Petition for Writ of Certiorari — International Brotherhood of Teamsters v. Continental Airlines, Inc.

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IN THE

Supreme Court of the Anited States

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO

Petitioner,

Vv.

CONTINENTAL AIRLINES, INC.,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

RECEIVED

ROLAND P. WILDER, JR.*

MAR 16 2005 WILLIAM R. WILDER

BAPTISTE & WILDER, P.C.

OFFICE OF THE CLERK 1150 Connecticut Ave., N.W.

SUPREME COURT. U.S. Suite 500

Washington, D.C. 20036

* Counsel of Record (202) 223-0723

ALTARS ATAU EASON Hw A we I TN ER Msn RS OT a a

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

Ses

QUESTION PRESENTED

Whether the decision below of the United States Court of

Appeals for the Fifth Circuit manifests a continuing infidelity

to the controlling precedents of this Court mandating only

limited review of awards by system boards of adjustment

under the Railway Labor Act, by invading the adjustment

board’s exclusive jurisdiction to resolve the merits of the

parties’ minor dispute and substituting its interpretation of the

parties’ agreement for that of the board, thereby warranting

this Court’s exercise of its supervisory authority?

(i)

CORPORATE DISCLOSURE

The International Brotherhood of Teamsters, AFL-CIO, is

an unincorporated labor organization and not a corporation.

Accordingly, no disclosure under S. Ct. Rule 29.6 need be

made.

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT...................

THE DECISION OF THE FIFTH CIRCUIT

COURT OF APPEALS MANIFESTS _INFI-

DELITY TO THE CONTROLLING PRECE-

DENTS OF THIS COURT GOVERNING JUDI-

CIAL REVIEW OF AWARDS BY SYSTEM

BOARDS OF ADJUSTMENT IN THAT THE

LOWER COURT GAVE NO DEFERENCE TO

THE BOARD’S INTERPRETATION OF THE

PARTIES’ AGREEMENT AND IT INVADED

THE BOARD’S EXCLUSIVE JURISDICTION

OVER THIS MINOR DISPUTE BY RESOLV-

ING THE MERITS OF THE DISPUTE; THE

COURT OF APPEALS’ ACTION REFLECTS A

REBELLION BY THAT COURT AGAINST

THE STATUTORY SCHEME OF THE RAIL-

WAY LABOR ACT AND ESTABLISHED

AUTHORITY FOR REVIEW OF LABOR

ARBITRATION AWARDS THAT WARRANTS

gk 8 6 | 5 eR 8

TIT cc dsclcctashaesiptivianstanannsgeaneqomnenneseosaiaces 17

(iii)

TABLE OF AUTHORITIES

CASES Page

Air Line Pilots Ass'n v. Eastern Airlines, 632

ee) GU Ts COED ccnsennnvennctonseininnniotencese 11

American Eagle Airlines, Inc. v. Air Line Pilots

Ass’n., 343 F.3d 401 (Sth Cir. 2003).............00 15, 16

Andrews v. Louisville & Nashville R.R., 406 U.S.

RAP CET) visirnissernensnennnnnintnanietinnineseateannennbinenies 11,13

Atchison, Topeka & Santa Fe Ry. v. Buell, 480

CFs SUF F CBOE F Penccsnsnncnicaninnseesyiennsttiinientiitinnaguniiiees 11

Eastern Airlines v. Transport Workers Union,

$80 F.2d 169 (Sth Cir. 1978) .........c...sccorcoseccsseee 11

Elgin, Joliet and Eastern Ry. v. Burley, 325 US.

FW QRee ID ittiverntiicccsctessishenipninceiicuinatindinnntasionanisbiibiiaintn 11

Elgin, Joliet and Eastern Ry. v. Burley, 327 U.S.

Ie CE seiiinaticctisidcicinsiitiniininninaiiienseisinethaneneneontioons 12,14

Gunther v. San Diego & Arizona Eastern Ry.,

SN Se ee CU Dicidatnilinnitaniinniinbcentecsaiiia 8, 12, 13, 14

International Ass’n of Machinists v. Central

Abplines, S78 TB. GES CRG GS) cscccrctsccttnnasivnisnessss 11

Major League Baseball Players Ass'n. v. Garvey,

Se Ghats SPS CPT Diiccitiinintinnslipsssticietaintuntionneiniied 8, 12, 13

Rodriguez De Quijas v. Shearson/American Ex-

press, Inc., 490 U.S. 477 (1989) .......ccsscsssseeeees 13

Steelworkers v. American Mfg. Co., 363 U.S. 564

COI batsisccritesscdiiesEicctnninndiscnnlinliuapinddepiistsinincdaeidsuiiaiiet 8,9, 10

Steelworkers v. Enterprise Wheel & Car Corp., ~

ED his Oe Ce eR iiencnniniinsienniibiitiiainiianniunitciind 8,9, 15, 16

Steelworkers v. Warrior & Gulf Navigation Co.,

Se Crs Fe Ci inicitensetiatlinnesnintncntiaiaiiibinnin 8

Union Pacific R.R. Co. v. Sheehan, 439 U.S. 89

(FT nntatiscepnninnninstinascitlatianaiubinststebiabiinaniinls 8,9, 11, 15, 16

United Paperworkers Int’l Union v. Misco, Inc.,

IE hie Bae ee Piidediteacinetinticcnaiininnbtininiiepniiaiaiiiis 10, 16

Wilko v. Swan, 346 U.S. 427 (1953)........sscccsecceeees 12

TABLE OF AUTHORITIES—Continued

STATUTES Page

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ae Sle. RUNPS ianisnccininnsepicniineainemndsinaeaaatibineds 7

Be ails & USAGE csvicistnisinsibecicninsitiiniiaiinimitniiidiclensinann 7

Bet Get ian: ] Tp vvsseninniinnnssstiiinibiianisinielaaninniinnamaians 10

AD Uh Biie & Ti ccvissininintantinnasieicabtanneiasiaabineadiiiani 2, 11

MED TS titans TF BINS <ncscninsssinninchnsisanbaduiaiicnionihadienaiieniemionio 3

DS CBRL. & TG ccnrishissercssiinnsesitideniisintasasssicanasiiainaiay 3, 11

EEE = —= — ———————oe

—_ EE —_-- —— —————S ee eee ee re

IN THE

Supreme Court of the Anited States

No.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO

Petitioner,

CONTINENTAL AIRLINES, INC.,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

The International Brotherhood Teamsters, AFL-CIO

(“IBT”), petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on November 15, 2004.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit is reported at 391 F.3d 613. Appdx. la-12a.'

The decision of the United States District Court for

the Southern District of Texas was not published. Appdx.

15a-29a.

' References to the Petitioner's appendix will be styled “Appdx. __.”

STATEMENT OF BASIS FOR JURISDICTION

The United States Court of Appeals for the Fifth Circuit

entered its opinion on November 15, 2004. It issued its order

denying the IBT’s petition for rehearing en banc on Decem-

ber 14, 2004. The jurisdiction of this court is invoked under

28 U.S.C. § 1254(1).

STATUTE INVOLVED IN THE CASE

Section 3, First (q) of the Railway Labor Act, 45 U.S.C.

§ 153, First(q) provides as follows:

If any employee or group of employees, or any carrier, is

aggrieved by the failure of any division of the Adjust-

ment Board to make an award in a dispute referred to it,

or is aggrieved by any of the terms of an award or by the

failure of the division to include certain terms in such

award, then such employee or group of employees or

carrier may file in any United States district court in

which a petition under paragraph (p) could be filed, a

petition for review of the division's order. A copy of the

petition shall be forthwith transmitted by the clerk of the

court to the Adjustment Board. The Adjustment Board

shall file in the court the record of the proceedings on

which it based its action. The court shall have jurisdic-

tion to affirm the order of the division, or to set it aside,

in whole or in part, or it may remand the proceedings to

the division for such further action as it may direct. On

such review, the findings and order of the division shall

be conclusive on the parties, except that the order of the

division may be set aside, in whole or in part, or re- ;

manded 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 corruption by a member of the division making

the order. The judgment of the court shall be subject to |

review as provided in sections 1291 and 1254 of title 28.

ee] 00 a

Section 201 of the RLA, 45 U.S.C. § 181, provides as

follows:

All of the provisions of subchapter I of this chapter

except section 153 of this title are extended to and shall

cover every common carrier by air engaged in interstate

or foreign commerce, and every carrier by air trans-

porting mail for or under contract with the United States

Government, and every air pilot or other person who

performs any work as an employee or subordinate offi-

cial of such carrier or carriers, subject to its or their

continuing authority to supervise and direct the manner

of rendition of his service.

Section 204 of the RLA, 45 U.S.C. § 184, provides as

follows:

The disputes between an employee or group of employ-

ees and a carrier or carriers by air growing out of

grievances, or out of the interpretation or application of

agreements concerning rates of pay, rules, or working

conditions, including cases pending and unadjusted on

April 10, 1936 before the National Labor Relations

Board, shall be handled in the usual manner up to and

including the chief operating officer of the carrier des-

ignated to handle such disputes; but, failing to reach an _

adjustment in this manner, the disputes may be referred

by petition of the parties or by either party to an

appropriate adjustment board, as hereinafter provided,

with a full statement of the facts and supporting data

bearing upon the disputes.

It shall be the duty of every carrier and of its employees,

acting through their representatives, selected in accor-

dance with the provisions of this subchapter, to establish

a board of adjustment of jurisdiction not exceeding the

jurisdiction which may be lawfully exercised by system,

group, or regional boards of adjustment, under the au-

thority of section 153 of this title.

Such boards of adjustment may be established by agree-

ment between employees and carriers either on any

individual carrier, or system, or group of carriers by air

and any class or classes of its or their employees; or

pending the establishment of a permanent National

Board of Adjustment as hereinafter provided. Nothing in

this chapter shall prevent said carriers by air, or any

class or classes of their employees, both acting through

their representatives selected in accordance with provi-

sions of this subchapter, from mutually agreeing to the

establishment of a National Board of Adjustment of

temporary duration and of similarly limited jurisdiction.

STATEMENT OF THE CASE

The IBT and Continental Airlines, Inc. were parties to a

collective bargaining agreement dated 1999-2001.° In August

2000, upon reporting to work, Continental aircraft mechanic

Mark Johnson took an alcohol breath test that produced a

result of .115 breath alcohol content. Continental ioomenated

Mr. Johnson for reporting to work intoxicated.

Mr. Johnson grieved his discharge. That grievance was

settled when Mr. Johnson, the IBT and Continental entered

into a “last chance agreement,” which provided for Mr. John-

son’s reinstatement subject to certain conditions:

1. Submit to an initial evaluation by Continental’s EAP

Director or Director’s designee.

2. Successfully complete the course of rehabilitation

recommended by Continental’s EAP, including all

terms and conditions attached to such course of

rehabilitation.

3. Execute and deliver to the EAP Director an undated

letter of resignation to be used to terminate his em-

* The parties entered an amended collective bargaining agreement that

became effective on December 27, 2002.

ployment should he fail to satisfy any terms of this

Agreement or of the rehabilitation directed by EAP.

4. During the remainder of his career with Continental,

should Johnson subsequently fail any drug or alcohol

(.04 or greater) test, the undated letter of resignation

will be accepted by the Company, and his employ-

ment severed.

5. Failure to comply with the provisions of his continu-

ing employment, termination will result, and his right

to challenge such termination through the grievance

process shall be waived.

6. He acknowledges that he will have no right to file a

grievance concerning the Company’s acceptance and

execution of his letter of resignation and/or termina-

tion of employment.

7. Johnson and IBT agree to withdraw the grievance

contesting Johnson’s termination.

As part of his conditional reinstatement, Mr. Johnson was

referred to the Continental Employee Assistance Program

(“EAP”) for an evaluation and assessment. He was diagnosed

with alcohol dependency and completed an alcohol treatment

program. Prior to being cleared by EAP to return to work,

Mr. Johnson executed an EAP rehabilitation agreement with

the Company in which he agreed to fulfill the following

conditions:

1. During the one-year rehabilitation period, commenc-

ing on the date of the Agreement, any use of alcohol

or illicit drugs will be considered a violation of the

Rehabilitation Agreement. This includes mouthwash

or other medications/substances which may contain

alcohol. If your doctor prescribes medication that

contains alcohol/narcotic drugs, you are required to

inform the EAP staff of such medication.

2. You are subject to no-notice testing during the reha-

bilitation period. The no-notice test screens for ten

drugs, plus alcohol.

3. Violation of the Rehabilitation Agreement would re-

sult in termination of employment without recourse to

the grievance process.

Mr. Johnson was reinstated after passing an alcohol test.

Following his reinstatement, Continental subjected Mr. John-

son to eleven no-notice alcohol tests and two Department of

Transportation tests from November 2000 through March

2001. Mr. Johnson passed all of these tests.

On March 20, 2001, Johnson called Continental EAP

Director Skidmore and notified him that “he was taking

cough medication.” Thereafter, on March 22, 2001, Conti-

nental scheduled Mr. Johnson for an alcohol test. That testing

produced an initial result of .040 BAC on a test performed at

12:40 p.m. and a confirmation result of .029 BAC at 1:05

p.m. Continental thereupon purported to accept Mr. John-

son’s previously executed letter of resignation and terminated

his employment. |

Mr. Johnson filed a grievance protesting his March 23,

2001 termination. Evidentiary hearings were conducted be-

fore the parties’ system board of adjustment sitting with Arbi-

trator John Flagler as neutral chairman. The system board,

through Mr. Flagler, issued its award on February 7, 2003

upholding the grievance and reinstating Mr. Johnson. The

board found that the last chance agreement and EAP reha-

bilitation agreement (referred to collectively herein as “the

last chance agreement” or “the agreement’) were valid and

binding on Johnson. It also found, as agreed to by Continen-

tal, that it had jurisdiction to determine whether Mr. Johnson

violated the agreement.

After resolving these threshold issues, the board made

factual findings from the record and evaluated these facts in

light of the last chance agreement to determine whether

Johnson violated his obligations under the agreement. Under

paragraph | of the EAP agreement, Johnson was required to

notify the EAP staff if his doctor “prescribes” medication

containing alcohol or narcotics. The Board found uncontro-

verted both that Johnson obtained his doctor’s approval to

take an over-the-counter cough medication and that he noti-

fied Skidmore he was taking the medication. Based on these

facts, the board concluded that Johnson “fully met the letter

and spirit of Paragraph 1.”

The board found to be unsupported by evidence Continen-

tal’s assertion that Johnson violated the last chance agree-

ment’s prohibition on registering an alcohol test result of

.040 or higher. It noted the record evidence established that

Johnson’s confirmation test result registered only .029 BAC.

On this basis, the board concluded “the .029 confirmatory

alcohol test obviously did not qualify for summary accep-

tance of the Grievant’s undated letter of resignation.” Based

on its factual findings and interpretation of the applicable

contract language, the board concluded that Continental failed

to prove Johnson violated the last chance agreement.

On March 6, 2003, Continental filed a lawsuit in the United

States District Court for the Southern District of Texas

seeking to have the award of the system board of adjustment

vacated. On January 8, 2004, the district court granted the

IBT’s motion for summary judgment, holding that the board

acted within its jurisdiction under the Railway Labor Act.

Continental appealed to the United States Court of Appeals

for the Fifth Circuit. The district court stayed its judgment

pending appeal. In a decision issued on November 15, 2004,

a three-judge panel reversed the district court and vacated

the arbitration award, because it disagreed with the system

board’s interpretation of the Agreement. Request for rehear-

ing was denied. Appdx. 13a-14a. Jurisdiction was properly

laid in the district court pursuant to 28 U.S.C. § 1331 and in

the court of appeals pursuant to 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE FIFTH CIRCUIT COURT

OF APPEALS MANIFESTS INFIDELITY TO THE

CONTROLLING PRECEDENTS OF THIS COURT

GOVERNING JUDICIAL REVIEW OF AWARDS

BY SYSTEM BOARDS OF ADJUSTMENT IN THAT

THE LOWER COURT GAVE NO DEFERENCE TO

THE BOARD’S INTERPRETATION OF THE

PARTIES’ AGREEMENT AND IT INVADED THE

BOARD’S EXCLUSIVE JURISDICTION OVER

THIS MINOR DISPUTE BY RESOLVING THE

MERITS OF THE DISPUTE; THE COURT OF

APPEALS’ ACTION REFLECTS A REBELLION

BY THAT COURT AGAINST THE STATUTORY

SCHEME OF THE RAILWAY LABOR ACT AND

ESTABLISHED AUTHORITY FOR REVIEW OF

LABOR ARBITRATION AWARDS THAT WAR-

RANTS REVIEW BY THIS COURT .

This case presents the Court with same challenge it faced

in Major League Baseball Players Ass'n. v. Garvey, 532 U.S.

