# Petition for Writ of Certiorari — Ozark Air Lines, Inc. v. Air Line Pilots Ass'n

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0615%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 903

## Text

FEB EN LS PRY RN ee EN REN Ns 8 PSL CN YS

emo OOM = "aaa

Supreme Court. U.S.

85-293 | bir

AUC 17 1985
No. JOSEPH F. SPANIOL, JR
7 Cle. ,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

OZARK AIR LINES, INC..,
Petitioner,
VS.

Air LINE PILOTS ASSOCIATION, INTERNATIONAL,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT B. VINING, JR.*

DONALD J. MEYER

VINING & MEYER, P.C.

7751 Carondelet Avenue, Suite 606
Clayton, Missouri 63105

(314) 726-3315

Attorneys for Petitioner

*Counsel of Record

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED

1) Whether, under the principles governing the judicial review
of labor arbitration awards set forth by this Court 25 years ago
in the Steelworkers Trilogy and, specifically in United
Steelworkers of America v. Enterprise Wheel and Car Corp.,
363 U.S. 593 (1960), requiring the reviewing court to determine
whether the award draws its essence from the collective bargain-
ing agreement, does an arbitrator appointed by the National
Mediation Board under the provisions of the Railway Labor Act
exceed the scope of his jurisdiction:

a) by requiring as a condition precedent to en-
forcement of unambiguous contract language
that the party who drafted the unambiguous
language tell the other party what it meant;

b) by refusing to enforce unambiguous contract
language under circumstances where, after ex-
amining the bargaining history, the arbitrator
was unable to find an intent of the parties in-
consistent with the unambiguous contract
language;

c) by refusing to enforce unambiguous contract
language drafted by the Company and ac-
cepted by the Union simply because, in the
opinion of the arbitrator, the Union did not
obtain what it attempted to achieve in
negotiations.

2) Whether the equally divided en banc Order of the U.S.
Court of Appeals for the Eighth Circuit vacating the panel deci-
sion of that Court and affirming the judgment of the District
Court enforcing a labor arbitration award granting the Union
through arbitration what it was unable to attain in negotiations,
conflicts with the decision of the U. S. Court of Appeals for the
Second Circuit in Torrington Company v. Metal Products

Workers Union Local 1645, UAW, AFL-CIO, 362 F.2d 677
(2nd Cir. 1966) vacating an arbitrator’s award because it im-
properly granted to a union through arbitration a benefit which
it was unsuccessful in obtaining through contract negotiations.

PARTIES BELOW

Parties to this case in the court below are those listed in the
caption of this petition.' The Union is the representative of the
airline pilots ernployed by Ozark Air Lines, Inc. The Union is a
party to this case as the representative of two grievants, Cap-
tains Behnken and Gerber who are pilots employed by Ozark.

' Ozark Air Lines, Inc. is a wholly owned subsidiary of Ozark
Holdings, Inc.

ili

TABLE OF CONTENTS

Page
ck ck Cada wed CAs ccd cneee sess. i
a Eee ee il
A ee ill
Te eke cede beeeesiseeeseen iv
eee ka Ca GRE MNOS BARB CONS 8868 l
Ne ee ce noes 54568600 b60458 86 E5 48 2
GE 2
NEES E TTT TCE TTT TEESE ETT TET 3
Nd nic cae ch Sone bkeene es 3
B. The Underlying Dispute .................. 3
C. The Decision of the Arbitrator ............. 4
|

; Reasons for Granting the Writ .............ccccseees 6

1. The Equally Divided En Banc Decision of the

United States Court of Appeals For the

Eighth Circuit is Inconsistent With the Prin-

ciples Governing Judicial Review of Labor

Arbitration Awards, is Contrary to the Ex-

pressed Purpose of The Railway Labor Act

and Further Illustrates the Judicially

Recognized Fact That the Eighth Circuit Has

Effectively Eliminated Judicial Review of Ar-
Ee a ee 6

2. The Five To Five En Banc Decision of the
Eighth Circuit In The Present Case Enforcing
An Arbitration Award Which Grants The
Union Through Arbitration What It Was

a

\
iv
Unable To Achieve In Negotiations, Is In
Direct Conflict With The Torrington Decision
of The Second Circuit Prohibiting An Ar-
bitrator From Granting A Union In Arbitra-
tion What It Was Unsuccessful In Obtaining
Through Negotiations .................... 10
I trite nat Cath hen 2a ete Ce ye eee 13
PE: Gcxnucbak se Gauueccas keen caee wake ows A-l
TABLE OF AUTHORITIES
Cases:
Detroit Coil Co. v. IAM Lodge 82, 594 F.2d 575 (6th
Cir. 1979), cert. denied, 444 U.S. 840 (1979) ...... 7
Loveless v. Eastern Air Lines, 681 F.2d 1272 (11th
CC i icc 6G Rh bNe A CaS ek ee ee ka ee 6
Rainbow Glass Co. v. Local Union No. 610, 663 F.2d
Ce cca ieee heb eure cheek. 11
Riceland Foods v. United Brotherhood of Carpenters
and Carpenters and Joiners of America, 737 F.2d
758 (8th Cir. 1984) and 83-1619 (8th Cir. Dec. 10,
A ck RARER RR CDA CRA eae eee kekhees 8
Sears v. Teamsters Local 243, 683 F.2d 154 (6th Cir.
1982), cert. denied, 460 U.S. 1023 (1983) ......... 7
St. Louis Theatrical Company v. St. Louis Theatrical
Brotherhood Local 6, 715 F.2d 405 (8th Cir. 1983). 7
Torrington Co. v. Metal Products Workers Local 1645,
Bm ee 10

sl OR

United Electrical, Radio and Machine Workers of
America Local 1139 v. Litton Microwave Cooking
Products, 728 F.2d 970 (8th Cir. 1984) ...........

United Steelworkers of America v. Enterprise Wheel
& Car Cocp., S63 U.S. Fas (IBGE occ ncccsccccass

W. R. Grace & Co. v. Local 759 International Union of
Rubber Workers, 103 S.Ct. 2177 (1983) ..........

Statutory Provisions:
ees Ds kc Mash vessenceesenteessseeans
ee SE oni 00a hen wee ened banka eehee eas

Bee WUE GD bk o nb'0 4 ic cdeneeecqaaseeesans

6, 8

ee ee es ee a

a

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

Ozark AIR LINES, INC.,
Petitioner,
vs.

Arr LINE PILOTS ASSOCIATION, INTERNATIONAL,
Responcent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Ozark Air Lines, Inc., respectfully prays that a writ
of certiorari issue to review the equally divided en banc Order of
the United States Court of Appeals for the Eighth Circuit,
vacating the prior panel decision of that Court and affirming
the judgment of the United States District Court for the Eastern
District of Missouri, Eastern Division.

OPINIONS BELOW

The equally divided en banc Order of the Court of Appeals
vacating the panel opinion is set out at Appendix A. The panel
opinion of the Court of Appeals, with the dissent of Judge
McMillian, affirming the District Court Order and Opinion,
reported at 744 F.2d 1347 (1984) is set out at Appendix B. The

— Po

Order, and Memorandum and Order of the District Court are
set out at Appendices C and D respectively.

JURISDICTION

The equally divided Order of the Court of Appeals en banc
affirming the judgment of the District Court was entered May
21, 1985. The jurisdiction of this Court is invoked under 28
U.S.C. §1254(1)

STATUTORY PROVISIONS

The purpose of the Railway Labor Act, 45 U.S... §15la is as
follows:

The purposes of the Chapter are: (4) to provide for the
prompt and orderly settlement of all disputes concerning
rates of pay, rules, or working conditions... (5) to provide
for the prompt and orderly settlement of all disputes grow-
ing Out of grievances or out of the interpretation or ap-
plication of agreements covering rates of pay, rules, or
working conditions.

With respect to the scope of judicial review of arbitration
awards rendered pursuant to the provisions of the Railway
Labor Act, 45 U.S.C. §153 First (q), the Act provides in rele-
vant part:

(q) If ... and carrier, ... is aggrieved by any of the terms of
an award...then such ...carrier may file in any United
States district court...a petition for review of the division’s
order. On such review, the findings and order of the divi-
sion shall be conclusive on the parties, except that the
order of the division may be set aside, in whole or in part,
or remanded to the division, for failure of the division to
comply with the requirements of this chapter, for failure of
the order to conform, or confine itself, to matters within
the scope of the division’s jurisdiction, or for fraud or cor-
ruption by a member of the division making the order.

iat

ana

STATEMENT OF THE CASE
A. Background

Petitioner, Ozark Air Lines, Inc., (hereinafter Ozark) com-
menced this action in the District Court against the Air Line
Pilots Association International, (hereinafter ALPA) to vacate
an arbitration award of the Ozark Air Line Pilots’ System
Board of Adjustment (hereinafter the Board). Ozark moved for
Summary Judgment to vacate the arbitration award and ALPA
filed a Cross Motion for Summary Judgment to enforce it.
Jurisdiction for Ozark’s Complaint was based on the Railway
Labor Act, 45 U.S.C. §§153 First (q) and 184. The District
Court granted ALPA’s Cross Motion for Summary Judgment,
hereby enforcing the arbitration award and denying Ozark’s
motion to vacate.

Ozark appealed. The panel majority composed of Judges
Bright and Floyd R. Gibson affirmed thereby declining to
vacate the arbitration award. The third panel member, Judge
McMillian, dissented stating that the Board’s award was con-
trary to the contract language and therefore could not be said to
draw its essence from the collective bargaining agreement. On
rehearing en banc, the Court was evenly divided, five to five.

B. The Underlying Dispute.

The dispute centers around the interpretation of Section 15SE
of the Contract, set out at Appendix E, which provides that:

When the Company determines that an employee has an
occupational injury, such employee shall be eligible for oc-
cupational injury pay.

Historically, Ozark has made the determination of whether an
occupational injury occurred based on whether the employee
making a claim had incurred a compensable injury under siate
workers’ compensation law. If Ozark deterrnined that an injury
was compensable under state law, it would grant occupational

_— (on

pay. If it determined that an injury was not compensable under
state law, it would grant regular sick pay. After reviewing the
claims of Captains Behnken and Gerber, Ozark determined
there had been no ‘‘accidental occurrence’’ and, therefore,
under Missouri Workers’ Compensation Law neither of them
had incurred a compensable injury. They were paid from their
regular sick pay accounts. Captains Behnken and Gerber griev-
ed and their case was arbitrated before the Ozark Air Lines
Pilots System Board of Adjustment. The arbitrator was ap-
pointed by the National Mediation Board pursuant to the provi-
sions of the Railway Labor Act.

