Full opinion text
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, § 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 jus-ticiable nonetheless. It commented, “[Tjhere 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. § 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. § 155, First, § 160. During these steps parties must abide by the existing agreement; only if these steps fail may the parties resort to strikes or other self-help or, in the case of management, unilateral action. Burlington Northern R.R. Co. v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381; 45 U.S.C. §§ 155, 156, 160. Until these preliminary steps are exhausted, unilateral action can be enjoined. International Association of Machinists v. Frontier Airlines, Inc., 664 F.2d 538, 540-41 (5th Cir.1981). Minor disputes are treated differently. If the parties do not agree on the interpretation or application of an agreement, the dispute is submitted to arbitration before an adjustment board. 45 U.S.C. § 153. Unlike its policy governing major disputes, the RLA does not prohibit unilateral action based on a party’s own interpretation of the agreement pending exhaustion of arbitration; only in a narrow set of cases may unilateral action be enjoined during resolution of a minor dispute. Frontier Airlines, 664 F.2d at 541. Thus, the propriety of the injunction imposed by the district court turns on whether the dispute over Southwest’s right under the agreement to implement the drug testing program unilaterally is a major or a minor dispute. Case law has refined the test for whether a dispute is minor. Under Fifth Circuit precedent, a dispute is minor if the existing collective bargaining agreement affords some arguable basis for the underlying action. REA 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). Id. at 753. Other cases have also applied this test to disputes over management’s right under an agreement to take certain actions. See, e.g., Railway Express Agency, Inc. v. 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 .... [Tjhere 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 Rut-land, 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); Pepsi-Cola Distributing Co., 241 N.L.R.B. 869 (1979); Ador Corp., 15 N.L.R.B. 1658 (1965); General Motors Corp., 149 N.L.R.B. 396, 399-400 (1964). All of these cases, however, arose under the National Labor Relations Act (“NLRA”). We are not certain that this rule of construction applies identically to the RLA. The rule operates to protect rights defined by statute. Thus, we turn to the RLA to examine the nature of the bargaining right at issue here. The RLA, like the NLRA, does create a duty to bargain. Unlike the NLRA, however, the RLA distinguishes minor from major disputes and thereby defines within the statute the specific procedures governing the right to bargain, including the proper forum for resolving disputes over the extent of that right under an existing agreement. Thus, the statutory right to bargain created by the RLA, unlike that of the NLRA, is limited by the RLA’s precise regulation of procedures for dispute resolution. We note, furthermore, that none of this circuit’s cases involving contractual claims to management rights (see discussion above), discusses the issue in terms of a “clear and unmistakable waiver.” In fact, there appears to be a tension between deciding on the one hand whether a management rights clause arguably permits management to take some action, and deciding on the other hand whether such a clause clearly and unmistakably waives the right to bargain. Given the difference between the statutes, and given our prior cases, we find it to be a debatable matter of law whether, or to what extent, the rule of construction requiring that a waiver of bargaining rights under the NLRA be clear and unmistakable applies in a case arising under the RLA. We find, however, that we are not squarely presented at this time with the question of how the “clear and 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. Because of timing, Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n, — U.S. -, 109 S.Ct. 2477, — L.Ed.2d - (1989), played no role in the consideration of this case by our en banc court. In Consolidated Rail, the Supreme Court held that the railway's inclusion of drug testing in periodically required physical examinations raised a minor dispute in that the action was arguably justified by implied terms of the parties’ agreement. There are significant differences between the facts of Consolidated Rail and our case, as well as distinct contractual bases for the respective decisions. We note only that the Supreme Court’s discussion of major and minor disputes supports our analysis and conclusion, and we see nothing in our opinion requiring modification on account of the Supreme Court’s decision in Consolidated Rail.