504 (2001). Here too, a court of appeals, after reciting the

long-standing principles governing review of labor arbitration

awards set forth in Steelworkers Trilogy’ and its progeny,

applied those principles in a manner that is “nothing short of

baffling.” 532 U.S. at 510. The court below ignored past

admonitions of this Court that system boards of adjustment

under the Railway Labor Act are “the complete and final

means for settling minor disputes,” and that “Congress con-

sidered it essential to keep these so-called ‘minor’ disputes

within the Adjustment Board and out of the courts.”” Plainly

* Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steel-

workers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steel-

workers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

* Gunther v. San Diego & Arizona Eastern Ry., 382 U.S. 257 (1965).

> Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94 (1978).

exceeding its limited jurisdiction over such awards, described

by this Court in Sheehan as “among the narrowest known

to the law”, the court of appeals paid no deference to the

board’s interpretation of the parties’ last chance agreement.

Rather, it took it upon itself to resolve the merits of the

parties’ minor dispute in order to vacate the decision of the

adjustment board. Despite the court of appeals’ recitation of

the applicable standard of review, its decision represents

nothing short of a usurpation of the statutorily-mandated

jurisdiction of the adjustment board and infidelity to this

Court’s controlling precedent. Exercise of this Court’s super-

visory authority is therefore necessary to undo the harm done

to the adjustment board procedures by that decision, and to

confine the United States Court of Appeals for the Fifth

Circuit to the limited role established for it under the Railway

Labor Act by Congress and this Court.

The limited role of the federal courts in reviewing labor

arbitration awards is long settled. In Enterprise Wheel &

Car, 363 U.S. 593, this Court held “[t]he refusal of courts to

review the merits of an arbitration award is the proper ap-

proach under collective bargaining agreements. The federal

policy of settling labor disputes by arbitration would be

undermined if courts had the final say on the merits of the

awards.” 363 U.S. at 596. “When an arbitrator is com-

missioned to interpret and apply the collective bargaining

agreement, he is to bring his informed judgment to bear in

order to reach a fair solution of a problem.” J/d. at 597. A

mere ambiguity in the arbitrator’s decision that may give rise

to an inference he exceeded his authority is not a reason to

vacate an award. Jd. In Steelworkers v. American Mfg. Co.,

363 U.S. 564, the Court noted: “the courts, therefore, have no

business weighing the merits of the grievance, considering

whether there is equity in a particular claim or determining

® Id. at 91.

whether there is particular language in the written instrument

which will support the claim.” 363 U.S. at 567-68.’

The Court expanded on the principles of Steelworkers

Trilogy in United Paperworkers Int'l Union v. Misco, Inc.,

484 U.S. 29 (1987). There, the Court held “the reasons

for insulating arbitral decisions from judicial review are

grounded in the federal statutes regulating labor management

relations. These statutes reflect a decided preference for

private settlement of labor disputes without the intervention

of government” in the dispute. 484 U.S. at 37. The deference

paid to arbitration decisions by the federal courts reflects also

the recognition that it is the arbitrator’s interpretation which

the parties have agreed to accept, not that of the courts;

therefore, the courts do not sit in review of the merits of that

decision. /d. at 37-38. The court’s mere disagreement with

the arbitrator’s findings of fact, even those which are

improvident or silly, or his interpretation of the agreement is

not sufficient to vacate an award. /d. at 38. So long as the

arbitrator is even “arguably construing or applying the con-

tract and acting within the scope of his authority, that a court

is convinced he committed serious error does not suffice to

overturn his decision.” /d.

The scope of judicial review of adjustment board decisions

under the Railway Labor Act is even narrower. Unlike the

federal courts’ jurisdiction under Section 301 of the Labor

Management Relations Act to hear disputes arising from

collective bargaining agreements, 29 U.S.C. § 185, the courts

have no jurisdiction over the merits of “minor disputes” aris-

ing from grievances or other interpretive disputes under such

contracts that are within the exclusive jurisdiction of adjust-

’ The court of appeals held that the same deferential standard of review

for interpreting arbitral awards under collective bargaining agreements

applied to review of the system board’s interpretation of the parties’ last

chance agreement. Appdx. 7a.

ment boards. Andrews v. Louisville & Nashville R.R., 406

U.S. 320, 322 (1972); Elgin, Joliet and Eastern Ry. v. Burley,

325 U.S. 711, 727-28 (1946). Federal court review of these

awards is “among the narrowest known to the law.” Sheehan,

439 U.S. at 91. See also Atchison, Topeka & Santa Fe Ry. v.

Buell, 480 U.S. 557, 563 (1987). The Act sets forth in

Section 3, First(q) the three grounds upon which a court may

vacate or remand the decision of an adjustment board.” This

Court has emphasized repeatedly the language of Section 3,

First(q) “means what it says” and “only upon one or more of

these bases may a court set aside an order of the Adjustment

Board.” Sheehan, 439 U.S. at 93.

* Section 3, First(q) provides that a court may set aside the decision of

an adjustment board only “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 corruption by a member of the division making the order.” 45 U.S.C.

§ 153, First(q).

While Section 3, First(q) does not_apply directly to boards of adjust-

ment under Title II of the Act, the framework of the Act, reflected in

Section 204’s requirement that airline system boards of adjustment be

vested with the jurisdiction accorded to the Adjustment Board under

Section 3, demonstrates Congress’ intent that the federal court’s authority

to review the awards of system boards under Title II be no broader than

the scope of review permitted under Section 3. 45 U.S.C. § 184. See also

International Ass'n of Machinists v. Central Airlines, 372 U.S. 682

(1963)(mandate that parties adjust unresolved minor disputes before sys-

tem board of adjustment is applicable to air as well as rail carriers; in view

of the clearly stated purposes of the Act, Congress intended no hiatus in

the statutory scheme for resolution of minor disputes in the air industry

when it exempted air carriers from Section 3 and provided for the estab-

lishment of a separate national board of adjustment for the air industry).

Accordingly, courts of appeal, including the court below, follow the

strictures of Section 3, First(q) in reviewing decisions of airline system

boards. Appdx. 6a. See also Eastern Airlines v. Transport Workers

Union, 580 F.2d 169, 172 (Sth Cir. 1978); Air Line Pilots Ass'n v. Eastern

Airlines, 632 F.2d 1321, 1323 (Sth Cir. 1980).

Given the exclusive jurisdiction of adjustment boards and

their expertise in resolving minor disputes, the awards of such

- boards are entitled to presumptive weight. Elgin, Joliet and

Eastern Ry. v. Burley, 327 U.S. 661, 664 (1946). Where the

board of adjustment interprets the agreement, only if that

interpretation is “wholly baseless and completely without

reason” may it be set aside. Gunther, 382 U.S. at 261. While

reciting the appropriate standard of review, the decision

below failed to adhere to its exceedingly narrow jurisdiction

under the RLA in passing on the award in the instant case.

See, e.g., Garvey, 532 U.S. at 510 (“the court of appeals

here recited these principles [for review of labor arbitration

awards], but its application of them is nothing short of

baffling.”’).

In vacating the award, the court of appeals focused on the

language of the parties’ EAP agreement that prohibited

Johnson from using alcohol for a one-year period, including

medication containing alcohol, but provided that “[i]f your

doctor prescribes medication which contains alcohol/narcotic

drugs, you are required to inform the EAP staff.of such

medication.” Appdx. 3a, 63a. The court below rejected

both the system board’s conclusion that, by contacting his

physician’s office and receiving instruction from the physi-

cian’s staff, as well as promptly notifying Continental’s EAP

Director that he was taking the medication, Johnson “fully

met the letter and spirit” of the parties’ agreement, Appdx.

10a, and the board’s underlying interpretation of the physi-

cian requirement of the agreement to be a prohibition on self-

medication. /d.

The system board’s award was not an arguable con-

struction of the parties’ last chance agreement, in the court of

appeals’ view, because the arbitrator did not require “proof”

of a doctor’s order that Johnson take cough medication.”

* Reviewing the burden of proof established by an arbitrator is an

improper inquiry for a court. Wilko v. Swan, 346 U.S. 427, 436 (1953),

Appdx. 12a. The panel held “the Board’s interpretation

effectively reads ‘doctor’ out of the EAP agreement.” /d.

This conclusory assertion, however, simply masks what is a

plain invasion of the adjustment board’s exclusive jurisdic-

tion over the merits of the minor dispute. Since the court of

appeals acknowledged that the record before it was silent on

the question of whether the doctor instructed Johnson directly

or indirectly through his medical staff,'° it had no basis in the

adjustment board’s findings to conclude “the uncontested

evidence is that Johnson’s doctor never approved the use of

the cough medicine he took, either orally or by a formal

prescription.” Appdx. Ila-12a. It could reach this con-

clusion only by resolving for itself a factual issue on which

the evidentiary record was silent.

Yet this Court holds that “established law ordinarily pre-

cludes a court from resolving the merits of the parties’ dispute

on the basis of its own factual determinations, no matter how

erroneous the arbitrator’s decision.” Garvey, 532 U.S. at 511.

Such a usurpation of the arbitrator’s fact-finding role is obvi-

ously erroneous under the Railway Labor Act since the

federal courts are divested of jurisdiction over minor disputes

like Johnson’s grievance. Andrews, 406 U.S. at 322. The

courts are to accept the findings on the merits made by the

adjustment board. Gunther, 382 U.S. at 263 (“the merits of

the wrongful removal issue as decided by the Adjustment

overruled on other_grounds, Rodriguez De Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989). Further, adjustment boards are not

restricted to common law rules of evidence in resolving minor disputes.

Gunther, 382 U.S. at 262.

'° The lower court acknowledged that prior to taking the cough medica-

tion Johnson contacted his doctor’s office and, after being told that the

doctor would need to see him for an appointment before a prescription

could be provided, was instructed by the staff to take over-the-counter

cough medicine until his appointment date. Appdx. 10a, lla. The record

also established that Johnson informed Continental’s EAP director he was

taking the medication. /d.

Board must be accepted by the District Court.”). The court of

appeals’ reversal of the adjustment board’s decision, there-

fore, rested on its improper exercise of jurisdiction over the

merits of the parties’ minor dispute.

To overturn the award, the court of appeals also forced

upon the adjustment board a cramped and myopic reading of

the parties’ last chance agreement that “doctor” could mean

only action literally by the physician himself, rather than

including action undertaken by the staff under his super-

vision. The lower court’s very narrow reading of the agree-

ment is evocative of the Supreme Court’s observation in

Gunther, in reversing the court of appeals there, that the

lower court’s interpretation of the collective bargaining

agreement “[paid] strict attention only to the bare words of

the contract” and, thus, “went well beyond their province in

rejecting the Adjustment Board’s interpretation of this

railroad collective bargaining agreement.” 382 U.S. at 261.

The court below ignored the expertise of the adjustment

board in resolving disputes arising under collective agree-

ments, and imposed its own interpretation of the last chance

agreement in place of the board’s. Gunther, 382 U.S. at 261

(“Congress has established an expert body to settle ‘minor’

grievances like the petitioner’s”); Burley, 327 U.S. at 664-65

(“the Board is acquainted with established procedures,

customs and usages in the railway labor world . . . Its

expertise is adapted not only to interpreting the collective

bargaining agreement, but also to ascertaining the scope of

the collective agent’s authority beyond that which the

Act confers”).

The court of appeals’ analysis of the adjustment board’s

decision fails to reveal that award as “wholly baseless and

completely without reason.” Gunther, 382 U.S. at 261. In-

deed, despite its accusation that the adjustment board read the

term “doctor” out of the last chance agreement, the lower

court’s decision does not deny that the board interpreted the

parties’ agreement;'' it merely disagreed with that inter-

pretation. Enterprise Wheel & Car, 363 U.S. at 598 (“The

court of appeals’ opinion refusing to enforce the rein-

statement and partial back pay portions of the award was not

based upon any finding that the arbitrator did not premise his

award on his construction of the contract. It merely disagreed

with the arbitrator’s construction of it.”).

The decision below undermines the minor dispute regime

which is a fundamental element of the Railway Labor Act’s

structure. By usurping the adjustment board’s exclusive ju-

risdiction over the minor dispute arising from Johnson’s

grievance and installing itself as a super-arbitration panel, the

court of appeals violated the clear congressional policy identi-

fied by this Court in Sheehan, which “considered it essential

to keep these so-called ‘minor’ disputes within the Adjust-

ment Board and out cf the courts.” 439 U.S. at 94.

The Court of Appeals for the Fifth Circuit earlier signaled

its intent to break free of the strictures imposed by the Act

and this Court on the review of adjustment board awards in

American Eagle Airlines, Inc. v. Air Line Pilots Ass’n., 343

F.3d 401 (Sth Cir. 2003). In the face of.a dissent by Circuit

Judge Dennis, which accused the panel majority of ignoring

this Court’s precedent for review of arbitral awards, the court

of appeals affirmed a district court order vacating the system

board award on the basis that it ignored the express language

of the contract by setting aside a just cause discharge because

the company failed to adhere to procedural requirements of

the contract. 343 F.3d at 409. There, as here, the lower court

ignored long-standing principles established by this Court

regarding the authority of arbitrators to depart from the

employer’s choice of discipline, by holding that “if the rele-

vant bargaining agreement requires just cause for dismissal,

'' The court of appeals acknowledged that the adjustment board inter-

preted, and did not ignore, the last chance agreement. Appdx. 7a.

an arbitrator acts beyond its jurisdiction by fashioning an

alternate remedy once it has concluded . . . that an employee’s

conduct constitutes just cause for dismissal as the Board

did here.” 343 F.3d at 410. See Misco, 484 U.S. at 41

(“Normally, an arbitrator is authorized to disagree with the

sanction imposed for employee misconduct.”); Enterprise

Wheel & Car, 363 U.S. at 597 (an arbitrator “is to bring his

informed judgment to bear in order to reach a fair solution of

a problem: This is especially true when it comes to formulat-

ing remedies.”).'*

Perhaps emboldened by American Eagle, the court below

expanded its holding in that case, which at least purported to

rely on the arbitrator’s implicit factual findings, by relying on

its own resolution of factual disputes in order to conclude

Johnson’s physician had not directed his use of cough medi-

cation and thereby set aside the adjustment board award. The

lower court’s decision demonstrates its ever-developing re-

fusal to adhere to this Court’s jurisprudence for review of

arbitral awards and the congressionally-mandated scheme for

resolution of minor disputes. By providing for essentially de

novo review of adjustment board awards, the Fifth Circuit

Court of Appeals discards the principal tool making effective

the minor dispute process: the finality of awards. Sheehan,

439 U.S. at 94 (“The effectiveness of the Adjustment Board

in fulfilling its task depends on the finality of its determina-

tions.”). Indeed, its action here was contrary to the normal

purpose of finality in such awards, namely, to benefit the

employee by providing a final decision without the time and

expense created by drawn out litigation. /d. (“Normally

finality will work to the benefit of the worker: He will receive

2 See also 343 F.3d at 412 (Judge Dennis citing 9 TIM BORNSTEIN ET

AL, LABOR AND EMPLOYMENT LAW § 11.09 (2003) and noting “arbi-

trators have used this broad remedial power to reduce or reverse the

discipline meted out to employees where an employer has not abided by

the labor agreement’s prescribed grievance process.”).

a final administrative answer to his dispute; and if he wins, he

will be spared the expense and effort of time-consuming

appeals which he may be less able to bear than the railroad.”).

Mr. Johnson won before the tribunal mandated by the

statute and the parties’ agreement to resolve his dispute. The

court of appeals, however, not content with its carefully cir-

cumscribed role, broke free of its limited jurisdiction to

snatch away the victory he gained before the adjustment

board. That is plainly not the purpose of the federal courts

under the RLA identified by this Court. Returning the Fifth

Circuit to the limited role created for it by Congress and this

Court requires an admonishment as was delivered in Garvey

when another court of appeals chafed at the restrictions

placed upon it in reviewing arbitral awards. Review of the

decision below is necessary to vindicate the statutory policy

requiring the final and exclusive resolution of minor disputes

before system boards of adjustment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ROLAND P. WILDER, JR.*

WILLIAM R. WILDER

BAPTISTE & WILDER, P.C.

1150 Connecticut Ave., N.W.

Suite 500

Washington, D.C. 20036

* Counsel of Record (202) 223-0723

APPENDICES

epaed Wea:

€

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20136

CONTINENTAL AIRLINES, INC.,

Plaintiff-Counter Defendant-Appellant,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas -

November 15, 2004

Charles R. Fulbruge III, Clerk

Before BARKSDALE, Circuit Judge, PICKERING, Cir-

cuit Judge, and LYNN, District Judge.”

