Michael Sullivan v. Endeavor Air, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 16-1653
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Michael Sullivan

lllllllllllllllllllllPetitioner - Appellant

v.

Endeavor Air, Inc., formerly known as Pinnacle Airlines, Inc., formerly known as
Express Airlines, Inc., formerly known as NWA Airlink

lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 8, 2017
Filed: May 8, 2017
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Before BENTON, BEAM, and MURPHY, Circuit Judges.
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BENTON, Circuit Judge.
 Michael Sullivan appeals the district court’s1 denial of his Amended Petition
to Vacate Arbitration Award. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

I.

The petition seeks to vacate an arbitration award issued by a System Board of
Adjustment pursuant to the Railway Labor Act, 45 U.S.C. § 151, et seq. The RLA
states: “If any employee . . . is aggrieved by any of the terms of an award . . . then
such employee . . . may file in any United States district court . . . a petition for review
. . . . On such review, the findings and order [of the Board] shall be conclusive on the
parties . . . .” 45 U.S.C. § 153(q). See United Paperworkers Int’l Union, AFL-CIO
v. Misco, Inc., 484 U.S. 29, 37-38 (1987) (“Because the parties have contracted to
have disputes settled by an arbitrator chosen by them rather than by a judge, it is the
arbitrator’s view of the facts and of the meaning of the contract that they have agreed
to accept. Courts thus do not sit to hear claims of factual or legal error by an
arbitrator . . . . To resolve disputes about the application of a collective-bargaining
agreement, an arbitrator must find facts and a court may not reject those findings
simply because it disagrees with them.”); Hunt v. Northwest Air., Inc., 600 F.2d 176,
179 (8th Cir.) (decisions of airline boards under section 184 have the same legal
characteristics and effect as those of the railroad board under section 153), cert.
denied, 444 U.S. 946 (1979). Although Sullivan disputes some of the facts set forth
in the award, they are “conclusive,” and are the basis for the following facts.

Sullivan was a pilot for a predecessor to Endeavor Air, Inc. from 2001 until his
termination in December 2006. Endeavor’s pilots are represented by the Air Line

1
The Honorable Susan R. Nelson, United States District Judge for the District
of Minnesota.

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Pilots Association, International. The ALPA and Endeavor have a collective
bargaining agreement (CBA).

Before 2006, Sullivan received “nondisciplinary counselings about such things
as being late for a flight, trying to change out times to avoid a recorded late departure,
and appearance.” He was never disciplined formally. On October 17, 2006,
Endeavor issued him two “Written Letters of Warning,” for missing a flight and
failing to keep certifications current. He did not grieve either warning; pursuant to
the CBA, they became binding. Two weeks later, Endeavor disciplined him for
violating company dress code and arriving late to a flight. It scheduled a meeting to
discuss these violations. He missed the meeting, but the parties met the next day.

On November 29, Endeavor gave Sullivan a “Final Written Letter of Warning”
about his “overall duty performance,” including:

duty performance, poor decision-making causing delayed flights, late
arrival to the aircraft for showtime, inappropriate use of the ACARS
system, failure to remain contactable, failure to report for meetings with
company management, unprofessionalism, and substandard uniform
compliance.

The letter stated his appearance and conduct had “fallen below the standards expected
of you” and cautioned that “any further infractions against company policies and
procedures will result in additional disciplinary action up to and including
termination.” He again did not grieve the warning. It became binding.

On December 10, Sullivan made at least two sexually explicit comments to a
female flight attendant. On December 11, he showed up late for a flight. Two weeks
later, Endeavor fired him. In the termination letter, Endeavor cited his late arrival to

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the December 11 flight and inappropriate comments to the flight attendant in
violation of the company’s anti-harassment policy.2

Sullivan grieved his termination to a three-member System Board of
Adjustment under the CBA. Arguing his termination was without “just cause,” he
contended: (1) his comments to the flight attendant were not unlawful or violative of
the anti-harassment policy; (2) his conduct did not warrant termination; and (3)
Endeavor terminated him in retaliation for complaints he made to the Federal
Aviation Administration. The Board rejected the claims, finding “just cause to
terminate him.”

