 362
U.S. 330, 80 S.Ct. 761. 351 F.2d at 191.
i i.
44a
On a second appeal in the same case, another panel of
this circuit emphatically noted the import of the panel’s
holding on the first appeal: “[T]he [carrier’s] assign-
ment of error in its cross appeal . . . bearing on the con-
struction to be given the ‘management rights clause’ of
the bargaining agreement, is without merit. The district
court correctly rejected this as irrelevant in view of this
Court’s prior opinion.” United Industrial Workers, 368
F.2d 412, 414 (5th Cir.1966).
The majority’s reliance on Railway Express Agency v.
BRAC, 4387 F.2d 388 (5th Cir.1971), is misplaced be-
cause the decision was controlled by prior union acqui-
escence in unilateral employer work transfers. In Rail-
way Express, the employer unilaterally contracted out to
an airline a portion of the employer’s air express transfer
work that the employees had previously handled at an
airport. 437 F.2d at 390. The local union challenged the
act, contending that it violated the parties’ collective bar-
gaining agreement. The court held that the dispute was
minor and routed the dispute to the arbitral forum.
As the majority correctly states, Judge Bell’s opinion
for the panel cites the management rights clause in the
collective bargaining agreement. The clause reserved
“the right of management to determine methods of opera-
tion and the utilization of the working forces. .. .” 437
F.2d at 392. But the decision did not result from a hold-
ing that the clause constituted an arguable waiver of the
right to bargain.
The result in Railway Express was controlled by a
“state of facts,” not by the agreement’s management
rights clause. Jd. In Railway Express, “there [was] an
undisputed work history of such unilateral transfers of
work with no apparent objection from the union.” Jd.
In other words, the past practices of the parties con-
trolled the result. The Union had acquiesced in the types
of work transfers giving rise to the dispute. Further-
more, the certified bargaining agent was BRAC (the In-
45a
ternational), which agreed that the dispute was minor
and wired the local that the strikers should return to
work immediately. Jd. at 393.
In this case, the Union has not acquiesced in the in-
trusive and unprecedented enforcement methodology con-
stituted by the drug testing program. Unlike in Railway
Express, no “state of facts” in this case suggests that
unilateral implementation of the testing program gives
rise to a minor dispute, arguably justified by past prac-
tice or any other term of the contract.
The majority states that the Railway Express court
“relied heavily” on the Second Circuit’s decision in Rut-
land Railway Corp. v. Brotherhood of Locomotive Engi-
neers, 307 F.2d 21 (2d Cir.1962), and the majority
quotes the Rutland decision at length. Rutland is inap-
posite for two reasons. As I have demonstrated, a “state
of facts” controlled the court’s decision in Railway Ex-
press. 437 F.2d at 392. Even if Rutland supported the
type of Mother Hubbard argument that the majority
makes in this case, it would not be persuasive in this cir-
cuit because Railway Express was controlled by prior
union acquiescence, and United Industrial Workers, 351
F.2d 183, 368 F.2d 412, is the controlling law in this
circuit.
Rutland does not support the majority’s argument in
any event. Rutland includes broad language concerning
management prerogative, but does not engage in Hub-
bardizing. Rutland involved an employer’s unilateral at-
tempt to make changes on train runs. The court held
that the dispute was minor because several specific pro-
visions concerning train runs, 307 F.2d at 35-36, and the
“prior conduct of the parties,” id. at 36, arguably jus-
tified the employer’s unilateral act. Unlike in this case,
the contract in Rutland required arbitral interpretation.
The majority’s decision also clashes with the law of the
Third Circuit, which explicitly has rejected a Mother
46a
Hubard argument in a drug testing case, the material
portion of which is similar to the case the majority de-
cides today. Transport Workers Union v. SEPTA, 863
F.2d 1110, 1122-24 (3d Cir.1988). In Transport Work-
ers, the employer relied on the language of a manage-
ment rights clause in an attempt to justify its unilateral
implementation of a drug testing program. The clause
provided that the employer retained “ ‘all management
functions and responsibilities which SEPTA has not ex-
pressly modified or restricted by a specific provision of
this Agreement.’” Jd. at 1124. The court rejected the
employer’s argument “that it reserved its right to modify
its drug testing policies through [the] ‘management func-
tions’ clause,” holding that “such broad management
rights clauses cannot serve to exempt management frcm
the RLA prohibition against unilateral institution of
changes in rules and working conditions.” Jd. Unlike
the majority, the Third Circuit does not believe that un- -
specific language in a management rights clause supports
even a colorable contention that a union arguably has
made a clear and unmistakable waiver of its right to
bargain.”
D. Summary. Implementation of the testing program,
as the majority holds, would “effect[] a change in rules
and working conditions.” This is therefore a major dis-
pute. The panel correctly determined that the Union did
not waive its statutory right to bargain. and correctly
held that this contest should be routed to the major dis-
pute process.
Waiver analysis must apply in RLA disputes. Whether
a Union has waived its statutory right to bargain is a
*» See also Transport Workers v. Eastern Airlines, 695 F.2d 668,
673 n. 3 (2d Cir.1982) (Newman, J.) (criticizing the RLA’s major/
minor dispute scheme as not “entirely satisfactory, particularly
when courts are interpreting agreements that include general man-
agement rights clauses, which arguably can be enlisted to support
any action taken by management that is not explicitly in conflict
with a contractual right of the union” (citations omitted) ).