LYNN, District Judge:

Continental Airlines, Inc. (“Continental”) appeals the dis-

trict court’s grant of summary judgment in favor of Appellee

International Brotherhood of Teamsters on Continental’s ac-

tion to vacate an arbitration award under the Railway Labor

Act (“RLA”), 45 U.S.C. § 151 et seq., which reinstated an

employee who was terminated for allegedly violating a “last

* District Judge for the Northern District of Texas, sitting by desig-

nation.

chance agreement” after testing positive for alcohol. For the

reasons stated below, the court REVERSES the district court

and RENDERS judgment in favor of Continental.

I. FACTS AND PRIOR PROCEEDINGS

The facts relevant to this appeal are as follows. Continen-

tal hired Mark Johnson in 1991 as an airciaft mechanic. In

August 2000, Johnson reported to work and was subjected to

a random alcohol breath test as required by the Department of

Transportation. The test established that Johnson had a blood

alcohol content (“BAC”) of .115, which is above the legal

limit for intoxication in Texas. As a result, Johnson was dis-

charged. He subsequently filed a grievance contesting his dis-

charge. To resolve the dispute, Johnson, with the assistance of

the International Brotherhood of Teamsters (“IBT’’), entered

into a “last chance agreement” (“LCA”) with Continental.

Under the LCA, Johnson was permitted to return to work,

provided he satisfied the terms of the agreement. The LCA

required that Johnson:

1) submit to an evaluation by Continental’s Employee

Assistance Program (“EAP”) director; '

2) complete a course of rehabilitation, if recommended

by the EAP director;

3) submit a letter of resignation to the EAP director to

be used to terminate his employment should he fail to

satisfy the terms of the agreement or the recommended

rehabilitation program;

4) agree he would be terminated if he subsequently

failed any drug or alcohol test (test positive for a BAC

of .04 or greater);

‘Continental notes that its EAP director serves as the company’s

Substance Abuse Professional (“SAP”) for purposes of federal regulations

governing transportation employee rehabilitation programs. See 49 C.F.R.

§ 40 (explaining requirements and role of SAP).

5) agree to be subject to random no-notice testing for a

set period of time;

6) complete a return to work alcohol test after release by

the EAP director.

Pursuant to the terms of the LCA, Johnson met with the

EAP director for an evaluation, at which time he was diag-

nosed with alcohol dependency. He was thus required to com-

plete an outpatient alcohol treatment program, which he did.

Prior to returning to work, Johnson entered into an EAP

rehabilitation agreement (“EAP agreement’) with Continen-

_tal, which set forth specific terms for his continued employ-

ment. The EAP agreement included the following relevant

provisions:

1) During the 1-year rehabilitation period/contract, com-

mencing with the date of this Agreement, any use of

alcohol or illicit drugs will be considered a violation of

this Agreement. This includes mouthwash or other medi-

cations/substances which may contain alcohol. If your

doctor prescribes medication which contains alcohol/

narcotic drugs, you are required to inform the EAP staff

of such medication.

2) You are subject to no-notice testing during the

rehabilitation period for not less than 1 year or more than

5 years. The no-notice test screens for 10 drugs, plus

alcohol. Failure to report for a test will result in your

termination. ...

4) You are responsible for maintaining contact with the

EAP Manager on at least a monthly basis for the purpose

of monitoring your progress. .. .

At the time of the EAP agreement, the EAP director orally

instructed Johnson to avoid drugs and alcohol, including

over-the-counter medications that may contain alcohol. Prior

to returning to work, Johnson was given, and passed, an

alcohol test.

On March 20, 2001, Johnson left the EAP director a

voicemail stating that he was taking over-the-counter cough

medicine. Although the EAP director received the message,

he never contacted Johnson about it. On March 22, 2001,

Continental tested Johnson for alcohol. Johnson tested posi-

tive, apparently due to his ingestion of cough medicine. His

BAC was .04 at 12:40 p.m. His confirmation test, taken at

1:05 p.m., showed a BAC of .029.

Continental terminated Johnson for consuming alcohol.

Johnson filed a grievance protesting his termination. The

arbitrators, known .as The System Board (the “Board”), con-

sisted of representatives of IBT and Continental and a neutral

chairperson. The Board held an evidentiary hearing on John-

son’s grievance. A majority of the Board issued an opinion

holding that the LCA and the EAP agreement were valid and

binding, and that the Board had jurisdiction to determine

whether Johnson violated the agreements.” The Board con-

cluded that Johnson had not violated the LCA or the EAP

agreement and ordered Johnson reinstated.

On March 6, 2003, Continental filed an action against IBT

in the Southern District of Texas, seeking to vacate the

Board’s award. Both parties moved for summary judgment.

On January 8, 2004, the district court issued a memorandum

opinion and order denying Continental’s motion and granting

IBT’s motion, and upholding the award. On February 9,

2004, the district court stayed the enforcement of the award,

pending appeal.

Continental appeals the district court’s ruling and seeks

vacatur of the Board’s award on the grounds that (1) the

district court applied the wrong standard of review under the

RLA; (2) the district court erred in upholding the award be-

cause the Board exceeded its authority, by ignoring the plain

? Continental’s Board representative did not sign the opinion. How-

ever, the parties do not dispute that the opinion is nevertheless binding on

the parties.

language of the agreements and by substituting its judgment

for that of the EAP director; and, (3) even if the award were

otherwise proper, the district court should have vacated it as

violative of public policy.

Il. ANALYSIS

This court reviews de novo a district court’s grant and de-

nial of summary judgment. /nt’l Union of Operating Eng’rs,

Local 351 v. Cooper Natural Res., Inc., 163 F.3d 916, 918

(Sth Cir, 1999).

A. Standard of Review

This court must first determine whether the district court

applied the appropriate standard of review in reviewing the

Board’s award. The RLA governs disputes between airline

carriers and their employees, with the stated purpose of

avoiding interruptions to commerce that might result from

such disputes. 45 U.S.C. § 152. The RLA establishes manda-

tory procedures for the resolution of both major and minor

disputes. See Consol. Rail Corp. v. Ry. Labor Exec. Ass’n,

491 U.S. 299, 302-03 (1989). A “major” dispute involves the

formation of collective bargaining agreements (“CBAs”)—

agreements governing rates of pay, rules, or working condi-

tions of employees, as a class. /d. at 302. These disputes arise

when it is alleged that a CBA is not in place, or when a party

seeks to change the terms of an existing agreement; therefore,

“*the issue is not whether an existing agreement controls the

controversy.’” /d. (quoting Elgin, J. & E.R. Co. v. Burley, 325

U.S. 711, 723 (1945)). A “minor” dispute arises “out of griev-

ances or out of the interpretation or application of agreements

covering rates of pay, rules, or working conditions.” /d. at

303. Thus, a minor dispute arises out of the enforcement of an

existing CBA. /d. Under the RLA, minor disputes must be

resolved through binding arbitration before an adjustment

board established by the union and the employer. /d. Conti-

nental and IBT agree that the underlying dispute is a minor

dispute under the RLA.

Generally, arbitration awards arising from minor disputes

are reviewable by a district court on narrow grounds. Specifi-

cally, judicial review is limited to (1) whether the Board

failed to comply with the RLA; (2) whether the Board failed

to conform or confine itself to matters within the scope of its

jurisdiction; and (3) whether the Board’s decision was the

result of fraud or corruption. 45 U.S.C. § 153, First (q)(2004).

Normally, an award is deemed to be within the Board’s

jurisdiction when it is grounded in the CBA. See Delta Queen

Steamboat Co. v. Dist. 2 Marine Eng’ rs Beneficial Ass’ n, 889

F.2d 599, 602 (Sth Cir. 1989). Absent one of these grounds,

an award is binding upon the parties and the findings are con-

clusive. Eastern Air Lines, Inc. v. Transport Workers Union,

580 F.2d 169, 172 (Sth Cir. 1978). Unless a court concludes

that the Board’s interpretation of the contract is “wholly

baseless and completely withoutreason,” the Board’s inter-

pretation must stand. /d. (quoting Gunther v. San Diego &

Ariz. Eastern Ry. Co., 382 U.S. 257, 261 (1965)). The Su-

preme Court has explained that in reviewing a Board’s inter-

pretation of a contract,

a court should not reject an award on the ground that the

arbitrator misread the contract . . . . [T]he arbitrator’s

award settling a dispute with respect to the interpretation

or application of a labor agreement must draw its es-

sence from the contract and cannot simply reflect the

arbitrator’s own notions of industrial justice. But as long

as the arbitrator is even arguably construing or applying

the contract and acting within the scope of his authority,

that a court is convinced he committed serious error does

not suffice to overturn his decision.

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29,

38 1987). The district court employed this highly deferential

* While Misco dealt with the review of an arbitration award under the

Labor Management Relations Act, this court has cited Misco with ap-

proval when setting out the standard of review governing awards under

standard in reviewing the Board’s award. Continental argues

that because this dispute involved an LCA and because the

Board ignored an express term of the agreement, the district

court should have reviewed the award under a “no deference”

standard, pursuant to this court’s decision in Cooper Natural

Resources.’ IBT contends that the holding of Cooper Natural

Resources does not require that awards involving LCAs re-

ceive more searching judicial review; i.e., less deference, than

awards involving collective bargaining agreements.

In Cooper Natural Resources, this court upheld the district

court’s vacatur of an arbitrator’s award, in part because the

arbitrator ignored the LCA. The court held that when parties

enter into an LCA, “[t]he LCA must be thought of as a sup-

plement to the CBA” which constitutes “the parties’ chosen

means of dispute resolution,” and which is binding on the

arbitrator. Jd. at 919. The court did not state, however, that an

arbitrator’s decision interpreting an LCA is entitled to any less

deference than is one interpreting a CBA, as Continental

contends. Continental relies heavily on the statement in Cooper

Natural Resources that “an arbitrator ignoring the explicit

terms of a last chance agreement is owed no deference, and his

award must be closely scrutinized.” Jd. However, we conclude

that the panel in Cooper was not mandating a more stringent

standard of review for arbitration awards arising from LCAs

than from reviews of CBA determinations.

In Cooper Natural Resources, the arbitrator ignored the

LCA, relying solely on the CBA. The court in that case was

not faced with an issue like that in the present case, where the

arbitrator interpreted a provision of the LCA and a party

challenged the arbitrator’s interpretation. Thus, Cooper Natu-

the RLA. See American Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int’ l,

343 F.3d 401, 406 (Sth Cir. 2003).

* The parties treat the EAP agreement as though it were a part of or an

addendum to the LCA, which it is. Thus, we treat the EAP and LCA as a

part of the same agreement.

ral Resources does not support Continental’s position that a

more searching review of an arbitrator’s interpretation of an

LCA is mandated.

Second, none of the authorities relied upon by the court in

Cooper Natural Resources support a “no deference” standard

of review for awards arising from LCAs. In Tootsie Rolls

Indus., Inc. v. Local Union No. 1, Bakery, Confectionary &

Tobacco Workers Int'l Union, 832 F.2d 81 (7th Cir. 1987)

(holding that an arbitrator’s award should have been vacated),

the court applied the same standard of review to an award

involving an LCA as it typically applied to awards involving

CBAs. Noting that an award under a CBA should be upheld

as long as it “draws its essence” from the CBA, the court

determined that by basing the award on a company policy

outside the applicable LCA, the arbitrator’s award did not

“draw its essence” from the LCA, and was thus improper. /d.

at 83-84.

Similarly, in Coca-Cola Bottling Company of St. Louis v.

Teamsters Local Union No. 688, 959 F.2d 1438 (8th Cir.

1992) (reviewing an arbitrator’s ward involving an LCA),

the court cited the same standa’! of review identified in

Misco, for a CBA, as applicable to awards under LCAs. /d.

at 1440.

The pre-Misco case of Bakers Union Factory #326 v. ITT

Continental Baking Co., 749 F.2d 350 (6th Cir. 1984), which

the Sixth Circuit reaffirmed in Ohio Edison Co. v. Ohio

Edison Joint Council, 947 F.2d 786 (6th Cir. 1991), is less

explicit than Coca-Cola Bottling; however, the Sixth Circuit

appears to recognize that the same deferential standard of

review applies to review of an arbitrator’s interpretation of an

LCA as applies to review of the interpretation of a CBA. In

Bakers Union, the court addressed the question of whether an

arbitrator’s award, ignoring the LCA, was properly upheld.

The district court cited the general rule that the decision of an

arbitrator will not be overturned as long as it derives its

authority from the CBA. Concluding that it did so derive its

authority, the district court upheld the award. On appeal,

the Sixth Circuit held that while the general rule was as

described, the scope of review was broader when the parties

entered into an LCA. /d. at 353-54. That is what Continental

argues for here. While the Bakers Union decision speaks of

narrow review and broad review, its discussion focuses on the

situation where an arbitrator ignores an LCA, as the arbitrator

did in Cooper Natural Resources. The court was not faced

with a situation where an arbitrator’s interpretation of an

LCA was being challenged. In that situation, the court

seemed to recognize that a deferential standard of review

would apply: “[AJn arbitrator may determine whether the

settlement agreement has,-in fact, been breached . . . . Th[is]

determination[ ] retain[s] the benefit of a deferential standard

of review.” Bakers Union, 749 F.2d at 356. In light of the

facts and holding of Cooper Natural Resources and the

authority relied upon in it, we hold that the standard of review

applicable here is the deferential standard of review articu-

lated by the Supreme Court in Misco and employed by the

district court below. Therefore, the court rejects Continental’s

argument that this court is to give no deference to the arbi-

trator’s award.

B. Did the District Court Nonetheless Err in Upholding

the Award?

The court must next determine whether, under a deferential

standard of review, the district court nonetheless erred in

upholding the award. Continental makes two arguments that

the award should be vacated, because the Board exceeded the

scope of its jurisdiction. First, it argues that the Board ignored

the plain terms of the LCA and EAP. Second, it argues that

the Board exceeded its authority by substituting its judgment

for that of Continental’s EAP director.

In order to be within the Board’s authority, the award must

“draw its essence” from the LCA and EAP. See Misco, 484

10a

U.S. at 38. The Board made the following findings and con-

clusions about Johnson’s violations of the LCA and EAP

agreement:

¢ While Johnson did not visit his physician and receive a

written prescription, his doctor’s office approved for use

over-the-counter cough medicine until he could be seen

by his physician.

¢ Johnson left the EAP director a voicemail informing

him that he was taking cough medicine. The director

never returned Johnson’s call.

¢ His doctor’s approval, while not qualifying as a formal

written prescription, “met the letter. and spirit” of the

EAP agreement. He obtained approval of the medication

and promptly notified the EAP director.

¢ It would have been reasonable for the EAP director to

warm Johnson that the use of the cough medicine could

potentially violate the agreement.

¢ The EAP director failed to provide an adequate expla-

nation for his failure to warn Johnson. |

¢ Johnson did not violate the LCA’s requirement that :

Johnson not test positive for the presence of drugs or :

alcohol in a volume equal to or greater than .04%. The

confirmation test taken in March 2001 provided a read-

ing of .029%—well below .04% and insufficient to con-

stitute a violation of the LCA.

¢ Johnson nonetheless has demonstrated a “pathetic lack

of knowledge of and commitment to what it takes to live

a life of sobriety” because he could not recall his sobri-

ety date or the first steps of the AA twelve-step program.

¢ In light of the above, Johnson should be reinstated to

his former position and made whole for lost wages and

benefits.

lla

Continental argues that these findings reflect that the Board

ignored the plain terms of the contract because it (1) ignored

the language “doctor’s prescription” when it held that the

approval of the use of cough medicine containing alcohol by

a member of a doctor’s staff satisfied the requirements of the

EAP agreement, which was incorporated into the LCA agree-

ment, for a doctor’s prescription for any medication contain-

ing alcohol and (2) it added a “last chance warning” require-

ment to the EAP agreement and the LCA by determining that

the EAP director should have contacted Johnson regarding his

voicemail. IBT argues that the award should be upheld be-

cause the Board interpreted the LCA and EAP when it made

its determination. IBT also argues that the Board’s determina-

tion that Johnson should have been warned was irrelevant to

its award since the Board separately determined that Johnson

had not violated the LCA or EAP.

Under Misco, an arbitrator’s award is to be upheld as long

as the arbitrator “is even arguably construing or applying the

contract.” Misco, 484 U.S. at 38. Here, the Board concluded

that Johnson was in compliance with the LCA and EAP

because he spoke with someone on his doctor’s staff and

obtained approval from that person to take over-the-counter

cough medicine. He then informed the EAP Director via

voicemail that he was- taking such medication. The record

establishes that Johnson contacted his doctor’s office to

schedule an appointment, that he spoke with a member of the

doctor’s staff, and that the staff member informed Johnson

that the doctor could not prescribe medicine without an

appointment, but approved his taking over-the-counter cough

medicine until his appointment date. There is no evidence of

any kind that Johnson or a member of the doctor’s staff spoke

with the doctor regarding Johnson’s situation, or that the

doctor, either directly to Johnson, or indirectly to his staff,

instructed Johnson to take over-the-counter cough medicine

which contained alcohol. Thus, the uncontested evidence is

that Johnson’s doctor never approved the use of the cough

12a

medicine he took, either orally or by a formal prescription.

