International Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America-Airline Div. and Teamsters Local 19 v. Southwest Airlines Co.

• Decision Date: 22 June 1989
• Docket Number: No. 87-1085,AMERICA-AIRLINE,87-1085
• Citation: 875 F.2d 1129
• Parties: 131 L.R.R.M. (BNA) 2761, 58 USLW 2011, 58 USLW 2041, 112 Lab.Cas. P 11,338 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OFDIVISION AND TEAMSTERS LOCAL 19, Plaintiffs-Appellees, v. SOUTHWEST AIRLINES COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1129

875 F.2d 1129

131 L.R.R.M. (BNA) 2761, 58 USLW 2011,

58 USLW 2041,

112 Lab.Cas. P 11,338

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS WAREHOUSEMEN & HELPERS OF AMERICA-AIRLINE DIVISION AND TEAMSTERS LOCAL 19, Plaintiffs-Appellees, v. SOUTHWEST AIRLINES COMPANY, Defendant-Appellant.

No. 87-1085.

United States Court of Appeals Fifth Circuit.

June 22, 1989.

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

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. 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.

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. 45 U.S.C. Sec. 152, First, Second. Once bargaining has resulted in 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 procedures 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 proposals for new agreements or for changes in existing agreements. Id. at 723, 65 S.Ct. at 1289. Minor disputes, on the other hand, involve grievances over the application of an existing agreement. Id. This distinction matters because the RLA prescribes differing courses for the resolution 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. Sec. 155, First, Sec. 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. Burlington Northern R.R. Co. v. Brotherhood of Maintenance of Way Employees, 481...