Sullivan petitioned the district court to vacate the arbitration award for three
reasons: (1) it violated his due process rights; (2) the Board exceeded its jurisdiction
by not drawing the essence of the award from the CBA; and (3) the Board improperly
ignored past practice that requires less serious disciplinary measures. The court
denied the petition. He appeals.

II.

This court reviews the district court’s “findings of law de novo and its factual
findings on a clearly erroneous standard.” Brotherhood of Maint. of Way Emps. v.
Soo Line R.R., 266 F.3d 907, 909 (8th Cir. 2001). “Judicial review of a labor-
arbitration decision . . . is very limited. Courts are not authorized to review the
arbitrator’s decision on the merits despite allegations that the decision rests on factual

2
As the district court recognized, “there was a dispute between the parties about
exactly when Endeavor decided to terminate Sullivan and which termination letter it
sent him. The portion of the termination letters addressing Sullivan’s remarks to the
flight attendant ‘differ in potentially significant ways.’ However, as discussed below,
the [Board] ultimately found this discrepancy immaterial to deciding Sullivan’s
grievance.”

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errors or misinterprets the parties’ agreement.” Id., quoting Major League Baseball
Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001).

Under the Railway Labor Act, “a Board’s decision may be set aside only for
(1) failure to comply with RLA requirements, (2) failure to confine itself to matters
within its jurisdiction, or (3) fraud or corruption by a Board member.” Goff v.
Dakota, Minn. & E. R.R. Corp., 276 F.3d 992, 996 (8th Cir. 2002), citing 45 U.S.C.
§ 153 First (q); Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 93 (1978). See Ozark
Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 744 F.2d 1347, 1350 (8th Cir. 1984)
(applying standard to decision of airline system board). “In addition to the statutorily
created parameters of review, courts have recognized that . . . arbitration decisions are
reviewable for possible due process violations,” Goff, 276 F.3d at 997, and violations
of “well-defined and dominant public policies.” Union Pac. R.R. Co. v. United
Transp. Union, 3 F.3d 255, 258 (8th Cir. 1993).

III.

Sullivan claims a violation of “industrial due process,” arguing “[t]he Award
allows Endeavor to terminate Sullivan without proper notice as to the quality of
conduct for which he could be subject to termination.” Although “arbitration
decisions are reviewable for possible due process violations,” review is limited to the
procedural due process afforded by the arbitration itself, not alleged due process in
the underlying action challenged. Goff, 276 F.3d at 997 (holding “due process
requires that: (1) the Board be presented with a ‘full statement of the facts and all
supporting data bearing upon the disputes,’ . . . and (2) the ‘[p]arties may be heard
either in person, by counsel, or by other representatives . . . and the . . . Board shall
give due notice of all hearings to the employee’”), quoting 45 U.S.C. § 153 First (i),
(j) (citation omitted). Sullivan does not allege any procedural deficiencies in the
arbitration process. His procedural due process claim is without merit.

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 Alternatively, Sullivan says the award violates public policy because the
“[p]rovision of due process to airline employees is a dominant and well-defined part
of public policy.” Courts may vacate arbitration awards that violate “well-defined
and dominant” public policies only if those policies “can be ascertained by reference
to the laws and legal precedents and not from general considerations of supposed
public interests.” United Transp. Union, 3 F.3d at 258, 260-261, quoting W.R.
Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum &
Plastic Workers of Am., 461 U.S. 757, 766 (1983) (internal quotation marks omitted).