Because Johnson’s doctor did not prescribe him medicine

containing alcohol, his notification to the EAP director, and

that person’s not calling him back, is irrelevant. The LCA and

EAP do not require a call back to Johnson. By failing to

require proof of a doctor’s order, the Board’s interpretation

effectively reads “doctor” out of the EAP agreement. Such an

interpretation is not an arguable construction of the agree-

ments; thus, the Board exceeded the scope of its jurisdiction

in fashioning its award.

Accordingly, we hold that the district court erred in up-

holding the award, and that the award should be vacated.

Because we conclude that the Board’s interpretation failed to

arguably construe the agreements, we need not address two

other issues raised by Continental as grounds to vacate the

award; i.e., whether the Board otherwise exceeded its author-

ity or whether the award should be vacated on public policy

grounds. The judgment of the district court is REVERSED

and RENDERED.

Ill. CONCLUSION

For the foregoing reasons, we REVERSE the district

court’s decision granting summary judgment for IBT and

upholding the arbitration award, and RENDER summary

judgment in favor of Continental, vacating the arbitration

award and reinstating Continental’s discharge of Mark

Johnson.

REVERSED AND RENDERED

. 3

‘4

ATR EG HR DER OEE IE PRI EI OT AM ERED Re eae

13a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20136

CONTINENTAL AIRLINES INC.,

Plaintiff-Counter Defendant-Appellant,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas, Houston

ON PETITION FOR REHEARING EN BANC

(Opinion 11/15/04, 5 Cir., . F.3d ).

Before BARKSDALE, Circuit Judge, PICKERING, Circuit

Judge, and LYNN, District Judge.”

PER CURIAM:

(X) Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. No member of the panel nor judge in regular

active service of the court having requested that the court be

polled on Rehearing En Banc (FED. R. App. P. and 5th Cir. R.

35), the Petition for Rehearing En Banc is DENIED.

* District Judge for the Northern District of Texas, sitting by desig-

nation. Judge King did not participate in the consideration of the re-

hearing en banc.

l4a

( ) Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. The court having been polled at the request of one

of the members of the court and a majority of the judges who

are in regular active service not having voted in favor (Fed.

R. App. P. and Sth Cir. R. 35), the Petition for Rehearing En

Banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

—,

ae 1a 727 ERROR AL Ne ROMER RN EN MEE HS RR at SL TPR ee "

15a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-03-0817

CONTINENTAL AIRLINES, INC.,

Plaintiffi/Counterdefendant,

\ -

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Defendant/Counterplaintiff.

MEMORANDUM AND ORDER

Pending are Defendant/Counterplaintiff International

Brotherhood of Teamsters’s Motion for Summary Judgment

(Document No. 12) and Plaintiff/Counterdefendant Conti-

nental Airlines, Inc.’s Motion for Summary Judgment (Docu-

ment No. 14). After having carefully reviewed the motions,

responses, reply and applicable law, the court concludes

as follows:

I. Background

This is an action for review and vacation of an arbitral

award under the Railway Labor Act (“RLA”), 45 U.S.C.

§ 151 et seq. Plaintiff/Counterdefendant Continental Air-

lines, Inc. (“Continental”) entered into a “Last Chance

Agreement” with Defendant/Counterplaintiff International

Brotherhood of Teamsters, Inc. (“IBT”) regarding Conti-

nental employee Mark Johnson (“Johnson”). The Last

Chance Agreement settled a then-pending discharge griev-

ance filed by Johnson under the arbitration provisions

16a

contained in the collective bargaining agreement between

Continental and IBT.

In August, 2000, Johnson arrived at his maintenance

mechanic job legally drunk, having a breath alcohol con-

centration of .115. Johnson’s intoxicated state was dis-

covered through a random test, and Continental terminated

Johnson’s employment immediately for gross misconduct.

Johnson grieved his discharge and, in settlement of the

discharge grievance, Continental conditionally reinstated

Johnson subject to strict terms of a Last Chance Agreement

and with a self-executing resignation letter should Johnson

violate the Agreement. In March, 2001, a “no notice” breath

test authorized by the Last Chance Agreement established

that Johnson was at work with a breath alcohol concentration

of approximately .029. Continental contends that the source

of Johnson’s elevated breath alcohol concentration, namely

over-the-counter cough medicine that Johnson took without

having first obtained a prescription, violated the terms and

conditions of the Employee Assistance Program (EAP).

Because the Last Chance Agreement made employment con-

tingent upon successful completion of the EAP, Continental’s

finding that Johnson violated the EAP triggered its accep-

tance of Johnson’s self-executing resignation letter.

Subject to Continental’s objections, Continental’s accep-

tance of Johnson’s self-executing resignation letter under the

Last Chance Agreement was grieved and the matter was

submitted to arbitration under a System Board of Adjustment

(“System Board”) procedure provided for by the RLA.

Specifically, Continental contended that the matter was not

grievable and therefore not arbitrable because the Last

Chance Agreement was violated, and its express terms bar

review of Continental’s decision to accept Johnson’s self-

executing resignation once a violation has occurred. Con-

tinental agreed, however, that whether Johnson had violated

the Last Chance Agreement was an arbitrable matter, and it

17a

was this issue that was submitted to the System Board. The

board found that Johnson had not violated the Last Chance

Agreement because the over-the-counter cough medication

was approved by his doctor and Johnson had timely notified

Continental’s EAP regional manager that he was taking

the medication. Accordingly, the System Board awarded

Johnson’s reinstatement.

Continental contends that the System Board’s award

should be vacated because (1) Continental’s acceptance of

Johnson’s resignation letter is not grievable under the terms

of the Last Chance Agreement; (2) the System Board

exceeded its authority by substituting its own language and/or

interpretation of the terms of the Last Chance Agreement in

place of the language of the parties, including the “last

chance” terms of the Agreement; (3) the System Board

exceeded its authority and competency by substituting its

judgment for the judgment and personal discretion of the

Employee Assistance Program (“EAP”) as agreed upon by

the parties; and (4) the System Board’s award of reinstate-

ment to Johnson violates public policy.

IBT counterclaims that Continental’s ongoing refusal to

abide by and comply with the System Board’s award violates

the RLA and the parties’ collective bargaining agreement.

IBT seeks entry of a permanent injunction directing

Continental’s full and continued compliance with the award.

Both Continental and IBT move for summary judgment.

Il. Summary Judgment Standard of Review

Rule 56(c) provides that summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

moving party must “demonstrate the absence of a genuine

18a

issue of material fact.” Celotex Corp. v. Catrett, 106 S. Ct.

2548, 2553 (1986).

Once the movant carries this burden, the burden shifts to

the nonmovant to show that summary judgment should not be

granted. Morris v. Covan World Wide Moving, Inc., 144 F.3d

377, 380 (Sth Cir. 1998). A party opposing a properly

supported motion for summary judgment may not rest upon

mere allegations or denials in a pleading, and unsubstantiated

assertions that a fact issue exists will not suffice. /d. “{T]he

nonmoving party must set forth specific facts showing the

existence of a ‘genuine’ issue concerning every essential

component of its case.” /d.

In considering a motion for summary judgment, the district

court must view the evidence “through the prism of the

substantive evidentiary burden.” Anderson v. Liberty Lobby,

Inc., 106 S. Ct. 2505, 2513 (1986). All justifiable inferences

to be drawn from the underlying facts must be viewed in the

light most favorable to the nonmoving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356

(1986). “If the record, viewed in this light, could not lead a

rational trier of fact to find” for the nonmovant, then

summary judgment is proper. Kelley v. Price-Macemon, Inc.,

992 F.2d 1408, 1413 (Sth Cir. 1993) (citing Matsushita, 106

S. Ct. at 1351). On the other hand, if “the factfinder could

reasonably find in [the nonmovant’s] favor, then summary

judgment is improper.” /d. Even if the standards of Rule 56

are met, a court has discretion to deny a motion for summary

judgment if it believes that “the better course would be to

proceed to a full trial.” Anderson, 106 S, Ct. at 2513.

Ill. Discussion

A. Review Under the RLA

The RLA, which governs disputes between airline carriers

and its employees, was intended “to promote stability in

labor-management relations by providing a comprehensive

LINEAL ELL AI NADINE AS OETA TE AIDED A> OF

POLE AE NADINE FV AOIS LOE ADE A) OF

pen a el eR

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framework for resolving labor disputes.” Hawaiian Airlines,

Inc. v. Norris, 114 S. Ct. 2239, 2243 (1994). The heart of the

RLA is the duty imposed on carriers and their employees “to

exert every reasonable effort to make and maintain agree-

ments concerning rates of pay, rules, and working conditions,

and to settle all disputes . . . in order to avoid any interruption

to commerce or the operation of any carrier growing out of

any dispute between the carrier and the employees thereof.”

45 U.S.C. § 152 First; see also Brotherhood of R.R. Trainmen

v. Jacksonville Terminal Co., 89 S. Ct. 1109, 1115 (1969).

To this end, the RLA establishes a mandatory arbitral

mechanism for “the prompt and orderly settlement” of two

classes of disputes. Norris, 114 S. Ct. at 2243-44. One class

involves the formation of collective bargaining agreements or

efforts to secure them. These are deemed “major” disputes.

See Consolidated Rail Corp. v. Railway Labor Executives’

Ass'n, 109 S. Ct. 2477, 2480 (1989). The second class of

disputes “gro[w] out of grievances or out of the interpretation

or application of agreements covering rates of pay, rules, or

working conditions.” 45 U.S.C. § 151A(5). These are known

as “minor” disputes. Consolidated Rail, 109 S. Ct. at 2480.

Stated differently, “major disputes seek to create contractual

rights, minor disputes to enforce them.” /d.

The parties agree that Johnson’s wrongful discharge griev-

ance was a “minor” dispute within the terms of the RLA.

Such disputes must be resolved through binding arbitration.

Andrews v. Louisville & Nashville R.R. Co., 92 S. Ct. 1562,

1564 (1972). The scope of judicial review of decisions of

arbitration panels like the system board is “among the

narrowest known to the law.” Anderson v. Nat'l RR.

Passenger Corp., 754 F.2d 202, 203 (7th cir. 1984) (citing

Union Pacific R.R. v. Sheehan, 99 S. Ct. 399, 401 (1978),

reh’g denied, 99 S. Ct. 1060 (1979)). Under the RLA,

judicial review is limited to three specific areas: (1) failure of

the System Board to comply with the requirements of

the Railway Labor Act; (2) failure of the System Board to

20a

conform, or to confine itself to matters within the scope

of its jurisdiction; and (3) fraud or corruption.’ 45 U.S.C.

§ 153 First (q).

If Continental’s objections do not fall within any of these

categories, the findings and order of the System Board are

conclusive and may not be set aside. Andrews, 92 S. Ct. at

1565. See also Diamond v. Terminal Ry. Ala. State Docks,

421 F.2d 228, 233 (Sth Cir. 1970) (“[T]he findings and order

of the Board are ‘conclusive,”” and the courts “may not

substitute their judgments for those of the Board divisions.”).

In Sheehan, the Supreme Court articulated this policy

underlying the Railway Labor Act:

In enacting this legislation, Congress endeavored to

promote stability in labor-management relations in this

important national industry by providing effective

and efficient remedies for the resolution of railroad-

employee disputes arising out of the interpretation of

collective-bargaining agreements. The Adjustment

Board was created as a tribunal consisting of workers

and management to secure the prompt orderly and final

settlement of grievances that arise daily between em-

ployees and carriers regarding rates of pay, rules and

working conditions. Congress considered it essential to

keep these so-called “minor” disputes within the Adjust-

ment Board and out of the courts. The effectiveness of

the Adjustment Board in fulfilling its task depends on

the finality of its determinations.

Sheehan, 99 §S. Ct. at 402 (internal citations omitted). “[T]jhe

courts play only a limited role when asked to review the

decision of an arbitrator” and “are not authorized to recon-

' Although the Fifth Circuit recognizes a judicially created fourth ex-

ception when the Board denies a litigant constitutional due process,

Brotherhood of Locomotive Engineers v. St. Louis Southwestern Ry. Co.,

757 F.2d 656, 661 (Sth Cir. 1985), Continental is asserting no such claim

in this case.

GNIAR ERE LORI ERMAN L ERE DRI PRUNE LER ARE Dy!

oan AN REP LAAA SRA NAIOE SAE LOOP OTSA EE SLI O NT TINE LAE IE PP

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sider the merits of an award even though the parties may

allege that the award rests on errors of fact or on mis-

interpretation of the contract.” United Paperworkers Int'l

Union v. Misco, Inc., 108 S. Ct. 364, 370 (1987).

B. Failure of the System Board to Conform or Confine

Itself to Matters Within the Scope of Its Jurisdiction

In this case, Continental contends that the System Board

exceeded its jurisdiction by (1) arbitrating the matter despite

the waiver contained in the Last Chance Agreement; and (2)

finding that Johnson did not violate the Last Chance Agree-

ment and, as a result, awarding him reinstatement. To be

found not in excess of the arbitration board’s jurisdiction—

and therefore enforceable—an award “must draw its essence

from the contract and cannot simply reflect the arbitrator’s

own notions of industrial justice.” Eastern Associated Coal

Corp. v. United Mine Workers of Am., 121 S. Ct. 462, 466

(2000) (quoting Misco, 108 S. Ct. at 370, 371). See also

Houston Lighting & Power Co. v. International Bhd. Of Elec.

Workers, 71 F.3d 179, 182 (Sth Cir. 1995); Diamond, 421

F.2d at 233.

An arbitral award “draws its essence from” an agreement

if it

“ha[s] a basis that is at least rationally inferable, if not

obviously drawn, from the letter or purpose of the...

agreement ... . [T]he award must, in some logical way,

be derived from the wording or purpose of the contract.”

Phrased another way, the question is whether the

arbitrator’s award “was so unfounded in reason and fact,

so unconnected with the wording and purpose of the...

agreement as to ‘manifest an infidelity to the obligation

of an arbitrator.’”

Executone Info. Sys. v. Davis, 26 F.3d 1314, 1325 (Sth Cir.

1994) (quoting Brotherhood of R.R. Trainmen v. Central of

Ga. Ry., 415 F.2d 403, 412 (Sth Cir. 1969), cert. denied, 90 S.

22a

Ct. 564 (1970)). In conducting the “essence” inquiry, “courts

are bound to interpret the arbitrator’s award and the contract

broadly so as to uphold the award.” Manville Forest Prods.

Corp. v. United Paperworkers Int'l Union, 831 F.2d 72, 74

(Sth Cir. 1987); see also International Ass'n of Machinists &

Aerospace Workers v. Texas Steel Co., 538 F.2d 1116, 1121

(Sth Cir. 1976) (Sth Cir. 1976) (“The ‘essence’ standard is to

be interpreted expansively so as to uphold the award, rather

than restrictively.”), cert. denied, 97 S. Ct. 1110 (1977).

1. Grievability and Arbitrability of Johnson’s Discharge

Continental argues first that the System Board exceeded its

jurisdiction by determining that Johnson’s discharge under

the Last Chance Agreement was both grievable and arbi-

trable. The Last Chance Agreement provides that:

4. Johnson’s continuing employment shall be condi-

tional upon his compliance with all of the following

conditions:

vi. If Johnson fails to comply with the provisions of

the conditions of his continuing employment,

termination will result, and his right to challenge

such termination through the grievance process

shall be waived. No grievance of the matter shall

be waived. No grievance of the matter shall be

permitted.

7. Johnson acknowledges that he will have no right to

file a grievance concerning [Continental’s] accep-

tance and execution of his letter of resignation and/or

termination.

Id. ex. D, at 2. Although Continental now contends that these

provisions of the Last Chance Agreement foreclose Johnson’s

ability to arbitrate his discharge, Continental maintained

23a

during the arbitration proceedings that the question of

whether or not Johnson violated the Last Chance Agree-

ment—as distinguished from his automatic termination if

there was a violation—is arbitrable:

The Company’s position is that Mr. Johnson’s grievance

over his termination, if couched in terms of the

Collective Bargaining Agreement, is inarbitrable. There

is not a question of just cause that exists and Mr.

Johnson has expressly agreed to waive any right to

grieve under the Collective Bargaining Agreement. The

only arbitrable question is whether or not Mr. Johnson

violated any of the terms of his agreement with the

Company. Clearly he has a right to some forum for the

determination of his dispute over the actions taken by

the Company.