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. 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. This case simply concerns the relative volumes of a Union’s and employer’s voices under a collective bargaining agreement. 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. 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 statute unless the Union has waived its right to bargain over the change. The majority routes this dispute to the adjustment board, holding that the Union has arguably waived its members’ bargaining rights. The majority holds (1) that the contract is materially silent, which allows the management rights clause to play a role in this case; and (2) that the management rights clause is arguably a global zipper 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 observation is the parties’ contemplated method of Rule G enforcement under the contract. The testing program contains both a revised policy and a radically different method of policy enforcement: blood alcohol testing and urinalysis. Nothing in the record suggests that the Union has acquiesced in the extremely intrusive method of policy enforcement constituted by blood alcohol testing and urinalysis. 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. 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. 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. 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. 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. 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. Concerned with the effect of strikes on the transportation system, Congress passed the RLA in 1926, almost a decade before passage of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (“NLRA”). The RLA constituted an innovative step in the history of labor relations, embodying a statutory policy of strike prevention and quasi-judicial dispute resolution almost a half century-before the Supreme Court’s decisions in the Steelworkers trilogy. The RLA was amended in 1934 to provide for binding arbitration of certain disputes. See Brotherhood of Railway Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). In 1936, Congress extended the RLA to common carriers by air with the exception of 45 U.S.C. § 153, which provides for a National Railroad Adjustment Board, the arbitral forum. 45 U.S.C. § 181. Common carriers by air are subject to the provisions of 45 U.S.C. § 184, which provides for an arbitration system separate from the Railroad Adjustment Board. A. Major and Minor Disputes. Unions and employers subject to the RLA primarily encounter two types of disputes arising from the collective bargaining 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.” 45 U.S.C. §§ 155, 156 (emphasis added); Elgin, J. & E. Railway Co. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945). Minor disputes grow out of “grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” 45 U.S.C. § 184 (emphasis added); Elgin, 325 U.S. at 723-24, 65 S.Ct. at 1289-90 (“minor disputes, ... involving grievances ... represent specific maladjustments of a detailed or individual quality”); see also id. at 723 n. 16, 65 S.Ct. at 1290 n. 16 (quoting legislative history emphasizing that minor disputes commonly concern grievances). Whether a dispute is major or minor is not necessarily a result of its importance. A grievance may be quite important, although the dispute is minor, and a 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. 45 U.S.C. § 184. Parties may not resort to economic weapons while a minor dispute is pending before a board of adjustment. Brotherhood of Railway Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Major disputes result in a judicially-enforced status quo during which time the parties are subject to complex bargaining procedures. 45 U.S.C. §§ 155, 160. These procedures are not binding, however, and once they are exhausted, the parties may resort to their economic weapons without fear of a federal court injunction. Burlington Northern v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987). Thus, whether a federal court labels a dispute “major” or “minor” when the parties contest the issue will have quite important consequences. Determining whether a dispute deserves the grand label of “major” or “minor” is sometimes simple but may be a conceptually frustrating task. An employer’s 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. 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). B. Duty to Bargain. Under the Railway Labor Act, employers and Unions have a duty to bargain in good faith over “rates of pay, rules and working conditions.” 