# Petition for Writ of Certiorari — International Brotherhood of Teamsters v. Continental Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0644%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 811 ## Text / am ES Ee 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) iV 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 Vv TABLE OF AUTHORITIES—Continued STATUTES Page pT oa - | | eNO maT eeian 2 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 Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94 (1978). 9 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. 10 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. 11 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). 12 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), 13 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. 14 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 15 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. 16 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.”). 17 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: ge € la 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. 2a 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). 3a 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. 4a 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. Sa 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. 6a 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 7a 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. 8a 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 9a 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 = g . 3 ,- Fe ¥ ‘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, V. 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 19a 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 2la 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 A: 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: Q: ei ae A: 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 sobriety date and of the essential first steps © AA’s recovery 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0644%3A1. Public record. Not legal advice.