C. The Decision of the Arbitrator.

The Arbitrator expressly recognized that the merits of the
grievances before him turned on the meaning of the language in
Paragraph 15E of the Contract, ‘‘When the Company deter-
mines that an employee has an occupational injury...’’. (Ap-
pendix F, p. A-33) With respect to whether that language was
clear on its face, the Arbitrator stated:

It is a fv"idamental rule of agreement interpretation that
the plain meaning of contract language must be followed
by the interpreter of that language. Clear and unam-
biguous language must be followed without resort to parol
evidence in the form of oral or written statements which
would alter\or vary the terms of the language. The Carrier
relies heavily upon this rule and the language under
scrutiny here tends to support the Carrier’s argument. On
its face the language vests in the Carrier the authority to
determine whether an employee has suffered an occupa-
tional injury without restricting the Carrier to a specific
standard or criterion in making such determination.

(Appendix F, p. A-33)

The Arbitrator did not stop at that point. He went on to con-
sider the bargaining history to determine if it would prove some
other meaning to the facially unambiguous contract.

~~ fo

The bargaining history disclosed that prior to the 1975
negotiations between Ozark and ALPA, Ozark would wait for a
determination from the Missouri Division of Workers’ Com-
pensation before paying occupational injury leave. As part of
the bargaining history, the Arbitrator considered the testimony
of the Union negotiator that ALPA intended to achieve two
goals in the 1975 negotiations, (1) to expedite the processing of
its claims for occupational injury pay, and (2) to sever all ties
between occupational injury pay under Section 15E of the
agreement and compensability under workers’ compensation
law. Regarding the first goal, if is undisputed that the process-
ing of disputes was expedited by Ozark making the decision of
whether an employee had an occupational injury rather than
have the employee wait until a decision was rendered by the
state agency. The Arbitrator also considered the testimony of
the Ozark negotiator to the effect that Ozark never intended by
the change in language to abandon its practice of making
eligibility for occupational injury pay ontingent upon the in-
jury being compensable under workers’ compensation law.
Ozark intended there be no change in the standard for determin-
ing eligibility for occupations injury pay. (Appendix F, p.
A-37)

After examining this bargaining history, the Arbitrator con-
cluded that the meaning of Section 15E of the Contract was not
conclusively established by the bargaining history. (Appendix
F, p. A-38) The Arbitrator construed the unambiguous Con-
tract language against Ozark on the basis that it was drafted by
Ozark. The Arbitrator justified this on the basis that, in his opi-
nion, ALPA was seeking to sever the relationship between oc-
cupational injury pay under the labor contract and compen-
sability under workers’ compensation law and Ozark failed to
explain its proposal to ALPA other than to say that Ozark
would make the determination. (Appendix F, p. A-38)

—_

REASONS FOR GRANTING THE WRIT

1. The Equally Divided En Banc Decision Of The United
States Court Of Appeals For The Eighth Circuit Is Inconsistent
With The Principles Governing Judicial Review Of Labor Ar-
bitration Awards, Is Contrary To The Expressed Purpose Of
The Railway Labor Act And Further Illustrates The Judicially
Recognized Fact That The Eighth Circuit Has Effectively
Eliminated Judicial Review Of Arbitration Awards.

Twenty-five years ago in the Steelworkers Trilogy, and
specifically in United Steelworkers of America v. Enterprise
Wheel & Car Corp., 363 U.S. 593 (1960), this Court set forth
the principles of law to be followed by the courts in reviewing
arbitration awards. In that regard, this Court stated:

Nevertheless, an arbitrator is confined to interpretation
and application of the collective bargaining agreement; he
does not sit tu dispense his own brand of industrial justice.
He may of course look for guidance from many sources,
yet his award is legitimate only so long as it draws its
essence from the collective bargaining agreement. When
the arbitrator’s words manifest an infidelity to this obliga-
tion, courts have no choice but to refuse enforcement of
the award.

The provisions of the Railway Labor Act, 45 U.S.C. §153
First (q), concerning review of arbitration awards are merely a
statutory codification of substantive grounds for review of ar-
bitration awards in other areas of labor law. Where, as here,
there was no contention of fraud or corruption of a member of
the board, the proper standard of review under the Railway
Labor Act is whether the decision of the arbitrator draws its
essence from the contract. Loveless vy. Eastern Air Lines, 681
F.2d 1272 (11th Cir. 1982).

In the instant case, the arbitrator admitted that ‘‘On its face
the language (of Section 15E of the contract) vests in the carrier
(Ozark) the authority to determine when an employee has suf-

fered an occupational injury without restricting the Carrier to a
specific standard or criterion in making the determination’’.
The arbitrator further admitted that the meaning of Section ISE
of the contract was not conclusively established by the bargain-
ing history.

Terms used in a labor agreement must be given their ordinary
meaning absent evidence indicating the parties intended some
other meaning. Detroit Coil Co. v. IAM Lodge 82, 594 F.2d
575 (6th Cir. 1979), cert. denied, 444 U.S. 840 (1979). The ar-
bitrator found that the bargaining history failed to conclusively
establish any other meaning. Absent tensions between sections
of the agreement or an ambiguity within a section, an ‘‘...agree-
ment is not susceptible to any construction beyond its plain
meaning’’. St. Louis Theatrical Company v. St. Louis
Theatrical Brotherhood Local 6, 715 F.2d 405, (8th Cir. 1983).
In the instant case there is no evidence of tensions between sec-
tions of the agreement or ambiguity within a section. At this
point it was the arbitrator’s obligation to enforce the unam-
biguous language of the contract. By refusing to do so the ar-
bitrator manifested his infidelity to that obdligation.

The arbitrator exceeded his jurisdiction by placing on the par-
ty that drafted the language in question the requirement of tell-
ing the other party what it meant as a condition precedent to its
enforcement. The contract does not place such a requirement
on the parties. In Sears v. Teamsters Local 243, 638 F.2d 154
(6th Cir. 1982), cert. denied 460 U.S. 1023 (1983) the Court
refused to enforce an arbitration award under circumstances
similar to this case. In Sears the labor agreement gave the
employer the right to subcontract just like the contract in the in-
stant case gives Ozark the right to determine whether an occupa-
tional injury occurred. In Sears the arbitrator recognized that
the bargaining agreement on its face authorized Sears to sub-
contract in the interest of efficiency and economy. In the pre-
sent case the arbitrator acknowledged that the language, on its
face, gave Ozark the authority to determine whether an
employee has suffered an occupational injury without restric-

—

tion. In Sears, the arbitrator applied a balancing test to deter-
mine whether the benefit to the company from subcontracting
outweighed the detriment to the union. The Court concluded
that the arbitrator exceeded his authority by inferring limita-
tions on subcontracting beyond those contained in the collective
bargaining agreement. In the present case the arbitrator placed
on Ozark, as a condition precedent to enforcing unambiguous
language, the obligation of explaining to the ALPA negotiators
that the language did not preclude Ozark from relying on com-
pensability under workers compensation laws in determining
whether an occupational injury occurred. By placing that re-
quirement on Ozark, the arbitrator went beyond interpreting
the contract and proceeded to dispense his own brand of in-
dustrial justice, thereby obligating the reviewing court to refuse
enforcement of the award. United Steelworkers of America v.
Enterprise Wheel & Car Corp., supra.

The arbitration in this case was conducted pursuant to the
provisions of the Railway Labor Act, the express purpose of
which is to provide for the prompt and orderly settlement of
disputes over pay and working conditions. The arbitrator’s
decision conflicts with this expressed statutory purpose. If, as a
condition precedent to enforcement of unambiguous contract
language, the Ozark negotiator must tell the ALPA represen-
tative which of the Union’s objectives the unambiguous
language does not achieve, the statutory purpose of providing
for the orderly settlement of disputes will not be served. Such a
requirement which was never agreed to by the parties would
tend to inject chaos rather than order into the collective
bargaining process. Therefore, the award of the arbitrator not
only fails to derive its essence from the contract, but it is in
direct conflict with the purpose of the Railway Labor Act which
is to provide for an orderly method of settling disputes.

ae

The enforcement of the arbitration award in this case is the
product of an evenly divided Court en banc. Recently, the
Eighth Circuit enforced another arbitration award by an evenly
divided Court en banc. Riceland Foods v. United Brotherhood

ae |

= yo

of Carpenters and Joiners of America, 737 F.2d 758 (8th Cir.
1984) and 83-1619 (8th Cir. Dec. 10, 1984). The en banc ruling
in Riceland Foods was issued by Order without an opinion just
as it was in the present case. In a recent five to four en banc
decision enforcing an arbitration award, United Electrical,
Radio and Machine Workers of America Local 1139 v. Litton
Microwave Cooking Products, 728 F.2d 970 (8th Cir. 1984), the
five judge majority stated the following with regard to its
understanding of the standard of review of arbitration decisions
in the federal courts:

-

The Supreme Court has recently reminded us that the
courts may set aside labor-arbitration awards only in rare
circumstances.

The reference to the recent Supreme Court decision was to W.
R. Grace & Co. v. Local 759 International Union of Rubber
Workers, 103 S.Ct. 2177, 2182, (1983). The W. R. Grace deci-
sion places no limitation on reviewing courts on the number or
frequency of times that an arbitration award can be set aside.
Whether it be a rare circumstance, as the majority has stated in
Litton, or a frequent occurrence, should depend solely on
whether the award derives its essence from the contract. The
four dissenting judges concluded that the five judge majority’s
‘*rare circumstances’’ approach in the Litton case did damage
to the established principles of arbitration law and effectively
eliminated any judicial review over the concededly broad
powers of arbitrators. United Electrical, Radio and Machine
Workers of America Local 1139 v. Litton Microwave Cooking
Products, supra at 974.

This case presents the vehicle by which the Court can clarify
the principles governing review of arbitration awards previously
stated in Enterprise Wheel and thereby preserve the integrity of
the arbitration process. The need for such clarification is
evidenced by the two recent evenly divided en banc decisions
concerning the scope of review of arbitration awards in
Riceland and the present case. The seriousness of the matter

—

and need for clarification was aptly stated by the four judge
minority opinion in the five to four en banc Litton decision that
the Court had effectively eliminated ‘‘...judicial review over
the concededly broad powers of arbitrators’’. By granting
Ozark’s petition in this case the Court can reinstate judicial
review of arbitration awards in the Eighth Circuit.

2. The Five To Five En Banc Decision Of The Eighth Circuit
In The Present Case Enforcing An Arbitration Award Which
Grants The Union Through Arbitration What It Was Unable
To Achieve In Negotiations, Is In Direct Conflict With The
Torrington Decision Of The Second Circuit Prohibiting An Ar-
bitrator From Granting A Union In Arbitration What It Was
Unsuccessful In Obtaining Through Negotiations.