45 U.S.C. §§ 152, 155, 156; Chicago & Northwestern Ry. Co. v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 1735, 29 L.Ed.2d 187 (1971); Order of Railroad Telegraphers v. Chicago & Nw. Ry., 362 U.S. 330, 80 S.Ct. 761, 766, 4 L.Ed.2d 774 (1960). A “change in working conditions governed by the collective agreement ... [is] by definition ... a major dispute.” Brotherhood of Locomotive Engineers v. Burlington Northern, 838 F.2d 1087, 1093 (9th Cir.1988); Order of Railroad Telegraphers, 80 S.Ct. at 764-66; United Industrial Workers v. Board of Trustees of Galveston Wharves, 351 F.2d 183 (5th Cir.1965); 45 U.S.C. §§ 155, 156. Thus, if Southwest’s drug testing program would effect a change in working conditions, Southwest must bargain over the content of the program in the major dispute process, unless the Union has waived its right to bargain. The majority holds that implementation of the testing program would “effect[] a change in rules and working conditions” over which the employer has a duty to 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. 761). The distinction between mandatory and permissive subjects of bargaining is a concept confined to labor relations under the NLRA. Under the NLRA, employers have a duty to bargain only over mandatory subjects of bargaining. See, e.g., First National Maintenance, 101 S.Ct. at 2580-81 (employer that terminated contract with customer had duty to bargain only over effects of its decision to terminate and not the decision itself). An employer subject to the NLRA may choose to bargain over permissive subjects of bargaining, but is under no obligation to do so. IY. Waiver and the Proper Decisionmaking Forum. The majority holds that Southwest has a duty to bargain because implementation of the program would “effect[] a change in rules and working conditions.” Because this dispute is major by definition, the majority’s ratio decidendi is that (1) the Union has arguably made a clear and unmistakable waiver of its right to bargain over changes in contractual terms where the contract is materially silent; (2) the contract is materially silent; and (3) the board of adjustment should decide whether the Union has arguably waived its bargaining rights. Thus raising the term “arguable” to talismanic status, the majority relentlessly Hubbardizes a clause that on its face allows mere interstitial rulemaking into an arguable zipper clause of global scope that cuts only in favor of Southwest. We may have to look at waiver through permanently scratched lenses after today. No ambiguity suggests “arguable waiver” in this case. The panel was correct in determining the waiver issue as a question of law. In any event, the determination is reserved for a federal court, not an adjustment board. In this major dispute, the majority’s holding concerning waiver is inconsistent with both the statutory scheme and controlling case authority. The majority also states, amidst a cloud of dicta, that we need not decide whether waiver analysis applies to RLA cases. As I shall discuss below, waiver analysis is a generic rule of construction that certainly applies in RLA cases because there is no alternative except fiat. We face one controlling question today: whether a federal court or a board of adjustment in these circumstances should decide if the Union has clearly and unmistakably waived its right to bargain. But an answer to the question requires a thorough understanding of the role of waiver in labor contracts because management rights clauses appear in almost every labor contract subject to both the RLA and the NLRA. A. What is a Zipper Clause? Although the majority uses different phraseology, the majority holds that the Union has arguably bargained away a zipper clause to Southwest. The management rights clause in this case provides that Employees covered by this Agreement shall be 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.... Management rights clauses are ubiquitous in labor contracts. A Bureau of National Affairs survey indicates that approximately 99% of ail labor contracts contain management rights clauses. In this case, the majority holds that the Union has arguably waived its right to bargain although nothing in the parties’ bargaining history suggests that the Union has waived its rights, and the language of the agreement states nothing specific concerning a waiver of the right to bargain. Absolutely nothing in the record below, apart from the language of the management rights clause itself, suggests waiver. The majority thus holds that unions subject to the RLA have arguably waived their statutory right to bargain in every dispute under the RLA involving a boilerplate management rights clause like this one when the contract is arguably silent in material respects. The majority’s holding will sweep widely. Management rights clauses most commonly allow interstitial rulemaking. Unions are not interested in bargaining over day-to-day management decisions that do not change the conditions of employment in the bargaining unit. But in some cases, management rights clauses may also allow unilateral changes in working conditions by management during the life of the contract when the language of the clause or the parties’ bargaining history demonstrates that the union has ceded the right to the employer. In the labor arena, these clauses are often termed “zipper clauses.” A zipper clause receives its name