International Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Airline Div. v. Southwest Airlines Co., 87-1085

• Decision Date: 21 April 1988
• Docket Number: No. 87-1085,87-1085
• Citation: 842 F.2d 794
• Parties: 128 L.R.R.M. (BNA) 2225, 46 Empl. Prac. Dec. P 37,939, 56 USLW 2617, 109 Lab.Cas. P 10,552, 13 O.S.H. Cas.(BNA) 1768 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AIRLINE DIVISION & Teamsters Local 19, Plaintiffs-Appellees, v. SOUTHWEST AIRLINES CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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842 F.2d 794 128 L.R.R.M. (BNA) 2225, 46 Empl. Prac. Dec. P
37,939,
56 USLW 2617, 109 Lab.Cas. P 10,552,
13 O.S.H. Cas.(BNA) 1768 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, AIRLINE
DIVISION & Teamsters Local 19,
Plaintiffs-Appellees,
v.
SOUTHWEST AIRLINES CO., Defendant-Appellant. No. 87-1085. United States Court of Appeals,
Fifth Circuit. April 21, 1988.

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J. Joe Harris, San Antonio, Tex., for defendant-appellant.

James L. Hicks, Jr., Hal K. Gillespie, Dallas, Tex., and Wilma B. Liebman, Washington, D.C., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, JOHNSON and WILLIAMS, Circuit Judges.

IRVING L. GOLDBERG, Circuit Judge:

Southwest Airlines appeals from the District Court's conclusion that this controversy between Southwest and its mechanics over implementation of a program of mandatory testing for drug and alcohol use constitutes a "major" dispute as defined by the Railway Labor Act. We therefore review the District Court's legal conclusions that the program involves a mandatory subject of bargaining and that the program is not "arguably justified" by the collective bargaining agreement, as well as the District Court's factual findings supporting those conclusions. Finding no error, we affirm the District Court's grant of a preliminary injunction.

I. Facts

Appellant, Southwest Airlines Co. ("Southwest"), is a common carrier by air engaged in interstate commerce subject to the Railway Labor Act. 45 U.S.C. Secs. 151-188 (the "RLA"). In 1982, Appellee, the International Brotherhood of Teamsters (the "Teamsters"), succeeded the International Association of Machinists as representative of Southwest's mechanics and related employees.

Until August of 1987, Southwest and the Teamsters were parties to a collective bargaining agreement. ¹ The collective bargaining agreement contained a management rights clause which provided:

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.

(R. Vol. I, p. 83). The collective bargaining agreement contains no rules against drug and alcohol abuse.

Southwest has, however, maintained a

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unilaterally imposed work rule, Rule G, ² which provides:

G. Serious Unacceptable Conduct.

Violation of any of the following is considered a serious offense and may result in immediate discharge.

....

4. Reporting for or carrying on work while showing any signs of the use of intoxicants or knowingly permitting another employee to do so is strictly prohibited.

5. Possession of or drinking of any intoxicant or illegal possession or use of illegal or dangerous drugs on company premises or while in uniform and/or habitual use of intoxicants or use of illegal or dangerous drugs on or off duty will not be tolerated.

(R. Vol. I, p. 141) (emphasis added).

The District Court found that before October, 1986, Southwest had no existing practice for detecting violations of rules G(4) and G(5) other than visual observation. (R. Vol. III, p. 115). The District Court also found that there was no history of problems with drug or alcohol abuse ³ and no history of Rule G enforcement. Southwest presented evidence of only one instance where an employee was observed to be drunk while on duty. Southwest offered the employee an opportunity to take a urine test. He refused. He was neither forced to take the test nor disciplined for his refusal, based upon Southwest's belief that it could not require testing. ⁴

On October 16, 1986, Southwest advised the Teamsters of its desire to unilaterally implement a drug and alcohol testing program (the "Program"). Southwest invited representatives of the Teamsters to a meeting on November 6, 1986 for the purpose of reviewing the Program, saying, "because we have added to our current regulations, we wanted you to have this information prior to its distribution." (R. Vol. I, p. 180). The Teamsters immediately sought to bargain over the terms of the Program. Southwest expressed a willingness to discuss the content of the proposed Program, but refused the Teamsters' request to bargain. (R.Vol. I, p. 181-184; R.Vol. I, p. 137). Unions representing other Southwest employees engaged in discussions with Southwest which altered the shape of the Program.