47a
question of law for a federal court, not a board of ad-
justment. Even if the “arguably justified” standard ap-
plies to waiver issues, there is no waiver in this case, ar-
guable or otherwise, as a matter of law, because abso-
lutely nothing in the record below suggests waiver. Not
least important, the majority’s opinion both ignores con-
trolling law of this circuit and is inconsistent with the
law of the Third Circuit. -
Because the Union has not even arguably waived its
statutory right to bargain over the program, this contest
should be subject to the procedures mandated by 45
U.S.C. §§ 155, 156, 160. In the major dispute process, a
union has a right to bargain in the context of a judicially-
enforced status quo. If the parties reach impasse and the
President does not intervene, 45 U.S.C. 3160, they may
resort to their economic weapons without fear of a federal
court injunction. Burlington Northern, 481 U.S. at 445-
58, 107 S.Ct. at 1851-55, 95 L.Ed.2d at 398-403.
V. The Management Rights Clause Does Not
Control This Case.
A.
Waiver analysis plays no role in this case if the man-
agement rights clause does not apply by its own terms.
The clause does not apply if a unilaterally promulgated
“rule, regulation or order” is “in conflict with the terms
and conditions of [the] Agreement.” That is, the clause
only applies, whatever it means, if the contract is ma-
terially silent. The contract is not materially silent, al-
though I have assumed it is silent in Part IV supra to
respond to the majority’s holding in this case.
The majority states that “the following facts cannot be
denied:” (1) the testing program is a rule, regulation or
order within the clause’s meaning; and (2) the program
does not conflict with the terms of the contract. Neither
of the majority’s interpretations is a fact, although I
48a
agree that the testing program is at least arguably a rule,
regulation or order within the clause’s meaning.
_I deny that the testing program does not conflict with
the terms of the contract. And even if the majority stated
that the management rights clause applies because the
program “arguably” does not conflict with the terms of
the contract, the majority would be in error. The meth-
odology of blood alcohol testing and urinalysis used to en-
force the testing program’s policy squarely conflicts with
the contract’s existing enforcement methodology of visual
observation.*® Under the parties’ bargain, the employees
enjoy (1) contractually protected privacy expectations
that they will not become the subjects of discipline absent
individualized suspicion; (2) contractually protected ex-
pectations of bodily and informational privacy; and (3)
contractually protected expectations that they will not
suffer unwarranted discipline such as wrongful discharge
as a result of erroneous enforcement, or defamation re-
sulting from dissemination of inaccurate test results. The
testing program’s methodology conflicts with the contract
because it violates all of these expectations. The program
allows Southwest to puncture any company employee’s
skin, and/or fully observe any employee, male or female,
urinate after any accident at Southwest’s absolute discre-
tion, regardless of the employee’s relationship to the acci-
dent. Nothing in the contract remotely justifies such
methods of policy enforcement.”
’
30 For explanation of the phrase “visual observation,” see note 7
supra.
31 As I state above in note 3, the Federal Aviation Administra-
tion drug testing regulations, 50 Fed.Reg. 47024 (Nov. 21, 1988)
are extensive and will undoubtedly remove some aspects of South-
west’s program from the bargaining table, if the parties reach it.
Some aspects of the program would remain negotiable, however,
and therefore the FAA regulations, even assuming they are entirely
constitutional, see Skinner, U.S. , 109 S.Ct. 1402, do not
moot this case. Because the FAA regulations are not material in
these circumstances to determining under the contract and the
49a
The Union has waived nothing, assuming that the man-
agement rights clause applies and the contract is mate-
rially silent. See Part IV supra. But the contract is not
silent. Methods of enforcement matter. If the method of
visual observation, on the one hand, and blood alcohol test-
ing ahd urinalysis, on the other, were entirely unrelated,
silence might play a role in this case. Both types of
enforcement methods, however, serve the same purpose:
prevention of drug and alcohol abuse in this workplace.
Moreover, the methods are integrally related for another
reason: Southwest’s testing program includes visual ob-
servation as one of its elements. Yet the majority states
nothting substantive about the radically differing contents
of the methods.
Treating all enforcement methodologies as fungible, the
majority fails to make the type of threshold inquiry that
controlled the panel’s decision in this case and has con-
trolled similar cases in the Third, Eighth and Ninth Cir-
cuits:** has the Union arguably acquiesced in the methods
of a testing program that (a) is not limited to particular-
ized suspicion; (b) invades bodily privacy interests; (c)
invades informational privacy interests; and (d) invades
interests in avoiding unwarranted discipline and potential
damage to reputation?
If the differences between the methodologies of blood
alcohol testing and urinalysis, on the one hand, and visual
observation, on the other, were even arguably fungible,
RLA the bargaining rights of the parties, they are not material
to our immediate inquiry.
32 Transport Workers Union, v. SEPTA, 863 F.2d 1110, 1122-24
(3d Cir.1988) ; Brotherhood of Locomotive Engineers v. Burlington
Northern, 838 F.2d 1102, 1105-07 (9th Cir.1988); Brotherhood of
Locomotive Engineers, 838 F.2d 1087, 1092-93 (9th Cir.1988), cert.
pending, 57 U.S.L.W. 3017 (July 19, 1988); Brotherhood of Main-
tenance of Way Employees v. Burlington Northern, 802 F.2d 1016,
1022-25 (8th Cir.1986). The majority does not mention even one
of these cases,
50a
the majority would not have to rely on the management
rights clause to reach its result. The majority could rely
solely on the Union’s prior acquiescence in the visual ob-
servation methodology to hold that the contract arguably
justifies Union acquiescence in blood alcohol testing and
urinalysis. Because the majority relies on the manage-
ment rights clause for its holding the majority implicitly
admits the obvious: acquiescence in an enforcement meth-
odology of visual observation says nothing about acquies-
cence in an enforcement methodology of urinalysis and
blood alcohol testing.
