International Brotherhood of Teamsters, Chauffeurs,warehousemen & Helpers of America, Airlinedivision & Teamsters Local 19,plaintiffs-appellees, v. Southwest Airlines Co., Defendant-appellant, 842 F.2d 794 (5th Cir. 1988)

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.

Appellant, Southwest Airlines Co. ("Southwest"), is a common carrier by air engaged in interstate commerce subject to the Railway Labor Act. 45 U.S.C. §§ 151-188 (the "RLA"). In 1982, Appellee, the International Brotherhood of Teamsters (the "Teamsters"), succeeded the International Association of Machinists as 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 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 abuse³  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 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 

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 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 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 the perimeter of negotiations expands." Japan Air Lines, 538 F.2d at 52. For this reason, the First, Second and Ninth Circuits have held that the duty to bargain imposed by the RLA extends only to those proposals directly related to "rates of pay, rules and working conditions." Id.; International Association of Machinists v. Northeast Airlines, 473 F.2d 549, 556-57 (1st Cir.), cert. denied, 409 U.S. 845, 93 S. Ct. 48, 34 L. Ed. 2d 85 (1972); Brotherhood of Locomotive Engineers v. Burlington N. R.R., 838 F.2d 1087, 1090-91 (9th Cir. 1988). One of these issues must be implicated, and the action by management must affect people presently in the bargaining unit. Japan Airlines, 538 F.2d at 53.¹² 

Applying this standard, the Ninth Circuit has determined that both mandatory drug testing and random use of "sniffer dogs" to detect drugs are mandatory subjects of bargaining. Brotherhood of Locomotive Engineers v. Burlington N. R.R., 838 F.2d 1102 (9th Cir. 1988); Brotherhood of Locomotive Engineers v. Burlington N. R.R., 838 F.2d 1087 (9th Cir. 1988).

No case in this Circuit has dealt with this issue under the RLA. We are guided, however, by cases decided under Sec. 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d) (the "NLRA"). This Circuit has held that the term "condition of employment,"¹³  as used in Sec. 8(d) of the NLRA, includes safety rules. NLRB v. Gulf Power Company, 384 F.2d 822 (5th Cir. 1967). The Supreme Court has held that under the NLRA mandatory subjects are those which are "germane to the 'working environment,' " and "not among those 'managerial decisions [ ] which lie at the core of entrepreneurial control.' " Ford Motor Co. v. NLRB, 441 U.S. 488, 498, 99 S. Ct. 1842, 1850, 60 L. Ed. 2d 420 (1979) (quoting Fibreboard, 379 U.S. at 222-23, 85 S. Ct. at 409-10).

Southwest conceded at oral argument that instituting the Program constitutes a change in working conditions and this is correct.¹⁴  We have no doubt that instituting a drug testing program is directly related to the working conditions of employees presently within the bargaining unit.

Though the Program decidedly involves a mandatory subject of bargaining, Southwest contends that the Teamsters have waived their right to bargain over work rules by accepting a management rights clause. A party may, of course, contractually waive its right to bargain about a particular mandatory subject. NLRB v. American National Insurance Co., 343 U.S. 395, 72 S. Ct. 824, 96 L. Ed. 1027 (1952). But waiver by contract must be "clear and unmistakeable," and cannot be lightly inferred. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S. Ct. 1467, 1477, 75 L. Ed. 2d 387 (1983); see Morris, 1 The Developing Labor Law 640-50 (2d ed. 1983). We may find waiver by contract where the language of the agreement is specific, or the history of prior contract negotiations suggests that the parties discussed the subject and the union "consciously yielded." NL Industries, Inc., 220 N.L.R.B. 41, 43-44 (1975), enf'd 536 F.2d 786 (8th Cir. 1976). Where management rights clauses are invoked the clause must provide specific justification for the unilateral action taken. See Ador Corp., 150 N.L.R.B. 1658 (1965).

