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United States Court of Appeals,
Fifth Circuit.
No. 918483.
UNITED STEELWORKERS OF AMERICA, AFLCIO et al., PlaintiffsAppellants,
v.
ASARCO, INC., DefendantAppellee.
Sept. 8, 1992.
Appeal from the United States District Court for the Western District of Texas.
Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.
JOHNSON, Circuit Judge:
The United Steelworkers of America appeal from an order of the district court refusing to
compel ASARCO, Inc. to submit to arbitration. Persuaded that the disputes between the union and
the company are arbitrable, this Court will reverse the judgment of the district court and render
judgment for the union.
I. Facts and Procedural History
ASARCO, Inc. ("the company") operates a number of smelting, mining, refining, and related
facilities in Texas and Arizona. Local units of the United Steelworkers of America (collectively, "the
union") represent workers at five of these plants.1 The company and the union have entered into
collective bargaining agreements covering each of these five plants. The collective bargaining
agreements were entered into on July 1, 1989 and expire on June 30, 1992.
During the negotiations that produced the current collective bargaining agreements, the
company proposed to implement a drug and alcohol testing policy for its workers. Although the
company and the union were ultimately able to agree to a collective bargaining agreement, they were
1Different locals of the United Steelworkers represent workers at each of the five plants: local
509 in El Paso, Texas; local 886 in Hayden, Arizona; local 5613 in Amarillo, Texas; local 6705
in Sahuarita, Arizona; and local 13886 in Silver Bell, Arizona.

unable to agree on a testing policy, even after substantial negotiation over the issue, including revised
proposals from the company and counter-proposals from the union. As a result, the collective
bargaining agreement included the following statement regarding drug and alcohol testing:
As the parties have reached an Impasse on this subject, the Company hereby withdraws its
proposal with the understanding that this Impasse and withdrawal condition will leave the
respective parties with all of their legal rights and obligations on this subject.
Three months after the collective bargaining agreement s went into effect, the company
unilaterally imposed a mandatory drug and alcohol testing policy. The terms of the company policy
make clear that the company adopted the policy "to insure that employee alcohol and drug use does
not jeopardize the safety and health of its employees":
ASARCO's employees work closely together and rel y upon one another to a great extent.
The safe performance of the work that our employees undertake demands each employee's
full attention and clear thinking. As a result, the Company as well as each employee, has a
right to expect that all employees are drug and alcohol free and prepared to do their jobs in
as safe a manner as possible at all times.
The company policy provides that an employee who refuses to take the test is subject to immediate
dismissal. Furthermore, an employee who fails the test is subject to discipline, including dismissal.
Finally, if an employee has been laid off or otherwise absent from the workplace for six months or
more, he or she must pass a drug and alcohol test before returning to work.
Union members filed grievances at each of the five plants in Arizona and Texas asserting that
the testing policy violates various provisions of the collective bargaining agreements. The company
refused to address the grievances and refused to submit them to arbitration. The union then brought
this action, initially seeking an injunction against implementation of the testing policy. The union later
amended its complaint, however, to seek instead an order co mpelling the company to submit the
workers' grievances to arbitration. Both parties moved for summary judgment. After a hearing, the
district court found that there were no disputes as to any material facts. The court ruled that because
the testing policy was not part of the collective bargaining agreement, the company had not agreed

to submit disputes arising out of the testing policy to the arbitration process established in the
collective bargaining agreement. Accordingly, the district court denied the union's motion for
summary judgment, and granted the company's motion. The union appeals.
II. Discussion
There is only one issue for this Court to decide in this case: are the disputes occasioned by
the testing policy arbitrable? If they are, then this Court's role is limited to ordering the parties to
submit to arbitration; this Court may not address the merits of the dispute.
A. The Presumption in Favor of Arbitrability
The law regarding arbitrability is well settled. When a federal court is asked to compel
arbitration of a labor dispute under § 301 of the Labor Management Relations Act, the only question
before the court is whether there is an arbitration clause in the collective bargaining agreement which
covers the dispute. The federal court is not to pass on the merits of the dispute; it is to decide only
whether the arbitration clause in the agreement is "susceptible of an interpretation that covers the
asserted dispute." United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574,
58283, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). "Doubt s should be resolved in favor of
coverage." Id.
The Supreme Court has recently reaffirmed the limited nature of federal judicial involvement
in questions of arbitrability. A federal court asked to determine whether a dispute is to be submitted
to arbitration
is not to rule on the potential merits of the underlying cause. Whether "arguable" or not,
indeed even if it appears to the court to be frivolous, the union's claim that the employer has
violated the collective bargaining agreement is to be decided, not by the court asked to order
arbitration, but as the parties have agreed, by the arbitrator. "The courts, therefore, have no
business weighing the merits of the grievance, considering whether there is equity in a
particular claim, or determining whether there is particular language in the written instrument
which will support the claim. The agreement is to submit all grievances to arbitration, not
merely those which the court will deem meritorious."

AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 64950, 106 S.Ct.
1415, 1419, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. American Mfg. Co.,
363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960)).
The Fifth Circuit has put it this way:
The courts' role is very limited when deciding issues of arbitrability. The courts' function is
to decide whether the claim asserted is the type of claim which the parties have agreed to
arbitrate. In no way are the courts to consider the merits of a party's claim.
Oil, Chemical & Atomic Workers' Int'l Union, Local 4447 v. Chevron Chem. Co., 815 F.2d 338,
343 (5th Cir.1987) ("OCAW, Local 4447 ").
The company points out that the union must not be allowed to create an arbitrable issue where
none exists simply by "couching" its grievances in terms of the collective bargaining agreement. The
company is certainly correct. The authority of the arbitrator is grounded in the agreement of the
parties; if the parties have not agreed to arbitrate an issue, then there is no basis on which to compel
them to submit to arbitration. E.g., Warrior & Gulf Nav. Co., 363 U.S. at 582, 80 S.Ct. at 1352;
OCAW, Local 4447, 815 F.2d at 340. However, in deciding what the parties have agreed to
arbitrate, the court must, as noted above, resolve doubts in favor of arbitration, AT & T Technologies,
475 U.S. at 64950, 106 S.Ct. at 1419, and must make its determination on the face of the collective
bargaining agreement: the court "is confined to ascertaining whether the party seeking arbitration
is making a claim which on its face is governed by the contract." American Mfg. Co., 363 U.S. at
56768, 80 S.Ct. at 1346.
B. The Arbitrability of the Union's Grievances2
The arbitration clauses in the collective bargaining agreements at issue here are quite broad.
2As in any case in which the district court grants summary judgment, this Court reviews the
judgment in this case de novo, applying the same standards that apply in the district court.
Hansen v. Continental Ins. Co., 940 F.2d 971, 975 (5th Cir.1991).

Although the precise language differs, each of the collective bargaining agreements between the
company and the local unions provides that disputes relating to the application or interpretation of
the agreement, or compliance with or violations of it, shall be submitted to arbitration.3
The claims made by the union plainly fall within these broad provisions. For one thing, each
of the collective bargaining agreements involved in this action provide that "[t]he Company shall
make reasonable provisions for the safety and health of its employees during the hours of their
employment," (emphasis added), and the union asserts that the testing policy adopted by the company
is unreasonable. Given that the company itself has characterized the policy as a health and safety
regulation, an allegation that the policy is unreasonable is properly read as alleging that the policy
violates the collective bargaining agreement. While nothing more is necessary to hold that arbitration
is required, the union raises other claims which, on their faces, are governed by the collective
bargaining agreement. For instance, the union alleges that the testing policy contravenes provisions
in the collective bargaining agreements which regulate discipline of workers, seniority, leaves of
absences, and reinstatement after a layoff.
Viewed in the light of the standards set out in Part II.A., there can be no question that the
union's claims are arbitrable: the party seeking arbitration is making claims which on their faces are
governed by the contract. Having determined t his much, the federal court may go no further; an
order compelling arbitration is required.4
3The various collective bargaining agreements covering each of the five plants involved in this
case employ the following language in their arbitration provisions. The agreements in effect with
Locals 509 and 886 provide for arbitration of grievances or complaints "relating to the application
or interpretation of the Agreement." The agreement covering Local 5613 provides for arbitration
of grievances alleging "violation of or non-compliance with the specific provisions of this
Agreement." Finally, the agreements in effect at Locals 6705 and 13886 call for arbitration of
"any dispute arising as to the meaning, application or the observance of any provision of this
Agreement."
4This case is readily distinguishable from Ass'n of Chem. Employees v. E.I. DuPont de
Nemours & Co., 701 F.Supp. 1282 (S.D.W.Va.1988), a case upon which the company relies
heavily. In that case employees filed grievances challenging the company's unilateral
implementation of a drug testing policy. The company refused to submit the grievances to

