            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.




       *
       The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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
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.
No. 06-4042                                    4
Earle v. NetJets Aviation

                                               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.”




       1
       Although the district court did not have the benefit of this Court’s en banc decision
in Michigan Family Resources, we apply it now as it is the law of this Circuit.
No. 06-4042                                   5
Earle v. NetJets Aviation

       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



       2
       The AMPP, the Gateway Letter of Understanding, and 49 C.F.R. § 40.261 are all
incorporated by reference in the CBA. (J.A. at 34-35, 41-42.)
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
No. 06-4042                                    7
Earle v. NetJets Aviation

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.3 (Id.) Thus, the district court correctly concluded that the arbitrator did not impose

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.




       3
         Lohr and Smith supported NetJets’ account of the notification process for pilots using
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.)
No. 06-4042                                     8
Earle v. NetJets Aviation

          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),4 “it is understood that to not appear at an alcohol and drug testing site ‘within

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.)


          4
        Title 49, section 40.261(a)(1) of the Code of Federal Regulations provides in relevant
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)).
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.