The management rights clause in the collective bargaining agreement between Southwest and the Teamsters provides simply that employees shall abide by all rules presently in effect and later enacted. The clause says nothing about the process for enacting new rules. The Teamsters have merely agreed to abide by all rules which are validly enacted.¹⁵  The language does not facially imply a waiver by the Teamsters of the right to bargain over work rules which involve mandatory subjects, and falls far short of the clear statement required to constitute "clear and unmistakeable waiver." Far from waiving their right to bargain, the Teamsters have consistently insisted on their right to negotiate over implementation of the Program.

B. Is This Dispute Major or Minor?

Having determined that the proposed Program involves a mandatory subject of bargaining, the jurisprudence that has arisen under the Railway Labor Act requires us further to determine whether this dispute over implementation of the Program constitutes a "major" or a "minor" dispute.

In Brotherhood of Locomotive Firemen v. Southern Pacific R.R., 447 F.2d 1127, 1131-32 (5th Cir. 1971), we explained the workings of the Railway Labor Act. The basic purpose of the RLA is " [t]o avoid any interruption of commerce or the operation of any carrier engaged therein." 45 U.S.C. § 151a. To this end the RLA has created a complex but effective set of mechanisms for resolving disputes. The RLA begins, in Section 2, First, of the Act, by imposing a general duty on both parties "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions." 45 U.S.C. § 152, First. Section 2, Second, of the Act requires parties to all disputes to make attempts to resolve the dispute voluntarily. 45 U.S.C. § 152, Second.

Should voluntary attempts to resolve the dispute fail, the RLA provides two sets of procedures following two distinct strategies for dealing with the two basic types of dispute. Although the Act did not expressly label these two categories of controversies, they are commonly referred to as "major" disputes and "minor" disputes. See Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945). "Major" disputes are those disputes arising from proposed changes in a collective bargaining agreement.¹⁶  "Minor" disputes involve grievances arising over the interpretation or application of existing collective bargaining agreements.¹⁷  The RLA treats these two types of disputes very differently. "Major" disputes are dealt with through mediation in the context of a judicially enforced status quo. "Minor" disputes, or grievances, are dealt with through binding arbitration.

If the controversy is "major," that is, a dispute arising out of proposals for a new contract or for changes in existing agreements, the parties first go to mediation, Sec. 5, First, 45 U.S.C. § 155, First; if that fails, to acceptance or rejection of arbitration, id.; and finally to possible Presidential intervention. Sec. 10, 45 U.S.C. § 160. While the Act's bargaining procedures are being exhausted, the union is prevented from striking and the carrier is prohibited from doing anything that would justify a strike.¹⁸  Once these procedures are exhausted, however, compulsory processes are at an end, and either party may resort to self help or unilateral action. Burlington N. R.R., 107 S. Ct. at 1851; Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378-79, 89 S. Ct. 1109, 1115-16, 22 L. Ed. 2d 344 (1969). No authority is empowered to decide the dispute unless the parties jointly agree to arbitration.

If the dispute is "minor," that is, a controversy arising over the interpretation or application of an existing collective agreement, either party, upon impasse, may submit the grievance to final and binding arbitration before the National Railroad Adjustment Board or a system board of adjustment established by the parties. 45 U.S.C. § 153, First (m), Second. While resort to self-help, such as strikes is precluded in minor disputes, Brotherhood of Railroad Trainmen v. Chicago R. & I. R.R., 353 U.S. 30, 77 S. Ct. 635, 1 L. Ed. 2d 622 (1957); cf. Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970), there is no general provision in the Act prohibiting a party from acting unilaterally upon its interpretation of the contract pending exhaustion of the grievance procedures. International Association of Machinists v. Frontier Airlines, Inc., 664 F.2d 538 (5th Cir. 1981); Switchmen's Union v. Central of Georgia Ry., 341 F.2d 213 (5th Cir.), cert. denied, 382 U.S. 841, 86 S. Ct. 41, 15 L. Ed. 2d 82 (1965).