The district court found that Rule G is the contract’s
drug and alcohol policy, and that visual observation is the
parties’ contemplated method of Rule G enforcement un-
der the contract. In two statements, the majority confuses
policy and methodology, and ignores that methodological
differences may give rise to a conflict. First, the majority
states that “the testing program is more extensive than
Rule G.” Rule G is simply a policy, and the testing pro-
gram contains both a new poiicy and an unprecedented
enforcement methodology. Second, the majority states
that Rule G’s existence “demonstrates a history under the
agreement of unilaterally promulgating rules supporting
a drug and alcohol policy” (emphasis added). Policies are
contained in rules, not in the air.** And if by “rules” the
majority means methods of enforcement, then the Union’s
sensible acquiescence in Rule G should suffice to decide
this case under the majority’s approach. As I have stated,
however, the majority implicitly admits that methodolog-
ical differences matter by basing its holding on the man-
agement rights clause.**
33 Cf. Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162_N.E.
99 (1928) (Cardoza, J.) (“ ‘Proof of negligence in the air, so to
speak, will not do’,” quoting Pollock, Torts, p. 455 [11th Ed.]),
quoted in R. Epstein, C. Gregory, H. Kalven, Cases and Materials
on Torts 323 (4th ed.).
34Tf Rule G and the method of visual observation arguably
justify unilateral implementation of the testing program, then im-
5la
B.
Methodologies may conflict because employee expecta-
tions are substantively part of the contractual terms
creating the expectations. When the terms change because
of unilateral employer actions, such employee expectations
are violated.
Collective bargaining between these parties has resulted
in a nonintrusive drug and alcohol enforcement method of
visual observation because the Union has acquiesced in
the method of visual observation through past practices.
The contractual existence of the visual observation meth-
odology creates (1) baseline contractual expectations that
an employee will only be subject to discipline for violating
a drug and alcohol policy when he or she is the focus of
individualized suspicion; (2) baseline contractual expec-
tations of bodily and informational privacy; and (3) base-
line contractual expectations that employees will not be
subject to unwarranted discipline, such as wrongful dis-
charge, or defamation, for errors resulting from the en-
forcement of a drug and alcohol policy (visual observation
is relatively error-free).*° Because blood alcohol testing
and urinalysis violate all of these contractually-protected
expectations, the testing program’s methodology conflicts
with existing contractual terms and the management
rights clause should play no role in this case.
plementation of the program, it would seem, would at best argu-
ably effect a change in rules and working conditions within the
meaning of 45 U.S.C. §§ 155, 156.
357 do not suggest that employees’ contractual expectations of
privacy, which result from the bargaining between their employer
and representative, should supplant or alter the scope of employees’
common law privacy rights, statutory privacy rights, and any ap-
plicable state or federal constitutional privacy rights. As I note
above and below, however, see notes 5, 24 and 38, in the view of
some courts, the only privacy rights that unionized employees
may have, at least in the drug testing arena, may be contained
in the collective bargaining agreements to which the employees
are subject. Jackson, 863 F.2d at 119; Utility Workers, 852 F.2d
at 1086. See also note 3 supra.
52a
I emphasize that we are in this case considering only
the right to bargain. If the parties reach the bargaining
table, the Union may agree in bargaining to the stringent
enforcement techniques. But it may‘at the same time urge
the narrowing of coverage or perhaps specific safeguards
as to the quality of the laboratory work or the confiden-
tiality of the test results. The point is, in all of this dis-
cussion in this entire case, we are considering only the
rights of the employees to be heard through their Union
by bargaining about these complicated issues.
1. Individualized Suspicion. Under the parties’ agree-
ment, employees have been subject to discipline for violat-
ing a drug and alcohol policy only when they have been
particularly suspected of wrongdoing.** Southwest’s test-
ing program, if implemented, would dramatically upset
the employees’ contractually protected privacy expecta-
tions concerning individualized suspicion. The program
allows the company to puncture the skin and/or observe
the urination of any company employee after any vehicu-
lar accident at Southwest’s discretion, regardless of the
employee’s relationship to the accident. Under the terms
of Southwest’s testing program, if two mechanics collide
while driving maintenance vehicles, a ticketing agent
could be subjected to the program’s testing methods with-
out any basis for suspicion.
Every other court addressing the issue we face, in a
Rule G or similar enforcement context, has determined
that the issue of an employee’s contractual privacy inter-
est in individualized suspicion is a critical factor in de-
ciding the outcome of a major/minor dispute issue under
“a collective bargaining agreement. The majority does not
cite one of these decisions, much less attempt to distin-
guish them. Transport Werkers Union, 863 F.2d at 1122-
24 (unilateral implementation of random drug testing
36 There is no history of Rule G enforcement in this case because
there is no history of drug or alcohol abuse among the Union’s
members.