C. The Relevance of the Parties' Impasse
The company argues that as a result of the impasse in negotiations over a testing policy, the
company had the right to implement the testing policy unilaterally. As far as it goes, the company's
position is undoubtedly correct.
In order to promote industrial peace by fostering an atmosphere conducive to negotiations,
arbitration. The district court refused to order the company to arbitrate. The key difference
between that case and this one, however, is that in that case the claims made by the workers did
not allege any violation of the collective bargaining agreement. The union there claimed that "(1)
it [the testing policy] is an unreasonable invasion of privacy; (2) it violates the presumption of
innocence; and (3) there is no evidence of drug abuse by [the] employees." 701 F.Supp. at 1287.
This claim does not assert any violation of the collective bargaining agreement, and there was no
arbitration provision which covered the dispute. Thus, the court had no basis on which to order
arbitration.
A case more closely on all fours with this one--and one which is binding on this
Court--is Oil, Chemical & Atomic Workers Int'l Union, Local 4447 v. Chevron Chem.
Co., 815 F.2d 338 (5th Cir.1987). In that case the company conducted performance
appraisals of two employees. The union filed a grievance asserting that the company's
issuance of these appraisals violated a section of the collective bargaining agreement
governing disciplinary actions against employees. Id. at 343. The company contended
that the union's grievance was not arbitrable because the performance appraisals were not
provided for in the collective bargaining agreement and were not used in the disciplinary
process, and therefore were not covered by the arbitration provision in the collective
bargaining agreement.
The Fifth Circuit rejected this argument.
The Court finds that there is a "grievance" in this case since the Union complained
that Chevron violated Article XX, Section 1 which prevents Chevron from taking
disciplinary actions for other than "just cause." A grievance is arbitrable,
according to the collective bargaining agreement, if the grievance involves "the
application or interpretation" of provisions in the collective bargaining agreement.
Whether Chevron violated Article XX, Section 1 by administering the performance
reports involves an "application" of that provision to the facts of this case.
Id.
In this case the company has not administered a performance report, but it is
administering drug and alcohol tests which may be used to discipline employees. Indeed,
the company has acknowledged that the testing policy changes the terms and conditions of
employment. Certainly the question of whether the changes implemented by the company
violate the collective bargaining agreement is a question which concerns the interpretation
and application of the collective bargaining agreements at issue here. It thus becomes
clear that this case is governed by our prior decision in OCAW, Local 4447, and that
arbitration is required.