Though the distinction between "major" and "minor" disputes rests on a legislative judgment that issues of contract formation tend to be more divisive than issues of contract interpretation, the method for determining whether a dispute is major or minor has absolutely nothing to do with how important a dispute is. The sole question is whether the proposed change has a basis in the contract. When a dispute can be resolved through an interpretive act, by reference to the contract or practice, the dispute may be resolved by an arbitrator. When the contract provides no guidance, no individual is empowered to resolve the dispute.

We must therefore determine whether this dispute involves contract interpretation or contract alteration. This legal conclusion rests heavily on the facts of the specific case. The cases in this Circuit demonstrate that "the difference on the one hand between the interpretation and application of an existing agreement, and, on the other hand, a change in an original intended basis of agreement is often a question of degree." Brotherhood of Locomotive Firemen, 447 F.2d at 1134 (quoting, Rutland Ry. v. Brotherhood of Locomotive Engineers, 307 F.2d 21, 33 (2d Cir. 1962), cert. denied, 372 U.S. 954, 83 S. Ct. 949, 9 L. Ed. 2d 978 (1963)). These attempts to distinguish between interpretation and modification present a wavering line which places a relatively light burden on the party proposing the change. An employer is not a modern day Prometheus bound by contractual chains of his own making. A dispute is minor, so long as the proposed change is "arguably justified" by the existing collective bargaining agreement. Railway Express Agency Inc. v. Brotherhood of Ry. Airline & S.S. Clerks, 437 F.2d 388, 392 (5th Cir.), cert. denied, 403 U.S. 919, 91 S. Ct. 2230, 29 L. Ed. 2d 696 (1971). In St. Louis, S.F. & T. Ry. v. Railroad Yardmasters of America, 328 F.2d 749 (5th Cir.), cert. denied, 377 U.S. 980, 84 S. Ct. 1886, 12 L. Ed. 2d 748 (1964), for example, Judge Tuttle concluded that the permissibility of elimination of yardmaster positions could be determined by reference to the contract. He said, " [W]e 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.... This is to be done by the appropriate tribunal.... 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)." Id. at 753 (emphasis added); see also Brotherhood of Locomotive Firemen, 447 F.2d at 1127 (dispute between railroad, engineer's union and fireman's union over method for calculating hours could be resolved by construing the agreement between the firemen and the railroad and was therefore not a "clear change" but a question of interpretation); Railway Express Agency Inc. v. Brotherhood of Ry. Airline & S.S. Clerks, 437 F.2d at 392 (where there was "an undisputed history of ... unilateral transfers of work with no apparent objection from the union ... REA [had] at least the arguable right to make [such] transfers."); St. Louis S.W. Ry. v. United Transportation Union, 646 F.2d 230 (5th Cir. 1981) (union's proposed modifications in group disability insurance benefits and caboose design specifications deemed "major," but possibly dispositive "minor" question of whether the Union's proposal was barred by a moratorium provision in a national agreement between the parties that forbids certain types of union proposals was to be decided first).

In determining whether a proposal is "arguably justified" by the contract we must look both to the contract itself and to the practices under the contract. "When longstanding practice ripens into an established and recognized custom between the parties, it ought to be protected against sudden and unilateral change as though it were a part of the collective-bargaining agreement itself. Such practices have been described as the 'actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose.' " Brotherhood of Maintenance of Way Employees v. Burlington N. R.R., 802 F.2d 1016, 1022 (8th Cir. 1986) (quoting Detroit & T. Short Line R.R. v. United Transportation Union, 396 U.S. 142, 90 S. Ct. 294, 24 L. Ed. 2d 325 (1969)). Thus we are faced with the question of whether the proposed Program is arguably justified by the contract as embodied in the express terms of the collective bargaining agreement, and as amplified by actual objective working conditions and practices.

