concurring in part and dissenting in part:

I dissent from the majority opinion because it characterizes the decision on whether a dispute is “minor,” under the Railway Labor Act (the “RLA”), as a decision on the merits. This decision is clearly jurisdictional, not a decision on the merits. Once the district court determined, as a matter of law, that the dispute was minor, the district court properly held that it had no jurisdiction to consider the merits of appellants’ claim or to grant injunctive relief under the RLA. The district court also properly denied appellant’s request for an injunction based on traditional, equitable principles. Accordingly, I would affirm the district court’s decision in all respects.

I. Appellant’s Two Theoretical Bases For Relief.

Plaintiff-appellant Air Line Pilots Association (“ALPA”) based its motion for a preliminary injunction on two alternate theories. First, ALPA argued that the controversy regarding the new drug testing program is a “major dispute,” under the RLA, and that the RLA requires Alaska Airlines, Inc. (“Alaska”) to bargain with ALPA before implementing the program. If ALPA were to prevail on this theory, the RLA would authorize the district court to enjoin Alaska from implementing its drug testing program during the required period of bargaining.

Second, ALPA argued that, even if the dispute is “minor,” (and therefore not subject to a status quo injunction purely on the basis of the RLA) the court should enjoin Alaska’s implementation of the drug testing program based on traditional, equitable principles. These principles generally require a showing of “irreparable injury” and probability of success on the merits.

ALPA’s two theories involve entirely different issues and were analyzed separately by the district court. Thus, I will discuss them separately.

II. Whether a Dispute Is “Major" Or “Minor” Is A Jurisdictional Issue.

Labor disputes under the RLA are divided into “major” disputes and “minor” disputes. A major dispute arises where a carrier seeks to “change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements.” 45 U.S.C.A. § 152 Seventh (West 1989) (emphasis added). These disputes occur where “there is no [collective bargaining] agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 , 65 S.Ct. 1282, 1289 , 89 L.Ed. 1886 (1945) (emphasis added).

To resolve major disputes, the parties must undergo a lengthy process of bargaining and mediation. The employer is obligated under the RLA to maintain the status quo (including the current rates of pay, rules, and working conditions) during the bargaining process. 45 U.S.C.A. § 152 Seventh (West 1989). Based on this provision of the RLA, the district courts have jurisdiction to enjoin any violation of the status quo pending completion of the required procedures, without the customary showing of irreparable injury. Consolidated Rail v. Railway Labor Exec. Ass’n, — U.S. -, 109 S.Ct. 2477, 2480 , 105 L.Ed.2d 250 (1989) (“Conrail”).

In contrast, a minor dispute arises where the employer seeks to alter the rates of pay, rules, or working conditions in a manner that is “arguably justified by the terms of the parties’ collective-bargaining agreement.” Conrail, 109 S.Ct. at 2482 . These disputes involve “the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” 45 U.S.C.A. § 152 Sixth (emphasis added).

*1399 To resolve minor disputes, the parties must submit to binding arbitration before, and under the exclusive jurisdiction of, an adjustment board established by the airline and the unions (the “Board”). Conrail, 109 S.Ct. at 2481 . The employer is not required by the RLA to maintain the status quo pending the Board’s decision. Id. Thus, for minor disputes, the RLA does not give the district court jurisdiction to enjoin violations of the status quo without the customary showing of irreparable harm. Id. Conrail leaves open the question whether the court can issue a status quo injunction for a minor dispute upon a showing of irreparable harm. Id. at n. 5. This alternative ground for relief will be discussed in section III.

In summary, “major disputes seek to create contractual rights, minor disputes to enforce them.” Id. The RLA requires the parties to bargain for the creation of rights and, accordingly, grants the federal courts subject matter jurisdiction to enjoin any attempt to unilaterally force conditions on the opposing side. However, once the parties have reached a binding agreement, any disputes that are arguably controlled by the agreement are within the exclusive jurisdiction of the Board. The federal courts no longer have jurisdiction, under the RLA, to issue status quo injunctions.

A.

Since the question whether a dispute is “minor” is jurisdictional in nature, and involves no consideration of the merits of the dispute itself, Rule 65(a) is not applicable to the district court’s decision on this issue.

A federal court is entitled, and obligated, to make jurisdictional decisions sua sponte. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Section 3522 (1984).

Any doubt whether a court can decide that a dispute is minor without deciding the merits of the dispute was resolved by Conrail, which upheld a district court’s dismissal of a minor dispute for lack of subject matter jurisdiction, while expressing no opinion on who should prevail on the merits of the dispute. See Conrail, 109 S.Ct. at 2489 .

In the present case, the district court concluded as a matter of law that the dispute was minor, because Alaska’s new drug testing policy was expressly and arguably predicated on the terms of the existing agreement between Alaska and ALPA. Since only a minor dispute was involved, the court properly concluded that it lacked subject matter jurisdiction to consider the merits of the case or to issue a preliminary injunction, at least without a showing of irreparable injury. The court correctly held that ALPA and Alaska must resolve their differences through arbitration (although the district judge did not use the word “jurisdiction,” the implication is clear). The court did not consider the merits of the dispute itself. Thus, the court did not consolidate the preliminary injunction hearing with the trial of the action on the merits, and Rule 65(a)(2) is not applicable.

B.

Since the question whether a dispute is “minor” is a question of law, and depends only on whether the employer’s action is “arguably justified” by the terms of the collective bargaining agreement, further discovery would be of no value.

The question whether a dispute is “minor” is a question of law, not of fact. Brotherhood of Locomotive Eng’rs v. Burlington, 838 F.2d 1087, 1089 (9th Cir.1988). Moreover, the question is purely a matter of contractual interpretation; that is, whether the employer’s action is arguably justified by the terms of the collective bargaining agreement. Conrail, 109 S.Ct. at 2482 . The district court need not, and has no jurisdiction to, decide whether the employer’s action is permissible under the agreement. Rather, the district court decides only whether, as a matter of law, the agreement will bear the employer’s interpretation.

The district court had the collective bargaining agreement before it, and properly based its decision on the terms of the agreement. In fact, the majority agrees with the district court’s conclusion on this issue of law. Thus, allowing ALPA more *1400 time for further discovery cannot affect the district court’s decision in any way, and there is no need to remand for further discovery.

III. District Court’s Denial of Preliminary Injunction.

Having determined that the dispute was minor, the district court was clearly without jurisdiction to decide the merits of the case or to issue any permanent injunction. It is not clear whether the court had jurisdiction to issue a preliminary injunction, pending the decision on the merits by the Board, based on the traditional showing of “irreparable harm.” See Conrail, 109 S.Ct. at 2481 n. 5.

The district court went on, however, to consider this issue and found that ALPA had not demonstrated any significant probability of success on the merits (before the Board). The court did not find that ALPA would suffer any “irreparable injury” if the injunction were not granted, and found that any hardships to ALPA did not outweigh the hardships to Alaska if the injunction were granted. For these reasons, the district court denied ALPA’s motion for a preliminary injunction pending completion of arbitration and, properly concluding that no other issues remained, granted summary judgment to Alaska.

For the purposes of this case, it does not really matter whether the district court had jurisdiction to issue a traditional preliminary injunction. The court denied the injunction anyway. Moreover, whether or not the court was entitled to decide this issue, it never consolidated any decision on the merits with its decision on ALPA’s preliminary injunction, and at no time did the district court decide the merits of ALPA’s claim. Thus, Rule 65 is entirely inapplicable to this case.

The district court’s decision should be affirmed.