International Brotherhood Of Teamsters v. Southwest Airlines CompanyInternational Brotherhood Of Teamsters v. Southwest Airlines Company
James L. Hicks, Jr., Hal K. Gillespie, Dallas, Tex., Wilma B. Liebman, Washington, D.C., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This case presents the question whether the union‘s objection to the unilateral imposition of a comprehensive, mandatory drug testing program constitutes a “major” dispute under the Railway Labor Act that must be negotiated with the union before it can be implemented by Southwest Airlines, or whether the drug testing program was arguably justified by the existing collective bargaining 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 Teamsters“) represents Southwest‘s mechanics and related employees. Article 2, paragraph 4 of the relevant Teamsters and Southwest 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 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 consisted 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 illegal possession or use of illegal 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 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 implement a drug and alcohol testing program. The program 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 employees 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 Teamsters 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 the shape of the program.
B.
In December 1986, the Teamsters filed this action, seeking 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 justified 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 warranted 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. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Airline Division & Teamsters Local 19 v. Southwest Airlines Co., 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 unmistakably waived by the Teamsters in the management rights 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.
C.
We first note that this case continues to present a justiciable controversy. Although the agreement precipitating 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. Furthermore, Southwest adheres to its position that it is entitled to implement unilaterally its drug testing program, 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, 13A Federal Practice and Procedure, Sec. 3553.3 (2d ed.1984). Labor litigation, which presents both the problem of lapsed contracts and settled suits, has frequently required courts to determine whether such “clear and tangible” 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 pendency of the suit.” Division 580 v. Central New York RTA, 578 F.2d 29, 32 (2d Cir.1978). The special treatment due labor questions has been recognized several times by the Supreme Court. See, e.g., Jacksonville Bulk Terminals, Inc. v. International Longshoremen‘s 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 Steelworkers 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 motivated 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 agreements 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 dispute. Thus, our case is no less justiciable than Buffalo Forge or Jacksonville Bulk Terminals.
II
A.
The premise of the Teamsters’ request for an injunction begins with Southwest‘s duty to bargain with the union before imposing terms of employment, including rates of pay, rules, and working conditions.
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.
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 Express, Inc. v. Brotherhood of Railway, Airline and Steamship 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.” Id. 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 yardmaster positions,” this circuit reversed a lower court decision 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 ordinary understanding of the English language does authorize 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 agreement. We do not, of course, ... attempt to construe the contract. This is to be done by the appropriate 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 can decide that the terminations at issue were not justified, it must construe the language of Rule 16(e).
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. Brotherhood 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 management‘s prerogative.... [T]here is no express provision allowing management to transfer the work unilaterally. However, the agreement does expressly reserve “the right of management to determine methods of operation and the utilization of the working forces....” Moreover, there is an undisputed history of such unilateral transfers of work with no apparent objection from the union. It may be concluded ... 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 Railway Express Agency, id. at 393-94, relied heavily on Rutland Ry. Corp. v. Brotherhood of Locomotive Engineers, 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 negotiating about them with the brotherhoods.... 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 railroad and the brotherhoods contain express provisions contrary to the position taken by the railroad or if the clear implication of these agreements is inconsistent with the railroad‘s proposals. It is a minor dispute if there is a clearly governing provision in the present agreements, although its precise requirements 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 unilaterally. Id. 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 management‘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 create 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, 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 program. The clause provides:
Employees covered by this Agreement shall be governed 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 becoming 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 interpretation of the clause, we decline to say that the plausibility of such interpretation bars the contrary view 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 arbitration.
This conclusion is further supported by the history of rule-making under the agreement. Southwest unilaterally promulgated Rule G, a rule establishing a drug and alcohol policy. Although Rule G has not required significant 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 tandem 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 Southwest‘s unilateral implementation of the program will infringe 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 conditions, 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 bargain 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. Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693, 707-08, 103 S.Ct. 1467, 1476-77, 75 L.Ed.2d 387 (1983). Metropolitan Edison concerned a no-strike clause, but this general rule of construction has been applied 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);
We find, however, that we are not squarely presented at this time with the question of how the “clear and unmistakable” rule applies to RLA cases. Even assuming, as the panel opinion assumes, that the management rights clause can give Southwest the right unilaterally to implement the program only if the clause is a clear and unmistakable waiver, the construction proposed by Southwest 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 program is a rule or regulation that falls within the terms of the management rights clause. Thus, there is an obvious 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.