The Program consists of: 1) a general work rule or policy, which prohibits detectable levels of illegal drugs, defines alcohol intoxication as a blood alcohol level of .05%, and prohibits use of over-the-counter and prescription drugs which might impair performance; ⁵ 2) mandatory pre-employment urine drug screens, and mandatory urine drug screens of employees under certain defined circumstances; ⁶ 3) detailed testing

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rules including employee releases, confidentiality and chain-of-custody safeguards, use of a confirmatory test in the event of a positive initial result, and provisions for a second test at an employee's request; ⁷ and 4) establishment of punishments and procedures to be followed in the event of violation of the policy. ⁸

On January 1, 1987, Southwest implemented the Program. The Teamsters objected and sought a preliminary injunction. The District Court enjoined the Program, concluding that its implementation constitutes a "major" dispute under the RLA. The District Court supported this conclusion by finding that the Program constitutes a comprehensive means of monitoring, testing and punishing violations of rules prohibiting drug and alcohol use or possession, and that as such it is not arguably justified by Rule G or past practice of enforcing Rule G. The District Court further concluded that each element of the Program constitutes a "major" change warranting an injunction. Alternatively, the District Court concluded that even if the disputes were deemed "minor" there exists a substantial likelihood of irreparable harm warranting an injunction to preserve the status quo pending arbitration of the dispute under the terms of the labor contract. ⁹

II. Discussion

In deciding this case we are cognizant of Oliver Wendell Holmes dictum "Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law

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of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." Northern Securities v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 486, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).

Drug testing in the public and private sectors is an issue of great social importance and controversy. Over 25% of the Fortune 500 companies now require drug tests of all successful job applicants. ¹⁰ The Federal government has enacted regulations requiring drug tests of customs inspectors, and has proposed regulations requiring testing of railroad employees. Courts have reached different conclusions regarding whether such drug testing constitutes a reasonable search under the Fourth Amendment. Compare National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988) (approving plan for testing of customs officials), with Railway Labor Executives' Association v. Burnley, 839 F.2d 575 (9th Cir.1988) (invalidating Department of Transportation regulations requiring testing of railroad workers). The Supreme Court has granted certiorari in Von Raab to deal with the fourth amendment issue.

In this climate it is perhaps useful to spell out first what this case does not involve. It does not deal with the legality of private employers requiring a drug test as a condition of employment. It does not deal with the constitutionality of government mandated drug testing. It does not deal with the propriety of allowing employees to use drugs. It deals only with the rights of a collective bargaining representative to participate in the formulation of a mandatory drug testing program, to negotiate over the shape that program will take. Though this case involves issues of national importance, it can and must be resolved by reference to established principles under the RLA as enacted by Congress and interpreted by the courts. The determinative factors are not whether drugs are dangerous, or whether drug testing is intrusive, but whether the program of mandatory testing and punishment chosen by Southwest is consistent with the collective bargaining agreement between Southwest and the Teamsters.

A. Mandatory Subject of Bargaining?

The first inquiry in this case is whether the Program is a mandatory subject of bargaining under the Railway Labor Act. This is a question of law, which we review de novo. Japan Airlines Co. v. International Association of Machinists, 538 F.2d 46, 52-53 (2d Cir.1976). Unless a dispute involves a mandatory subject, management may act unilaterally without discussing the change with the collective bargaining representative. Order of Railroad Telegraphers v. Chicago & Nw. Ry., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960) (subcontracting out of work that would deprive existing employees of their jobs constitutes a mandatory subject); see Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).

The Railway Labor Act imposes a duty upon employers and labor unions to bargain in good faith over "rates of pay, rules and working conditions." ¹¹ But "The collective bargaining process is neither a short nor an easy one and the delicate balance upon which ultimate agreement frequently

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rests would be needlessly jeopardized were the parties at liberty to insist upon the discussion of subsidiary matters.... Inevitably, the chance of deadlock increases as...