The arbitrator rejected Ozark’s argument that the Union was
trying to get through arbitration what it was unsuccessful in ob-
taining through negotiations on the basis of his finding that the
Union’s negotiator believed he had achieved the goal of severing
all ties between occupational injury pay under the contract and
compensability of the injury under workers’ compensation
laws. However, the arbitrator failed to point to any provision
of the contract by which the Union accomplished this goal.
That’s because no such contract provision exists notwithstan-
ding the fact that the subject was raised by the Union in negotia-
tions. The Second Circuit has dealt directly with this point in
Torrington Co. v. Metal Products Workers Local 1645, 362
F.2d 677, 681 (2nd Cir. 1966), where the Court stated:

We cannot accept this interpretation of the negotiations.
In the first place, as Judge Clarie stated, labor contracts
generally state affirmatively what conditions the parties
agree to, more specifically, what restraints the parties will
place on management’s freedom of action. While it
may be appropriate to resolve a question never raised dur-
ing negotiations on the basis of prior practice in the plant
or industry, it is quite another thing to assume that the
contract confers a specific benefit when that benefit was

a

~~ ee

discussed during negotiations but omitted from the con-
tract.

In our opinion, the Union by pressing this grievance has
attempted to have ‘‘added’’ to the 1964 agreement a
benefit which it did not think sufficiently vital to insist
upon during negotiations for the contract which ended a
long and costly strike. We find this sufficiently clear from
the facts as found by the arbitrator to agree with the
district court that the arbitrator exceeded his authority by
ruling that such a benefit was implied in the terms of that
agreement.

Torrington has been cited with approval in Rainbow Glass Co.
v. Local Union No. 610, 663 F.2d 814, 817 (8th Cir. 1981),
where a three judge panel stated:

In the instant case the silence of the current bargaining
agreement on the question of Copeland’s seniority rights
rendered the intent of the parties on this matter am-
biguous. Resort to the bargaining history here only
heightens the ambiguity since the parties failed to discuss
this issue during negotiations of that agreement. In his
decision, the arbitrator noted that

(ijn the negotiation of the current contracts, no
discussion was had about Grievant’s right to seniori-
ty. Neither the Company nor the Union brought up
the subject. Either could have. The parties were
evidently satisfied that Grievant was a ‘temporary
employee’, not entitled to fringe benefit contribu-
tions. But the issue of his seniority rights have (sic)
never been raised... .

Thus, it is clear that this situation is not one in which the
parties considered the issue during contract negotiations
and deliberately omitted it from the contract. In such a
case, an arbitrator could not assume that the contract con-
ferred a specific benefit, since ‘‘labor contracts generally

state affirmatively’’ the conditions on which the parties
agree. See Torrington Co. v. Metal Products Workers
Local 1645, 362 F.2d 677, 681, 62 LRRM 2495 (2d Cir.
1966).

Although Torrington was cited with approval by a three
judge panel in Rainbow Glass, it now appears that the Court en
banc is no longer willing to follow the rationale of Torrington in
determining whether an arbitration decision derives its essence
from the collective bargaining agreement.

The simple fact is that during negotiations for the 1975 con-
tract, ALPA requested Ozark to sever any ties between occupa-
tional injury pay under Section 15E of the contract and com-
pensability of the injury under workers’ compensation laws.
When Ozark proposed the language of ‘‘When the Company
determines that an employee has an occupational injury...’’
which resolved the need for waiting for a state agency to deter-
mine and thereby expedited the processing of claims, it would
have been easy for ALPA to counter with a proposal to the ef-
fect that ‘‘When the Company determines on some basis other
than compensability under workers’ compensation laws that an
employee has an occupational injury...’’. However, ALPA
did not do so. Instead it accepted the language as proposed by
Ozark which the arbitrator admits on its face granted Ozark the
right to make the determination without restriction on the,
**.. specific standard or criticism in making such determina-
tion’’. If this case had been before the Second Circuit, the
award would have been vacated based on its Torrington deci-
sion. However, in the Eighth Circuit, the result was just the op-

posite.

In order to resolve this conflict between the Second and
Eighth Circuits on whether an arbitration decision derives its
essence from the contract under circumstances where the ar-
bitrator granted the Union in arbitration a benefit it was unsuc-
cessful in obtaining through negotiations, the Court should
grant Ozark’s petition in this case.

8 ee

=.

CONCLUSION

By the equally divided en banc decisions in the present case
and the Riceland case and the five to four decision in the Litton
case, the Eighth Circuit has so substantially deviated from the
principles governing judicial review of labor arbitration awards
as to effectively eliminate any judicial review over such awards.
In order to preserve the integrity of the arbitral process and
maintain uniform standards for judicial review of arbitration
awards, this Court should grant Ozark’s petition for a writ of
certiorari.

_

A conflict exists between the decision of the Eighth Circuit in
the present case enforcing an arbitration award where the ar-
bitrator granted the union a benefit it was unable to obtain in
negotiations and the Torrington decision of the Second Circuit
denying enforcement of such an award. Therefore, this Court
should grant Ozark’s petition for a writ of certiorari in order to
maintain uniformity between the Circuits in the application of
the principles governing judicial review of arbitration awards.

Respectfully submitted,

Robert B. Vining, Jr.*

Donald J. Meyer

VINING & MEYER, P.C.

7751 Carondelet Avenue, Suite 606
Clayton, Missouri 63105

(314) 726-3315

Attorneys for Petitioner

*Counsel of Record

EO

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No 84-1055

Ozark Air Lines, Inc.,
Appellant,
Va
The Air Line Pilots
Association, International,
Appellee.

Appeal from the United
States District Court for
the Eastern District of
Missouri.

Submitted: April 29, 1985
Filed: May 21, 1985

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit
Judge, HEANEY, BRIGHT, ROSS, McMILLIAN,
ARNOLD, JOHN R. GIBSON, FAGG, and BOWMAN,
Circuit Judges, En Banc.

=.

ORDER

On rehearing en banc, the judgment of the district court,
upholding the arbitrator’s opinion, is affirmed by an equally
divided vote.' Chief Judge Lay and Circuit Judges Floyd R.
Gibson, Heaney, Bright, and Arnold vote to affirm. Circuit
Judges Ross, McMillian, John R. Gibson, Fagg, and Bowman
vote to reverse.

A true copy.
ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.

' The grant of the rehearing en banc serves to vacate the prior panel
opinion published at 744 F.2d 1347 (1984).

ee

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 84-1055

Appeal from the United
States District Court for
the Eastern District of
Missouri.

Ozark Air Lines, Inc.,
Appellant,
v.
The Air Line Pilots
Association, International,
Aprellee.

Submitted: June 13, 1984
Filed: October i, 1984

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior
Circuit Judge, and McMILLIAN, Circuit Judge.

BRIGHT, Circuit Judge.

This case arises from a dispute between the parties as to
whether the absence from work of two injured pilots should be
characterized as ‘‘occupational sick leave’’ or as ‘‘regular sick
leave’’ under the governing labor agreement. The system board

0 oe

=

of adiustment, to which the dispute was referred, agreed with
the Pilots Association that the absences qualified as occupa-
tional sick leave. The district court,' on the parties’ cross-
motions for summary judgment, upheld the board’s decision.
Ozark appeals. We affirm.

I. BACKGROUND.

Under the labor agreement between Ozark and the Pilots
Association, each pilot accrued both occupational sick leave
credit and regular sick leave credit. When a pilot missed work
because of injury or illness, he was entitled to collect pay for the
time missed, deductible against one or both of his accrued sick
leave credit accounts. Absences attributable to ‘‘occupational
injury’’ were deductible against accrued occupational sick leave
time, until the account was exhausted, and then against accrued
regular sick leave,time. Absences other than those attributable
to ‘‘occupational injury,’’ however, were deductible only
against accrued regular sick leave time.? The labor agreement
did not define ‘‘occupational injury.’’ It provided only that,
‘‘f[w]hen the Company f[fi.e., Ozark] determines that an
employee has an occupational injury, such employee shall be
eligible for occupational injury pay.’’

This case arose after two pilots filed for occupational sick
leave pay, claiming to have suffered back injuries while on the
job. Ozark paid them sick leave, but charged their absences
against their accrued regular sick leave time rather than against

' The Honorable Roy W. Harper, United States Senior District
Judge for the Eastern District of Missouri.

? Though the rate of sick leave pay is the same whether the absence
is characterized as regular or as cccupational, the pilots would ap-
parently prefer to have the absences charged against occupational
leave, in order to conserve their regular leave time to apply against
future nonoccupational absences.

ae i on

their accrued occupational sick leave time, on the ground that,
though the injuries had occurred on the job, they were not ‘‘ac-
cidental’’ and thus would not be compensable under the
workers’ compensation law of the pilots’ home state, Missouri.
In response to Ozark’s action, the Pilots Association initiated
grievance proceedings. The dispute was eventually referred for
arbitration to the system board of adjustment, pursuant to the
terms of the labor agreement.

The agreement provided for a four-member board, consisting
of two representatives of Ozark and two representatives of the
Pilots Association. The board’s decisions were to be final and
binding on all parties. The agreement provided that, in case of a
deadlock among the four-member board, either Ozark or the
Pilots Association could petition the National Mediation Board
to appoint a neutral referee to serve as the fifth member of the
board to resolve the deadlock.

When the grievances in this case were initially submitted to
the four-member board, Ozark argued that the board lacked
jurisdiction to decide the controversy. Ozark contended that
the labor agreement gave Ozark unreviewable discretion to
determine whether a pilot’s absence was attributable to ‘‘oc-
cupational injury.’’ Ozark rested this claim on the single
sentence in the agreement which provided that occupational
leave pay was available ‘‘[w]hen the Company determines that
an employee has an occupational injury.”’ The Pilots Associa-
tion argued that the board of adjustment did have jurisdiction
over the grievances. It pointed to language in the labor agree-
ment which gave the board power to decide all disputes ‘‘grow-
ing out of grievances or out of interpretation or application of
any of the terms of the * * * Agreement.’’ The Pilots Associa-
tion contended that the meaning of ‘‘occupational injury’’ and
the extent of Ozark’s discretion under the agreement were ques-
tions of interpretation of the terms of the agreement, and were
therefore subject to arbitration by the board.

Eee

—_— =

The four-member board deadlocked on the arbitrability
issue. The Pilots Association then petitioned for appointment
of a neutral referee to serve as the tiebreaking fifth member.
The referee sided with the Pilots Association’s representatives,
holding that the grievances were arbitrable. Ozark does not
contest this decision.