Sullivan does not explain how the award violates public policy. Rather, he
contends the award affirms an action (his termination) that violates public policy (his
due process rights). But this is not a valid reason to set aside an award. See generally
id. at 261 (holding that reinstatement of the grievant, a railroad employee terminated
for drug and alcohol use, violated the “well-defined and dominant public policy
against a railroad’s employment of individuals whose impaired judgment due to the
use of drugs or alcohol could seriously threaten public safety” and placed the railroad
at risk of violating the Federal Railroad Administration regulations). Instead, it is an
improper attempt to have this court decide the merits of the Board’s decision. See
Chauffeurs, Teamsters and Helpers Local Union No. 878 v. Coca-Cola Bottling
Co., 613 F.2d 716, 717 (8th Cir. 1980) (“It is not within the scope of [this court’s]
review to pass upon the merits of a grievance.”), quoting Kewanee Mach. v. Local
U. No. 21, Int’l Bro., 593 F.2d 314, 316-317 (8th Cir. 1979). Courts are not “free to
overturn any award with which they disagree.” United Transp. Union, 3 F.3d at 260.
As the district court said, “it was the province of the [Board] to decide whether
Sullivan’s termination was conducted with the necessary procedural due process,”
and “the [Board] concluded that no violation occurred.” See generally Chauffeurs,
613 F.2d at 720-21 (upholding an arbitration award reinstating an employee because
the arbitrator concluded that the lack of due process in the investigation meant that
the employer did not have “just cause” to terminate). Sullivan’s disagreement with
the Board’s determination that Endeavor did not violate his due process rights is not
a reason to reverse the award. Id. at 720 (“While our interpretation of ‘just cause’

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may differ from that of the arbitrator in this case, such disagreement is irrelevant to
our review. We are not to review the merits.”).

IV.

Sullivan believes “the Award exceeded its jurisdiction and fails to draw its
essence from the contract at issue because it fails to apply the plain policy language
on which the termination was based.” Stated differently, he thinks Endeavor’s anti-
harassment policy prohibits only unlawful harassment, making his comments to the
flight attendant outside its scope.3

A Board award is “enforceable as within the scope of the board’s jurisdiction
unless the award is ‘without foundation in reason or fact.’” International Ass’n of
Machinists & Aerospace Workers, AFL-CIO v. Northwest Air., Inc., 858 F.2d 427,
430 (8th Cir. 1988), quoting Brotherhood of Ry., Airline & S.S. Clerks v. Kansas
City Terminal Ry. Co., 587 F.2d 903, 906 (8th Cir. 1978). “To merit judicial
enforcement, an award must have a basis that is at least rationally inferable, if not
obviously drawn, from the letter or purpose of the collective bargaining agreement.”
Kansas City Terminal Ry. Co., 587 F.2d at 906, quoting Brotherhood of R.R.
Trainmen v. Central of Ga. Ry. Co., 415 F.2d 403, 411-12 (5th Cir. 1969). “The test
of the board’s jurisdiction is not whether [this court] agree[s] with the board’s

3
In December 2006, the anti-harassment policy stated that Endeavor

does not and will not permit employees to engage in unlawful
discriminatory practices, or harassment based on any factor
prohibited by law: including sexual harassment. Specifically,
unlawful harassment whether committed by supervisory or non-
supervisory personnel, is prohibited as unlawful and against
stated Company policy. Unlawful harassment involves . . . (c)
verbal or physical conduct of a sexual nature; . . . (e) creating an
intimidating, offensive or hostile working environment by such
conduct.

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interpretation of the agreement, but ‘whether the remedy fashioned by the Board is
rationally explainable as a logical means of furthering the aims of that contract.’”
International Ass’n of Machinists & Aerospace Workers, 858 F.2d at 430, quoting
Kansas City Terminal Ry. Co., 587 F.2d at 906-07. “Stated another way, the award
must draw its essence from the collective bargaining agreement.” Id. If it does, “a
court is bound to enforce the award and is not entitled to review the merits of the
contract dispute.” W.R. Grace & Co., 461 U.S. at 764.

