Challenge to Continental Drug Tests Dismissed

A federal judge Monday dismissed a lawsuit by Continental Airlines flight attendants challenging the airline’s drug testing policy, a move a union attorney said could pave the way for another strike against the embattled carrier.

U.S. District Judge Dickran Tevrizian ruled that federal labor law did not require Continental to bargain with employees before adopting the drug policy since the airline’s flight attendants have been without a contract since 1983.

Union attorney Robert A. Bush said the judge’s ruling, which held that Continental is not required to bargain with employees before implementing “status quo” policy changes under the federal Railway Labor Act, appears to eliminate any requirement that employee unions seek mediation before calling a strike on other contract disputes with the airline.

“What he really established pretty thoroughly is the union has the right to strike without going to mediation, and the union is very seriously considering doing just that,” Bush said after the hearing.

The dispute is one of many that have erupted between Continental and its employee unions since parent company Texas Air Corp. filed on behalf of the carrier for protection under the U.S. Bankruptcy Code, negating most of its labor contracts and enabling the carrier to slash wages by up to 50% and make deep cuts in the work force.

The flight attendants were among three major unions that went on strike, returning to work 18 months later. Bush was critical of what he said was the airline’s use of federal bankruptcy laws to skirt normal bargaining requirements.

But airline attorney Patricia Casey said the union can still use normal grievance procedures to challenge the drug testing policy.

And Tevrizian, saying he did not “want this court to be used as a battleground . . . in the long-festering labor dispute between Continental and the union,” said he was also upholding the airline’s right to impose mandatory drug testing as a public safety measure.

“Who’s going to bargain for the public, in the meantime?” the judge asked. “When problems develop in the air, you don’t just pull over to the side of the road. In the transportation industry, there are two basic regulations. One is you don’t drink and drive, and the other is you don’t get high and fly.”

Even if he had held that Continental was obligated to bargain before adopting a drug testing policy, Tevrizian said, he would have concluded that the fact the airline has had a limited drug policy in effect since 1979 would have made the issue minor enough to be settled through arbitration.

The policy, amended three times since 1979, now requires urine tests whenever an employee transfers into a “critical safety” job such as a flight attendant or pilot position, for all new job applicants, for all employees involved in on-the-job accidents or injury, or whenever there is “reasonable suspicion” that an employee is intoxicated.