Id. ex. B, at 10:9-20, spoken by Continental’s representative

at Arbitration (emphasis added). The parties, therefore, were

in agreement before the System Board that the waiver

provisions of Last Chance Agreement do not preclude

arbitration of whether Johnson violated the terms of the

Agreement. Given Continental’s representations to the

System Board that the matter is arbitrable under the terms of

the Last Chance Agreement, the Court cannot now find that

the Board’s act in taking jurisdiction of the matter does not

“draw its essence” from the Agreement or is “without

foundation in reason or fact.” Parties are allowed to present

their interpretations of contractual provisions to shed light on

the purpose of the agreement, and a fact-finder, such as an

arbitrator, is well within his authority to give those

interpretations weight. See United Paperworkers Int'l Union

v. Champion Int'l Corp., 908 F.2d 1252, 1256 (Sth Cir. 1990)

(citing Richland Plantation Co. v. Justiss-Mears Oil Co., 671

F.2d 154, 156 (Sth Cir. 1982)). See also Executone, 26 F.3d

at 1325 (An award is enforceable if it “ha[s] a basis that is at

least rationally inferable, if not obviously drawn, from the

24a

letter or purpose of the . . . agreement.”) (emphasis added).

Accordingly, the System Board’s award will not be vacated

on the ground that Johnson’s alleged violation of the Last

Chance Agreement is inarbitrable.

2. Findings of the System Board

Continental next challenges the System Board’s finding

that Johnson did not violate the Last Chance Agreement

by using an over-the-counter cough medication and then

informing Continental that he was taking the medication.

The EAP’s “Alcohol/Drug Rehabilitation Agreement’”—

Johnson’s compliance with which is a condition of his

continuing employment under the Last Chance Agreement—

provides that: ~

1. During the 1-year rehabilitation period/contract,

commencing with the date of this Agreement

[November 10, 2000], any use of alcohol or illicit

drugs will be considered a violation of this

Agreement. This includes mouthwash or other medi-

cations/substances which may contain alcohol. If

your doctor prescribes medication which contains

alcohol/narcotic drugs, you are required to inform

the EAP staff of such medication.

Document No. 15 ex. C, at § 1. At the arbitration,

Continental argued that Johnson’s call to Steve Skidmore,

Continental’s EAP regional manager, to inform him that

Johnson was taking cough medication did not excuse him

from using any alcohol because he “never informed Con-

tinental that he was taking medication that contained

alcohol.” Jd. ex. A, at 15. The System Board disagreed and

held, based on the uncontroverted testimony presented at the

arbitration:

Granted that the Grievant’s doctor did not “prescribe”

the particular medication in the technical sense that it

involved a written prescription medication requiring the

25a

services of a licensed pharmacist. Neither did his doctor

“prescribe” a particular brand of cough medication. The

fact that the doctor approved the use of a cough

medicine, however, surely means that the Grievant did

not take it upon himself to somehow circumvent the

purpose of the Last Chance requirements by unsup-

ervised self-medication.

Id. In light of these factual findings and its interpretation of

the word “prescribes,” the System Board found that Johnson

did not violate the Alcohol/Drug Rehabilitation Agreement,

and therefore he did not violate the Last Chance Agreement,

stating “the Grievant fully met the letter and the spirit of

Paragraph 1, as quoted above, both by securing his doctor’s

approval for the cough medication and then by promptly

notifying his EAP representative Skidmore ‘of such

medication.’” Jd.

The Supreme Court has established that courts must be

deferential to an arbitrator’s findings concerning contractual

interpretation:

To resolve disputes about the application of a[n] ...

agreement, an arbitrator must find facts and a court may

not reject those findings simply because it disagrees with

them. The same is true of the arbitrator’s interpreta-

tion of the contract. The arbitrator may not ignore the

plain language of the contract; but the parties having

authorized the arbitrator to give meaning to the language

of the agreement, a court should not reject an award on

the ground that the arbitrator misread the contract ....

[T]he arbitrator’s award settling a dispute with respect to

the interpretation or application of a labor agreement

must draw its essence from the contract and cannot

simply reflect the arbitrator’s own notions of industrial

justice. But as long as the arbitrator is even arguably

construing or applying the contract and acting within

26a

the scope of his authority, that a court is convinced

he committed serious error does not suffice to overturn

his decision.

Misco, 108 S. Ct. at 370-71 (internal citations omitted)

(emphasis added). Thus, even if the Court agrees with

Continental’s contention that the System Board’s construction

of the word “prescribe” was so broad as to be erroneous, it

cannot disturb the System Board’s award on that basis. See

id.; United Food & Commercial Workers v. National Tea Co.,

899 F.2d 386, 388-89 (Sth Cir. 1990) .(where arbitrator’s

award was based on the interpretation of an ambiguous

contract provision, a court’s conclusion that the interpretation

was incorrect was insufficient to vacate the award; quoting

Misco, the court held that “[c]Jourts will not disturb a labor

arbitrator’s award on the ground that it is based upon

‘improvident, even silly, factfinding’” or a misreading of

the contract).

Continental argues further that the System Board’s award

of reinstatement to Johnson should be vacated because the

Board imposed an additional “last chance” warning by the

EAP representative, not contracted for by the parties, for

over-the-counter medicines containing alcohol. An arbitra-

tion board’s award is unenforceable if it “imposes additional

requirements that are not expressly provided i: the agree-

ment.” American Eagle Airlines, Inc. v. Air Line Pilots

Ass'n, Int'l, 197 F. Supp. 2d 580, 585 (N.D. Tex. 2002)

(citing Airline Prof ls Ass’n v. ABX Air, Inc., 274 F.3d 1023,

1030 (6th Cir. 2001)), aff d, 343 F.3d 401 (Sth Cir. 2003). In

this case, however, the System Board found that Johnson did

not violate the Last Chance Agreement and that Continental

therefore could not accept Johnson’s self-executing resig-

nation letter. This is not a case where the System Board

found that Johnson violated the Agreement—which would

permit Continental to accept the resignation letter and

terminate him in accordance with the Agreement—but then

BLP Ty ELIS EAE IE PERO

AAS PY ELEN EA a aH Oe Ee MY?

27a

excused his violation and prevented his termination by

imposing the additional requirement for a warning from the

EAP representative. Cf. id., 197 F. Supp. 2d at 586 (finding

that the reinstatement of an airline pilot exceeded the panel’s

jurisdiction by imposing a hearing requirement despite a

determination by the panel that good cause existed for the

pilot’s termination). Instead, the System Board concluded, as

a matter separate from its findings on Johnson’s compliance

with the Last Chance Agreement, that Continental acted

unreasonably through Skidmore’s failure to communicate

with Johnson regarding the cough medication. See Document

No. 15 ex. A, at 15 (“It would have been eminently rea-

sonable for Skidmore to have returned the Grievant’s call in

order to warn him that taking the medication would violate

the Agreement and cost him his job, if in fact that were the

case.” (emphasis added). This finding may have lent support

to the System Board’s conclusion that Johnson’s termination

was improper, but it could not have been a basis for excusing

any violation of the Last Chance Agreement by Johnson since

the Board had already found that Johnson did not violate the

Agreement. Accordingly, the System Board’s award will not

be vacated on these grounds.

C. Public Policy

Finally, Continental argues that the System Board’s award

of reinstatement should be vacated as contrary to public

policy. Although the Fifth Circuit has declined to reach this

issue, see Atchinson, Topeka & Santa Fe Ry. Co. v. United

Transp. Union, 175 F.3d 355, 358 (Sth Cir. 1999), several

circuits have held that a court may overturn an arbitral award

under the RLA if the award contravenes public policy. See,

e.g., Union Pacific R.R. Co., 3 F.3d 255, 261 (8th Cir. 1993)

(specifically holding that precedent concerning public policy

review under the National Labor Relations Act applies as

well to the RLA); Delta Air Lines, Inc. v. Air Line Pilots

Ass'n, Int’l, 861 F.2d 665, 669-71 (11th Cir. 1988) (assuming

28a

without discussion that public policy review is available

under the RLA); Northwest Airlines, Inc. v. Air Line Pilots

Ass'n, Int’l, 808 F.2d 76, 83-84 (D.C. Cir. 1987) (same).

However, like the court found in Afchinson, even if

Continental is correct that there is a well-defined public

policy against reinstating an alcohol abuser to a safety-

sensitive position in the airline industry, the System Board’s

decision would not violate that policy. Because the Board

found that Johnson had complied with the terms and

conditions of the EAP, it did not conclude that Johnson had in

fact abused alcohol in violation of the Last Chance

Agreement. This is not a case in which a System Board, after

finding or not questioning that an employee used drugs or

alcohol in violation of company policy, nonetheless ordered

the employee reinstated to a safety-sensitive position, as

might require public policy review. Atchinson, 175 F.3d at

358. Cf Union Pacific, 3 F.3d at 262-63 (refusing on public

policy grounds to enforce an award reinstating a safety-

sensitive employee whose due process rights were violated at

his hearing but who nonetheless was found to have violated

his company’s alcohol regulation); Delta Air Lines, 861 F.2d

at 668, 674 (refusing on public policy grounds to enforce an

award reinstating an airline pilot where the adjustment board

found that the pilot in fact had flown a plane while drunk). In

sum, although the Court finds extremely troubling the System

Board’s finding that Johnson did not violate the Last

Chance/Rehabilitation Agreements, as well as its observation

that Johnson “shows a pathetic lack of knowledge of and

commitment to what it takes to life a life of sobriety,”

Document No. 15 ex. A, at 17, the Court has no authority to

vacate the award of Johnson’s reinstatement given the

Board’s conclusive finding that Continental “[fell] short of

proving that the Grievant violated the Last Chance/

Rehabilitation Agreements.” Jd. See Atchinson, 175 F.3d

at 358.

29a

IV. Order

Based on the foregoing, it is

ORDERED that Defendant/Counterplaintiff International

Brotherhood of Teamsters’s Motion for Summary Judgment

(Document No. 12) is GRANTED, and Plaintiff/Coun-

terdefendant Continental Airlines, Inc.’s Motion for Summary

Judgment (Document No. 14) is DENIED. It IS FURTHER

ORDERED that Plaintiff/Counterdefendant Continental

Airlines, Inc. forthwith and no later than thirty (30) days after

entry of this Order, shall comply with the arbitral award of

February 7, 2003, requiring Mark A. Johnson’s reinstatement

to his former position, still subject to the Last Chance

agreements that the System Board found to be valid and

binding, and payment to him of all lost wages and benefits

attributable to his discharge. See Document No. 15 ex. A, at

13-14, 17.

SO ORDERED.

The Clerk shall notify all parties and provide with a true

copy of this Order.

SIGNED at Houston, Texas, on this 7th day of January,

2004.

EWING WERLEIN, JR.

UNITED STATES DISTRICT JUDGE

30a

APPENDIX D

CONTINENTAL AIRLINES—INT’L BROTHERHOOD

OF TEAMSTERS

SYSTEM BOARD OF ADJUSTMENT

Grievance No. CAL-IBT 01-020

Dan O’Connor, Company Board Member

James Hicks, Jr., Union Board Member

IN THE MATTER OF ARBITRATION BETWEEN

Mark Johnson, Grievant

CONTINENTAL AIRLINES AND

INT’L BROTHERHOOD OF TEAMSTERS

SYSTEM BOARD CHAIR: John J. Flagler

1812 Mount Curve Avenue

Minneapolis, MN 55403

DATE AND PLACE OF HEARING:

September 24 &

November 5, 2002

DATE OF RECEIPT OF BRIEFS:

January 10, 2003 -

APPEARANCES

FOR THE COMPANY: _ Jeffrey D. Wall

Continental Airlines, Inc.

1500 Smith Street, HOQSHR

Houston, TX 77002

FOR THE UNION: James L. Hicks, Jr.

2777 North Stemmons Freeway,

#1100

Dallas, TX 75207

3la

ISSUES

1. Is the issue of the validity of the Last Chance Agree-

ments arbitrable? If so,

2. Are the Last Chance or Rehabilitation Agreements valid

and binding? If so,

3. Did the Grievant violate any terms of the Last Chance

or Rehabilitation Agreement? If not,

4. What shall be the remedy?

RELEVANT CONTRACT PROVISIONS

ARTICLE 14

Part 5—Consequent of a Positive Alcohol Test

A. When an employee’s breath alcohol test indicates an

alcohol concentration between 0.02 and 0.039, he

shall be retested no sooner than fifteen (15) minutes

from the administration of the initial test. If the

second test also indicates an alcohol concentration

between 0.02 and 0.0339, the employee shall not be

permitted to resume maintenance duties until either

eight (8) hours have elapsed since the original test, or

his breath alcohol test indicates an alcohol con-

centration of less than 0.02. If the second test

indicates an alcohol concentration below 0.02, the

test shall be considered negative, and the employee

shall be permitted to resume maintenance duties.

B. An employee whose breath alcohol test indicates an

alcohol concentration between 0.02 and 0.039 twice

within eighteen (18) months shall thereafter be

subject to no notice alcohol testing for a period of

twelve (12) months from the time of the second

such test.

32a

C. If an employee’s breath alcohol test indicates an

alcohol concentration of 0.04 or greater, he shall be

required, as a condition of continuing employment,

to undergo evaluation by Continental’s EAP Direc-

tor, or the director’s designee and to complete any

rehabilitation recommended by EAP prior to resum-

ing any maintenance duties. Such rehabilitation shall

be funded entirely by the employee, except that he

shall not be precluded from using any insurance

benefits to which he is otherwise entitled. In

addition, he shall be subject to no notice alcohol

testing for a period of five (5) years from the date of

this completion of the formal rehabilitation program.

Thereafter the employee will not be subject to further

no notice testing relating to the rehabilitation.

. If at any time during the balance of the employee's

career he has a breath alcohol test indicating an

alcohol concentration of 0.04 or greater, he shall be

forever barred from working as a Technical Services

employee for Continental, or from performing any

other safety sensitive duties at Continental.

Part 6—No Notice Testing

A. No notice is drug and/or alcohol testing administered

by the Company in aid of rehabilitation as described

elsewhere in this Part. Employees will be subject

to no notice testing under each of the following

circumstances:

1. The employee has submitted to a rehabilitation

program requiring no notice testing.

2. A System Board of Adjustment has directed no

notice testing.

3. The employee has had a previous verified con-

firmed positive drug test result, a breath alcohol

33a

test indicating an alcohol concentration of 0.04 or

greater, or two breath alcohol tests indicating an

alcohol concentration between 0.02 and 0.039

within eighteen (18) months.

B. During the period an employee is subject to no

notice testing, the company may require no notice

drug and/or alcohol testing as frequently as it deems

necessary or advisable.

C. No notice testing may be conducted just before,

during, or just after any on duty period.

ARTICLE 21-4

L. It is understood and agreed that all formal agree-

ments, amendments, deletions and additions to this

; Agreement must be approved by the Director of

the Airline Division—lInternational Brotherhood of

Teamsters and the senior corporate officer in the

human Resources Department for the Company.

FACTS

The Grievant began employment with Continental Airlines

on September 6, 1990. At the time of his separation from

employment, the Grievant was employed as a Technician in

Aircraft Maintenance in Houston, TX. Technicians working

in Aircraft Maintenance perform safety-sensitive functions

that directly affect the safety of the aircraft and its passengers.

On August 18, 2000, the Grievant reported to work and

tested positive for alcohol on a Department of Transportation

(“DOT”) random drug and alcohol screen with an alcohol

concentration of .115; rendering him legally intoxicated in

Texas, where legal intoxication is defined as having an

alcohol concentration of .08 or greater. The Grievant was

then removed from duty pending a full investigation.

34a

After considering all pertinent facts, the Grievant was

terminated on August 21, 2000, for engaging in gross

misconduct by reporting to work legally drunk. The Grievant

then filed a grievance contesting his termination. In order to

resolve the grievance, the Grievant was offered conditional

reinstatement on September 5, 2000, pursuant to a Last

Chance Agreement. Prior to execution of the Last Chance

Agreement, the IBT requested and was afforded an oppor-

tunity to review the agreement with counsel. After reviewing

the Last Chance Agreement with legal counsel, the Grievant

and the IBT through its local business agent, Mike Bell,

signed and executed the Lat Chance Agreement.

The Grievant’s continued employment was conditioned

upon compliance with all terms and conditions of the Last

Chance Agreement, terms and conditions of the Grievant’s

Last Chance Agreement include the following:

1. Submit to an initial evaluation by Continental’s EAP

Director or Director’s designee.

2. Successfully complete the course of rehabilitation

recommended by Continental’s EAP, including all

terms and conditions attached to such course of

rehabilitation.

3. Execute and deliver to the EAP Director an undated

letter of resignation to be used to terminate his

employment should he fail to satisfy any terms of

this Agreement or of the rehabilitation directed by

EAP.

4. During the remainder of his career with Continental

should Johnson subsequently fail any drug or alcohol

(.04 or greater) test, the undated letter of resigna-

tion will be accepted by the Company, and his

employment severed.