53a
changes the terms of a contract, and is therefore a major
dispute, when employees had acquiesced in drug testing
only on reasonable suspicion) ; BLE v. Burlington North-
ern, 838 F.2d at 1105-07 (unilateral attempt to impose
random canine sniffs constituted a major dispute because
agreement, like the one in this case, required individual-
ized suspicion in the form of “objective facts demonstrat-
ing prior use”); BLE v. Burlington Northern, 883 F.2d
at 1092 (unilateral attempt to impose post-incident test-
ing of entire train crew gave rise to major dispute when
agreement had required individualized suspicion) ; Broth-
erhood of Maintenance of Way Employees v. Burlington
Northern, 802 F.2d at 1023 (Arnold, J., for a unanimous
court on the issue) (unilateral attempt to impose post-
incident testing of train crews gave rise to a minor dis-
pute, but in part only because employer’s policy limited
testing to individuals who could have been responsible for
the accident).
The analytical framework applied in these cases should
control this contest. As the panel opinion demonstrated,
this case involves prior acquiescence in policy enforce-
ment only when suspicion is individualized—which is
inherent in the very methodology of visual observation.
Southwest’s program sweeps more widely than anything
the Third, Eighth and Ninth Circuits have permitted in
similar cases. The conflict between the enforcement meth-
ods in this case, resulting from the differences in requi-
site suspicion, alone makes the management rights clause
inapplicable and the arbitral forum inappropriate.
2. Contractual Privacy Interests. The majority also
ignores the importance of employees’ contractually pro-
tected expectations of privacy. Privacy interests, which
inhere in the contract’s enforcement methodology term,
take two forms: bodily privacy and informational pri-
vacy. Blood alcohol testing and urinalysis conflict with
the contract because they violate the expectations created
54a
by the minimally intrusive methodology of visual
observation.
(a) Bodily Privacy. Blood alcohol testing and urinaly-
sis implicate two distinct but related interests in bodily
privacy.
i. Urinalysis. Supervisors must directly witness the
act of urination to prevent the substitution of fraudulent
urine samples.** Southwest’s program gives the company
absolute discretion to utilize this effective method.
Urination with a witness is, one might say, inconsis-
tent with the traditional elimination of urine as a soli-
tary activity. “There are few activities in our society
more personal or private than the passing of urine.” Na-
tional Treasury Employees Union v. Von Raab, 816 F.2d
170, 175 (5th Cir.1987) (Rubin, J.), affirmed in part
and reversed in part, —— USS. , 109 S.Ct. 1384,
103 L.Ed.2d 685 (1989). “In our culture the excretion-
ary functions are shielded by more or less absolute pri-
vacy. ...” Charles Fried, Privacy, 77 Yale L.J. 475,
487 (1968); Skinner, U.S. at , 109 S.Ct. at
1413. Needless to say, supervisiorial witnessing of urina-
tion conflicts with the method of visual observation of
employee behavior in the workplace, which is the existing
method of policy enforcement under the contract.
ii. Blood Testing. Blood alcohol testing requires the
literal violation of the body. Puncturing flesh in search
of blood violates the contractually protected privacy ex-
37 See Skinner. U.S. n. 8, 109 S.Ct. at 1428 n. 8 (Mar-
shall, J., dissenting), quoting the Federal Railroad Administration
regulations at 50 Fed.Reg. 31555 (1985) (“observation is the most
effective means of ensuring that the sample is that of the employee
and has not been diluted’’) ; id. at —————, 109 S.Ct. at 1428 (cit-
ing an FRA Field Manuai instructing supervisors monitoring urina-
tion that “railroad workers must provide urine samples under
direct observation by the physician/technician” (emphasis in Jus-
tice Marshall’s opinion) ).
55a
pectation created by the noninstrusive methodology of
visual observation. In the constitutional context, the Su-
preme Court has well-recognized the serious intrusions
occasioned by blood testing. Schmerber v. California, 384
U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ; Skinner,
USS. at , 109 S.Ct. 1412. Blood testing does not
become any less invasive when, if imposed unilaterally, it
violates the terms of a collective bargaining agreement.
(b) Informational Privacy. The employees also have
a legitimate contractual privacy interest in not disclosing
private medical information, in the form of a blood or
urine sample, to which an employer is not otherwise en-
titled. The method of visual observation creates and
guarantees this contractual privacy expectation. Blood
alcohol testing and urinalysis fundamentally conflict with
employees’ protected interests in nondisclosure of private
medical information.
An employer testing only for the presence of intoxi-
cants has no legitimate interest in knowing, for example,
whether an employee is pregnant, epileptic, diabetic or
clinically depressed. Blood and urine samples contain
such information. Skinner, USS. at , 109 S.Ct.
at 1413; id. at , 109 S.Ct. at 1429 (Marshall, J., dis-
senting) ; see Comment, Meeting the Challenge to Privacy
Rights by Employer Drug Testing: The Right of Non-
disclosure, 1988 U.Chi.Legal F. 213. Southwest’s pro-
gram gives the departmental Vice Presidents absolute
discretionary access to all information contained in test
results. Unlike blood alcohol testing and urinalysis, vis-
ual observation as a method of enforcement does not tread
on any such informational privacy interest.
3. Unwanted Discipline and Defamation. Southwest’s
testing program provides for punishment up to and in-
cluding discharge for violations of the program’s policy.
