Richard Earle v. Netjets Aviation Inc

The Honorable Robert Holmes Bell, Chief United States District Judge for the*
Western District of Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0090n.06
Filed: February 1, 2008
No. 06-4042
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RICHARD EARLE,
Plaintiff-Appellant, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE SOUTHERN
DISTRICT OF OHIO
NETJETS AVIATION INC.,
Defendant-Appellee.
____________________________________/
BEFORE: BOGGS, Chief Judge; GIBBONS, Circuit Judge; and BELL, Chief District
Judge.*
PER CURIAM. Plaintiff-Appellant Richard Earle appeals the district court’s
decision affirming an arbitration award in favor of Defendant-Appellee NetJets Aviation Inc.
(“NetJets”). Earle had grieved NetJets’ termination of his employment, as well as the
suspension that preceded his termination. Both grievances were submitted to arbitration, and
the arbitrator denied both grievances. Earle contends that the district court improperly
affirmed the arbitrator’s denial of both grievances. For the reasons set forth below, we affirm
the judgment of the district court.

-- 1 of 9 --

No. 06-4042 2
Earle v. NetJets Aviation
I.
NetJets operates and maintains a fleet of fractional-ownership business jet aircraft.
NetJets is based in Columbus, Ohio, but operates through a gateway system. The gateway
system enables pilots to start and end a seven-day tour of duty at a location other than
Columbus. NetJets’ pilots are represented by Teamsters Local 284 (“Local 284”). Earle’s
employment with NetJets was governed by a collective bargaining agreement (“CBA”)
between NetJets and Local 284.
NetJets had employed Earle as a pilot since April 1994. Earle’s gateway airport was
in Jacksonville, Florida. An August 3, 2000, agreement between NetJets and Local 284,
referred to as the Gateway Letter of Understanding, states that “[i]n order to be in position
to commence duty, crewmembers utilizing Gateways must be within 100 miles of the
Gateway or be within three (3) hours drive time of the Gateway, whichever is shorter.” (J.A.
at 291.)
On December 17, 2001, the first day of a seven-day tour of duty for Earle, NetJets
Anti-Drug and Alcohol Technician Rita Lohr called Earle at 8:10 a.m. and instructed him to
report for a random drug and alcohol test at a third-party testing facility one mile from the
Jacksonville airport. Earle advised Lohr that he was in Tallahassee, Florida, and that it
would take him four hours to reach the testing facility. On the first day of the arbitration
hearing, December 19, 2002, Earle acknowledged that he was actually at his home in
Pensacola, Florida, when he received the phone call from Lohr. Pensacola is approximately
350 miles from the Jacksonville airport. Earle arrived at the testing facility at 2:00 p.m., five

-- 2 of 9 --

No. 06-4042 3
Earle v. NetJets Aviation
hours and fifty minutes after the phone call from Lohr. Earle submitted to the test, which did
not detect either drugs or alcohol. On December 21, 2001, NetJets Chief Pilot Jim Peters
placed Earle on an unpaid suspension because Earle’s delay in reaching the testing facility
was deemed a constructive refusal to submit to a drug and alcohol test. NetJets also notified
the Federal Aviation Administration of the events related to Earle’s December 17 test. On
December 26, 2001, Earle grieved the suspension. On January 3, 2002, NetJets held a
meeting with Earle and terminated his employment. Later that day NetJets sent Earle a letter
confirming the termination of his employment because, among other reasons, NetJets had
determined that on December 17 Earle “failed to comply with the requirements of the
Company’s FAA-required Alcohol Misuse Prevention Program (see Section 2.4 of the
[CBA] and 49 CFR Subpart N, Section 40.261(a)(1)[)].” (J.A. at 39.) On January 4, 2002,
Earle grieved the termination of his employment. It was not until the first day of the
arbitration hearing that Earle admitted that he had been in Pensacola, having previously lied
at the December 21 meeting by saying that he had been at a Tallahassee hotel room, much
closer to the Jacksonville airport. The grievances were then submitted to arbitration and an
arbitration hearing was held over the course of three days, December 19, 2002, March 18,
2003, and May 20, 2003. Although NetJets cited four reasons for terminating Earle’s
employment in the January 3 letter, the arbitrator only considered NetJets’ aforementioned
constructive refusal rationale. (J.A. at 42-43, 47, 49, 166 n.1.) The arbitrator denied Earle’s
grievances on September 30, 2003.