Ozark then moved that the five-member board, having
resolved the threshold arbitrability issue, remand the merits of
the grievances to the four-member board for resolution. The
five-member board held, however, on a 3 to 2 vote, that it had
jurisdiction over the merits and need not remand the grievances
to the four-member board. It then decided the merits of both
grievances in favor of the pilots, again by a vote of 3 to 2.

On appeal, Ozark raises two issues. First, it contends that the
five-member board had jurisdiction only over the arbitrability
issue, not over the merits of the grievances, and should
therefore have remanded the merits to the four-member board
for decision. Second, Ozark argues that even if the five-
member board had jurisdiction over the merits, its decision on
the merits does not draw its essence from the labor agreement
and therefore should not be enforced.

II. DISCUSSION.
A. Scope of Judicial Review.

A court reviewing the decision of an airline system board of
adjustment may set the decision aside on any of three grounds:
(1) failure of the board to comply with the provisions of the
Railway Labor Act, 45 U.S.C. §§ 151-188, (2) failure of the
board to confine itself to matters within its jurisdiction, and (3)
fraud or corruption of a member of the board. 45 U.S.C. §§
184, 153 First (q). See Loveless v. Eastern Air Lines, 681 F.2d
1272, 1275-78 (11th Cir. 1982); Hunt v. Northwest Airlines, 600
F.2d 176, 177-79 (8th Cir.), cert. denied, 444 U.S. 946 (1979).

—

Where, as here, the party seeking to have the board’s order
set aside contends that the board acted beyond its jurisdiction,
the reviewing court’s role is limited solely to determining
whether the board exceeded its jurisdiction. Once the court
determines that the board acted within the scope of its
authority—that is, that the board conformed to the limits on its
authority set forth in the labor agreement, and that the award
draws its essence from the agreement—the court’s task is finish-
ed. A court will not set aside an award rendered within the
scope of the board’s jurisdiction, either for ordinary error or
because the court would itself have reached a different resolu-
tion of the merits had the parties submitted the merits for
judicial determination in the first instance. Zeviar v. Local
2747, Airline, Aerospace and Allied Employees, 733 F.2d 556,
559 (8th Cir. 1984); Loveless v. Eastern Air Lines, supra, 681
F.2d at 1275-76. Cf. Daniel Construction Co. v. Int’l Union of
Operating Engineers, No. 83-2221, slip op. at 5-6 (8th Cir. June
29, 1984) (applying same standard to review of an arbitrator’s
decision under section 301 of the Labor Management Relations
Act). Moreover, when disagreement arises between the parties
whether a particular dispute is arbitrable under the terms of the
governing labor agreement, courts will broadly construe the
agreement in favor of arbitrability, resolving doubts on the side
of the board’s authority. United Steelworkers of America v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960);
Zeviar v. Local 2747, supra, 733 F.2d at 559; Lackawanna
Leather v. United Food & Commercial Workers, 706 F.2d 228,
230-31 (8th Cir. 1983) (en banc).

B. Jurisdiction Of The Five-Member Board To Decide
The Grievances On Their Merits.

Both of the board rulings that Ozark challenges are matters of
interpretation of terms of the labor agreement. The first
issue—whether the five-member board had jurisdiction over the
merits of the grievances, or only over the threshold question of
arbitrability—turns on the interpretation of the following
language in the agreement:

—

When a deadlock occurs in a case referred to the Board,
it shall be the duty of the Board to endeavor to reach a
decision, and failing in this, to agree, within thirty (30)
days of the date of such deadlock, upon a procedure for
breaking the deadlock. The said procedure for breaking
the deadlock shall, when found necessary as a final step to
settle a deadlocked case, include the appointment of a
neutral person to be known as a referree to sit with the
Board as a member thereof and make the award. In any
case where the said System Board of Adjustment becomes
deadlocked and unable to reach a decision upon a method
for breaking the deadlock or unable to mutually agree
upon the appointment of a referee within the above
prescribed thirty (30) days, either the Company or the
Association may within thirty (30) days thereafter petition
the National Mediation Board for the appointment of
a neutrai referee to sit with the System Board of Adjust-
ment as a member thereof. In case neither party shall so
petition the National Mediation Board within the above
prescribed thirty (30) day period, the matter in question
shall be deemed by all parties concerned to be ended and
no action therewn shall be taken thereafter by either party.
Such Board of Adjustment, as then constituted, shall hear
the parties with rvference to the dispute pending before it,
and a majority vote of the Board shall be final, binding
and conclusive between the Company and the Association
and anyone they may represent having an interest in the
dispute.

The Pilots Association argued before the five-member board
that this language meant that, once the four-member board had
deadlocked on any aspect of a pending case, a fifth member was
to be appointed to sit with the board to resolve the whole
dispute, not merely the narrow question on which the four
members initially deadlocked. Ozark, however, argued that,
where the four members deadlocked on a single issue within a
case, the fifth member sat only to resolve that single issue, and

— > on

not to participate in the board’s deliberations on any other
aspect of the case.

The five-member board acknowledged the plausibility of
Ozark’s interpretation of the provision in question. Never-
theless, the board concluded that it had jurisdiction over the
whole pending grievance. Ozark now asks this court to set the
board’s ruling aside on the ground that it does not draw its
essence from the contract.

We agree with the board that the disputed provision is fairly
susceptible of either of the two conflicting interpretations of-
fered by the parties. The interpretation adopted by the board is,
however, at least as well grounded in the language of the agree-
ment as is the interpretation Ozark urges.

In particular, the agreement provides that, ‘‘[w]hen a
deadlock occurs in a case,’’ a neutral referee may be appointed
**to sit with the Board as a member thereof and make the
award’ (emphasis added). ‘‘Making the award”’ in a ‘‘case’’ in
which a deadlock has occurred seems naturally to refer to
rendering the final, dispositive judgment between the parties in
the proceeding, rather than merely to deciding some issue or
question preliminary to a consideration of the merits. The
agreement further provides that, upon the appointment of the
neutral fifth member, the board of adjustment, ‘‘as then con-
stituted, shall hear the parties with reference to the dispute pen-
ding before it’’ (emphasis added). The meaning of ‘‘the dispute
pending before it’’ is unclear; the phrase could refer either to
the whole controversy before the board, or to that narrower
part of the controversy which gave rise to the specific deadlock
that the referee was initially summoned to resolve. In any event,
the interpretation on which the board settled is at least fully
consistent with the language in question. The language of the
agreement certainly lends no stronger support to Ozark’s inter-
pretation than to that adopted by the board.

— A-10 —

The board, then, did nothing more than give admittely am-
biguous language a construction at least as plausible as any
other suggested. We have no basis for saying that the board rul-
ing fails to draw its essence from the contract. Therefore we
cannot set the board’s ruling aside.’

C. The Meaning Of ‘‘Occupational Injury.’’

After the board of adjustment determined that the grievances
were arbitrable and that the neutral referee could participate in
the proceedings on the merits, it undertook to decide whether
Ozark had properly denied the two injured pilots occupational
sick leave pay.

Ozark argued that, given the lack of any definition of ‘‘oc-
cupational injury”’’ in the labor agreement, it was free to follow
its longstanding practice of paying occupational sick leave pay
only to pilots whose injuries were compensable under the
workers’ compensation laws of the state of their domicile. For
the pending grievances, Ozark contended, the appropriate stan-
dard was Missouri workers’ compensation law, under which
benefits were available only for ‘‘accidental’’ injuries sustained
on the job.‘ In any event, Ozark argued, the iabor agreement
clearly left it up to Ozark to determine whether an occupational
injury had occurred; the board of adjustment was bound to give
the words, ‘‘[wjhen the Company determines that an employee
has an occupational injury’’ their plain meaning and to defer to
Ozark’s characterization of the injuries as nonoccupational.

> Ozark does not contend that the five-member board had no
authority to resolve the dispute over whether the merits should be
heard by the five-member or the four-member board. Both parties
argued their positions on the construction of the disputed language to
the five-member board, an implicit concession that they believed the
board as so constituted to be the proper body to decide the question.

* The parties do not dispute that the grievant pilots did not suffer
such ‘‘accidental’’ injuries.

— All —

The Pilots Association argued, however, that the bargaining
history behind the labor agreement showed the contested
language to have a different meaning. According to the
Association, ‘‘occupational injury’’ meant any injury sustained
on the job, whether or not compensable under state workers’
compensation laws. In the Association’s view, the airline’s role
was limited to determining whether an injury had occurred on
the job. If the airline so found, the pilot was entitled to occupa-
tionai sick leave pay.

The board of adjustment reviewed the bargaining history and
previous labor agreements between the parties. It found that,
prior to 1975, Ozark paid occupational sick leave pay to an in-
jured pilot only after a state workers’ compensation board had
determined that the pilot had suffered a compensable injury. In
contract negotiations in 1975, however, the Pilots Association
sought to have eligibility for occupational leave determined on a
basis other than compensability under state workers’ compensa-
tion law.

The language at issue in this case (’’)w]hen the Company
determines that an employee has an occupat:onal injury,”’ etc.)
was adopted during the 1975 negotiations. With the adoption
of the new language, Ozark no longer waited until a state
workers’ compensation board had determined an employee to
have suffered a compensable injury before paying occupational
leave pay. Instead, Ozark made the ‘‘occupational injury”’
determination itself, still, apparentiy, using state law compen-
sability as the standard, though nowhere in the contract is ‘‘oc-
cupational injury’’ defined in terms of state law compensability.

The board of adjustment concluded that the Pilots Associa-
tion, at the close of the 1975 negotiations, believed that the new
language completely divorced ‘‘occupational injury’’ from com-
pensability under state workers’ compensation law. Because
Ozark drafted the language in question, the board held that any
ambiguities in the language which had given rise to
misunderstanding on the Pilots Association’s part should be

— A-12 —

construed against Ozark. Accordingly, the board adopted the
Pilots Association’s interpretation of the disputed language.
Under that interpretation, the injured pilots were entitled to oc- |
cupational sick leave pay.

Ozark’s principal contention on appeal is that the board’s rul-
ing fails to draw its essence from the contract, to the extent that
it rests not on the language of the contract but on the bargaining
history and on the rule of interpretation that ambiguous
language is to be construed against its drafter. According to
Ozark, there is nothing ambiguous about the language, ‘‘[w]hen
the Company determines that an employee has an occupational
injury, such employee shall be eligible for occupational injury
pay.’’ Therefore, Ozark contends, the board had no authority
to look beyond the language of the agreement to the bargaining
history underlying it.