The employees have a contractually protected interest in
avoiding unwarranted discipline, such as wrongful dis-
56a
charge, and potential defamation caused by the dissem-
ination of inaccurate test results. Supervisorial visual
observation is relatively error-free because of the indi-
vidualization and immediacy of the scrutiny. See note 7
supra. In contrast, urinalysis, at least, “inherently ha[s]
some rate of inaccuracy.” Elaine Shoben, Test Defama-
tion in the Workplace, 1988 U.Cchi.Legal F. 181, 182,
citing, Council on Scientific Affairs in Scientific Issues
in Drug Testing, 257 Journal of the American Medical
Association 3110 (1987). Both blood alcohol testing and
urinalysis may result in errors leading to discipline be-
cause of faulty chains of custody and incompetent or er-
roneous laboratory analysis. These problems are not
merely theoretical. Shoben, 1988 U.Chi.Legal F. at 183
nn. 11 and 12. And leaks of inaccurate confidential in-
formation may result in severe reputational damage.
See generally id.
Southwest’s testing program implicates all of the prob-
lems associated with blood alcohol testing and urinalysis.
Moreover, the program gives Southwest absolute dis-
cretion to determine the laboratories to be used, the
chain of custody procedures; and the procedures to en-
sure confidentiality. Thus, in addition to the inherent
problems in the methodology, nothing in the program
guarantees that Southwest will accurately determine the
appropriate levels of care in determining whether and
how to minimize such errors. See note 13 supra, concern-
ing the problems of laboratory incompetence and faulty
chains of custody.
C.
The bargain between Southwest and the Union does
not arguably justify such sweeping changes in the condi-
tions of the workaday world. The employees, through
their Union, contracted for significantly more protection
by acquiescing in Rule G and its enforcement method of
visual observation. The testing program irreconcilably
conflicts with the contract because its enforcement meth-
57a
ods violently upset employees’ contractually protected ex-
pectations. Because the management rights clause should
not control this case, the board of adjustment is not the
proper forum to resolve any aspect of this dispute.
The majority routes this dispute to the board of ad-
judgment, which may determine that the Union has not
waived its right to bargain. Southwest may have to bar-
gain over the terms of this program after -all. I cer-
tainly hope this correct result is ultimately reached, one
way or another.- If Southwest’s testing regime were im-
plemented as it stands, employees would labor away in
their workaday world, well-aware of Southwest’s far-
reaching discretion. Employees would be particularly
well-aware of the invasions of privacy and unwarranted
discipline to which the exercise of Southwest’s discretion
could lead under the program. The majority rewrites the
parties’ bargain, and denies—temporarily at least—the
Union’s right to bargain in a major dispute. Even a
temporary denia] of the right to bargain, however, is not
justified by the parties’ contract or the Railway Labor
Act.*
38 This is clearly a major dispute, and the Union has not waived
anything, arguably or otherwise. As a consequence, we should
affirm the district court’s status quo injunction pending the com-
pletion of the mediation process. 45 U.S.C. §§ 155, 156, 160.
Because this contest should be routed to the major dispute
process, I shall not fully discuss the majority’s holding that the dis-
trict court abused its discretion by enjoining the testing program,
under the district court’s alternative assumption that this is a
minor dispute. I note, however, that injunctions may be appropriate
in minor disputes “to prevent the carrier from disrupting the status
quo when doing so would result in irreparable injury of a magni-
tude that would render a decision in favor of the union[] virtually
meaningless.” International Association of Machinists v. Frontier
Airlines, 664 F.2d 538, 542 (5th Cir.1981). Cf. United Steelworkers
v. United States Steel, 1989 WL30697, 1989 U.S. Dist. LEXIS 3246
(March 29, 1989) (preliminarily enjoining implementation of a drug
testing program).
Potentially irreparable injuries to employees could result from
unilateral implementation of the testing program pending arbitra-
58a
Conclusion
In this intricately structured arena of labor relations,
the need for lengthy discussion has surely become ap-
parent. Still, “a few words will suffice to relate my es-
sential discovery. ... So here goes.” *°
This case concerns neither the wisdom nor propriety
of drug testing. Moreover, this case does not concern the
relationship between employee privacy rights and em-
ployer or social interests in safety, efficiency or property.
This case simply concerns whether, in these circumstan-
ces, the Union’s members have a voice under the par-
ties’ agreement.
As the panel held, and as the majority holds, imple-
mentation of the testing program would “effect[{|! a
change in rules and working conditions.” In this major
tion, particularly if the adjustment board ultimately determines
that the Union has a right to bargain over the program’s terms.
Such potential injuries could take the form of invasions of privacy,
wrongful discharge or defamation resulting from dissemination of
inaccurate test results.
State tort claims for injuries caused by an employer pending
arbitration, where the Union has not spoken under the contract,
may not be fully remediable under the contract and Railway Labor
Act because the claims may be preempted. Andrews v. Louisville &
Nashville Railroad Company, 406 U.S. 320, 92 S.Ct. 1562, 82 L.Ed.2d
95 (1972); Magnuson v. Burlington Northern, 576 F.2d 1367 (9th
Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323
(1978). At least when the Union has bargained over the program’s
terms, the emplovees receive some contractual protections—or some-
thing else in return for bargaining away privacy protection under
the contract—to replace (in theory) the loss of state law rights.
Cf. Utility Workers, 852 F.2d at 1086; Jackson, 863 F.2d at 119.
Thus, whether the district court abused its discretion is an exceed-
ingly complicated question that the majority fails to address ade-
quately. But see note 3 supra.
89 Albert Camus, The Fall (1956) (Vintage Books, p. 69, tr.
Justin O’Brien).
59a
dispute, the Union has waived nothing, arguably or
otherwise, in the form of a zipper clause. Because the
majority’s Hubbardizing is inappropriate, and because
the board of adjustment has no proper role to play in
this contest. I dissent.