Southwest argues that the Program is "arguably justified" either by the management rights clause discussed above, or by Rule G, which prohibits alcohol or drug use or possession during work time or on the airline premises. Applying this standard, the District Court found that the Program as a whole as well as its individual components constitute major disputes.¹⁹  The District Court applied the proper legal standard. We may reverse its factual findings only if they are clearly erroneous.

1. Is the Program Arguably Justified by The Management

Rights Clause of The Collective Bargaining Agreement?

In addition to arguing that the management rights clause of the contract constitutes a waiver of the right to bargain over work rules, Southwest argues that the management rights provision provides arguable justification for unilateral imposition of the Program. The District Court rejected this argument on the basis of the lower court opinions in two cases recently affirmed on this point by the Ninth Circuit. Brotherhood of Locomotive Engineers v. Burlington N. R.R., 620 F. Supp. 163 (D.C.Mont.1985), aff'd, 838 F.2d at 1105; Brotherhood of Locomotive Engineers v. Burlington N. R.R., 620 F. Supp. 173 (D.C.Mont.1985), reversed, 838 F.2d at 1090. Southwest argues that this case differs from the Burlington cases because the collective bargaining agreement contains a specific clause which they interpret as a waiver by the Teamsters of their right to bargain over changes in work rules. Because the standard for determining whether a dispute is "major" or "minor" turns on whether the interpretation is "arguably justified" by the contractual term, it is not our place or that of the district court to construe the contract if there is any doubt as to its meaning. But as we noted above, the management rights clause in this contract does not speak at all to the right to bargain over rules, only to a willingness to abide by rules validly enacted. Given the principles for construing management rights clauses discussed above, the question is not a close one. The District Court did not err in concluding that the management rights clause does not even arguably justify the Program.2. Does Rule G Provide Arguable Justification for

Mandatory Drug Testing?

With the exception of the management rights clause, the collective bargaining agreement contains nothing which relates to, let alone justifies, the unilateral imposition of mandatory drug testing. As mentioned above, however, a work rule, Rule G, prohibits intoxication, possession or use of alcohol or illegal drugs on company premises. Rule G, has been in effect throughout the duration of the collective bargaining agreement, and must be considered part of the contract. It is therefore necessary to determine whether either Rule G standing alone, or Southwest's history of enforcing Rule G provides a contractual basis for imposition of the Program.

No case in this Circuit has dealt with this question, but three cases have been decided in other circuits. All of them involve the Burlington Northern Railroad. Brotherhood of Maintenance of Way Employees v. Burlington N. R.R., 802 F.2d 1016 (8th Cir. 1986) (Burlington I) ; Brotherhood of Locomotive Engineers v. Burlington N. R.R., 838 F.2d 1087 (9th Cir. 1988) (Burlington II) ; Brotherhood of Locomotive Engineers v. Burlington N. R.R., 838 F.2d 1102 (9th Cir. 1988) (Burlington III) . For convenience we will refer to them as Burlington I, Burlington II, and Burlington III.²⁰  While not dispositive, these cases provide examples of different forms of Rule G enforcement coupled with different types of drug testing programs. We examine the legal conclusion of the District Court in light of these decisions, comparing their factual context and contractual language with this case. In so doing we reiterate that the legal conclusion whether a practice is "arguably justified" is one of degree, and that we may reverse the factual findings which form the basis of this conclusion only if they are clearly erroneous. We must look at the aspects of the drug testing program in the particular case as well as the history of enforcement under that collective bargaining agreement. With all of this in mind, we conclude that of the four cases, this is the strongest case for a conclusion that the dispute is "major."