-- 3 of 9 --

No. 06-4042 4
Earle v. NetJets Aviation
Although the district court did not have the benefit of this Court’s en banc decision1
in Michigan Family Resources, we apply it now as it is the law of this Circuit.
II.
A.
“When a district court decides to confirm or vacate an arbitration award, we review
its legal conclusions de novo and its factual findings for clear error.” Int’l Bhd. of Teamsters,
Local 519 v. United Parcel Serv., Inc., 335 F.3d 497, 503 (6th Cir. 2003) (citing First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 947-48 (1995)). The review of this labor
arbitration award is governed by the Railway Labor Act, 45 U.S.C. §§ 151-188.
B.
In deciding whether to confirm or vacate a labor arbitration award, a federal court
must ask:
Did the arbitrator act “outside his authority” by resolving a dispute not
committed to arbitration? Did the arbitrator commit fraud, have a conflict of
interest or otherwise act dishonestly in issuing the award? And in resolving
any legal or factual disputes in the case, was the arbitrator “arguably
construing or applying the contract”? So long as the arbitrator does not offend
any of these requirements, the request for judicial intervention should be
resisted even though the arbitrator made “serious,” “improvident” or “silly”
errors in resolving the merits of the dispute.
Mich. Family Res., Inc. v. SEIU Local 517M, 475 F.3d 746, 753 (6th Cir. 2007) (en banc).1
There is no dispute that the arbitrator’s decision complies with the requirements of the first
two inquiries; however, Earle contends that the arbitrator was not “arguably construing or
applying the contract.”

-- 4 of 9 --

No. 06-4042 5
Earle v. NetJets Aviation
The AMPP, the Gateway Letter of Understanding, and 49 C.F.R. § 40.261 are all2
incorporated by reference in the CBA. (J.A. at 34-35, 41-42.)
Section 2.4 of the CBA limited NetJets to discharging employees for “just cause.”
(J.A. at 189.) On January 1, 1995, NetJets implemented an Alcohol Misuse Prevention
Program (“AMPP”) that, among other things, required NetJets’ pilots to submit to random
alcohol testing. (Id. at 329, 332.) The AMPP states that a NetJets employee “who refuses
to submit to any required alcohol test in this program, will be subject to termination.” (Id.
at 332.) The arbitrator determined that a violation of the AMPP constituted “just cause”
under section 2.4. (Id. at 49.) The arbitrator then determined that Earle’s five-hour-and-
fifty-minute delay in reaching the testing facility on December 17, 2001, constituted a refusal
to take a drug and alcohol test in violation of the AMPP. (Id.) Thus, the arbitrator concluded
that NetJets acted within its authority under the CBA to discharge Earle for a violation of the
AMPP. (Id.) In so reasoning, the arbitrator’s seventeen-page decision “refers to, quotes
from and analyzes the pertinent provisions of,” Mich. Family Res., 475 F.3d at 754, the CBA,
the AMPP, the Gateway Letter of Understanding, and 49 C.F.R. § 40.261(a)(1).2
Earle contends that the arbitrator was not “arguably construing” the CBA because, in
Earle’s view, he was not obligated to submit to a drug and alcohol test under the AMPP on
December 17 until he arrived at his work site, the Jacksonville airport. Earle bases this
contention on the notion that there are three predicates that must be satisfied before an
employee was obligated to submit to a random drug and alcohol test: “the employee must
(1) be at the work site, (2) have reported for work, and (3) be performing, ready to perform

-- 5 of 9 --

No. 06-4042 6
Earle v. NetJets Aviation
or immediately available to perform safety-sensitive functions.” (Appellant’s Br. 17.) Earle
contends that because the arbitrator found that he was not at a work site at 8:10 a.m on
December 17 the arbitrator could not have “arguably construed” the contract to require him
to submit to a drug and alcohol test. Although Earle is correct that the arbitrator found that
Earle was at his home in Pensacola, Florida, at 8:10 a.m. on December 17, the arbitrator did
not find that pilots were only subject to drug and alcohol test after arriving at a work site
(e.g., their assigned gateway airport).
The arbitrator specifically considered Earle’s contention that he was not at his work
site, the Jacksonville airport, when Lohr notified him of the test on December 17. The
arbitrator concluded that the AMPP did not address the question of how NetJets was to notify
a pilot who participated in the gateway system that he or she had been selected for a random
drug and alcohol test. (J.A. at 48.) Earle contends that the arbitrator’s conclusion is contrary
to the following sentence in the AMPP: “Employees will only be tested for alcohol while
they are at the work site (this could include airports other than our home base).” (Id. at 330.)
Earle contends that, in consideration of this language, there was no gap or ambiguity in the
AMPP related to notification, because pilots were not subject to testing until they reached
the work site. Although the foregoing sentence acknowledges that testing may take place at
facilities other than NetJets’ Columbus, Ohio, headquarters, the AMPP does not address the
process for testing a pilot who is on a seven-day tour of duty and who uses a gateway airport.
Thus, the AMPP did not address notification, so it was permissible for the arbitrator to