We reject Ozark’s position. It is settled that, in construing
the terms of a labor agreement, the arbitrator ‘‘may * * * look
for guidance from many sources.’’ United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597
(1960). This court has upheld other arbitral decisions that look
beyond the terms of the labor agreement to past agreements bet-
ween the parties and to various collateral instruments. See Rain-
bow Glass Co. v. Local Union No. 610, 663 F.2d 814 (8th Cir.
1981); UAW v. White Motor Corp., 505 F.2d 1193 (8th Cir.
1974), cert. denied, 421 U.S. 921 (1975). Resort to such extrin-
sic sources as bargaining history and past and collateral
agreements is permissible even where the terms of the agreement
are superficially clear, if the arbitrator discerns a latent ambigui-
ty in any of the terms or if the language of the agreement does
not appear fully to express the intent of the parties. Loveless v.
Eastern Air Lines, supra, 681 F.2d at 1278-80; Humble Oil &
Refining Co. v. Local 866, Int’! Brotherhood of Teamsters, 447
F.2d 229, 232-33 (2d Cir. 1971). In such circumstances, an ar-
bitral award does not fail to draw its essence from the contract
merely because it is based in part on sources other than the con-
tractual language itself.

— A-13 —

In this case, we cannot say that the board’s award fails to
draw its essence from the labor agreement. The agreement
nowhere defines ‘‘occupational injury.”’ Neither is the
language, ‘‘[w]hen the Company determines that an employee
has an occupational injury,’’ so clear and expiicit a reservation
of exclusive authority to Ozark as to preclude the board from
looking to plainly relevant extrinsic sources to discern what the
parties meant by the language.’ Confronted by a dispute bet-
ween the parties over the meaning of the provision, the board
had the authority to look beyond the language of the agreement
to determine the meaning of the terms in question.

The board adopted the Pilots Association’s view that the
labor agreement limited Ozark to making the factual determina-
tion whether a pilot’s injury had occurred cn the job. This in-
terpretation is not inconsistent with the agreement language,

* This case thus stands in sharp distinction from St. Louis Theatrical
Co. v. St. Louis Theatrical Brotherhood, 715 F.2d 405 (8th Cir. 1983).
There, the contract absolutely prohibited work stoppages, and ex-
pressly provided that, except as to the fact of an employee’s participa-
tion in such stoppages, there was to be no arbitration of alleged viola-
tions of the no-work-stoppage clause. We set aside the arbitrator’s
award reducing the discipline imposed against an employee whom the
arbitrator found to have engaged in a work stoppage, on the ground
that the award violated the express limitation on the scope of arbitra-
tion.

In the case now before us, the disputed language (‘‘[w]hen the Com-
pany determines that an employee has an occupational injury,’’ efc.)
does not constitute a clear, express limitation on the board’s arbitral
authority. Rather, the extent to which it limits the board is itself a
matter of interpretation, respecting which we defer to the board,
resolving doubts in favor of board authority. See United Steelworkers
v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 582-83; Zeviar
v. Local 2747, supra, 733 F.2d at 559. To fail to give full play to the
arbitration clause of the agreement, absent a clear and definite indica-
tion that the parties intended to limit the scope of arbitration on this
issue, would do violence both to the labor agreement and to the
Railway Labor Act’s policy favoring the arbitration of contract
disputes.

on Ake

which taken alone gives no indication as to what the parties
meant by ‘‘occupational injury.’’ Ozark’s argument that the
agreement gave it complete freedom to define ‘‘occupational in-
jury’’ as it chooses, would, if carried to its logical end, entitle
the airline to deny occupational sick leave pay to every claimant,
no matter how meritorious his claim, on any ground what-
soever. Though Ozark has never administered the sick leave
program in such an arbitrary or restrictive manner, the board
was plainly entitled to reject, as likely not reflecting the intent of
the parties, an interpretation of the contract language which
would empower Ozark to act so arbitrarily as to render the
whole occupational sick leave program ineffective. Having con-
cluded that the agreement did not give the airline unfettered
discretion to define ‘‘occupational injury’’ as it pleased, the
board merely settled on one reasonable definition of the term
rather than another. In determining that the agreement entitled
pilots to occupational sick leave pay for any injury sustained on
the job, rather than only for injuries compensable under state
workers’ compensation law, the board simply inferred from the
bargaining history, with the help of a familiar rule of construc-
tion, a definitional standard for ‘‘occupational injury,’’ a term
not defined in the agreement itself. We cannot characterize
such an inference as improper or as beyond the authority of the
board to make.

This court’s role extends no further than ascertaining, as we
have, that the board rationally resorted to relevant extrinsic
evidence and to settled rules of interpretation in construing the
labor agreement, and that nothing in the agreement prohibited
it from doing so. As long as the board stayed within the scope
of its authority, we do not sit to review the substance of its deci-
sion. Accordingly, we decline to set the board’s award aside.

Il. CONCLUSION.

The decision of the district court is affirmed. The Pilots
Association’s motion for fees and double costs on grounds of
frivolousness is denied.

— A-1$ —

MCMILLIAN, Circuit Judge, dissenting.

I agree that where the terms of the collective bargaining agree-
ment are superficially clear and facially unambiguous, the ar-.
bitrator may look for guidance outside the terms of the agree-
ment to extrinsic or collateral sources, if there is a latent am-
biguity. See Rainbow Glass Co. v. Local Union No. 610, Inter-
national Brotherhood of Teamsters, 663 F.2d 814, 817 (8th Cir.
1981); accord Loveless v. Eastern Air Lines, Iric., 681 F.2d
1272, 1280 (11th Cir. 1982) (excellent discussion).

My disagreement with the majority lies in the application of
this rule to the language at issue in this case. I do not agree that
the language at issue is only superficially clear and facially
unambiguous or contains any latent ambiguity. The language at
issue expressly states that whether an employee has an occupa-
tional injury will be determined by the company, thus clearly
reserving to the company the tasks of determining what con-
stitutes an occupational injury and whether a particular
employee has an occupational injury. Because the language at
issue is plain and unambiguous, the board should not have con-
sidered extrinsic or collateral materials. The board’s award is
inconsistent with the language at issue and therefore cannot be
said to draw its essence from the collective bargaining agree-
ment. I would reverse the judgment of the district court.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.

— A-16 —

APPENDIX C

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

No. 83-1617C A)

Ozark Air Lines, Inc.,
Plaintiff,
VS.

Air Line Pilots Association, International,
Defendant.

ORDER
(Filed December 8, 1983)

In accordance with the Memorandum of the Court this day
filed which is incorporated in and made a part of this order;

IT IS HEREBY ORDERED and ADJUDGED that the mo-
tion of defendant, Air Lines Pilots’ Association, International,
for summary judgment be and it is hereby sustained.

IT IS FURTHER ORDERED that the motion of plaintiff,
Ozark Air Lines, for summary judgment is denied.

It is FURTHER ORDERED that the plaintiff, Ozark Air
Lines comply with the grievance awards entered by its systems
board of adjustment in Grievance Nos. STL-78-7-1 (L.
Behnken) and STL-81-4-1 (T. Gerber).

EYVON MENDENHALL, Clerk

By /s/ Lisa Lang
Deputy Clerk

Dated at St. Louis, Missouri,
this 8th day of December, 1983.

ee eel

—

APPENDIX D

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

No. 83-1617C (A)

Ozark Air Lines, Inc.,
Plaintiff,

vS.

Air Line Pilots Association, International,
Defendant.

MEMORANDUM AND ORDER
(Filed December 8, 1983)

This matter is before the Court on the cross-motions for sum-
mary judgment of plaintiff and defendant, respectively.

Plaintiff, Ozark Air Lines, Inc., (hereinafter referred to as
Ozark), is an air carrier operating in interstate commerce, as
defined in the Railway Labor Act. Sec. 45 USC 181. Ozark fil-
ed a complaint asking this Court to vacate an award entered by
a neutral referee sitting on the airline’s systems board of adjust-
ment. Ozark’s board is a system adjustment board created by
the parties to the collective bargaining agreement, as required by
45 USC 184. The defendant, Air Line Pilots Association Inter-
national (hereinafter referred to as ALPA), answered plaintiff’s
complaint with a counterclaim for enforcement of the award.

This Court has jurisdiction over this matter under the
Railway Labor Act, 45 USC 151-188. See /.A.M. v. Central
Airlines, Inc., 372 U.S. 682, 685 (1963).

The facts leading up to this dispute are without controversy.
In 1978 and 1981, ALPA filed grievances on behalf of two
pilots, maintaining that Ozark had violated their collective

— Aig

bargaining agreement with ALPA by compensating the pilots
for time lost due to injury as regular sick leave, rather than as
occupational injury leave. The grievances were denied by
Ozark’s vice-president for operations, who maintained that
Ozark had sole discretion under the agreement to determine
when a pilot was due occupational injury leave. The basis for
the denial is found in Section 15E of the agreement, which pro-
vides: ‘‘When the company determines that an employee has an
occupational injury, such employee shall be eligible for occupa-
tional injury pay.’’ Nowhere in the agreement is occupational
injury defined, nor is there any standard for Ozark to follow in
determining what is an occupational injury.

ALPA then followed the procedures of the agreement and ap-
pealed the grievances to the systems board of adjustment, as
provided for in Sections 26B and 27. The systems board con-
sists of two members representing Ozark and two from ALPA,
with provisions for adding a fifth neutral member if the board
becomes deadlocked on any dispute pending before it.

The merits of the grievances were never presented to the
board, since they deadiocked on the issue of whether the board
had jurisdiction to hear the merits of the occupational injury
claims. Ozark contends that the board had no jurisdiction
because the unambiguous language of Section 1SE — ‘‘When
the company determines * * *’’ — is not open for interpreta-
tion, and that a decision by the board on this matter would ex-
ceed its jurisdiction under Section 28E of the agreement. The
language cited by Ozark in that section states: ‘‘The jurisdic-
tion of the board shall not extend to proposed changes in hours
of employment, rates of compensation or working conditions
covered by existing agreements between the parties hereto.’’ In
essence, Ozark argues that allowing the board to hear the claims
on the merits will effectively change Section 15E to read,
‘When the systems board determines* * *,’’ and such change
would exceed its jurisdiction.

— A-19 —

ALPA contends that other language in Section 28E gives the
board jurisdiction to interpret and apply any terms of the agree-
ment. That language provides: ‘‘The Board shall have jurisdic-
tion over disputes between any employee covered by the Pilots’
Agreement and the Company growing out of grievances or out
of interpretation or application of any of the terms of the Pilots’
agreement.’’ ALPA argues that they seek an interpretation of
what is an ‘‘occupational injury’’ instead of seeking a change in
the contractual language.