60a
ALVIN B. RUBIN, Circuit Judge, dissenting:
The case presented to the district court is now moot.
The collective bargaining agreement between the parties
which served as the sole basis for the suit and the in-
junction, has expired. Even though the injunction is-
sued by the district court is not expressly limited to the
period during which the agreement was in force, the only
basis for it was, as the majority opinion notes, that “the
implementation of the program was not arguably justi-
fied under the terms of the collective bargaining agree-
ment.” Once the agreement had ended there was no
predicate for enjoining management action, and the in-
junction could no longer be enforced.
The sole basis then on which a federal court might
continue to assert jurisdiction is that the parties have
now negotiated a new agreement and, in order to secure
a judicial opinion, have failed to clarify the terms of
their contract or even, we were informed in oral argu-
ment, to bargain in an attempt to do so. Instead, they
ask us to interpret the new contract, saying, in effect,
“we would like to put before you some contract language
about which we do not wish to negotiate and have you
tell us what it means.” We should not allow ourselves,
sitting en bane, thus to be drawn into a dispute calcu-
latedly kept alive solely so that we could resolve it.
The majority coneedes that the original dispute is in-
deed moot, but justifies asserting jurisdiction on the
ground that the dispute is capable of repetition yet evad-
ing review. Judge Goldberg’s dissent also adopts that
view. I cannot agree. Any contract that has expired may
be repeated; that is no reason to interpret contracts that
are no longer in effect. I am unable to understand, fur-
thermore, how a dispute that has actually been repeated,
and that could be reviewed by the simple expedient of
applying for an injunction based on the current contract,
could possibly be capable of repetition vet evading review.
6la
So long as a contract is not inherently short-lived, re-
view is easily obtained, and, if it is inherently short-
lived, ambiguities should, absent extraordinary circum-
stances, be clarified by the parties, not by the courts.
The majority concludes, however, that labor litigation
is so different from other litigation that it mandates a
different interpretation of the constitutional provision re-
stricting judicial action to “cases and controversies.” '
I do not believe that labor litigation stands a constitu-
tional world apart. The three cases relied on by the
majority present questions entirely different from the
issue sought to be kept alive here. They adopt completely
conventional interpretations of the constitutional require-
ment, and do not justify asserting jurisdiction in this
case.
In Super Tire Engineering Company v. McCorkle,
the first of these cases, New Jersey employers whose em-
ployees had struck sued for declaratory and injunctive
relief to prohibit New Jersey officials from paying welfare
benefits to the strikers. Because the labor dispute that
had given rise to the suit and the strike sought to be
enjoined had both ended, the Court expressly held that
the suit had become moot as to the request for injunctive
relief.* The Court found, however, that a real contro-
versy continued with respect to the request for declara-
tory relief. The court stated, “the challenged govern-
mental activity . .. [was] not contingent, ha[fd] not
evaporated or disappeared, and, by its continuing and
brooding presence, casts what may well be a substantial
adverse effect on the interests of the petitioning parties.” *
Thus declaratory relief was appropriate because the non-
1 U.S. Constitution Art. ITI, § 2.
2416 U.S. 115. 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974
> 416 U.S. at 121, 94 S.Ct. at 1698
+416 U.S. at 122, 94 S.Ct. at 1698 (emphasis added
62a
contingent nature of the officials’ action ensured that
they would pay welfare benefits during the next strike,
and the mere threat that this would occur substantially
strengthened the employees’ hand.
While the collective bargaining agreement involved in
Buffalo Forge v. United Steelworkers of America, AFL-
CIO® had ended when the case was heard, the question
was whether issues arising under it were arbitrable, and
the parties had stipulated that “the collective bargaining
agreements in effect when this action arose... govern
resolution of this dispute.”’° The issue then was the
interpretation of the original agreement. “Furthermore,”
the Court stated, “were the issue arbitrated and the
strike found illegal, the relevant federal statutes as con-
strued in our cases would permit an injunction to enforce
the arbitral decision.” *
Reliance on Jacksonville Bulk Terminals, Ine. v. Inter-
national Longshoremen’s Association* is even more un-
warranted, for in that case the collective bargaining
agreement invoked had not terminated. A strike to pro-
test the shipment of fertilizer to the Soviet Union had
ended but, the Court noted, “[a]lthough the work stop-
page is no longer in effect, there remains a live contro-
versy over whether the collective-bargaining agreement
prohibits politically motivated work stoppages, and the
Union may resume such a work stoppage at any time.” ”
This was the conclusion this circuit had earlier reached
in the same case."°
5 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976).
* 428 U.S. at 404 n.8, 96 S.Ct. at 3146 n.8 (emphasis added).
’ $28 U.S. at 407, 96 S.Ct. at 3147.
* 457 U.S. 702, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982).
* 457 U.S. at 704 n.1, 102 S.Ct. at 2676 n.1.
° New Orleans Steamship Ass'n v. General Longshore Workers.
626 F.2d 455 (5th Cir. 1980), aff'd 457 U.S. 702, 102 S.Ct. 2672,
>
Se ted ae "
°| i 19R2
63a
In contrast, the issue between the union and the air-
line is unsettled only because the parties failed to re-
solve it by collective bargaining when their earlier agree-
ment expired. -Even if the Constitution did not forbid
us to decide this controversy, which has continued only
by the manipulation of the parties to the dispute, we
should exercise our prudential prerogative to abstain
because we ought not to allow ourselves to become an
instrument in the parties’ collective bargaining process.