a. Union acquiesence in voluntary urinalysis arguably justifies mandatory testing on particularized suspicion. Burlington I was the first case at the Circuit level to deal with mandatory drug and alcohol testing. The Eighth Circuit found that "the parties [had] acquiesced in certain detection and investigation methods over the years, and these practices [could] fairly be considered to have become the status quo," 802 F.2d at 1022. Initially the primary method for Rule G enforcement was visual observation followed by further non-intrusive investigation by the supervisor. "The supervisor would rely on how the employee walked, talked, or smelled as well as on other physical manifestations of impairment." Id. at 1018. Later, however, the company began to use a breathalyzer, blood-alcohol tests, and urinalysis, but only as a means for the employee to clear himself of an accusation of a Rule G violation. The Union did not object to using drug testing in this manner. The District Court consequently found that there was a history of union acquiescence in Rule G enforcement through use of drug testing. Still, there was a limit to that acquiesence. "The union's acquiescence in [Burlington's] past methods of enforcement was hardly intended to authorize a dragnet." Id. at 1023. The District Court in Burlington I found that a past practice had developed of acting to enforce Rule G where visual observation created particularized suspicion and further investigation confirmed that suspicion.

Cognizant of this past practice, the Eighth Circuit looked to the proposed program. The program consisted of post incident testing on the basis of particularized suspicion. Testing was used only following human factor accidents, and only when individual responsibility was not clear. Moreover, Burlington assured the Court that they would not test a whole crew when suspicion could be focused on particular individuals who were in a position to have caused the accident. Given the past history of investigation after ascertaining particularized suspicion, the urine test was seen simply as "a more refined step ... to confirm the observation of the supervisor." Id. at 1023. The District Court concluded and the Eighth Circuit agreed that "Since the test can be required only upon some showing that the employee may be impaired, the ground rules between the union and the railroad have not changed significantly; suspicion of impairment is still required." Id. The Eighth Circuit expressly stated that it took no position over whether a broader testing policy would be permitted.²¹ 

b. Past practice of Rule G enforcement by visual observation without acquiesence in voluntary drug testing does not arguably justify mandatory testing based on generalized suspicion. In Burlington II, Burlington Northern introduced a program requiring all crew members involved in human factor accidents or operating rule violations to submit to urinalysis for the presence of narcotics, unless responsibility for the accident or violation otherwise had been clearly identified. Any employee refusing to submit to a test was subject to discipline for insubordination. Again the District Court looked to the past practice used for enforcing Rule G and found that the only practice in place was sensory observation. The District Court found this program to be a minor dispute, justified by the past practice of sensory observation. The Ninth Circuit reversed, finding that the change from testing on particularized suspicion to testing on generalized suspicion constituted a major dispute as a matter of law.

There is some tension between this case and Burlington I. Indeed, Judge Alarcon argued in dissent that the two cases create a split in Circuits. They can, however, be reconciled. Burlington II lacks the past history of union acquiesence in voluntary drug testing, as well as the self imposed limitations of post incident testing to individuals who could have been responsible for the accident. The Eighth Circuit found that these limitations rendered the post incident testing program there at issue a test on particularized suspicion. In the absence of such limitations, the Ninth Circuit found a similar program to be a test on generalized suspicion and a "major" dispute.

c. Rule G enforcement by visual observation does not arguably justify mandatory random search with sniffer dogs. Finally, in Burlington III, Burlington Northern instituted a program of random use of sniffer dogs to detect drug possession. The Ninth Circuit affirmed the District Court's finding that such testing based on no suspicion whatsoever constituted a new method of enforcing Rule G that was not "arguably justified" by past practice.

Burlington III is fully consistent with Burlington I. The Burlington I court specifically said that the past practice justified tests based on particularized suspicion, but did not authorize a dragnet. Random use of sniffer dogs constitutes just such a dragnet.

d. Application to the present case. From these three cases several principles emerge. Burlington I demonstrates that Rule G enforcement by visual observation coupled with a past history of voluntary testing justifies testing only on the basis of particularized suspicion, and that union acquiesence in voluntary use of urinalysis strengthens the argument that mandatory urinalysis is justified. Burlington III demonstrates that enforcement by visual observation does not justify testing on no suspicion whatsoever. Burlington II applied the self implied limitation on the reasoning in Burlington I, and reversed a district court finding that visual observation alone justifies testing on generalized suspicion. All of these cases support a conclusion that the dispute in this case is "major."