35a

5. Failure to comply with the provisions of his con-

tinuing employment, termination will result, and his

right to challenge such termination through the

grievance process shall be waived.

6. He acknowledges that he will have no right to file a

grievance concerning the Company’s acceptance and

execution of his letter of resignation and/or

termination of employment.

7. Johnson and the IBT agree to withdraw the grievance

contesting Johnson’s termination.

Pursuant to the terms of the Last Chance Agreement, the

grievant was referred to EAP for an evaluation and assess-

ment. The Grievant was diagnosed with alcohol dependency

and was required to complete an alcohol dependency treat-

ment program. The Grievant rejected in-patient treatment

and elected out-patient treatment, because he wanted to

continue working his part-time job.

As a condition of the Last Chance Agreement, the Grievant

also entered into an EAP Alcohol/Drug Rehabilitation Agree-

ment on November 10, 2000, conditioning the Grievant’s

continued employment upon satisfactorily completing the

terms of this Agreement. Prior to execution, EAP Manager,

Steve Skidmore, and the Human Resources Manager, Jody

Herrera, reviewed and explained each term of the Agreement

with the Grievant. Skidmore specifically advised the

Grievant about “staying away from drugs and alcohol

including over-the-counter mediations which may contain

alcohol.” The Grievant asked Skidmore specifically about

cough syrups and Skidmore told the Grievant “to be careful,

read the labels, and to make sure he knew what he was

taking.” He also told the Grievant “it was his responsibility

to be sure that any medications that he took at that time

did not contain alcohol.” The Grievant then signed the

36a

EAP Alcohol/Drug Rehabilitation Agreement and agreed to

comply with the following terms:

1. During the one-year rehabilitation period, commenc-

ing on the date of the Agreement, any use of alcohol

or illicit drugs will be considered a violation of the

Rehabilitation Agreement. This includes mouthwash

or other medications/substances which may contain

alcohol. If your doctor prescribes medication that

contains alcohol/narcotic drugs, you are required to

inform the EAP staff of such medication.

2. You are subject to non-notice testing during the

rehabilitation period. The no-notice test screens for

10 drugs, plus alcohol.

3. Violation of the Rehabilitation would result in

termination of employment without recourse to the

grievance process.

In addition to the Company’s no-notice testing, the

Grievant was also subject to DOT follow-up testing based

upon his initial DOT positive alcohol test. DOT follow-up

testing is administrated and scheduled by the Company’s

su»stance abuse professional. Skidmore scheduled the

Grievant’s DOT follow-up testing and his no-notice testing

was scheduled by the no-notice scheduler, Tony Rue. From

November 2000 through March 2001, the Grievant par-

ticipated in 1! no-notice tests and 2 DOT follow-up tests for a

total of 13 drug and alcohol tests.

Skidmore testified that the Grievant left a voice message

on March 20, 2001, stating “he was taking cough medicine.”

The Grievant testified that he left a voice message for Skid-

more that he was taking “Safeway brand cough medicine.”

The Grievant never told Skidmore the cough medicine

contained alcohol. On March 22, 2001, after entering into

valid Last Chance and EAP Rehabilitation Agreements, the

Grievant Tested positive on a Company no-notice test for

37a

alcohol with a blood alcohol concentration of .040 on the

initial screen performed at 12:40 p.m. Approximately 15

minutes after the initial screen, the Alcomitor prompted

the tester to begin the confirming test. At 12:58 p.m., a

confirming test was performed and the Grievant failed to

provide a sufficient breath sample for the test after making

two attempts. At 13:00, another test was attempted and the

Grievant tested positive with an alcohol concentration level of

.030. At 13:05, a confirming test was performed and the

Grievant again tested positive with an alcohol concentration

level of .029.

On March 23, 2001, the Company accepted and effectuated

the Grievant’s letter of resignation based upon the Grievant’s

violation of the Last Chance and Rehabilitation Agreements

by using alcohol.

POSITION OF THE COMPANY

The only arbitrable issue is whether the Grievant violated

any term of the agreements. The parties entered into a

binding Last Chance Agreement pursuant to Article 14(B)(1)

of the CBA conditionally reinstating the Grievant After

terminating him for a positive alcohol test. In exchange for

reinstatement, the Grievant signed an undated latter of

resignation agreeing that the undated letter would be signed

and effectuated by the Company in the event he failed to

satisfy any term of the Last Chance Agreement or EAP’s

course of rehabilitation. In Section 8 of the Last Chance

Agreement, the Grievant also expressly waived his right to

file a grievance concerning the Company’s acceptance and

execution of his letter of resignation and/or termination of his

employment. Additionally, the Grievant expressly agreed to

abide by the terms of EAP’s Rehabilitation Agreement and

agreed that any violation of the Agreement would result in

termination of his employment without recourse to the

grievance process. The Grievant entered into valid Last

Chance and EAP Rehabilitation Agreements agreeing to

38a

abide by the terms of the Agreement in order to maintain

employment and expressly waiving any right to grieve. There

is no question of just cause that exists under the CBA. The

terms of the Last Chance and Rehabilitation Agreements, and

not the just cause standard, control in this case. The only

arbitrable issue remaining is whether or not the Grievant

violated any term of either the Last Chance or Rehabilitation

Agreement. If so, the Agreements are self-executing.

The Last Chance Agreement is valid and binding, and the

Union and Grievant should be estopped from challenging its

terms. The Union’s challenge to the Last Chance Agreement

has no merit. Neither the Union nor the Grievant were

coerced, or compelled, or deceived to sign the Agreement.

They did so after consulting with legal counsel, and without

objecting to its terms. The Agreement settled an existing

grievance, and in reliance on its covenants, the Company

reinstated the Grievant’s employment. The Company’s reli-

ance to its detriment (the continued employment of an

employee guilty of misconduct and the expenditure of its

resources on the Grievant’s rehabilitation, EAP counseling,

and continued drug and alcohol testing) on the promises made

by the Union and Grievant should estop those parties from

challenging the terms or validity of the Last Chance

Agreement. Continental performed its promises, the Grievant

failed to perform his; and the Union—at arbitration—now

attempts to evade its commitments. The Board should not

permit that to occur.

The terms and conditions of the Last Chance Agreement

are clear and unambiguous.. The penalty for violating the

Agreement is expressly stated therein—the Company will

accept and execute the Grievant’s letter of resignation

terminating his employment with the company with no re-

course to grieve the Company’s execution of his resignation.

Where the penalty for violation of the Agreement is specified,

the role of the arbitrator is to determine only whether the

39a

Grievant violated the Last Chance Agreement. Since the

penalty is clearly established by the Last Chance Agreement

in this case, the Arbitrator has no authority to amend the

terms of that Agreement.

The Union argues that the Last Chance Agreement violates

the CBA because it imposes terms that exceed the CBA. The

Union asserts that the IBT Business Agent Mike Bell ex-

ceeded his authority by executing the Last Chance Agreement

because it constitutes an amendment to the CBA. Whether or

not the Last Chance Agreement violates the CBA is not the

subject matter of the grievance and it not properly before this

Board. The Board lacks subject matter jurisdiction to hear

and decide such an issue.

The Grievant violated the Last Chance and EAP Rehabili-

tation Agreements by ingesting alcohol. The Rehabilitation

Agreement clearly prohibits the use of any alcohol including

medications or substances containing alcohol. It is undis-

puted that the Grievant tested positive for alcohol on March

22, 2001. By testing positive for alcohol, the Grievant failed

to complete EAP’s course of rehabilitation and violated the

terms of the Last Chance and Rehabilitation Agreements.

The Union erroneously argues that the Grievant did not

violate the Agreements because he did not maintain a blood

alcohol content level .04 or above. The Union is simply

wrong in their assertion. The Rehabilitation Agreement

Clearly states, “any use of alcohol including medications/

substances that may contain alcohol will be considered a

violation of the Agreement.” Any use of alcohol is strictly

prohibited during the Grievant’s course of rehabilitation

because it could result in relapse. The Grievant also claimed

that he did not violate the Agreements because he contacted

EAP and notified Skidmore that the was taking cough medi-

cine. Notifying EAP that he was taking “cough medication”

does not excuse the Grievant from his obligation to refrain

from using any alcohol and it does not invalidate or cancel his

40a

positive alcohol test result. He never informed Continental

that he was taking medication that contained alcohol. He

knew he was precluded form using medications contain-

ing alcohol and he elected to do so anyway in violation of

the Agreements.

The Grievant admits to using alcohol claiming that his

positive alcohol test was a result of his doctor’s recom-

mended use of over-the-counter cough medication. He also

asserted that he did not know that the cough medicine he

consumed contained alcohol. The reasons why he consumed

the cough medication containing alcohol would only be

relevant if he maintaineé a valid medical prescription, which

he did not. Moreover, the Grievant testified that he asked the

doctor if he could use cough medication and the doctor

answered affirmatively. The doctor never directed the

Grievant to use cough medications as the Grievant suggests.

The Grievant’s story of using cough medication is clearly an

attempt to conceal his use of alcohol and does not excuse him

from complying with the terms of the Agreements.

Although the Grievant claims that he did not know the

cough medication contained alcohol, the evidence demon-

strates otherwise. If the Grievant did not know the cough

medication contained alcohol why did he attempt to notify

EAP? Clearly, the Grievant knew or at the very least

suspected that the cough medication contained alcohol.

Skidmore testified that some cough medications contain

approximately 25-50% alcohol. As a diagnosed alcoholic

expressly prohibited from using any form of alcohol, reason

would dictate that the Grievant simply review the ingredient

level to determine whether the cough medication contained

alcohol, just as Skidmore specifically told him.

The Grievant continued to lie and change his story

throughout the entire hearing. He initially testified that

his sobriety date was September 5, 2000. Then on cross-

examination his wife testified that it was September 15, 2000,

4la

but the Grievant admitted to his psychiatrist, Dr. Blass, that

he consumed alcohol on September 17, 2000. Therefore, his

sobriety date could not have been earlier than September 17,

2000. The Grievant could not even recite one Step of the 12-

Step Treatment Program. The Grievant was not in recovery

because alcoholics in recovery are expected to know their

sobriety date and at least the first three steps of the 12-Step

Program. The Grievant’s claim of purchasing Safeway brand

cough medicine from Randall’s is further evidence of the

Grievant’s web of lies. Obviously, Randall’s would not sell

Safeway brand products; they would sell their own brand.

Initially, he testified he saved the bottle, and then he testified

he didn’t know if he saved the bottle, but he never pro-

duced it. The Grievant also testified under oath that he was

subjected to alcohol testing two to three times per week.,

however, the evidence clearly demonstrates that from

November 2000 through March 2001, the Grievant was only

tested a total of 13 times. The Grievant lacks credibility and

his testimony should be given no weight.

Skidmore, a trained substance abuse specialist, testified

that alcoholics often consume mouthwash to conceal their

consumption of alcohol. Additionally, he testified that con-

sumption of cough mediation at the rate alleged by the

Grievant would not result in a positive breath alcohol test

based upon generally accepted alcohol metabolism principles.

The Union claims that the Grievant did not violate the Last

Chance Agreement because the Medical Review Officer

(“MRO”) never reviewed his alcohol test result. Contrary to

the Union’s claim, the MRO does not evaluate alcohol tests

perfc.zmed under the Company’s no-notice testing program.

A Medical Review Officer or MRO is a physician designated

to interpret the results of drug testing under the DOT drug-

testing program. The Union then claimed that the Grievant

did not violate the Agreements because he was not afforded a

blood alcohol test. Article 14, Part 3 only provides that an

42a

employee may request a blood test; it does not preclude the

Company from taking action based upon a confirmed positive

alcohol breath test. The only evidence of such a request is the

Grievant’s unreliable, uncorroborated testimony.

The undisputed evidence demonstrates that the Grievant

committed a serious violation of the Last Chance and

Rehabilitation Agreements by using alcohol. In doing so, he

subjected himself to termination as prescribed under the Last

Chance Agreement. The purpose of drug and alcohol testing

is to ensure that the safety of our airline operations, the

traveling public, and our employees is not compromised by

alcohol and drug use. He elected to consume alcohol and

compromised the Company’s ability to safely operate the

airline. The penalty has been settled by the Agreements and

the Grievant must be held accountable.

The Union presented a series of Last Chance Agreements

claiming that the Grievant was treated separately because his

Agreement contained more onerous terms than other

employees. The Union failed to present any of the facts or

circumstances surrounding these agreements and many of the

terms contained in Union Exhibits 3-6 are also contained the

Grievant’s Last Chance Agreement. A claim of disparate

treatment is an affirmative defense; therefore, the union bears

the burden of proof. In order to sustain a claim of disparate

treatment, the Union must produce evidence that the Grievant

did not receive the same degree of discipline as all other

“similarly situated” employees engaged in similar acts of

misconduct without any reasonable basis for the variation in

discipline. It is not enough that an employee was treated

differently than others; it must also be established that the

circumstances surrounding his offense were substantively like

those of individuals who received more moderate penalties.

The Union produced no evidence of a similarly situated

employee engaged in similar acts of misconduct receiving a

different penalty. The Company administers discipline in a

43a

fair and consistent manner considering the circumstances and

severity of the conduct involved in each case.

POSITION OF THE UNION

Continental is of the view that the grievance before the

arbitrator is not arbitrable; however, Continental concedes that

the arbitrator has the authority to determine whether the Griev-

ant, Mark Johnson, violated the terms of the Agrements he

made with the Company (Company Exhibits | and 2).

Continental contends that Johnson violated paragraph | of

the Company Exhibit 2 which provides:

During the one year rehabilitation period/contract, com-

mencing with the date of this agreement, any use of

alcohol or illicit drugs will be considered a violation of

this Agreement. The includes mouthwash or other medi-

cation substances which may contain alcohol. If your

doctor prescribes medication which contains alcohol/

narcotic drugs, you are required to inform the EAP staff

of such medication.

The uncontested and credible facts show that on approxi-

mately March 20, 2001, the Grievant called his doctor for an

appointment. An appointment could not be properly made

and accordingly, the doctor recommended/prescribed that the

Grievant should use an over-the-counter cough syrup until he

could be seen by the doctor. That medication contained

alcohol and the Grievant therefore attempted to contact his

EAP representative, Steve Skidmore. Skidmore was out of

town and did not return the Grievant’s call. These facts

demonstrate that the Grievant complied with the above

recited portion of Company Exhibit 2.

At the beginning of the hearing, Company counsel con-

tended that the Grievant’s assertion that he contacted the EAP

was demonstrably false. Surprisingly, EAP representative,

Skidmore, confirmed the Grievant’s testimony. Regardless,

44a

Company’s counsel also conceded that if Johnson contacted

EAP about the medication, he should not have been tested at

all. For this reason as well, the March drug test should be

voided and a determination that the Grievant did not violate

the provisions of Company Exhibit 2 should be issued.

Company Exhibit 3 in relevant part provides:

During the remainder of his career with Continental,

should Johnson subsequently fail any drug or alcohol

(.04 or greater) test, the undated letter of resignation

will be accepted by the Company and his employ-

ment severed.

When the Grievant was tested in March of 2001, his con-

firmed test result was in each case less than .04. Not having

had a test result at or above .04, the Grievant did not violate

the provisions of Company Exhibit 2.

As demonstrated above, even from the perspective of what

Continental contends is before the Arbitrator, it is clear that

the Grievant did not violate his agreement with Continental.

He should be ordered reinstated with full back pay, seniority

and benefits.

From the perspective of the Union, even the issue sug-

gested by Continental should not be reached by the Arbitrator

because in several very important respects, Johnson was, in

the handling of his drug testing, denied entitlements provided

by the Collective Bargaining Agreement.

First, when the Grievant in August of 2000 failed to test for

alcohol detection, he should not have been terminated.

Article 14, Part 5(C) provides “If an employee’s breath

alcohol test indicates an alcohol concentration of .04 or

greater, he shall be required, as a condition of continuing

employment, to undergo evaluation by Continental’s EAP

Director . . . etc.” Only if the employee refuses is he to be

terminated. Entry into EAP program for an employee failing

45a

an alcohol test is an entitlement under the Collective

Bargaining Agreement and does not require Continental’s

permission.

All that the contract requires of an employee failing an

alcohol test is that he meet the requirements of Part 5(C).

Contrary to the contract, Continental, instead, terminated the

Grievant and forced him to sign Company Exhibits 2 and 3

in order to enter the EAP program and be returned to

work. Union contends that Continental’s action in requir-

ing the Grievant to sign Company Exhibits 2 and 3 vio-

lated the Collective Bargaining Agreement and should be

deemed void.

Further, certain provisions of Company Exhibits 2 and 3

are at clear variance with the terms of the Collective

Bargaining Agreement and are void and unenforceable. The

Grievant was required, in Company Exhibit 3, to sign an

undated letter of resignation which the Company could make

effective should Johnson violate the other terms of that

document. As noted earlier, the consequence of failing an

alcohol test is set forth in Part 5(C) and does not include a

requirement that an employee sign a letter of resignation.

