The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0173p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
NETJETS AVIATION, INC.,
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No. 06-3851
v.
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INTERNATIONAL BROTHERHOOD OF TEAMSTERS, -
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Defendant-Appellee. -
AIRLINE DIVISION,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 05-00687—Gregory L. Frost, District Judge.
Argued: March 6, 2007
Decided and Filed: May 15, 2007
Before: ROGERS and GRIFFIN, Circuit Judges; RUSSELL, District Judge.*
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COUNSEL
ARGUED: Joseph E. Santucci, MORGAN LEWIS & BROCKIUS, Washington, D.C., for
Appellant. William R. Wilder, BAPTISTE & WILDER, Washington, D.C., for Appellee.
ON BRIEF: Joseph E. Santucci, MORGAN LEWIS & BROCKIUS, Washington, D.C., O. Judson
Scheaf III, THOMPSON HINE, Columbus, Ohio, for Appellant. William R. Wilder, BAPTISTE
& WILDER, Washington, D.C., Jonathan C. Wentz, BARKAN NEFF HANDELMAN MEIZLISH,
Columbus, Ohio, for Appellee.
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OPINION
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ROGERS, Circuit Judge. This case arises from NetJets’ discharge of a pilot employed by
the company. The pilot’s employment was terminated after NetJets learned that he had made a
video depicting a pilot shooting a rifle at a DVD produced by NetJets that promoted a tentative
agreement between NetJets and its pilots’ union. The union grieved the termination, and the System
Board of Adjustment (“the Board”) ordered NetJets to reinstate the pilot. NetJets sought an order
from the district court vacating the award, arguing that the award violated public policy. The district
*
The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.
1
No. 06-3851 NetJets Aviation v. Int’l Bhd. of Teamsters Page 2
court held that public policy review is not permitted under the Railway Labor Act (“RLA”) and
enforced the award. We affirm on the alternative ground that, assuming without deciding that public
policy review is permitted under the RLA, the award at issue does not violate any public policy that
conceivably could warrant vacating an RLA arbitration award.
Because reviewing courts are bound by the facts as found by the arbitrator, the following
summary is largely based on the fact statement in the decision of the Board. As the Supreme Court
held in United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 38 (1987), “an
arbitrator must find facts and a court may not reject those findings simply because it disagrees with
them.” Indeed 45 U.S.C. § 153 First (p),(q) of the RLA provides that “the findings and order of the
division of the Adjustment Board shall be conclusive on the parties.”
Pursuant to Title II of the RLA, NetJets and the union that represents NetJets’ pilots entered
into a collective bargaining agreement (“CBA”) that established a System Board of Adjustment to
arbitrate disputes under the CBA. Before the events that gave rise to this dispute, NetJets and the
union had been negotiating a new CBA and reached a tentative agreement at the end of August
2004. NetJets sent a DVD promoting the tentative agreement to all pilots. The DVD featured
statements by NetJets’ president and chairman explaining the company’s view regarding why the
tentative agreement was fair.
Jason Piper was the chairman of the union communications committee and opposed
ratification of the tentative agreement. To express his opposition to the agreement, he produced a
video and posted a link to that video on the online bulletin board to which NetJets pilots had access.
The Board described the content of the video as follows:
[The] 29-second video tape . . . showed ‘Contract Stress Relief–10/10/04’ on a red
background. It then showed a close-up of the cover of the DVD, moving to the cover
placed on a black background. The face of the DVD has its title, ‘The Contract is the
Foundation for Everyone’s Success’ at the top . . . . The scene then shifts to a picture
of a semi-automatic rifle being held with the left arm showing a blue uniform with
three stripes. The scene then shifts to the target DVD with bullets being fired into
the DVD, including a close-up showing the holes being made. The scene next shifts
to the grass, apparently below the target with a close-up of the DVD case broken into
pieces and then the DVD itself with bullet holes in it. Finally, there are the words
‘Anyone care to guess how I voted?’
A number of pilots accessed the video and left comments on the bulletin board. Most
commented that they thought the video was funny. One pilot brought the video to the attention of
NetJets officials. Piper identified himself as the source of the video on the bulletin board, and, upon
learning of the video, NetJets called Piper to the company headquarters for a meeting.
At that meeting, Piper indicated that he had intended the video to be a joke. NetJets’
investigation, in which Piper was “extremely cooperative,” concluded that Piper had “openly acted
in an inappropriate and unprofessional manner demonstrating a total lack of judgment which resulted
in inducing fears of workplace violence.” Piper was subsequently discharged.
The union grieved Piper’s termination on his behalf, arguing that the discharge was “tainted
by political retaliation” and was otherwise unjustified. NetJets contended that there was just cause
for the discharge because the posting of the video online exhibited extremely poor judgment and
because the video involved the image of a pilot engaging in violence directed at the company. The
relevant provision of the CBA provided that the “Company shall have the right to discharge or
otherwise discipline any employee for just case.”