ALPA, applying the grievances provisions, sought a neutral
referee from the National Mediation Board to sit on the board
and resolve the deadlocked dispute. The referee decided in
favor of ALPA, finding that the systems board had jurisdiction
over the merits of the grievances, and that the five-man board
(which includes the referee) also had jurisdiction to decide the
dispute on its merits. Ozark objected to this last action, main-
taining that the neutral referee had accomplished his purpose,
and that the merits of the claims should be remanded back to
the four-man board (without the referee). Nevertheless, the
neutral referee held that remanding the grievances back to the
four-man board would serve no legitimaie purpose except to
further delay their final resolution. The grievances were
presented on the merits and an award was given in favor of the
two pilots. Ozark seeks the vacation of both awards by the
board and ALPA seeks to enforce those awards.

Both parties have filed motions for summary judgment. The
law is well established that for this Court to grant summary
judgment, there must be no genuine issue of any material fact,
and that the moving party is entitled to judgment as a matter of
law. Rule 56, Federal Rules of Civil Procedure. Summary
judgment is appropriate for this action, as only legal issues, and
no factual questions, are before this Court for decision.

A court may overturn the decision of an airline systems ad-
justment board only on the basis of one of the grounds listed in

— A-20 —

45 USC 153 (First q). See Singer v. Flying Tiger Line, Inc., 652
F.2d 1249, 1355-56 (9th Cir. 1981); Northwest Airlines, Inc. v.
Air Line Pilots Association, Internationa:, 530 F.2d 1048, 1950
& n. 9 (D.C. Cir.), cert. denied, 426 U.S. 942 (1976); Hunt v.
Northwest Airlines, 600 F.2d 176, 178 (8th Cir. 1979). 45 USC
153 (First q) provides that an arbitral award may be vacated for
failure ‘‘to conform, or confine itself, to matters within the
scope of the divisions’ jurisdiction, or for fraud or corruption
by a member * * *.’’ It has been held that the substantive
grounds for vacatng labor awards that do not exist are extreme-
ly narrow. Lovelace v. Eatern Air Lines, Inc., 681 F.2d 1272,
1276 (ith Cir. 1982). Loveless involved an airline arbitration
panel’s award denying supplemental retirmenet befefits to
former employees. The court there discovered three interrelated
grounds, as exposited by the courts, for substantive review of
arbitral awards. The three grounds and authority to each listed
by the court were:

‘**(1) Whether the award is irrational, see, e.g., Gunther
v. San Diego & Arizona E. Ry., 382 U.S. 257, 261 ****
(1965) (‘wholly baseless and completely without reason’);
Safeway Stores v. American Bakery Workers, Local 111,
390 F.2d at 82 [Sth Cir. 1968] (‘if * * * no judge, or group
of judges could ever conceivably have made such a
ruling’); S. Rep. No. 1201, supra at 3, reprinted in 1966
U.S. Code Cong. & Ad. News, at 2287 (‘actually and in-
disputably without foundation in reason or fact’);

**(2) Whether the award draws its essence from the letter
or purpose of the collective bargaining agreement, United
Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S.
at 597; see Brotherhood of Railroad Trainmen v. Central
of Georgia Ry. * * *, 415 F.2d at 412 [Sth Cir. 1969] (ar-
bitrator’s award ‘must have a basis that is at least rational-
ly inferable, if not obviously drawn, from the letter of pur-
pose of the collective bargaining agreement’), and

— A-21 —

**(3) Whether the arbitrator conformed to a specific con-
tractual limitation upon his authority, see e.g. Magnavox
Co. v. International Union of Electrical Workers, 410 F.2d
388, 389 (6th Cir. 1969); Torrington Co. v. Metal Products
Workers Union Loeal 1645, 362 F.2d 677, 680 (2nd Cir.
1966); Textile Workers Union v. American Thread Co.,
291 F.2d 894, 899-900 (4th Cir. 1961).”’

Two questions resulting from the referee’s award are before
this Court to be decided within the parameters of review set out
above. First, was the referee’s decision that the board has
jurisdiction over the occupational injury claim irrational and in
violation of the language of the collective bargaining agree-
ment? Second, did the neutral referee exceed the board’s
jurisdiction by entertaining the grievances on the merits rather
than remand the merits to the board sitting without him? These
issues will be discussed separately below.

Section 204 of the Railway Labor Act, 45 USC 184, mandates
that carriers and organizations establish boards of adjustment
to resolve all disputes concerning rates of pay, rules or working
conditions. As the referee noted, the Act imposes a duty upon
both carriers and organizations to create a machinery in their
collective bargaining agreements for the arbitration of such
minor disputes. /.A.M. v. Central Airlines, Inc., supra at 686.
Section 28 of the collective bargaining agreement is the culmina-
tion of this duty imposed on Ozark and ALP“ That section
gives jurisdiction to the board ‘‘over disputes * * * growing out
of grievances or out of interpretation or application of any of
the terms of the Pilots’ Agreement.’’ The agreement is silent as
to any standards by which Ozark is to determine whether an oc-
cupational injury has occurred. It is not irrational for the
referee to decide that the Board’s help is needed to resolve the
ambiguity of what exactly an ‘‘occupational injury’’ is under
the agreement. As such, the referee’s decisions can be said to be
rationally drawn from the essence of the collective bargaining
agreement. Therefore, under the standards of review set out

— A-22 —

above, this Court concludes that the referee’s award of jurisdic-
tion to the board should be upheld.

The second question, that of whether the referee should have
remanded the merits of the grievances back to the four-man
board, also involves an interpretation of the agreement. Section
28M provides in part:

‘*In any case where the said System Board of Adjustment
becomes deadlocked and unable to reach a decision upon a
method for breaking the deadlock or unable to mutually
agree upon the appointment of a referee within the above
prescribed thirty (30) days, either the company or associa-
tion may within thirty (30) days thereafter petition the Na-
tional Mediation Board for the appointment of a neutral
referee to sit with the System Board of Adjustment as a
member thereof.’’

ALPA requested a referee from the National Mediation
Board to resolve the deadlock. In its request, the attorney for
ALPA wrote:

‘‘The Association moved to hear the cases on the merits
and the Company moved to dismiss the cases. As a result,
the System Board has deadlocked on the motions.
Therefore, pursuant to Paragraph M of the Ozark Air
Lines Pilots’ System Board of Adjustment Agreement, the
Association hereby petitions the National Mediation
Board for appointment of a neutral referee to hear the
cases. A single neutral referee is requested to hear both
cases together since both involve the same jurisdictional
issue and have been heard together by the Systern Board of
Adjustment.’’ (ALPA’s letter to the National Mediation
Board, dated August 4, 1981.)

It is clear that ALPA petitioned for a referee to hear the
‘‘cases’’ and not just the one jurisdictional issue. Ozark argues
that a remand is required because the dispute before the board

— A-23 —

was only the jurisdictional issue and no waiver of a hearing
before the four-man board was mutually agreed upon by the
parties. The agreement, however, contains no explicit mandate
for a remand in this situation, and the restrictive interpretation
advanced by Ozark can only be viewed as a tactic for delay in a
situation calling for a speedy resolution.

Section 28M, the last sentence, commands that the board of
adjustment, as then constituted (with referee), ‘‘shall hear the
parties with reference to the dispute pending before it * * *.”’
The dispute before it concerned whether the pilots were entitled
to occupational injury pay. As the referee noted in the board’s
award of jurisdiction, ‘‘Implicit in the Carrier’s position on this
issue is that the language of Section 15E so clearly reserves to
the Carrier the right to determine whether an employee has an
occupation injury that it is not arguably subject to challenge. In
essence, it is an argument as to the merits of the case.’’

This Court agrees with this reasoning by the referee. The
referee held that because the four-man board is partisan in
nature, there is little likelihood anything but a deadlock will
result from further consideration of these grievances by the
four-man board. Finding that the purpose of Section 28 is to
provide a machinery for the speedy resolution of minor
disputes, the referee decided to also hear the case on the merits.
This Court finds that the referee was well within the jurisdiction
given to the board in also deciding the merits of the grievances.

Finally, this Court recognizes that the referee’s decisions here
may not have been the same as a judge using ordinary principles
of contract construction. The narrow standard of review of ar-
bitral awards elicited above, however, renders that fact totally
irrelevant. Loveless v. Eastern Air Lines, supra, at 1280;
Safeway Stores v. American Bakery Workers, Local 111, 390
F.2d at 83-84. What is relevant is that the system board reached
a result that, in this Court’s view, comported with the essence of
the collective bargaining agreement. Accordingly, it is the duty

~ A

of this Court to affirm the award of the board and render an
order d’recting its enforcement.

For the reasors stated above, the motion of the defendant,
Air Line Pilots’ Association, International, for summary judg-
ment is sustained. The motion of plaintiff, Ozark Air Lines, for
summary judgment is denied. Ozark is hereby ordered to comp-
ly with the grievance awards entered by its systems board of ad-
justment in Grievance Nos. STL-78-7-1 (L. Behnken) and
STL-81-4-1 (T. Gerber).

In accordance with this memorandum opinion, it is hereby
ordered and adjudged that the motion of defendant, Air Lines
Pilots’ Association, International, for summary judgment be
and it is hereby sustained, and the clerk of the Court will
prepare and enter the proper order to that effect.

/s/ Roy W. Harper
U. S. District Judge

— A-25 —

APPENDIX E

AGREEMENT

between
OZARK AIR LINES, INC.
| and
3 THE AIR LINE PILOTS

oo ES.

in the service of
OZARK AIR LINES, INC.
as represented by

THE AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL

THIS AGREEMENT is made and entered into in accordance
. with the provisions of the Railway Labor Act, as amended, by
4 and between OZARK AIR LINES, INC., (hereinafter known as
i the ‘‘Company’’) and the Air Line Pilots in the service of
OZARK AIR LINES, INC., as represented by THE AIR LINE
PILOTS ASSOCIATION, INTERNATIONAL, (hereinafter

known as the ‘‘Association’’).

In making this Agreement, the parties hereto recognize that
compliance with the terms of the Agreement and the develop-
ment of a spirit of cooperation is essential for mutual benefit
and for the intent and purpose of this Agreement.

ee

It is herevy mutually agreed:

SICK LEAVE
SECTION 15

E. Pilots shall accrue five (5) hours occupational sick leave
credit for each month of employment as a pilot with the Com-
pany until four hundred fifty (450) hours have been accrued.