from the image of the self-contained bargain, where the contract contains everything the parties could possibly bargain over in the world, where nothing lies outside the scope of the contract, where neither contractual vacuum nor silence exists. The zipper clause contains all of the content of the parties’ bargain that is not otherwise expressed or implied by past practice. One may interpret a zipper clause in two ways. First, and most logically, a zipper clause may mean that neither party to the agreement may change rates of pay, rules or working conditions during the life of the agreement, unless the contract contains a specific reopener clause or reopener clauses, because express and implied terms solely guide the parties’ conduct. See United Automobile Workers v. NLRB, 765 F.2d 175, 180 (D.C.Cir.1985) (Edwards, J.). More commonly, zipper clauses are interpreted to allow management to act unilaterally to change the conditions of employment. If the management rights clause in this case is a zipper clause, it would carry the latter meaning because it speaks in terms of discretionary management rule-making. B. The Rule of Construction. Deciding whether a Union has clearly and unmistakably waived its statutory bargaining rights in the form of a zipper clause involves the application of a straightforward rule of construction in contract analysis. The majority, for no substantive reason, decides that the rule of construction may not apply under the RLA: “the difference between the [NLRA and RLA] creates a “debatable matter of law” concerning whether waiver analysis even “applies in a case arising under the RLA.” The majority does not and could not reject waiver analysis as a rule of construction under the RLA. Waiver is a generic concept, and its evidentiary predicates have deep roots in the law. “A waiver is a voluntary and intentional relinquishment of a known right or conduct that warrants an inference of such a relinquishment.” FDIC v. Condit, 861 F.2d 853, 857 (5th Cir.1988) (citations omitted); see, e.g., St. Louis Electric Light & Power Co. v. Edison General Electric, 64 F. 997, 1001 (Circuit Court, E.D.Mo.1894) (“It is elementary law that, to constitute a waiver, the party upon whom it operates must have full knowledge of all the essential or material facts ... and the party relying upon such waiver assumes the burden of proof as to the knowledge of the party making the waiver”); see also, e.g., Cordova v. Hood, 84 U.S. (17 Wall.) 1, 21 L.Ed. 587, 589 (1873) (“Waiver is a thing of intention as well as of action”). In the labor context, voluntary relinquishment of the statutory right to bargain exists either in a contract’s specific language or where the parties’ bargaining history suggests that the parties discussed the subject and the Union “consciously yielded” its right to bargain over a proposed change in working conditions. NL Industries, Inc., 220 N.L.R.B. 41, 43-44 (1975), enforced, 536 F.2d 786 (8th Cir.1976). A union’s waiver must be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 (1983); see also Lingle v. Norge Division of Magic Chef, — U.S. -, 108 S.Ct. 1877, 1883 n. 9, 100 L.Ed.2d 410 (1988). In a sense, the phrase “clear and unmistakable” is superfluous because a waiver in any context must be unambiguously evidenced. The terms “clear and unmistakable” merely make emphatic the inherently strict requirements predicating any conclusion that a party has waived its rights. Whether the decisionmaker is a federal court or an arbitral forum, someone has to decide if a union has bargained away, in the form of a zipper clause, its statutory right to bargain over proposed changes in working conditions where the contract is materially silent. Implicitly recognizing this in its holding, the majority does not offer an alternative to waiver analysis because no alternative exists. Major disputes arise from unilaterally attempted or proposed changes in working conditions. If a union has bargained away its statutory right to bargain over changes in working conditions, no major disputes may arise during the life of the contract concerning an employer’s unilateral changes in working conditions when the contract is materially silent. Without waiver analysis as a rule of construction, one is left with fiat. Even if it were possible that a coherent alternative to waiver analysis existed, there would be no reason to treat the RLA and NLRA differently in deciding whether the Union has bargained away a zipper clause. It is true that NLRA principles do not apply uniformly to RLA disputes because the statutory schemes are different. First National Maintenance, 101 S.Ct. at 2585 n. 23. But the majority’s flow of words points to no material distinction between the Acts that suggests the statutory right to bargain under the RLA is any more subject to waiver than the right to bargain under the NLRA. The majority notes only general distinctions in the Acts that make no difference in this context. In fact, at least three RLA policies mandate the use of waiver analysis. First, both the content of and the animating spirits behind the two magna cartas of federal labor policy insure the right to bargain. 