No. 06-3851 NetJets Aviation v. Int’l Bhd. of Teamsters Page 3
The Board concluded that there was not just cause for Piper’s termination. First, the Board
reasoned that “once [NetJets] knew the facts, its termination of [Piper] may have been an over-
reaction considering where the publication occurred and that it was part of an internal debate on the
merits of the tentative agreement.” Additionally, the Board found that Piper’s termination did not
comport with the company’s past practice and that the termination was excessive in light of the fact
that only other pilots saw the video.
The Board denied Piper back pay but awarded Piper reinstatement on the condition that he
sign a letter indicating that he would not be involved with the union’s website for one year. NetJets
then filed this action seeking an order vacating the award. The union counterclaimed seeking
enforcement of the award. Both parties moved for summary judgment. NetJets argued that it was
entitled to summary judgment solely on the ground that the award “violates clear mandates of public
policy.” The district court denied NetJets’ motion, holding that the RLA does not permit judicial
review of Board awards on public policy grounds.
NetJets filed this timely appeal, in which it asks this court to reverse the holding of the
district court, remand the case, and instruct the district court to determine whether the award violated
public policy. The union asks this court to affirm the district court’s holding that courts may not
review on public policy grounds awards granted under the RLA. The union also argues in the
alternative that, even if public policy review is permitted, this court should affirm the district court’s
order on the ground that the order here does not violate public policy.
We decline the parties’ invitation to decide whether the RLA permits federal courts to set
aside an award of the System Board of Adjustment on public policy grounds because to do so in this
case, where public policy so obviously fails to warrant setting aside the arbitral decision, would be
the practical equivalent of giving an advisory opinion.1 We therefore affirm the judgment of the
district court on the alternative ground that the Board’s award does not violate public policy.
Even assuming that public policy review is permitted under the RLA, such review would
necessarily be limited to determining “‘whether the arbitrator’s interpretation of the contract
jeopardizes a well-defined and dominant public policy, taking the facts as found by the arbitrator.’
Public policy must be determined from laws and legal precedents, not general considerations of
public interest.” USPS v. Nat’l Ass’n of Letter Carriers, 330 F.3d 747, 751 (6th Cir. 2003) (citations
omitted).
NetJets contends that the award reinstating Piper violates public policy “aimed at
maximizing aviation safety,” and “the strong public policy requiring employers to provide a safe
working environment.” Assuming for the sake of argument that NetJets’ concerns are based in
“laws and legal precedents, not general considerations of public interest,” the facts as found by the
1
The question of whether public policy review is permitted by the RLA has not been addressed by this court.
NetJets urges us to join those circuits that have determined that public policy review is available under the RLA. See
Union Pacific R. R. Co. v. United Transp. Union, 3 F.3d 255, 258 (8th Cir. 1993); Delta Air Lines, Inc. v. Air Line Pilots
Ass’n, 861 F.2d 665, 674 (11th Cir.1988). On the other hand, the union argues that the controlling statutory language
and Supreme Court precedent provide that the grounds for judicial review of awards under the RLA are narrowly and
exclusively defined. The union relies upon Union Pac. Ry. Co. v. Sheehan, 439 U.S. 89, 93 (1978), in which the Court
stated,
Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the
Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the
Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3)
fraud or corruption. Only upon one or more of these bases may a court set aside an order of the
Adjustment Board.
No. 06-3851 NetJets Aviation v. Int’l Bhd. of Teamsters Page 4
Board would not support NetJets’ contention that the award reinstating Piper violates these public
policies.
The issue under a public policy review would not be “whether grievant’s conduct for which
he was disciplined violated some public policy or law, but rather whether the award requiring the
reinstatement of a grievance, i.e., the contract as interpreted, violated some explicit public policy.”
Way Bakery v. Truck Drivers Local No. 164, 363 F.3d 590, 595 (6th Cir. 2004) (quoting Tenn.
Valley Auth. v. Tenn. Valley Trades & Labor Council, 184 F.3d 510, 520 (6th Cir. 1999) (per
curiam)).
In this case, the Board found that Piper “acted in a juvenile, immature manner” in making
and distributing the video that depicted the shooting of NetJets’ DVD promoting the tentative
agreement. However, the Board expressly rejected NetJets’ characterization of the DVD as “the
‘symbolic murder’ of the Company officials who appeared on the DVD”; instead the Board found
that the video “was clearly just an attack on the tentative agreement.” Thus, according to the
Board’s finding of fact, which we must accept on review, NetJets’ alleged concerns about Piper’s
potential for violence are based on a “misinterpretation” of the video.
Accepting the Board’s finding that Piper’s conduct was intended as a political statement
against the tentative agreement, and not an act of violence or an implied threat of violence, there is
simply no basis to support NetJets’ contention that Piper’s reinstatement is in violation of either
aviation or workplace safety. The essence of the Board’s arbitral decision was that this single
incident of poor judgment did not constitute “just cause” for termination under the CBA. Whether
we would agree with that interpretation of the CBA is beside the point; because the Board’s
interpretation of the “just cause” provision obviously does not violate public policy, the award
would have to be enforced even if this court had the statutory authority to set aside the Board’s
award on public policy grounds.
For the foregoing reasons, the judgment of the district court denying NetJets’ motion for
summary judgment and granting summary judgment to the union is AFFIRMED.