the National Labor Relations Act ("NLRA") requires an employer to maintain the status quo ante
after a collective bargaining agreement expires, at least as long as negotiations continue. NLRB v.
Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). If the parties reach an impasse
in their negotiations, however, then the employer's statutory duty to maintain the status quo ante
during postcontract negotiations comes to an end. Laborers Health & Welfare Trust Fund v.
Advanced Lightweight Concrete Co., 484 U.S. 539, 543 n. 5, 108 S.Ct. 830, 833 n. 5, 98 L.Ed.2d
936 (1988). See also NLRB v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1011 (5th Cir.1990) (once an
impasse occurs, company is privileged to implement unilaterally new terms of employment).5 Thus,
the company is quite correct that its unilateral implementation of a drug and alcohol testing policy
did not violate the NLRA. This conclusion, however, goes only so far. It does not answer the
question before this Court.
The question whether the company's unilateral implementation of a testing policy violated
the NLRA is entirely separat e from the question whether the disputes that have arisen out of the
testing policy are arbitrable. The fact that unilateral implementation of the testing policy did not
violate the NLRA says nothing about whether the arbitration clauses in the various collective
bargaining agreements cover the grievances filed by each of the locals. Those grievances do not
assert that implementation of the testing policy, in and of itself, was an unfair labor practice or a
violation of the collective bargaining agreement. Rather, the grievances assert that the terms of the
testing policy conflict with various terms of the collective bargaining agreements. The company
5We recognize, of course, that any unilateral change imposed by the company after an impasse
must be reasonably comprehended within the position taken by the company prior to the impasse.
See NLRB v. TexTan, Inc., 318 F.2d 472, 481 (5th Cir.1963); American Fed. of Television &
Radio Artists v. NLRB, 395 F.2d 622, 62930 (D.C.Cir.1968). A unilaterally imposed change
that is more generous to the employees than the position taken by the company prior to the
impasse may demonstrate that the company was not negotiating in good faith, as it may have been
willing to make further concessions. TexTan, Inc., 318 F.2d at 481, 481 n. 20.
It appears in the instant case that the testing policy implemented by the company
was in fact the policy that the company had last proposed at the bargaining table. In this
case, however, there is no issue regarding the parties' good faith in their negotiations, so
this Court need not decide whether the policy implemented by the company was
reasonably comprehended within its pre-impasse proposals.

cannot avoid arbitrating these grievances on the grounds that it did not violate the NLRA by
unilaterally implementing a testing policy. The impasse reached on the issue of drug and alcohol
testing does not diminish in any way the provisions in the collective bargaining agreements that
require the company to arbitrate disputes regarding the application or interpretation of other
provisions of the collective bargaining agreements.
III. Conclusion
For the reasons stated, the judgment of the district court is reversed. Judgment is rendered
in favor of the union; the company is ordered to submit to arbitration of the union's claims that its
drug and alcohol testing policy violates the terms of the collective bargaining agreement.
REVERSED AND RENDERED.

WIENER, Circuit Judge, concurring in part, and dissenting in part.
I respectfully dissent from the majority opinion to the extent it holds arbitrable the
reasonableness of the alcohol and drug abuse policy (the Policy) that was implemented unilaterally
by the Company following execution of new collective bargaining agreements (CBAs), given that the
Company and the Unions had bargained to impasse in good faith on the issue of the Policy during the
course of the very collective bargaining that produced the CBAs.
The grievance and arbitration provisions contained in each of the new CBAs are not
all-encompassing or unlimited. They only mandate arbitration of grievances that involve application
or interpretation of some term or provision of the CBAs. It is axiomatic that, having bargained to
impasse on the Policy so that no drug or alcohol testing provision is contained in the CBAs, the
Policy is not a "term," not a "provision," and not in any way part of the CBAs. As such, the Policy
itself, its reasonableness, its terms, its provisions and its conditions are not, in and of themselves,

subject to being held up to scrutiny in arbitration by the Unions' invoking of the CBAs' grievance
provisions.
It seems to me that the district court was squarely on target in finding that the Unions' efforts
to use grievance-based arbitration to attack collaterally the extra-contractual Policy, which by impasse
the Unions had failed to get included in the CBAs, amounts to "double dipping." As distinguished
from bona fide employee grievances that might incidentally implicate the Company's administration
of the Policy, the so-called grievances proffered in the instant case are at best thinly disguised guerrilla
attacks on the entire Policy per se, its reasonableness and, in stark reality, the very right of the
Company to adopt the Policy and implement it.
For the Company, the game is over as soon as the panel majority takes the Unions'
"grievance" bait. It seems clear that here the Unions deliberately trumped up the purported
grievances to have a foundation, however shaky, for its second "dip"--this time through the process
of arbitration--after the first "dip" failed during the process of collective bargaining. This distinction
should not have been ignored, but it must have been for the panel majority to reverse the district court
which recognized the distinction so clearly.
This case simply is not about arbitrability of individual grievances that incidentally implicate
some aspect of the Policy. Neither the Company nor I disagree with the underlying truism, stated
both by the Unions and the panel majority, that bona fide employee grievances are arbitrable even
though they may involve disciplinary action taken by the Company under the aegis of that Policy. But
that issue is not at the heart of this case. Rather, this case probes the appropriate limits of CBAs, and
their grievance and arbitration provisions, on matters like the Policy that have been affirmatively
excluded from the CBAs by bargaining to impasse during the process of hammering out the contents
of those contracts on the anvil of collective bargaining. And hovering just beneath the surface of that
issue is the larger and more omnipresent question at the core of most if not all labor disputes: Who