If there is a question of exceptional importance for
which the en banc procedure is reversed,'' it is not the
one decided by the majority opinion. It is, instead,
whether we will permit the parties in this fashion to
provoke a rehearing en banc by a 16-judge court. I
would not allow them to do so, and would dismiss the
appeal.
For these reasons I respectfully dissent.
11 Fed. R. App. P. 35.
64a
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
OFFICE OF THE CLERK
June 29, 1989
TO ALL COUNSEL OF RECORD LISTED BELOW
No. 87-1085 International Brotherhood of Team-
sters, Chauffeurs, Et Al. v. Southwest
Airlines
(OPINION RENDERED 6/22/89)
Dear Counsel:
The Court has added two footnotes to its slip opinion
rendered in the above cause on June 22, 1989. The foot-
notes appear at page 4321 as follows:
1) The sixth line on the page contains the word
“VACATED”. An asterisk will appear immediately
thereafter and the following footnote reads * Because
of timing, Consolidated Rail Corp. v. Railway La-
bor Executives’ Ass’n, No. 88-1, 1989 U.S. LEXIS
3000 (June 19, 1989), played no role in the con-
sideration of this case by our en banc court. In
consolidated Rail, the Supreme Court held that the
railway’s inclusion of drug testing in periodically
required physical examinations raised a minor dis-
pute in that the action was arguably justified by
implied terms of the parties’ agreement. There are
significant differences between the facts of Consoll-
dated Rail and our case, as well as distinct con-
tractual bases for the respective decisions. We note
only that the Supreme Court’s discussions of major
and minor disputes supports our analysis and con-
clusion, and we see nothing in our opinion requir-
ing modification on account of the Supreme Court’s
decision in Consolidated Rail.
oe Naar at ee ee
65a
2) Line nine of the second column contains the word
“frayed”. Footnote la is referenced and the foot-
note reads “As the majority states in its footnote,
the Supreme Court decided Consolidated Rail Corp.
v. RLEA, 57 U.S.L.W. 4742 (June 19, 1989), after
our full consideration of this case. I agree that
Consolidated Rail adopts the “arguably justified”
standard for determining whether a dispute is
major or minor. I also believe that the case is
distinguishable from our case on its facts. How-
ever, I do not agree that Consolidated Rail “sup-
ports [the majority’s] analysis and conclusion.”
In Consolidated Rail, the Court held that the union
had arguably bargained for particular management
“discretion to make a particular change in working
conditions without prior negotiation. . . .” 57
U.S.L.W. at 4745 n.7. In other words, within the
particularized zone of management discretion for
which the union arguably had bargained, which
was arguably contained in the controlling implied
terms of the already-formed agreement, manage-
ment’s unilateral act, arguably, was not a “change
in the agreement” within the meaning of 45 U.S.C.
§§ 152, Seventh, 156; Elgin, J. & E. R.R. Co. v.
Burley, 325 U.S. 711, 723 (1945). Accordingly, the
Court in Consolidated Rail held that the dispute
was minor.
In this case, the majority finds Southwest’s argu-
able discretion to act unilaterally in a boilerplate
management rights clause. As I discuss below, ab-
solutely nothing in this case suggests that the
Union has bargained away such vistas of discre-
tion to Southwest.
66a
Very truly yours,
GILBERT F. GANUCHEAU, Clerk
By: /s/ Richard E. Windhorst, Jr.
RICHARD E. WINDHORST, JR.
Chief Deputy Clerk
REW:lme
Mr. J. Joe Harris
Messrs. James L. Hicks. Jr. and
Hal K. Gillespie
Ms. Wilma B. Liebman
67a
APPENDIX B
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 87-1085
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AIR-
LINE DIVISION & TEAMSTERS LOCAL 19,
Plaintiffs-A ppellees,
V.
SOUTHWEST AIRLINES Co.,
Defendant-A ppellant.
April 21, 1988
Before GOLDBERG, JOHNSON and WILLIAMS, Cir-
cuit Judges.
IRVING L. GOLDBERG, Circuit Judge:
Southwest Airlines appeals from the District Court’s
conclusion that this controversy between Southwest and
its mechanics over implementation of a program of man-
datory testing for drug and alcohol use constitutes a
“major” dispute as defined by the Railway Labor Act.
We therefore review the District Court’s legal conclusions
that the program involves a mandatory subject of bar-
gaining and that the program is not “arguably justified”
by the collective bargaining agreement, as well as the
District Court’s factual findings supporting those con-
clusions. Finding no error, we affirm the District Court’s
grant of a preliminary injunction.
68a
I. Facts
Appellant, Southwest Airlines Co. (“Southwest”), is a
common carrier by air engaged in interstate commerce
subject to the Railway Labor Act. 45 U.S.C. §§ 151-188
(the “RLA”). In 1982, Appellee, the International
Brotherhood of Teamsters (the “Teamsters”), succeeded
the International Association of Machinists as represen-
tative of Southwest’s mechanics and related employees.