Perhaps, the Company confused the Grievant’s situation with

the consequences of failing a drug test which does, under the

contract, provide for an undated letter of resignation (See Part

(B)(iti)).

The Grievant also, in Company Exhibit 3, was required to

waive his right to grieve in order to enter into the EAP

program and be returned to work. Under the same analysis

discussed above concerning the requirement of a letter of

resignation, this requirement of Company Exhibit 3 ex-

ceeds and is at variance with Part 5(C) of the Collective

Bargaining Agreement.

46a

To the extent that Company Exhibit 2 can be read to

require that the Grievant consume no alcohol, that provision

is at clear variance with Part 5(B) and (D). Those provisions

set forth the consequences of such a failed test. Neither

provides that the employee cannot after his first failed test

consume any alcohol.

In addition to the contentions set forth earlier concerning

the Union’s position that the requirement of an undated letter

of resignation violates the contract, Union contends that it

does so for an additional reason. That is, the contract (Part

5(B) and (D)) sets forth the consequences of a second failed

alcohol test and does not require that the employee be

terminated (or his letter of resignation accepted). Even for a

second failed test a level at or greater than .04, the contract

provides that the employee will no longer be permitted to

work as a mechanic or in a safety sensitive position. Within

the Collective Bargaining Agreement, there are non-mechanic

positions which are not safety sensitive. Accordingly, ces-

sation of employment is not mandated by the contract.

The contract, in at least two sections, mandates that an

employee subjected to an alcohol test may have it done

through a blood sample if he requests. In this case, Johnson

did request a blood test and it was denied to him. (See Article

14, Exhibit 1, Part 9(C) and Part 3.

In the view of the Union, the foregoing demonstrates that

the entire drug testing and the handling of the results of the

drug tests was tainted by multiple and serious violations of

the Collective Bargaining Agreement. The entire process

should be voided for these reasons. In particular, for the

reasons set forth above, Company Exhibits 2 and 3 should be

deemed in violation of the parties’ Collective Bargaining

Agreement and voided.

Based upon all of the foregoing, Union contends that the

Grievant should be ordered reinstated with full back pay,

seniority and benefits.

; 47a

DISCUSSION AND OPINION

The threshold question in this case arises from the

Company’s challenge to the arbitrability of the grievance that

asserts the Last Chance Agreements (Company Exhibits 1, 2

and 3) are invalid. The Company argues that the grievance

against the validity of these agreements should be dismissed

on the following grounds:

* The grievance has not been progressed to arbitration.

* The grievance properly before the System:Board of

Adjustment at this time involves solely the issue

of his termination—not over whether the Last

Chance Agreements violated the Collective Bar-

gaining Agreement.

* Those Agreements were executed by the Grievant

and by the IBT business agent authorized to do so,

and upon the advice of legal counsel.

Analysis and Conclusions

Since the time of the Steelworkers’ Trilogy, the general

rule regarding arbitrability has advised that absent firm

evidence to the contrary, more doubts should be resolved in

favor of coverage. The Supreme Court spoke even more

forcefully in Warrior and Gulf Navigation where the issue

involved substantive rather than procedural arbitrability.

Nonetheless the majority view of arbitrators seeks diligently

to resolve issues on the merits in accord with the ancient,

adage that “the law abhors a forfeiture.”

Turning attention now to the Company’s arguments, the

first asserts that the arbitrability issue has not been progressed

to arbitration and cities the testimony of Director of GSC

operations Rodney Cox in support of that position. I do not

find his testimony dispositive of the argument that the issue

of the validity of the Last Chance Agreements is non-arbitral.

48a

Cox reported on the results of a February 12, 2001 System

Board of Adjustment discussion where the Board did not take

jurisdiction over the termination grievance. He testified:

. . . The initial grievance filed here was for wrongful

termination. There was no termination case before the

Board by virtue of the fact that the settlement agree-

ment was signed by Mr. Johnson. That issue went away.

(Tr 11).

Next, Cox responded as follows in direct examination:

Q: You keep a file of all the decisions made by the

System Board?

A: Ido.

Q: Okay. Are you aware of the discussions — let me refer

you to the decision here in the final sentence of the

decision. It says, “The decision of the Board is to

deadlock the case to arbitration based on the point of

order.”

Q: Are you aware of discussions between the Company

and the Union with respect to submitting Mr.

Johnson’s grievance to arbitration?

A: Iam.

Q: And can you describe for the Board the nature of

those discussions and who those discussions were

between?

A: The discussions, as best as I can remember, involve

Steve Greenwell; yourself; Jeff Wall; myself. It was

even elevated as high as Dan Casey at one point.

Q: And who is Dan Casey?

A: He’s the staff vice president of labor relations for

Continental Airlines.

Q: Okay. And you describe the discussions—

A: Sure.

Q: —in terms of what, for example, what the Union was

seeking and what the Company agreed to do?

49a

A: In brief, the Company continued to maintain its posi-

tion that by signing the settlement agreement, Mr.

Johnson waived his right to any grievance under the

process. We weren’t going to stop Mr. Johnson from

filing the grievance. In fact, we heard—we received

Mr. Shafer’s grievance instead. But we did not want

to arbitrate the case, and we felt like the issue was not

arbitrable under the agreement, however, we did agree

to go ahead and hear the case and send it to

arbitration.

Q: Okay. And so the parties agreed to submit the issue of

arbitrability to the System Board—or to the—

A: To the arbitrator.

Q: To the arbitrator?

A. Correct.

(Tr 12-14)

In light of this testimony, the conclusion logically follows

that the grievance properly here for arbitration must be that

numbered CAL-IBT-01-02-020 because no other grievance

subsequent to that filed on March 29, 2001 has been entered

into this hearing record. That is the grievance number which

was identified at the outset of the hearing.

Grievance CAL-IBT-01-020 conspicuously states the

Grievant’s claim as “Now on March 23-01 I was wrongfully

terminated due to a violation of Contractual Right Per Article

14-8.” While the record reflects some degree of confusion

over whether this present System Board of Adjustment in

fact has jurisdiction over the arbitrability of the preclusion

effect, if any, of the Last Chance Agreement over the Union’s

arguments based on certain terms of the Collective Bar-

gaining Agreement.

In keeping with the arbitral principle of resolving rea-

sonable doubts over procedural arbitrability in favor of

coverage, I therefore conclude that there is sufficient support

50a

in the record for this System Board of Adjustment to assert

jurisdiction over the threshold issue cf urbitrability.

At a minimum, the matter of tne validity of the Last

Chance Agreements remains a testable proposition. In this

regard the Union’s position that those Agreements represent

amendments or modifications of the Collective Bargaining

Agreement requiring the signature of the director of the

Teamsters Airline Division Ray Benning.

Ruling: Based on the foregoing discussion and analysis, the

validity of the Last Chance Agreements, including the

Grievant's conditional letter of resignation.

*x* * *

Issue No. 2: Are the Last Chance Agreements valid and

binding?

Analysis: The Company’s evidence firmly establishes that

these documents are clear and plainly drawn and were fully

explained to the Grievant in the presence of his union

representative. Before signing these documents, the Grievant

and his business agent received the advice and guidance of

the Union’s legal counsel.

Thus, all of the necessary elements were in place for the

Grievant to enter into an informed, voluntary Last Chance Agree-

ment in order to keep his job when faced with compelling proof

that he was guilty of committ.ig a dischargeable offense, i.c.,

reporting for work intoxicated. All that remains of the Union’s

challenge to the validity and binding nature of these Last Chance

Agreements is the contention that they represent amendments or

modifications of the collective bargaining agreement. If so, it is

undisputed that they would require the signature of Ray Benning

to gain legal force and effect.

The basis for the Union’s argument in support of the claim

that these Agreements rise to the level of amendments or

modifications of the collective bargaining contract rests on

Sla

the fact that the terms and conditions imposed exceed any-

thing provided in the labor contract pertaining to testing,

treatment, and reinstatement of chemically dependent

employees. This line of argument lacks merit for several

reasons.

In the first instance it must be noted that, by their very

nature, last chance agreements impose certain conduct of the

employee more stringent than that required of others under

the terms of the same collective bargaining contract. If this

were not the case, there would be no need for last chance

agreements and they would quickly disappear from the labor

relations scene.

Indeed, arbitrators regularly see and are called upon to

apply last chance agreements which have become common

features of modern industrial discipline systems. The Last

Chance Agreements at issue in this case differ in no im-

portant particulars from several dozen that I have dealt with

in the airline industry, none of which amended or modified

their respective labor contracts.

In order for a so-called last chance agreement to amend or

modify a collective bargaining agreement, its terms must

somehow alter or change the negotiated terms and conditions

of employment as they affect all other members of a

bargaining unit. In no sense can the Last Chance Agreements

here for review have such force or effect. Instead these

documents leave intact to the virtual black letter each and

every provision contained in the parties’ Collective Bargain-

ing Agreement.

Some arbitrators have found it illustrative to analogize the

legal status of an employee who signs a last chance agree-

ment to one who declines to grieve any disciplinary action in

the sense that both merely waive their right to pursue putative

contractual options. Such waiver does not detract at all from

the right of any similarly situated employee in the future to

52a

decline the offer of a last chance agreement and instead, opt

for remedy through the contractual grievance procedure.

In situations where an employee’s decision not to grieve

may place the contractual rights of other bargaining unit

members at risk, common practice permits the Union to file a

so-called policy grievance in the interest of protecting the

integrity of the Collective Bargaining Agreement. That kind

of situation is not present in the instant case.

Ruling: Based on the foregoing discussion and analysis,

the Last Chance Agreements at issue are found to be valid

and binding.

* * *

Issue No. 3: Did the Grievant violate any term of the Last

Chance Agreement?

Analysis: The Union argues that under the circumstances

involved the Grievant’s admitted use of cough medication

containing alcohol did not violate any part of the Agreements

he made with Continental and cites the following provision:

During the one year rehabilitation period/contract, com-

mencing with the date of this agreement, any use of

alcohol or illicit drugs will be considered a violation of

this agreement. This includes mouthwash or other

medication substances which may contain alcohol.

If your doctor prescribes medication which contains

alcohol/narcotic drugs, you are required to inform the

EAP staff of such medication.

(Paragraph | of Company Exhibit 2)

The Union relies in this regard on the uncontroverted

testimony that the Grievant’s doctor approved his use of an

over-the-counter cough medication to tide him over until he

could be seen in the doctor’s office. When the Grievant

discovered that the medication contained alcohol, he at-

53a

tempted to contact his EAP representative Steve Skidmore, as

required, who was out of town and did not return his call.

In summary form, Continental argues that notifying EAP

that he was taking cough medication does not excuse the

Grievant from his obligation to refrain from using any alcohol

because he “never informed Continental that he was taking

medication that contained alcohol.” (Company Brief, p. 9)

The Board finds this line of argument to be so highly

technical as to be unpersuasive. Granted that the Grievant’s

doctor did not “prescribe” the particular medication in the

technical sense that it involved a written prescription

medication requiring the services of a licensed pharmacist.

Neither did his doctor “prescribe” a particular brand or type

of cough medication. The fact that the doctor approved the

use of a cough medicine, however, surely means that the

Grievant did not take it upon himself to somehow circumvent

the purpose of the Last Chance requirements by unsupervised

self-medication.

More to the point, the Grievant fully met the letter and the

spirit of Paragraph 1, as quoted above, both by securing his

doctor’s approval for cough medication and then by promptly

notifying his EAP representative Skidmore “of such medi-

cation.” It would have been eminently reasonable for

Skidmore to have returned the Grievant’s call in order to

wam him that taking the medication would violate the

Agreement and cost him his job, if in fact that were the case.

The Board remains at a loss to understand why Con-

tinental’s chosen EAP professional did not deem it important

to so advise and warn the Grievant. The EAP’s testimony in

this regard falls far short of a satisfactory explanation in the

following excerpt from the hearing transcript:

Q: ... his doctor maybe didn’t write out a prescription,

but his doctor suggested to him that you use an over-

the-counter cough medication, and under the terms of

ere

Qe OFOe

54a

Company Exhibit 2, he immediately called you to tell

you that?

That’s correct.

Did he do anything wrong?

Ne.

Did he do anything wrong by then using the cough

medicine?

No.

One thing that’s troubled me throughout all of this is

knowing that Mr. Johnson is in the program, that he is

an alcoholic, that he’s calling you to tell you that, “My

doctor is having me use an over-the-counter cough

medicine,” why didn’t you call him back and talk to

him about the implications of that?

Because he didn’t say “his doctor.

taking an over-the-counter medication.

Why—still, why wouldn’t you call him back and, if

nothing else, tell him, “Don’t do that. You’re in vio-

lation of your agreement. Why are taking this,” at

least found out how you came to this point?.

He is not in violation of his agreement to take cough

medicine.

With alcohol in it?

He did not say it had alcohol in it.

Why would he call you if it didn’t have alcohol in it?

He doesn’t call you to tell you when he’s eating

Chinese food?

That’s correct.

With one of your program folks calling you in

apparent compliance with this Agreement, saying

“I’m taking cough medicine. Please call me,” or

whatever he said to you, why didn’t you call him

back?

He called me to inform me that he was taking an over-

the-counter cough medicine.

”

He said he was

55a

And you knew that there were potential implications

of that, and you still haven’t answered my question.

Why didn’t you call him back?

I didn’t deem it was necessary because it was an over-

the-counter medication.

The Board finds EAP representative’s explanation partic-

ularly problematic in light of his earlier testimony regarding

the potency of over-the-counter cough medication:

ei ae

All right. What percentage of alcohol does over-the-

counter cough syrup typically have? Do you know?

It varies. It can run anywhere from 25 to 50 percent.

It varies from manufacturer to manufacturer.

So if someone had cough syrup that was 50 percent

alcohol, that’s 100 proof; That’s whiskey?

One could make an argument for that.

Well, I mean, whiskey is 80 or 86 proof, so we’re

talking about if it’s 50 percent alcohol, you’re talking

about something that’s got alcohol of a mixed drink,

whiskey, gin, bourbon, anything of that sort? Are you

seriously telling me that if someone ingested over the

period of time that Mr. Wall suggested to you, was

taking an ounce or more of what over a period of time

that he wouldn’t test positive for alcohol?

I’m saying it’s been my experience that that usually

does not happen.

(Tr 45, 46)

It simply makes no sense that the Company’s EAP

professional should receive a call from the Grievant saying he

was taking cough medicine, which Skidmore believed could

contain 50-100 proof alcohol by volume, ' and not return the

' It makes no difference to the Board’s analysis that Skidmore’s esti-

mate of the alcohol content of over-the-counter cough/cold syrups is

unduly high. What matters is that despite thinking it to be this high, he

56a

call to tell him “Don’t do that. It will put your job on

the line.”

A fundamental principle of arbitral due process requires

clear and timely notice of the consequences for violation of a

rule of conduct. It should be obvious that the written version

of the Last Chance requirements fail to provide clear notice

when Skidmore can say he didn’t return the call because the

Grievant didn’t specify that the cough medicine contained

alcohol. This is [a] meaningless quibble in view of the

language requiring notification to EAP staff of “medication

substances which may contain alcohol.” (Emphasis added).

In like vein, the non-issue of whether the Grievant’s doctor

prescribed or recommended rather than approved his use of

an over-the-counter cough medication further reveals the

inherent ambiguity of terms of art which could have been and

should have been resolved by a timely return call from

Skidmore or his EAP designee in his absent. [sic]

Finally, Continental cites as just cause for termination the

following provision: |

During the remainder of his career with Continental,

should Johnson subsequently fail any drug or alcohol

(.04 or greater) test, the undated letter of resignation

will be accepted by the Company and his employ-

ment severed.

The evidence shows that the confirmatory test, the deter-

minative result, taken in March, 2001 under the supervision

of Gabrielle McAmis was well below .04. Concentra Center

administrator McAmis testified that following “screening,”

i.e., the merely preliminary test, the confirmatory test was

given with a reading of .029.

nonetheless did not bother to provide the Grievant the timely notice which

might well have saved his job.

57a

On the face of the above-cited provision, the .029 con-

firmatory alcohol test obviously did not qualify for summary

acceptance of the Grievant’s undated letter of resignation.

This review ought not close without observing that while

the Company’s evidence and procedural defects may have

fallen short of proving that the Grievant violated the Last

Chance/Rehabilitation Agreements, his norance of his

program shows a pathetic lack of knowledge of and

commitment to what it takes to live a life of sobriety. Unless

and until the Grievant makes the commitment to learn and to

sincerely work the twelve steps of the AA program the strong

probability is that he will eventually lose his job to the dread

disease of alcoholism.

DECISION

* Based on the foregoing findings and conclusions, the

grievance is hereby sustained.