The CBA prohibited Endeavor from disciplining employees without just cause.
The Board was tasked with determining whether Endeavor terminated Sullivan’s
employment for just cause. This determination required interpreting the anti-
harassment policy. The Board said:

[Sullivan] emphasizes that the Company’s anti-harassment policy
prohibited only “unlawful harassment.” The implication is that his
conduct did not on its own meet the judicial standard for Title VII cases.
Although [Sullivan’s] brief did not cite the relevant case law, judicial
interpretations of Title VII hold that an employer would be liable for an
employee’s harassment only if the offensive conduct were “severe or
pervasive” enough to interfere with an employee’s ability to perform her
job.

The scope of an employer’s liability under Title VII has nothing to do
with its right to discipline an employee for offensive conduct that, on its
own, would not make the employer liable. Applying [Sullivan’s]
interpretation of the Anti-Harassment policy as prohibiting only
employee conduct that would make the employer legally liable would
mean that an employee could not be disciplined for offensive and
harassing conduct until it crossed some line and became “severe” or
“pervasive.”

That is an unrealistic and cramped reading of the Company’s
Anti-Harassment policy. We find that the use of the term “unlawful” in
that policy refers to offensive and harassing conduct and words that
would tend, if tolerated by the employer, [to] create legal problems and

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 potential liability. The Company has the right to prohibit all such
conduct; it has no obligation to let it continue.

Sullivan disagrees with the Board’s determination that his conduct violated the
anti-harassment policy, and, therefore, Endeavor had just cause to terminate him.
However, this court may not review the merits of the Board’s determination. See Gas
Aggregation Servs., Inc. v. Howard Avista Energy, LLC., 319 F.3d 1060, 1064 (8th
Cir. 2003). Because the determination is not contrary to the plain language of the
CBA, this argument has no merit. See Bureau of Engraving, Inc. v. Graphic
Commc’ns Int’l Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999) (reversing an
arbitration award where the award was “contrary to the plain language of the
[CBA]”).

V.

Sullivan argues the award further fails to draw its essence from the contract by
allowing Endeavor to “ignore past practice [of progressive discipline] and bypass
suspension,” moving directly to termination.

“The essence of the CBA is derived not only from its express provisions, but
also from the industrial common law.” Id. “The industrial common law includes the
past practices of the industry and the shop.” Id. Where a CBA’s contractual
provisions are silent, courts must consider the parties’ intent, which may include past
practices. Id.

Sullivan relies on Bureau of Engraving, Inc. v. Graphic Communications
International Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999). But here, the CBA
is not silent on the issue of discipline. It states: “Discipline is defined as a written
warning, suspension and discharge.” As the Board found, nothing in the CBA
requires any progression through these disciplinary measures: “The Company might
have chosen some other form of discipline like a suspension, but nothing in the

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[CBA] required it to do so.” Still, the Board found Endeavor progressively
disciplined him:

On October 17, 2006, it issued [Sullivan] two Written Letters of
Warning, the first step in the progressive discipline system.

....

About two weeks later, on November 29, 2006, the Company issued
[Sullivan] a Final Written Letter of Warning, the next step in its
progressive discipline procedure.

The Board concluded that Sullivan had notice that additional infractions may result
in termination: “As of December 10, 2006, therefore, he had two Written Letters of
Warning and one Final Written Letter of Warning. The last letter specifically warned
that further infractions would result in discipline up to termination.”

The Board also considered whether termination was an appropriate
punishment:

[Sullivan’s] brief suggested that termination was too severe a penalty.
It might have been too severe if the events of December 10-11 stood
alone. They do not. They were the culmination of a long series of
behavioral problems that included repeated informal counselings, two
letters of warning, and a final letter of warning. . . . In light of his
overall performance record, we cannot find that termination for those
events was unjust.

The Board properly applied the CBA.

*******
The judgment is affirmed.

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