45 U.S.C. § 152, First; 28 U.S.C. § 158. Second, the statutory duty to bargain is at least as broad under the RLA as it is under the NLRA. See, e.g., First National Maintenance, 101 S.Ct. at 2585, n. 23; see Rockwood & Co., 285 N.L.R.B. No. 138 (1987) (National Labor Relations Board held a drug and alcohol testing program a mandatory subject of bargaining under NLRA; opinion of Administrative Law Judge, adopted by Board, rejected employer’s argument that Union had waived its right to bargain). And finally, although both statutes were passed to insure industrial peace, only the RLA, not the NLRA, contains a statutory “no-strike” policy. Texas & N.O. R. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 432, 74 L.Ed. 1034 (1930) (“the major purpose of Congress in passing the Railway Labor Act was ‘to provide a machinery to prevent strikes’ ”); Buffalo Forge v. Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 3148, 49 L.Ed.2d 1022 (1976) (“ ‘[Tjhere is no general federal anti-strike policy [under the NLRA]’ ” (quoting Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 225, 82 S.Ct. 1328, 1344, 8 L.Ed.2d 440 (Brennan, J., dissenting))). Yet the RLA carefully preserves a party’s ultimate access to its strike rights in major disputes. 45 U.S.C. §§ 155, 156, 160; Elgin, 325 U.S. at 723-24, 65 S.Ct. at 1289-90. Thus, we should be particularly wary in RLA cases of claims that a union has waived its already limited access to economic weapons. C. The Panel Properly Decided the Waiver Issue. Waiver analysis must apply to RLA disputes. The majority’s ratio de-cidendi appears in its holding that “we are not squarely presented at this time with the question of how the ‘clear and unmistakable’ rule applies to RLA cases [because even assuming it does] ... the construction [of the management rights clause] proposed by Southwest satisfies the minimal burden of arguably being a clear and unmistakable waiver” of the Union’s right to bargain. According to the majority’s reasoning, the Union’s “arguable waiver” transforms a dispute that is by definition major into a so-called minor dispute appropriate for the arbitral forum. The majority’s holding is disturbing because it treats only casually the uncertain privacy rights of employees in an area of law riddled with waiver and preemption difficulties. Moreover, the majority’s holding fails to make explicit the severe consequences of sending this otherwise major dispute to the arbitral forum. The majority leaves it to the adjustment board to decide the fate of employee strike rights in an otherwise major dispute, thus at best temporarily denying and perhaps erasing the Union’s access to economic weapons. The majority’s opinion contains three fatal analytical errors. It ignores the unambiguous facts of this case; it is inconsistent with the statutory scheme; and it is inconsistent with RLA case authority. The panel concluded correctly that the union has not waived anything, arguably or otherwise, and that this controversy should be routed to the major dispute process. 1. Question of Law. The “arguably justified” standard concerns the relationship between the content of contractual terms and a party’s disputed act. The standard should not apply to questions of law that are brought to bear on the terms of the contract in an otherwise major dispute. A federal court should determine in the first instance whether a party has waived its statutory bargaining rights under the RLA. The majority’s holding conflicts with the statutory scheme. As I have discussed, the RLA provides for two types of dispute resolution. Disputes over proposed changes in working conditions are major disputes — the types of disputes from which strikes ordinarily result. Major disputes are subject to a complex mediation process, at the end of which the parties may resort to their economic weapons. Minor disputes are often grievances, and concern the proper application or interpretation of agreements. Boards of adjustment decide minor disputes. Parties may not resort to the use of economic weapons in minor disputes. When a party contests which type of dispute the employer and union confront, the party may sue for an injunction in federal court, invoking the federal question jurisdiction of 28 U.S.C. § 1831, to preserve the status quo if the court determines that the dispute is major. After analyzing the parties’ contentions, the federal court routes the dispute to one of the two channels of dispute resolution. The majority improperly places in an adjustment board the power to determine whether a union has waived its right to bargain (and ultimately its access to economic weapons) over an issue that is by definition a major dispute. The majority’s holding gives one channel of the dispute resoluti