* As remedy the Company shall reinstate the Griev-

ant to his former position and make him whole for

all loss of wages and benefits attributable to his

discharge.

*« The board retains jurisdiction in this case for a

period of ninety (90) calendar days from the date of

effective issuance of this Award.

2/7/03 John J. Flagler, System Board Chair

Date

Dan O’Connor, Company Board Member

Date (Concur/Dissent)

2/12/03 James Hicks, Jr., Union Board Member

Date (Concur/Dissent)

58a

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

In the Matter of Mark Johnson,

MARK JOHNSON,

and

CONTINENTAL AIRLINES, INC.

AGREEMENT

This Agreement is made and entered into in accordance

with the provisions of Title II of the Railway Labor Act, as

amended, by and among Continental Airlines, Inc. (CAL), the

International Brotherhood of Teamsters (IBT), and Mark

Johnson (Johnson).

Pursuant to Article 14, Exhibit 1 of the January 1999

collective bargaining agreement between CAL and IBT, the

parties have agreed to the following terms:

1. Effective on the date of this Agreement, Johnson’s

discharge, as a result of his August 18, 2000 alcohol test

result indicating an alcohol concentration of .115, will be

converted to a disciplinary suspension for gross misconduct

and violation of CAL’s Drug and Alcohol Misuse Prevention

Policy. Johnson will be reinstated to his previous position as

a technician, effective upon the date of this Agreement,

subject to all the following conditions set forth in this

Agreement.

2. As a condition of coritinuing employment, Johnson

agrees to undergo evaluation by CAL’s Employee Assistance

Program (“EAP”) Director (or designee) and to complete any

rehabilitation recommended by EAP. Johnson may return to

work only after satisfying the applicable requirements and

conditions of this Agreement. CAL shall not be liable for any

59a

backpay or benefits for the period of Johnson’s disciplinary

suspension or for the period of his absence from work for

evaluation and rehabilitation, as specified in this Agreement.

3. Effective on the date of Johnson’s return to work, he

will be placed on a termination warning level of discipline,

which shall remain in effect for a period of 18 months.

4. Johnson’s continuing employment shall be conditional

upon his compliance with all of the following conditions:

il.

ili.

iv.

Johnson must submit to initial evaluation by Conti-

nental’s EAP Director or the Director’s designee.

If one is recommended, Johnson must successfully

complete the course of rehabilitation recommended

by Continental’s EAP, including all continuing terms

and conditions attached to such course of reha-

bilitation. The rehabilitation will be directed and

facilitated by Continental’s EAP, but will be funded

entirely by Johnson, except that he shall not be

precluded from using any insurance benefits to

which he is otherwise entitled.

Johnson must execute and deliver to the EAP

Director an undated letter of resignation to be used to

terminate his employment should he fail to satisfy

any of the terms of this Agreement or of the

rehabilitation directed by EAP.

During the remainder of his career with Continental,

should Johnson subsequently fail any drug or alcohol

(.04 or greater) test, the undated letter of resignation

will be accepted by the Company, and his em-

ployment severed.

Johnson shall agree in writing to be subject to “no

notice” alcohol testing at the direction of the Com-

pany as frequently as the Company may decide for a

period of five (5) years from the completion of the

60a

formal rehabilitation program. (Following the five

(5) year period during which he shall be subject to no

notice testing, Johnson shall be obligated only to

submit to such further testing as may be required by

applicable federal regulations or this Agreement.)

vi. If Johnson fails to comply with the provisions of the

conditions of his continuing employment, termina-

tion will result, and his right to challenge such

termination through the grievance process shall

be waived. No grievance of the matter shall be

permitted.

5. Except as mutually agreed by the parties, Johnson shall

meet the with Continental’s EAP Director or the Director’s

designee within 14 days from the date of this Agreement for

an initial evaluation.

6. Upon release by EAP to return to work, Johnson shall

complete a return-to-work drug test. A positive result for any

drug test shall be cause for Johnson’s immediate termination.

7. Johnson acknowledges that he will have no right to file

a grievance concerning the Company’s acceptance and

execution of his letter of resignation and/or termination

of employment.

8. Johnson and the IBT agree to withdraw the grievance

contesting Johnson’s termination.

9. In consideration of the foregoing, Johnson hereby re-

leases the International Brotherhood of Teamsters, its

officers, employees and agents, CAL, and any related com-

pany or entity including Continental Express, Inc. and

Continental Micronesia, Inc., their officers, employees, and

agents from any and all claims, rights, demands, actions,

causes of action, suits, charges, losses, and damages of any

nature whatsoever, in law or in equity, including those

pursuant to any contractual grievance procedure, which he

6la

has or has had or may hereafter claim to have had arising

from or by reason of any matter, act, omission, cause, or thing

whatever, whether known or unknown, which has occurred at

any time in the past and up to the date of full execution

hereof. This release specifically includes, without limiting

the foregoing general terms, any and all claims arising from

or in connection with Johnson’s employment with or

termination from CAL.

10. The parties recognize that this Agreement is entered

into for the purpose of resolving a disputed claim, and that

CAL’s agreement hereto will not be construed as an

admission that CAL violated any agreement between the

parties in any respect, or that it violated the law. This

Agreement shall be confidential, non-precedential and non-

referable. CAL and the Teamsters specifically agree that

neither the underlying facts nor the fact of the Agreement

shall be introduced into evidence in any arbitration hearings

involving the Teamsters, CAL, Continental Express, Inc., or

Continental Micronesia, Inc., except the underlying facts and

the fact of the Agreement may be introduced in any System

Board or arbitration hearing concerning any subsequent

discipline or termination of Johnson.

11. Johnson represents that (a) he is over 18 years of age

and thoroughly understands that this Agreement is a

complete, full and final settlement of any and all disputes

with Continental; (b) that he is entering into this Agreement

freely and voluntarily and after seeking advice of counsel; (c)

that he understands that the consideration herein is all that he

will receive or be entitled to receive as a result of his claims

and that he will have no right to file suit against Continental

Airlines, Inc., its officers, employees, agents, and any related

company or entity; and (d) that he has been fully and fairly

represented by the IBT.

62a

Each party hereto represents that she/he has the authority to

enter into this Agreement, and does so freely and without

duress.

AGREED and ACCEPTED

FOR INTERNATIONAL FOR CONTINENTAL

BROTHERHOOD OF AIRLINES, INC.

TEAMSTERS

DATE: 9/5/00 DATE: 9/5/00

MARK JOHNSON

DATE: 9-5-00

63a

Continental Airlines

EMPLOYEE ASSISTANCE PROGRAM

Mandated Referral

Alcohol/Drug Rehabilitation Agreement

Mark Johnson, Employee #59677

Pursuant to Continental’s Alcohol and Drug Policy you were

required to undergo assessment by Continental’s Employee

Assistance Program (EAP). As a result of your actions which

led to this Mandated Referral, your continued employment

at Continental is contingent upon your satisfactorily meet-

ing the Company’s performance/attendance standards and

your agreement and completion of the following terms and

conditions:

During the 1-year rehabilitation period/contract,

commencing with the date of this Agreement, any

use of alcohol or illicit drugs will be considered a

violation of this Agreement. This includes mouth-

wash or other medications/substances which may

contain alcohol. If your doctor prescribes medica-

tion which contains alcohol/narcotic drugs, you are

required to inform the EAP staff of such medication.

You are subject to no-notice testing during the

rehabilitation period for not less than 1 year or more

than 5 years. The no-notice test screens for 10 drugs,

plus alcohol. Failure to report for a test will result in

termination.

You are required to participate in the following

activities, starting immediately:

a. Intensive Outpatient treatment for Chemical

Dependency. Name of Treatment Program: The

Right Step Length of Treatment: determined

by the treatment provider in consultation with

the EAP.

64a

b. Attendance in Aftercare. Length of Aftercare: a

minimum of one year.

c. Attendance in the 12-step program of AA, for an

average of three times weekly for one year (to

be reviewed). Confirmation of your attendance

must be provided to: the EAP Manager upon

request.

4. You are responsible for maintaining contact with

the EAP Manager on at least a monthly basis for

the purpose of monitorir, your progress. The

minimum length of this contract is 1 year. However,

depending upon your progress & cooperation, it can

be extended an additional 4 years. Failure to

maintain monthly contact with your EAP manager

will result in termination of this Agreement.

Understand that information regarding compliance

with this Agreement will be communicated between

the EAP Manager and the supervisor.

5. Other: participate in the Continental Airline: After-

care Program for a minimum of one year.

I agree to the terms as outlined above. I understand and agree

that if I violate the terms of this agreement, my employment

with Continental Airlines will be terminated without recourse

to the grievance process.

Employee Supervisor

HR Manager Date

65a

IBT/Continental Airlines

Collective Bargaining Agreement

Article 19—Grievance Procedure

A. In the event of a grievance arising over the interpretation

or application of this Agreement or in the event of

disciplinary action, not involving loss of pay, the fol-

lowing procedure shall be followed:

The aggrieved employee will first present the com-

plaint to his supervisor for discussion and possible

solution. During this discussion, the employee may be

represented by his shop steward or Local Business

Representative. It is understood and agreed that deci-

sions made at the first step of the grievance procedure

by the supervisor, employee and/or his representative

shall not constitute a precedent of any kind unless

otherwise agreed to by the Union and the Company.

If the complaint cannot be resolved through a dis-

cussion, the grievance shall be reduced to writing by

the employee or his representative, signed by the

employee or his representative, and presented to his

supervisor within ten (10) calendar days after the

employee or his representative reasonably would have

knowledge of the incident upon which the grievance is

based.

The grievance will be answered in writing by the

supervisor, who will send a copy to the grievant, the

shop steward and the Union Representative, within ten

(10) calendar days after he receives the written

grievance.

If the decision of the supervisor is not satisfactory, the

employee or his Union Representative may appeal the

grievance to the Company designee, provided such

appeal is presented in writing within ten (10) calendar

66a

days after the written decision of the supervisor has

been presented to the grievant, the shop steward, and

the Union Representative.

5. The Company designee will answer the grievance(s)

in writing to the Local Business Representative within

ten (10) calendar days following the receipt of the

written appeal.

6. Within fourteen (14) days after the receipt of the

written decision of the Company designee, if the

decision is not satisfactory to the employee and his

Union Representative, the Union may appeal such

grievance to the System Board of Adjustment by

serving a written notice upon the Company directed to

the Vice President of Maintenance or his designee at

the Company’s office of its intention to do so. If the

System Board deadlocks, the case may be appealed to

arbitration by the Union.

B. Discharge and Disciplinary Procedure:

1. In the event an employee is suspended pending inves-

tigation and is subsequently found innocent of the

charges, he will be paid for such lost time from work.

2. In those instances where the Company discharges or

disciplines a nonprobationary employee to the extent

of loss of pay, such disciplinary action will not be

imposed until a fact/finding meeting is held between

the employee’s supervisor, the employee, and his

steward. Nothing shall preclude the Company’s right

to suspend any employee without loss of pay pending

such meeting. The purpose of such meeting is to

interview pertinent witnesses, establish pertinent facts

and determine any possible solution, it being un-

derstood and agreed that decisions at such level shall

not constitute a precedent. The Company represen-

67a

tative involved will, within ten (10) calendar days

after such meeting, render a decision in writing to the

employee, unless further investigation is required, in

which case the Company will notify the affected

employee and the Union of the reasons for the delay.

. Employees of the Company who are on duty and are

called as witnesses will suffer no loss of pay. The

number of witnesses summoned at any one time shall

not be greater than the number that can be spared from

the operation without interference with the services of

the Company.

. If the decision of the Company’s representative is not

acceptable to the Union, the decision may be appealed

by the Union to the System Board of Adjustment

within fourteen (14) days after receipt, by serving

written notice to the Vice President of Maintenance at

the Company’s Administrative Office of its intention

to do so.

. The System Board of Adjustment shall be composed

of two members designated by the Company and two

members designated by the Union. The Board shall

meet at Houston, unless another city is mutually

agreed to. The Board shall meet as needed. In the case

of a discharge, the Board of Adjustment shall convene

within thirty (30) days of the date the discharge is

appealed to the System Board of Adjustment. In the

case of a discharge, the Board of Adjustment shall

convene at the station where the discharged employee

worked unless another city is mutually agreed to.

. The System Board shall only be empowered to make a

finding or decision with respect to any non-

probationary employee covered by this Agreement

who is terminated or disciplined to the extent of loss

68a

of pay by the Company, and such finding or decision

shall be final and binding upon the Teamsters—

Airline Division, the Company and the individual

employee or employees to such dispute.

7. If the Board deadlocks, the Union may appeal the case

to arbitration.

8. In the event the Union appeals the disciplinary action

to arbitration the Company and the Union shall

attempt to agree on a mutually acceptable impartial

arbitrator. If the parties are unable to agree on an

arbitrator they shall select an arbitrator as provided in

Article 20, Board of Arbitration.

. All time limits will be complied with by the Company,

the employee(s), and the Union. If the Company does not

comply with the time limits, the grievance will be deemed

automatically appealed to the next step.

. The Company recognizes the right of the Union to file a

group grievance when the issue is common and identical

to those employees in the group.

. In the event of permanent change of the parties

responsible for answering grievances at any step of this

grievance procedure, the Company will notify the Union

as soon as possible.

. The time limits set forth in this Article may be extended

by mutual agreement of the parties reduced to writing.

. The Union, or its representative, and the Grievant shall

have access to the Grievant’s personnel file for review in

any discipline or discharge case. The Union shall be

entitled to copies of any documents from the file that it

may determine are needed.

69a

ARTICLE 20 — BOARD OF ARBITRATION

A. After the receipt of the notice of the intent to submit the

unsettled grievance to arbitration, the parties shall attempt

to mutually select an impartial arbitrator. If the parties are

unable to agree on an arbitrator, they shall request the

National Mediation Board to submit a list of seven (7)

persons qualified to act as the impartial arbitrator. Each

party may reject the NMB list once. A representative of

the Company and a representative of the Union shall meet

within five (5) days of the receipt of the list and shall

alternately strike three (3) names from the list, the party to

strike first to be selected by lot. The seventh (7th)

remaining person shall thereupon be selected as the

impartial arbitrator. The Board of Arbitration shall consist

of one (1) member selected by the Union and one (1)

selected by the Company, and the impartial Arbitrator.

B. The parties shall enter into a submission agreement,

which shall clearly state the arbitrable issue or issues to be

decided. If the parties are unable to agree on a joint

statement of the arbitrable issue or issues to be decided by

the arbitrator, the submission shall contain the written

grievance and the Company’s disposition of the same

with notation that the parties could not agree upon a

submission agreement. Either party may also submit its

proposed version of the arbitrable issue or issues to be

decided by the arbitrator.

C. During the hearing, each Party shall have full opportunity

to present evidence and argument, both oral and docu-

mentary. The impartial arbitrator may render his findings

and award in writing no later than sixty (60) calendar days

after the conclusion of the hearing. The decision of the

impartial arbitrator shall be final and binding. The

impartial arbitrator shall have no authority to modify,

amend, revise, add to or subtract from any of the terms or

conditions of the Agreement.

70a

D. All arbitration hearings will be held in Houston unless

another place is mutually agreed to by the Company and

the Union.

Each of the parties hereto shall assume the compen-

sation, traveling expenses and other expenses of its

witnesses called or summoned by it and each of the

parties shall assume one-half (1/2) of the expenses of

the arbitration, except that the employees of the

Company who are necessarily summoned to serve as

witnesses and the grievant, if not discharged or on

suspension, should suffer no loss of pay as a result of

participation in the arbitration proceeding.

Witnesses who are employees of the Company and the

grievant shall receive free transportation over the lines

of the Company from their point of duty or

assignment to the point at which they must appear as

witness before the Board and return, to the extent

permitted by law.

It is understood and agreed~-that each and every

witness summoned by the Board who is an employee

of the Company shall be free to discharge his duties in

an independent manner without fear that his indi-

vidual relations with the Company or the Union may

be affected by an action or by testimony given by him

in good faith in his capacity as a witness.

If a stenographic transcript is made of the arbitration

proceeding the party making the request shall bear its

expense, unless the request is made by the arbitrator,

in which case the cost of the transcript will be shared

equally by the Company and the Union. In the event

the party not requesting the transcript decides at the

hearing or later to obtain a copy, the Company and the

Union shall share the entire cost of the reporting and

transcribing of the transcript equally.

Tia

E. Employees who are summoned to serve as witnesses, if

called during their regularly scheduled work hours shall

suffer no loss in pay for such regularly scheduled work

hours. Any employee who is summoned to serve as a

witness during the day hours and works graveyard or

swing shift and is retained beyond 12 noon will not be

required to work his shift the day of the hearing; however.

such employee shall be paid for his regularly scheduled

shift for that day by the Company.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.