-- 6 of 9 --

No. 06-4042 7
Earle v. NetJets Aviation
Lohr and Smith supported NetJets’ account of the notification process for pilots using3
the gateway system, while Michel supported Earle’s interpretation of the notification process
permitted by the AMPP. The arbitrator credited the testimony of Lohr and Smith, based in
part on the fact that NetJets had been using the notification procedure described by Lohr and
Smith for some time and Local 284 had never grieved the notification procedure. (J.A. at 48-
49.)
consider the past practices of the parties. Int’l Bhd. of Teamsters, Local 519, 335 F.3d at
507-08.
The arbitrator considered the testimony of three witnesses, Lohr, Mitchell Michel, and
Richard Smith, as to NetJets’ custom and practice for notifying a pilot who is on a seven-day
tour of duty and who uses a gateway airport that he or she has been selected for a random
drug and alcohol test. (J.A. at 48-49.) Lohr and Smith described a notification procedure by
which Lohr would notify a pilot using the gateway system at home on the first day of his or
her tour of duty and direct the pilot to a testing facility close to his or her gateway airport.
(Id.) The practice set forth by Lohr and Smith was consistent with the process NetJets had
used to notify Earle of his test on December 17. (Id.) The arbitrator concluded that NetJets’
practice as set forth by Lohr and Smith did not conflict with the “work site” language in the
AMPP. (Id.) Thus, the district court correctly concluded that the arbitrator did not impose3
any additional terms; rather, the arbitrator properly considered the implementation of the
agreements through custom and practice after having determined that the agreements did not
address the question of how to administer drug and alcohol tests to pilots who used a gateway
airport.

-- 7 of 9 --

No. 06-4042 8
Earle v. NetJets Aviation
Title 49, section 40.261(a)(1) of the Code of Federal Regulations provides in relevant4
part that:
(a) As an employee, you are considered to have refused to take an alcohol test
if you:
(1) Fail to appear for any test (except a pre-employment test) within a
reasonable time, as determined by the employer, consistent with
applicable DOT agency regulations, after being directed to do so by the
employer.
49 C.F.R. § 40.261(a)(1) (2001) (current version at 49 C.F.R. § 40.261(a)(1) (2007)).
The arbitrator also addressed the question of whether a delay in reaching a testing
facility could constitute a constructive refusal of a random drug and alcohol test. The
arbitrator determined that when the AMPP was read in conjunction with 49 C.F.R.
§ 40.261(a)(1), “it is understood that to not appear at an alcohol and drug testing site ‘within4
a reasonable time’ after being directed to do so is the equivalent of a refusal to take an
alcohol and drug test.” (J.A. at 42-43.) The arbitrator then considered whether the five hours
and fifty minutes that it took Earle to reach the testing facility on December 17 was a
“reasonable time” and concluded that it was not reasonable. (Id. at 43.) In finding the five
hours and fifty minutes to be unreasonable, the arbitrator considered the definition of
reasonable, the importance of promptness in the conduct of drug and alcohol tests, and
Earle’s justifications for his delay in reaching the testing facility. (Id. at 43-44.) The
arbitrator noted that Earle had offered justifications (e.g., traffic congestion) for the delay of
five hours and fifty minutes, which the arbitrator noted was an implicit acknowledgment that
five hours and fifty minutes was unreasonable in the absence of a sufficient justification. (Id.
at 43.)

-- 8 of 9 --

No. 06-4042 9
Earle v. NetJets Aviation
In consideration of the arbitrator’s reference to and analysis of the CBA, the AMPP,
the Gateway Letter of Understanding, and 49 C.F.R. § 40.261(a)(1) there is no indication that
the arbitrator “was doing anything other than trying to reach a good-faith interpretation of
the contract.” Mich. Family Res., 475 F.3d at 754. Therefore, the arbitrator was “arguably
construing” the CBA together with the incorporated agreements and Federal Regulations, and
the arbitration award must be enforced.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.

-- 9 of 9 --