— A-26 —

When the Company determines that an employee has an oc-
cupational injury, such employee shall be eligible for occupa-
tional injury pay. Pay and credit for such occupational leave
shall be computed on the same basis as sick leave pay and
charges against occupational leave credit shall be made on the
same basis as charges against sick leave credit. Occupational
leave shall be used prior to sick leave. However, an employee
shall not be permitted to use any of his occupational leave credit
for sick leave.

In the event of occupational injury, the affected pilot agrees
that the Company may deduct from his pay an amount equal to
the weekly Workmen’s Compensation benefits received by him
under applicable law during the period covered by his sick leave

pay.

— *

APPENDIX F

OZARK AIR LINES PILOTS
SYSTEM BOARD OF ADJUSTMENT

pw FIO 0! aR

: In the Matter of Arbitration
Between

OZARK AIR LINES, INC.
And

THE AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL

AWARD

Grievance Nos. STL-78-7-1
} (L. Behnken)

STL-81-4-1
(T. Gerber)

BACKGROUND:

Grievants in this case are covered in their employment as
pilots of Ozark Air Lines, Inc. (Carrier) by a collective bargain-
ing agreement between Carrier and the Air Line Pilots Associa-
: tion, International (Organization). On July 17, 1978, the
Organization filed Grievance No. STL-78-7-1 on behalf of L.
Behnken alleging violation by the Carrier of Sections 3, 15 and
related sections of the agreement, and on April 15, 1981, the
Organization filed Grievance No. 81-4-1 on behalf of T. Gerber
alleging a violation of Section 15 and related sections of the
agreement for denying occupational sick leave.

Both grievances were progressed to R. Grant Rees, Vice Presi -
dent of Operations for the Carrier who, after hearing each
grievance, found with respect to each that ‘‘[A]fter considering
the facts in this case, I feel that I have no recourse but to deny

—

this grievance.’’ Both grievances were appealed to this Board
pursuant to Section 28 of the agreement.

The grievances were twice placed on the agenda of the four-
man Board. Each time the Organization sought to present the
cases on their merits and was prepared with witnesses to move
forward with the case. However, on each occasion the Carrier
contested the Board’s jurisdiction. At the second hearing on
July 24, 1981, the Organization moved that the grievances be
heard by the Board on their merits, and the Carrier moved that
the grievances be dismissed. By decision of July 29, 1981, the
Board deadlocked on both motions. Pursuant to Section 28M
of the agreement the National Mediation Board appointed a
Neutral Referee to sit with this Board as a member thereof.

The Carrier pursued its jurisdictional arguments before the
five-mari Board and argued, alternatively, that should the
Board determine jurisdiction existed to resolve the grievances on
their merits, the grievances should be remanded to the four-man
Board. However, the five-man Board determined thai the
Board had jurisdiction to decide the grievances on their merits
and that the five-man Board rather than the four-man Board
should render that decision.

The grievances are now before this five-man Board for deter-
mination on their merits.

ISSUE:

Did the Carrier violate the agreement when it refused to grant
grievants occupational injury pay as provided in Section 15E of
the agreement?

FINDINGS:

The Board, upon the whole record and all the evidence, finds
that grievants are ‘‘employees’’ and Ozark Air Lines, Inc. is a
Carrier within the meaning of the Railway Labor Act, as

AAS FO

et tl a Bea Na aah Maite ee

Mac Ne ly toe as i Bodie a

me eet.

— A-29 —

amended, 45 U.S.C. §§151, et seg. All parties to this dispute
were given due notice of the hearing.

Before addressing the merits of the grievances the Board feels
compelled to rule upon the Carrier’s renewed motion to dismiss
these grievances on jurisdictional grounds or, alternatively, to
remand the grievances to the four-man Board for a decision on
their merits. By its motion the Carrier seeks the same relief
denied by this Board in its prior determination rejecting the
same contentions by the Carrier. This Board has been shown no
new evidence or argument in_the instant proceeding which
would support the Carrier’s renewed motion. On the contrary,
the Board believes the record in the instant proceeding confirms
the correctness of its previous determinations. Accordingly the
Carrier’s renewed motion is denied.

Turning to the merits of the grievances, the material facts are
relatively uncomplicated. While piloting a FH227 aircraft Cap-
tain Behnken experienced back pain shortly after manipulating
the ‘‘gust lock.’ The condition was diagnosed by a physician as
a ruptured disk. Captain Behnken underwent treatment, in-
cluding a surgical procedure, and he returned to work in ap-
proximately four months.

Captain Gerber experienced back pain after completing a
‘‘tnaximum performance aborted takeoff’? maneuver in the
Carrier’s flight simulator. Captain Gerber consulted a physi-
cian who diagnosed his condition as a lumbosacral sprain which
left Captain Gerber with a permanent partial disability.
However, after a period of treatment Captain Gerber returned
to his duties after missing a total of 107:40 flight hours. Several
months later Captain Gerber suffered a recurrence of the injury
which resulted in a loss of 27:17 flight hours.

Upon reporting their injuries to the Carrier, both pilots were
instructed to complete forms and file for Workmen’s Compen-
sation. Both did so although there has been no adjudication of
their Workmen’s Compensation claims. Both also filed for oc-

—

cupational injury pay under Section 15E of the agreement. The
Carrier initially granted the claims for occupational injury pay,
but later the Carrier reversed its decision in each case and
treated the pilots’ time out of service as sick leave under other
provisions of Section 15. The latter action generated the
grievances in this case.

The merits of the grievances before this Board are governed
by Section 15 of the agreement which controls the accrual and
compensation of sick leave. Paragraph E of Section 15, which
provides for accrual and compensation of occupational sick
leave separately from regular sick leave, reads:

Pilots shall accrue five (5) hours occupational sick leave
credit for each month of employment as a pilot with the
Company until three hundred sixty (360) hours have been
accrued.

When the Company determines that an einployee has an
occupational injury, such employee shall be eligible for oc-
cupational injury pay. Pay and credit for such occupa-
tional leave shall be computed on the same basis as sick
leave pay and charges against occupational leave credit
shall be made on the same basis as charges against sick
leave credit. Occupationa! leave shall be used prior to sick
leave. However, an employee shall not be permitted to use
any of his occupational leave credit for sick leave.

In the event of occupational injury, the affected pilot
agrees that the Company may deduct from his pay an
amount equal to the weekly Workmen’s Compensation
benefits received by him under applicable law during the
period covered by his sick leave pay.

In determining whether a pilot has suffered an occupational
injury within the meaning of Section 15E, the Carrier looks to
state Workmen’s Compensation law. If the Carrier determines
that the injury is compensable thereunder, the Carrier grants oc-

— A-31 —

cupational injury pay for working time missed due to the injury.
If not, the time missed due to the injury is compensated as sick
leave under other provisions of Section 15. Officials in the
Flight Operations Department actually determine whether an in-
jury shall be compensated under Section 15E as occupational
sick leave or as regular sick leave pursuant to the other provi-
sions of Section 15. However, in so doing those officials follow
the advice of the Carrier’s Workmen’s Compensation Coor-
dinator as to whether the particular injury is compensable under
applicable state Workmen’s Compensation law. The Coor-
dinator bases his advice upon the report of an insurance ad-
justing company.

At the hearing before this Board the Coordinator testified
that in his opinion neither of the injuries suffered by Grievants,
both of whom were domiciled and based in Missouri, was com-
pensable under the Missouri Workmen’s Compensation law.
According to the Coordinator, that law does not provide com-
pensation for the type of injuries suffered by Grievants because
those injuries were not the result of an accidental occurrence.

The Organization raises a number of arguments in support of
the grievants, the most cogent of which focuses directly upon
the meaning of Section 15E of the agreement. The Organiza-
tion contends that under Section 15E the Carrier may not condi-
tion occupational injury pay upon compensability of an injury
under applicable state Workmen’s Compensation law. Citing
bargaining history, the Organization contends that Section 15E
was intended to separate occupational injury pay from state
Workmen’s Compensation law. The Organization urges that
the language ‘‘[W]hen the Company determines that an
employee has an occupational injury...’’ was intended to
restrict the Carrier to the determination whether a pilot sustain-
ed an injury while on the job and if so to compensate the pilot
with occupational injury pay for any time missed from work as
a result of the injury.

— A-32 —

The Carrier argues that the language of Section 15E, i.-,
‘‘(Wjhen the Company determines...’’, places no limitation
upon the method by which the Carrier reaches the determina-
tion as to whether an employee has sustained an occupational
injury. The Carrier contends this language is so clear and
unambiguous that this Board must follow it without further in-
quiry and dismiss the grievances.

Noting the fact that the third paragraph of Section 15E has
appeared in si cessive agreements between the parties since
1959, the Carrier urges that the terms ‘‘occupational injury’”’ us-
ed in Section 15E means an injury compensable under ap-
plicable Workmen’s Compensation law. The Carrier argues
that the interrelationship of occupational injury and
Workmen’s Conipensation law was preserved through each
contract and into Section 15E as it appears in the agreement ap-
plicable to the grievances in this case. The Carrier points to a
letter from ALPA Counsel to the Carrier stating that Captain
Behnken’s grievance would be held in abeyance until a deter-
mination of his Workmen’s Compensation claim as evidence of
such continuing interrelationship. The Carrier argues that the
letter would not have been necessary if no interrelationship ex-
isted. The Carrier cites authority for the proposition that
Workmen’s Compensation law is an integral part of the employ-
ment contract and that under Missouri Workmen’s Compensa-
tion law, which is applicable to both Grievants, only injuries
resulting from accidental occurrences are compensable. The
Carrier urges that its denial of occupational injury pay to
Grievants in this case was consistent with applicable Workmen’s
Compensation law.

The Carrier acknowledges that during negotiations involving
Section 15E the Organization sought both to expedite the
resolution of occupational injury pay claims and to sever; the
connection between occupational injury pay and Workmen’s
Compensation. The Organization was successful in its first ob-
jective but not its second. The Carrier agreed to make the deter-

SaaS tS Sen

~ 9a ain ea a <a

peel EME as

j
I

.
:
4
j

— A-33 —

mination as to whether an employee had suffered an occupa-
tional injury rather than continue practice of requiring a deter-
mination by an authoritative body as to compensability under
applicable Workmen’s Compensation law. However, the Car-
rier never agreed to abandon compensability under applicable
Workmen’s Compensation law as the condition for eligibility
for occupational injury pay. The Carrier urges that this Board
cannot grant the Organi_..ion what it was unable to secure in
negotiation.

The merits of the grievances before this Board turn upon the
meaning of the language in the second paragraph of Section
15E, ‘‘{W]hen the Company determines that an employee has
an occupational injury....’’ The task before this Board is to
ascertain what the Carrier and the Organization intended by
that language.

