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May 16, 1988

International Association Of Machinists And Aerospace Workers, AFL-CIO, Plaintiff,
Trans World Airlines, Inc., Defendant

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER

Louis F. Oberdorfer, United States District Judge

 Plaintiff, International Association of Machinists and Aerospace Workers ("IAM"), is the certified collective bargaining representative of employees of Trans World Airlines in the craft or class of mechanics and related employees and passenger service employees. Defendant Trans World Airlines ("TWA") is a Delaware corporation, headquartered in New York City. IAM and TWA are parties to a collective bargaining Agreement that is effective from January 3, 1986 to January 3, 1989. Plaintiff alleges that defendant violated the Railway Labor Act ("the Act"), 45 U.S.C. §§ 152, 156, by unilaterally implementing a comprehensive new Drug and Alcohol Policy on February 15, 1987. The case is at issue on plaintiff's motion for summary judgment and defendant's motion to dismiss or, alternatively, for summary judgment.


 The collective bargaining Agreement currently in effect between TWA and IAM cites safety as a central concern of both the airline and its employees. Article 1(a) of the Agreement states:

 Article 1(a) of Agreement between IAM and TWA (emphasis added). Exhibit A to Affidavit of James R. Cato ("Cato Affidavit"), filed with defendant's motion to dismiss or, alternatively, for summary judgment.

 Article 2(b) of the IAM-TWA Agreement provides that TWA can manage its work force by reasonable rules and regulations:

Employees covered by this Agreement shall be governed by all reasonable rules, regulations, and orders previously or hereafter issued by the Company which are not in conflict with the terms and conditions of this Agreement and which have been made available to the affected employees prior to becoming effective.

 Id. Article 2(b) goes on to state, however, that "nothing in these rules or regulations and/or this Agreement shall be construed to limit or deny to any employee herein covered any rights or privileges to which he may be entitled under the provisions of the Railway Labor Act, as amended, or to deny him recourse to any action he might have pursuant to any other applicable Federal statute." Id. In Article 11(d)(4) of the Agreement, "the Union recognizes the right of the Company supervisors to manage and supervise its work force of employees, individually or collectively in the normal course of work." Id. In addition, Article 3(c) of the Agreement provides that "all matters not covered by this Agreement or the Railway Labor Act, as amended, shall remain exclusively and without limitation within the prerogative of Management." Id.

 Since 1969, TWA's General Personnel Regulations have addressed the use of drugs or alcohol by TWA employees with the following prohibition:

Reporting for work under the influence of liquor or drugs or the unauthorized introduction, possession or use of liquor or drugs on company premises is prohibited.

 TWA Management Policy and Procedure Manual: General Personnel Regulations para. A(2)(d) (March 5, 1969), Exhibit B to Cato Affidavit. This prohibition currently appears as Rule 3 in TWA's Rules of Conduct. TWA Management Policy and Procedure Manual: Rules of Conduct and Personnel Regulations para. B(3) (June 27, 1984), Exhibit C to Cato Affidavit. While there is a dispute between the parties about whether TWA conducted drug or alcohol testing prior to February 1987, it is undisputed that TWA has enforced Rule 3 through the sensory observation of TWA supervisors. See discussion infra slip op. at 10-12, 14-15.

 The 1969 Rules of Conduct also contained a provision prohibiting off-duty conduct by TWA employees that might embarrass the company or affect an employee's efficiency on duty. More specifically, the 1969 Rules of Conduct provided that:

Employees will not, by their actions either on or off duty, cause the company to be subjected to annoyance, embarrassment or abuse.
. . . .
No employee will be permitted to engage in outside activity which affects his availability for duty or efficiency on duty, restricts his ability to transfer to other points on the TWA system or embarrasses the company directly or by implication. No employee may, without prior consent, engage in outside activity which results in remuneration if such activity is related directly to his TWA position.

 On August 26, 1976, TWA, together with IAM and six other labor organizations signed a "Joint Policy Statement" regarding "Special Health Services" for the treatment of TWA employees with drug or alcohol problems. See Exhibit B to Declaration of William O'Driscoll ("O'Driscoll Declaration"), attached to plaintiff's motion for summary judgment. According to the Joint Statement, TWA employees and immediate family members who need and want help with problems such as alcoholism and drug abuse "will be given the same consideration as those with other illnesses." Id. The Joint Statement continues: "It is the goal of TWA and the associated labor organizations to help those individuals who develop such problems by providing for consultation and treatment to prevent their conditions from progressing to a degree where they cannot live and work effectively." Id. While voluntary diagnosis and treatment is encouraged, the Joint Statement underscores that "this policy, and subsequent related procedures, are not intended to supplant the normal disciplinary process or in any way to block any employee's legitimate access to appropriate grievance procedure." Id.

 On February 15, 1987, defendant TWA implemented a comprehensive Drug and Alcohol Policy ("Policy") which explicitly addresses off-duty drug use by TWA employees and sets forth the criteria by which TWA employees may be required to undergo drug or alcohol testing. Although the Policy was circulated to IAM in early January 1987, the Union's requests to negotiate the terms of the Policy were denied. IAM's Statement of Material Facts as to Which There is no Genuine Dispute paras. 13-17; Defendant's Statement Pursuant to Rule 108(h) in Opposition to Plaintiff's Motion for Summary Judgment paras. 13-17.

 TWA's Policy begins as follows:

It is the policy of the management of TWA to protect the health and safety of employees and the traveling public by insuring that all employees are fit for duty while on the job. Employee involvement with alcohol or drugs can adversely affect the work environment, job performance and safety whether such use is on or off duty. Therefore, the on or off duty use of unlawful drugs, reporting for work or working while impaired by, or under the influence of, alcohol, controlled substances or any other drug, or possession on work premises of alcohol, controlled substances, or any other drug are expressly prohibited.

 TWA Drug and Alcohol Policy, Exhibit H to O'Driscoll Declaration. With respect to alcohol, the Policy states that "employees found drinking or possessing alcohol on the job or reporting to work under the influence of or impaired by intoxicants will be subject to discharge." Id. With respect to drugs, the Policy goes further and prohibits the use of illegal drugs whether on or off duty: "Employees who use, distribute, ...

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