# Petition for Writ of Certiorari — International Brotherhood of Teamsters v. Southwest Airlines Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0510%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1043 ## Text a OCT 20 1989 > Swe Court, US | | J ¥ :: RE ST TTT ibe pent — ——- on 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 a GT AME LE, OOO ii I MITE 6s: csscocuatrasniessatscsoinnssdeensnuananst Vv LS I I oR 1 EL ee 2 STATUTES AND REGULATIONS .............0...0............ 2 BOE, GU TETEEED GURNEE oncccccencecrccccecennsccscenereneomess ,_. 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) [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0510%3A1. Public record. Not legal advice.