It is a fundamental rule of agreement interpretation that the
plain meaning of contract language must be followed by the in-
terpreter of that language. Clear and unambiguous language
must be followed without resort to parol evidence in the form of
oral or written statements which would alter or vary the terms of
the language. The Carrier relies heavily upon this rule and the
language under scrutiny here tends to supports the Carrier’s
argument. On its face the language vests in the Carrier the
authority to determine when an employee has suffered an oc-
cupational injury without restricting the Carrier to a specific
standard or criterion in making such « termination.

However, the parol evidence rule may not be invoked to ex-
clude evidence extrinsic to the agreement which would tend to
show that the language under scrutiny is not clear «nd unam-
biguous when viewed in light of the extrinsic evidence. As
cogently stated by Judge Roger Traynor in Pacific Gas & Elec-
tric Co. v. G. W. Thomas Drayage Co., 69 Cal. 551, 442 P.2d
641 (1968):

—_—

The test of admissibility of extrinsic evidence to explain the
meaning of a written instrument is not whether it appears
to the court to be plain and unambiguous on its face, but
whether the offered evidence is relevant to prove a mean-
ing to which the language of the instrument is reasonably
susceptible.

The Board believes that the dispute it must resolve here
presents just such a situation. The bargaining history surroun-
ding the disputed language tends to support the Organization’s
interpretation of that language. The language, in light of the
bargaining history, is reasonably susceptible of the interpreta-
tion urged by the Organization. The Board must conclude that
the disputed language is not so clear and unambiguous, in light
of the bargaining history surrounding it, as to preclude the
Board’s consideration of the bargaining history as part of the
Board’s inquiry as to the true meaning of the language.

Analysis of the bargaining history reveals that for many years
prior to 1973 the following paragraph appeared as Section 15E
in agreements between the Carrier and the Organization:

In the event of occupational injury, the affected pilot
agrees that the Company may deduct from his pay an
amount equal to the weekly Workmen’s Compensation
benefits received by him under applicable law during the
period covered by his sich leave pay.

In 1973 the parties added the following two paragraphs
preceeding the paragraph quoted above:

Effective January 1, 1974, all pilots who have completed
one (1) year of service will have sixty (60) hours of occupa-
tional sick leave banked and continue to accrue occupa-
tional sick leave at five (5) hours per month to a maximum
of three-hundred-sixty (360) hours. Effective January 1,
1974, all pilots with less than one (1) year of service will
have accrued five (5) hours per month for each month of

— A-35 —

service as a pilot and continue to accrue five (5) hours per
month to a maximum of three-hundred-sixty (360) hours.

Pay and credit for such occupational leave shall be com-
puted on the same basis as sick leave pay and charges
against occupational leave credit shall be made on the same
basis as charges against sick leave credit. Occupational
leave shall be used prior to sick leave. However, an
employee shall not be permitted to use any of his occupa-
tional leave credit for sick leave.

In 1975 the parties modified the first two paragraphs of Section
1S5E as follows:

Pilots shall accrue five (5) hours occupational sick leave
credit for each month of employment as a pilot with the
Company until three hundred sixty (360) hours have been
accrued.

ae

When the Company determines that an employee has an
occupational injury, such employee shall be eligible for oc-
cupational injury pay. Pay and credit for such occupa-
tional leave shall be computed on the same basis as sick
| leave pay and charges against occupational leave credit
shall be made on the same basis as charges against sick
leave credit. Occupational leave shall be used prior to sick
leave. However, an employee shall not be permitted to use
any of his occupational leave credit for sick leave.

The language of Section 15E as it appeared in the 1975 agree-
ment has appeared in all subsequent agreements.

In administering Section 15E as modified in the 1973 agree-
ment, the Carrier established the practice of requiring an in-
jured pilot as a condition precedent to qualifying for occupa-
tional sick leave to procure a determination from the ap-
propriate state agency that the injury was compensable under
applicable state Workmen’s Compensation law. Apparently
this practice caused problems for the pilots in terms of inor-

— A-36 —

dinate delay in obtaining occupational sick leave. Additionaily,
some pilots simply were not interested in progressing a
Workmen’s Compensation claim.

On May 6, 1975, the Organization served notice to open
negotiations for the 1975 agreement. The Organization propos-
ed that Section 15 governing sick leave be opened ‘‘. . . for im-
provement, clarification, and procedural changes.’’ The
Organization proposed to change Section 15E as follows:

E. Unchanged
BH. Change to read as follows:

Upon notification to the Company of a pilot’s
occupational illness or injury, such pilot shall be
allowed occupational sick leave withdrawal for
flight pay and credit computed and paid on the
same basis as charges against sick leave. Occupa-
tional sick leave shall be used prior to sick leave.

E.2. Change to read as follows:

The Company may deduct from a pilot’s pay an
amount equal to the weekly Workman’s Com-
pensation benefits received by him under ap-
plicable law during the period covered by his oc-
cupational sick leave pay. However, the amount
of such deduction shall not be considered as
changed against the pilot’s accumulated occupa-
tional sick leave.

The Carrier’s response was to maintain a ‘‘book position,’’ i.e.,
adherence to the provisions as they read in the 1973 agreement,
with respect to all of Section 15.

The Carrier and the Organization adhered to their respective
positions on Section 15 until July 30, 1975. On that date the
Carrier verbally stated with respect to Section 15E that it would
determine whether a pilot had suffered an occupational injury.

ht —

Either that afternoon or the following day the Carrier reduced
its proposal to writing, and the Organization accepted it on July
31, 1975. The Carrier’s written proposal thus became the
language of Section 15E in the 1975 agreement.

At the hearing in this matter there was testimony by members
of each negotiating committee as to the intent of the parties’
proposals.

According to the Organization’s committee man _ the
Organization intended by its proposal to sever all ties between
occupational injury pay under Section 1SE of the agreement
and compensability of an injury under applicable Workmen’s
Compensation law. The Organization also intended its pro-
posal to expedite claims for occupational injury pay by a pro-
cedure whereby the Carrier would initially grant occupational
injury pay to a claimant with the understanding that the Carrier
could convert the pay to sick leave if after investigation the Car-
rier determined the pilot had not suffered an occupational in-
jury. The determination the Organization contemplated the
Carrier would make as to whether a pilot had suffered an oc-
cupational injury was whether such an injury had occurred on
the job.

The Carrier’s committee man testified that the Carrier intend-
ed by its proposal that it would determine whether a pilot had
suffered an occupational injury and in so doing follow the pro-
cedure desired by the Organization for the expeditious handling
of occupational injury claims. However, the Carrier never in-
tended to abandon its practice of making eligibility for occupa-
tional injury pay contingent upon compensability of the injury
under applicable Workmen’s Compensation law. The Carrier
intended that there be no change in the standard for determin-
ing eligibility for occupational injury pay.

The record indicates that each party believed its position
prevailed when the parties settled on the language of Section
1SE. However, such beliefs, no matter how reasonably and

— A-38 —

firmly held, do not resolve the issue as to the meaning of Section
1SE. As determined above that meaning is not clearly establish-
ed by the language of the Section. Nor is that meaning con-
clusively established by bargaining history.

Under these circumstances the Board feels constrained to ap-
ply the generally recognized rule of agreement interpretation
that language will be interpreted against the party who drafted
it. The Board believes the rule is particularly applicable to this
dispute in view of the fact that the Carrier did not explain its
proposal to the Organization other than to say that the Carrier
would make the determination as to whether an employee had
suffered an occupational injury, although the Carrier knew that
the Organization was seeking a complete disassociation of
eligibility for occupational injury pay from compensability of
the injury under Workmen’s Compensation law. When the rule
is applied to this dispute the Orgainization’s interpretation of
Section 15E must prevail.

Contrary to the Carrier’s contention the Board does not view
this as a case where by virtue of this Award the Organization is
being granted what it could not obtain through negotiations.
The Organization clearly believed it had achieved its objective.
The Carrier never told the Organization it had not. The ap-
plication of the rule that contract language will be interpreted
against its author to the facts of this dispute vitiates the
Carrier’s argument. Nor is the letter from AIPA’s Counsel to
the Carrier stating that Captain Behnken’s grievance would be
held in abeyance until he received a ruling on his Workmen’s
Compensation claim evidence that occupational injury pay
under Section 15E is conditioned upon compensability of the in-
jury under applicable Workmen’s Compensation law. At best it
is evidence that Captain Behnken had chosen to follow the
course of action rightly or wrongly required by the Carrier, a
decision which he obviously changed. Furthermore, whatever
relationship may have existed between occupational injury pay
and Workmen’s Compensation law in the parties’ agreements

—<

prior to 1975, the interpretation of the 1975 agreement resulting
from application of the rule construing the language of a con-
tract proposal against its author forces the conclusion that such
relationship did not survive negotiations for the 1975 agree-
ment. Finally, application of the rule and the resulting inter-
pretation renders irrelevant any issue as to whether Captain
Gerber cooperated with the adjusting company in the investiga-
tion of his injury. Without such investigation the record
establishes that his injury occurred on the job and that the Car-
rier had knowledge of that fact.

There remains the question of whether Captain Gerber is en-
titled to occupational injury pay under Section 15E for his rein-
jury which occurred at home. The Carrier points to what it
terms a conflict in Captain Gerber’s testimony as to how the in-
jury recurred. At first Captain Gerber testified the injury recur-
rred when he got off a couch. Later he testified it recurred while
he was doing sit-ups as a part of therapy for the original injury.
Whichever version is correct, the physician’s report indicates
that it was a recurrence of his original injury. The Carrier made
no argument that a recurrence of an injury should be treated
any differently than the original injury for purposes of Section
1SE. Nor is there any evidence that the agreement so con-
templates. Accordingly, the grievance is sustained with respect
to Captain Gerber’s claim for occupational injury pay for time
lost due to the recurrence of the injury.

Both grievances are sustained. Grievants are to be compen-
sated from the occupational injury leave bank for all time lost as

a result of their injuries.

—_ ee

AWARD

William E. Fredenberger, Jr.
Neutral Referee

Thaddeus Belsher
Association Board Member
Concurring (x): Dissenting ( )

DATED: 18 May, 1983

Richard T. Young
Carrier Board Member
Concurring ( ): Dissenting (x)

DATED: May 11, 1983

Ernest M. Holman
Association Board Member
Concurring (x): Dissenting ( )

DATED: 5/20/83

Lyman L. Peters
Carrier Board Member
Concurring ( ): Dissenting (x)

DATED: 16 May, 1983

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0615%3A1. Public record. Not legal advice.