i past practice of Rule G enforcement. In the Burlington cases, there was universal acquiesence in visual observation followed by further investigation. Here the District Court was presented with only one isolated incident of Rule G enforcement and no evidence of enforcement policies or procedures. On review of the record the District Court's finding that there was no past practice is not erroneous.

ii the scope of the program. We then look at the Program and compare it to those at issue in the Burlington cases. The District Court correctly found that this program is far more extensive than the programs involved in the Burlington cases.

First, the Program provides for post accident testing of mechanics after a vehicular accident, unless management chooses to waive the test, because it has determined that there could not have been any drug involvement. Both Burlington I and Burlington II involved post incident testing only after human factor accidents. Southwest wishes to require testing after all vehicular or equipment damage accidents, human responsibility need not be implicated. The potential generality of this element of the program is striking when one considers that airline mechanics are not a part of any particular flight crew. With this in mind it is difficult to determine who would be tested and who could not be tested under the Program. Furthermore the Program does not include the self imposed limitations described in Burlington I. Instead testing is only waived if management determine that drugs were not a cause.

Second, the Program calls for mandatory tests of any "previously non-physicalled employee" who "successfully interviews for a position within the company which requires a physical examination." This, like the use of sniffer dogs in Burlington III, constitutes testing on the basis of no suspicion whatsoever.

Thus the Program proposed by Southwest includes all of the elements found to constitute "major" disputes by the Ninth Circuit in conjunction with a less extensive history of Rule G enforcement. Similarly, the Program is far broader in scope than that at issue in Burlington I, and the Teamsters have not acquiesced in voluntary use of urine screening. We are therefore inexorably driven to a conclusion that the Program constitutes a "major" dispute.

When the Program is taken as a whole, it includes a general drug and alcohol policy more stringent than Rule G itself, testing procedures not contemplated by the past practice under Rule G, and punishments unrelated to those described under Rule G. We agree with the District Court that the collective bargaining agreement provides no basis whatsoever for a mandatory drug testing program as broad and far reaching as that proposed by Southwest.

We also agree with the District Court that it was appropriate to treat the program as a piece.²²  It was intended as a uniform comprehensive drug and alcohol use policy. Southwest, when requested to bargain, argued that they did not wish to bargain with individual unions over the Program, because they wished to apply a consistent policy to all bargaining units.

We are bolstered in our conclusion that Rule G does not provide even arguable justification for the Program by the statements of Rosemary Collyer, General Counsel of the NLRB, examining when contractual justification for a drug testing program should be inferred from past practice:

A union's acquiesence in a past practice of requiring applicants and/or current employees to submit to physical examinations that did not include drug testing, or in a rule prohibiting the use or possession of drugs on company premises, does not constitute a waiver of the union's right to bargain over drug testing. This would be true even where such past practices exist in conjunction with the kind of general, nonspecific management rights clauses discussed above. Similarly, acquiesence in drug testing "for cause" does not by itself waive a union's right to bargain over random drug testing because such expansion of an existing drug program constitutes "a material, substantial, and significant change."

Collyer, NLRB General Counsel's Memorandum on Drug and Alcohol Testing (cited in note 12) (quoting Murphy Diesel Co., 184 N.L.R.B. 757, 763 (1970)).

The District Court correctly found that the union had not acquiesced in any method for detecting Rule G violations other than visual observation. Southwest presented no evidence of any past history of discipline for Rule G violations. The District Court properly concluded that the Program is far more extensive and far more intrusive than those at issue in either of the Burlington cases involving mandatory urinalysis. The Program allows for testing in circumstances where there is only generalized suspicion and in circumstances where there is no suspicion whatsoever. The district court correctly concluded that implementation of the program creates a "major" dispute.

For these reasons, the order of the District Court is AFFIRMED.