Until August of 1987, Southwest and the Teamsters
were parties to a collective bargaining agreement.’ The
collective bargaining agreement contained a management
rights clause which provided:
Employees covered by this Agreement shall be gov-
erned by all Company rules, regulations and orders
previously or hereafter issued by proper authorities
of the Company which are not in conflict with the
terms and conditions of this Agreement, and which
‘At oral argument counsel advised the panel that, though the
contract is open, Southwest remains steadfast in its position that
it has the right to unilaterally impose the drug testing program
and refuses to bargain. This case is not moot. Even with the con-
tract open for bargaining, we must at least reach the question of
whether the proposed program constitutes a mandatory subject of
bargaining. Even if management conceded that mandatory drug
testing is a mandatory subject of bargaining, the dispute would
continue, as capable of repetition but evasive of review. Compare
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973),
with Defunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d
164 (1974). Were we simply to reach whether this is a mandatory
subject, it is entirely conceivable that the parties would bargain to
impasse, appeal and reach this court only after the contract was
again open for bargaining. Burlington N. R.R. v. Bhd. of Main-
tenance of Way Employees, , 107 S.Ct. 1841, 1846 n.4,
95 L.Ed.2d 381 (1987). See Weinstein v. Bradford, 423 U.S. 147,
96 S. Ct. 347, 46 ..Ed.2d 350 (1975) (per curiam); Sosna v. Iowa,
419 U.S. 393, 95 S.Ct. 353, 42 L.Ed.2d 532 (1975). We therefore
reach the watiis of whether this dispute is “major” or “minor”
under the RLA.
69a
have been made available to the employee prior to
becoming effective.
(R. Vol. I, p. 83). The collective bargaining agreement
contains no rules against drug and alcohol abuse.
Southwest has, however, maintained a unilateral im-
posed work rule, Rule G,? which provides:
G. Serious Unacceptable Conduct.
Violation of any of the following is considered a
serious offense and may result in immediate dis-
charge.
4. Reporting for or carrying on work while showing
any signs of the use of intoxicants or knowingly
permitting another employee to do so is strictly
prohibited.
5. Possession of or drinking of any intoxicant or
illegal possession or use of illegal or dangerous
drugs on company premises or while in uniform
and/or habitual use of intoxicants or use of ille-
gal or dangerous drugs on or off duty will not be
tolerated.
(R. Vol. I, p. 141) (emphasis added).
The District Court found that before October, 1986,
Southwest had no existing practice for detecting viola-
tions of rules G(4) and G(5) other than visual observa-
tion. (R. Vol. III, p. 115). The District Court also found
that there was no history of problems with drug or alco-
hol abuse* and no history of Rule G enforcement. South-
west presented evidence of only one instance where an
2 Some form of Rule G has been in force throughout the Railroad
and Airline industries for at least 40 years. Brotherhood of Loco-
motive Engineers v. Burlington N. R.R., 838 F.2d 1102, 1107 (9th
Cir. 1988).
3 Southwest’s counsel conceded this point at oral argument.
70a
employee was observed to be drunk while on duty. South-
west offered the employee an opportunity to take a urine
test. He refused. He was neither forced to take the test
nor diseplined for his refusal, based upon Southwest’s be-
lief that it could not require testing.‘
On October 16, 1986, Southwest advised the Teamsters
of its desire to unilaterally implement a drug and alcohol
testing program (the “Program”). Southwest invited
representatives of the Teamsters to a meeting on Novem-
ber 6, 1986 for the purpose of reviewing the Program,
saying, “because we have added to our current regula-
tions, we wanted you to have this information prior to its
distribution.” (R. Vol. I, p. 180). The Teamsters im-
mediately sought to bargain over the terms of the Pro-
gram. Southwest expressed a willingness to discuss the
content of the proposed Program, but refused the Team-
sters’ request to bargain. (R.Vol. I, p. 181-184; R.Vol I,
p. 187). Unions representing other Southwest employees
engaged in discussions with Southwest which altered the
shape of the Program.
The Program consists of: 1) a general work rule or
policy, which prohibits detectable levels of illegal drugs,
defines alcohol intoxication as a blood alcohol level of
.05%, and prohibits use of over-the-counter and prescrip-
tion drugs which might impair performance;* 2) manda-
* (R. Vol. III, p. 62-67, 70-74, 117-118). One other employee who
had a problem with accidents and absenteeism was offered the op-
portunity to enter an alcohol treatment program. He refused. He
was ultimately fired, but for the absenteeism and accident problem,
not because of any problem with alcohol, or because of any refusal
to take a test.
5 The new policy provides:
Southwest Airlines prohibits Company employees from re-
porting for work and/or from working with:
® detectable levels of illegal drugs in their systems
® alcohol levels which could impair their ability to perform
their duties and thus adversely affect the safety of the air-
oo
T1la
tory pre-employment urine drug screens, and mandatory
urine drug screens of employees under certain defined
circumstances;* 3) detailed testing rules including em-
ployee releases, confidentiality and chain-of-custody safe-
guards, use of a confirmatory test in the event of a posi-
tive initial result, and provisions for a second test at an
line and/or the work being performed, and in no event, a
level in excess of .05%. Should regulations or law require a
stricter level for any particular work group, those levels
would supercede the .05% level.
® prescription drugs and over-the-counter medication which
could, in the opinion of . . . Company appointed doctors, have
adverse effects on the safety of the airline and/or the work
being performed. Should there be a question regarding pre-
scription drugs and over-the-counter medications being taken
by employees who are required to have physicals for license
purposes, the Company appointed doctor(s) wili consult with
the doctor issuing the medical certificate.
® The Program requires testing as follows:
Drug/ Alcohol Testing for Current Southwest Employees
A. Employees of Southwest Airlines will be sent for urine
drug screens and/or blood alcohol tests under
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