will dominate and control the making and implementing of personnel policy, labor or management?
The presumption in favor of arbitrability,1 however strong, is not universal, not without limits;
it can never expand the aegis of arbitration beyond the finite extent to which labor and management
have contracted to be amenable to that process. The arbitrability presumption is never properly used
to force to arbitration an issue that the parties have not clearl y agreed to arbitrate.2 Here, the
bargaining history of the CBAs in general and of the Policy in particular are "the most forceful
evidence"3 that the Company and the Unions never agreed to subject the Policy per se--particularly
its overall reasonableness--to arbitration. Only provisions contained within the four corners of the
CBAs are, by their very terms, appropriate grist for the arbitration mill; and impasse excluded the
whole issue of a drug and alcohol abuse policy from the CBAs!
To the extent that the majority opinion in this case holds arbitrable those grievances arising
from Company disciplinary actions which only incidentally implicate terms of the Policy, I
concur--as, for that matter, did the Company in its brief to this court. But I do not agree that the
Unions can merely wrap in the cloak of grievance their redundant effort to shoot down the
post-impasse, extra-contractual Policy with a second shot, arbitration, after failing to bring it down
with their first shot, collective bargaining. Substance, not form, controls the arbitrability vel non of
any issue.4
1See AT & T Technologies, Inc. v. Communication Workers, 475 U.S. 643, 650, 106 S.Ct.
1415, 1419, 89 L.Ed.2d 648 (1986).
2United Steel Workers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347,
1353, 4 L.Ed.2d 1409 (1960); in re Talbott Big Foot, Inc., 887 F.2d 611, 614 (5th Cir.1989).
3Warrior & Gulf, 363 U.S. at 58283, 80 S.Ct. at 135354.
4See Iowa Beef Processors, Inc. v. Amalgated Meatcutters & Butcherworkmen, 627 F.2d 853,
856 (8th Cir.1980); Radio Corp. of America v. Association of Scientists & Professional
Engineering Personnel, 414 F.2d 893, 896 (3rd Cir.1969); Independent Petroleum Workers v.
American Oil Co., 324 F.2d 903, 90607 (7th Cir.1963), aff'd by equally divided Court, 379
U.S. 130, 85 S.Ct. 271, 13 L.Ed.2d 333 (1964).

Indeed, the majority opinion would ascribe to the Company the overly simplistic argument
that, because its post-impasse implementation of the Policy does not violate the NLRA, disputes
arising out of the Policy are not arbitrable. My reading of the Company's brief to this court, and my
recollection of the Company's position at oral argument, eschew any such ascription. Ironically, it
was the Unions first, and the panel majority second, who created that flawed leap of logic in order
to refute it. It is they who invoke the legal duty to maintain the status quo ante, and the contractual
duty of the Company to implement "reasonable" safety regulations, to reach the conclusion that the
Unions' proffering of the so-called grievances here is somehow not an impermissible collateral attack
on the implementation and reasonableness of the Policy. The procedural history of this case and the
nature of the "grievances" proffered make it clear, at least to me, that in reality the efforts of the
Unions to subject the Policy to arbitration orchestrate precisely such a renewed attack, and are thus
accurately characterized by the district court as attempts to "double dip" the issue.
The nub of my dissent is the acceptance by the panel majority of the Unions' means of getting
a proverbial second bite at the apple, this time through arbitration under the guise of arbitrable
grievances. I therefore respectfully dissent from the ultimate result of the majority opinion, allowing
the Unions' cynical use of the CBAs' grievance provisions to gain a full, de novo examination by the
arbitrator of the reasonableness of the Policy vel non when arbitration is a method of dispute
resolution properly limited to those issues contractually submitted to it via the collective bargaining
contracts. Here, precisely the opposite occurred: By impasse the parties to those contracts excluded
the Policy from the CBAs and thus from arbitration.