III
The district court held in the alternative that, even if the dispute is minor, an injunction is nevertheless warranted because of the potential harm of an improperly implemented drug testing program. We review this alternative holding under a deferential standard, and reverse 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. Id. at 541-42. Such injunctions may issue only where necessary to preserve the jurisdiction 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 decision meaningless. Id. at 542. The district court found that irreparable harm to an employee‘s reputation could result, for example, from disciplinary action 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 an employee, we do not believe that this speculative possibility of irreparable harm is of the magnitude required to support an injunction in the context of a minor dispute. Accordingly, we hold that it was an abuse of discretion 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 district court‘s injunction pending the dispute‘s resolution was improper. Accordingly, the injunction is
VACATED.*
GOLDBERG, Circuit Judge, with whom POLITZ, JOHNSON, and JERRE S. 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 cupboard is barren, it is only because the majority has decided to empty it. Assuming the hegemony of management prerogative, the majority dresses its holding in the diaphanous garb of a Mother Hubbard Clause.1 But the 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.1a
This case simply concerns the relative volumes of a Union‘s and employer‘s voices under a collective bargaining 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 rightfully 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.3
According to the majority, implementation of the testing program would “effect[ ] a change in rules and working conditions.” Thus, this contest is subject to the major dispute resolution process under the statute4 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.5 The majority holds (1) that the contract is materially silent,6 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 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 least 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 III, 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 arguably waived its members’ bargaining rights. The majority‘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 management 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 management 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 observation7 is the parties’ contemplated method of Rule G enforcement under the contract. The testing program contains both a revised policy8 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 urinalysis.9 Blood alcohol testing and urinalysis, if implemented unilaterally, would conflict with, and utterly violate, contractually protected rights of the Union‘s members that were created, and are protected, by the contract‘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 threshold as a question of law.10 The majority abdicates its responsibility to undertake an identical inquiry. Because 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 exposition.
Southwest Airlines Co. (“Southwest“) is a common carrier by air subject to the Railway Labor Act. The International Brotherhood of Teamsters (“Union“) represents 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. Southwest refused to bargain and unilaterally attempted to implement the program on January 1, 1987. The Union immediately sought a preliminary injunction. The district court 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 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.11 Rule G prohibits employees 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 application of the enforcement method because there is no history of problems with drug or alcohol abuse.
The testing program contains both a revised drug and alcohol policy and an extremely intrusive means of enforcing the revised policy.12 The revised policy prohibits employees from working with detectable levels of drugs, defines a blood alcohol level of .05% 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 including discharge for violations of the policy.
The testing program‘s intrusive methodology is unprecedented in the parties’ bargaining history. The program 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 Southwest has reasonable suspicion that an employee has violated the program‘s policy; and (3) “whenever a previously non-physicalled [sic] employee successfully interviews for a position within the company which requires a physical examination.” The program also contains testing procedures giving Southwest absolute discretion (1) to determine the testing laboratories to be used; concerning (2) chain-of-custody safeguards; (3) confidentiality; and (4) concerning use of employee releases.
Southwest has attempted to implement a program unilaterally which by its terms provides for urinalysis or blood alcohol testing of any company employee at Southwest‘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 require any male or female company employee to be subjected 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 substitution of fraudulent samples.
In addition, the program gives Southwest absolute discretion to provide for specimen chain of custody procedures and to contract with any outside laboratory.13 Error in either of these areas of discretion, which is inherent in the methodology to a certain degree, would have a dramatic impact on the employees’ workaday world. Furthermore, while Southwest‘s program contains confidentiality provisions, the results of any test are both restricted to and absolutely available to “the Vice President 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 company, testing only for drug use, may not otherwise be entitled. Blood and urine samples may disclose the existence of pregnancy, epilepsy and diabetes, Skinner, --- U.S. at ----, 109 S.Ct. at 1413, and may even disclose clinical depression. Id. 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.14 My additional discussion also addresses Judge Rubin‘s alternative suggestion that we should abstain from deciding this case, even assuming 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 jurisdiction in a particular court, which would otherwise have no power to decide a dispute that might arise under the 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 issuance of the injunction. While the parties were still bound by their original agreement, the district court enjoined Southwest from implementing the testing program “pending both appeal and final disposition” (R. 264). No preexisting 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 members 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 incentives governing the parties’ behavior offered no reason for a resolution of this particular dispute through bargaining 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, labyrinthine 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.
III. Mother Hubbard‘s Kitchen.
Before analyzing this case, one must understand the distinctive, in some respects puzzling, framework of federal labor regulation under the Railway Labor Act (“RLA“). In the 1920s, railroad unions demonstrated an unparalleled solidarity among American workers, before either the rejuvenation of other AFL unions or the conception of the CIO.15 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,
A. Major and Minor Disputes. Unions and employers subject to the RLA primarily encounter two types of disputes arising from the collective bargaining agreements to which they are parties. In Elgin, J. & E. Railway Co. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945), the Supreme Court attached the pregnant labels “major” and “minor” to the two types 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.”
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 proposed 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 conditions, 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 adjustment.
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 proposal 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 which the employer attempts to impose discipline.20 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 application 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.1962), 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 disagree. Under our circuit‘s standard, the dispute we confront is minor if Southwest‘s unilateral act is “arguably 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 content. As Judge Tuttle has well-articulated, even colorable contentions are not equivalent to the arguable contentions 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).21
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.”
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 bargain. 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.
Both 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 attaches to a change in rates of pay, rules and working conditions unless the parties’ agreement properly provides otherwise. See, e.g., United Industrial Workers, 351 F.2d 183; see 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 management 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. at 761).
IV. Waiver and the Proper Decisionmaking Forum.
Employees covered by this Agreement shall be governed 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....
V. The Management Rights Clause Does Not Control This Case.
A.
B.
C.
Conclusion
ALVIN B. RUBIN, Circuit Judge, dissenting:
The three cases relied on by the majority present questions entirely different from the issue sought to be kept alive here. They adopt completely conventional interpretations of the constitutional requirement, and do not justify asserting jurisdiction in this case.