Continental Airlines, Inc. v. Air Line Pilots Ass'n, International

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 13, 2009

No. 07-20835 Charles R. Fulbruge III
Clerk

CONTINENTAL AIRLINES, INC.

Plaintiff-Appellee
v.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.
JACQUES L. WIENER, Jr., Circuit Judge:
Captain Ronald McWhirter, represented by the Air Line Pilots Association
(“ALPA”), appeals an order by the district court reversing the reinstatement
order of the System Board of Adjustment (“SBA”), a creature of the Collective
Bargaining Agreement (“CBA”) between his employer, Continental Airlines, Inc.
(“Continental”) and ALPA. He claims that the district court failed to give the
proper deference owed to the decision of the SBA and that the SBA decision does
not contravene public policy. Concluding that the district court was without a
statutory basis for its reversal and that its order cannot be sustained on grounds
of public policy, we reverse the district court’s reversal of the SBA and remand
 No. 07-20835

with instructions to vacate a portion of the SBA order and remand the matter
to the SBA.
I. FACTS AND PROCEEDINGS
McWhirter was hired by Continental as a pilot in 1984. He was
discharged on February 23, 2005 for refusing to take a no-notice alcohol test. At
the time of his discharge he was on long-term disability status and was not
qualified to fly.
McWhirter’s trouble with alcoholism first came to Continental’s attention
in 1999 when he sought voluntary assistance from Continental’s Peer Pilot
Program. After fits and starts toward sobriety, he tested positive during a no-
notice alcohol test on September 21, 2000, a day on which he was scheduled to
fly. Pursuant to the CBA between Continental and ALPA,1 he entered into a
Last Chance Agreement (“LCA”) on October 18, 2000. In addition to other
requirements, such as submitting to evaluation and rehabilitation treatment by
Continental’s Employee Assistance Program (“EAP”), the LCA required
McWhirter to agree to submit to no-notice testing as often as Continental
directed for five years after he completed formal rehabilitation. He was
reinstated to flight status in June or July of 2001, but was placed on long-term
disability status in late March or early April of 2004 for hypertension.
On February 10, 2005, while still subject to the LCA’s no-notice testing
provisions, McWhirter refused a no-notice alcohol test. After Continental
discharged him, ALPA filed a grievance on his behalf and the case wound its way
though the CBA’s review process. Ultimately, his grievance — that he was
discharged without just cause — was heard by the SBA.
At a two day hearing in January 2006, at which both parties presented
evidence to the SBA, McWhirter claimed that he refused the February 10, 2005

1
The CBA in force at the time of McWhirter’s discharge, “Contract ’97,” has been
superseded by agreement of the parties.

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test because, inter alia, he was upset that Continental had not told him the
results of a no-notice test from January 2005. That test had been ordered after
Continental received an allegation that McWhirter had been drinking with a
fellow pilot. At the meeting after which the January no-notice test was ordered,
McWhirter was threatened with termination if the test came back positive. He
testified that he had become extremely frustrated not to have been promptly
informed of the results. The test results were supposed to be available in a
week; at the time of McWhirter’s refusal to be retested, almost a month had
passed. As it turns out, Continental had received a negative result on the
alcohol test a week before his refusal to be retested but had not so informed him.
After considering the other explanations offered by McWhirter, for
example, that he did not believe that he was subject to no-notice testing based
on his leave status, the SBA concluded that McWhirter knowingly refused to
take the no-notice test. The SBA also concluded that under the mitigation
provisions of the CBA (in particular, Section 15,2 Part 5, Sub-part 8(B)),
McWhirter’s refusal was an understandable, if not entirely rational, response to
Continental “dropping the ball” on the January 2005 test results. The SBA
ordered McWhirter’s reinstatement, conditioned on his participation in
Continental’s EAP and Peer Pilot Program for two years. Continental was
ordered to reinstate him to the status he held prior to discharge, viz., non-flying
under either long-term disability leave or the Family Medical Leave Act.

2
The currently applicable Section 15 was split between two sections, Section 15 and
Section 25, in “Contract ’97.” On October 30, 2003, Continental and ALPA agreed to “delet[e]
those sections in their entirety and substitut[e] therefor the entire section titled ‘PHYSICAL
EXAMINATIONS’ attached to this Letter of Agreement.” The mitigation provision on which
McWhirter relies (Section 15, Part 5, Sub-part 8(B)) did not appear in Section 25 of Contract
’97 (the section referenced by the LCA), but no party seems to contest that Sub-part 8(B) of the
current agreement is something on which McWhirter can at least claim to rely (even if
Continental believes that the CBA itself or that sub-part is, as an interpretative matter,
incorrect to select as governing McWhirter’s refusal to be tested). For purposes of clarity and
ease of understanding, we will, mutatis mutandis, refer to the current Section 15 wherever the
old Sections 15 and 25 were mentioned.

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Continental commenced suit in district court to vacate the SBA’s order.
After the parties cross-moved for summary judgment, the district court granted
Continental’s motion and reversed the SBA’s reinstatement order. This timely
appeal by ALPA on McWhirter’s behalf followed.
II. ANALYSIS
McWhirter contends that the district court failed to defer to the SBA
decision as required by the Railway Labor Act (the “RLA”)3 and that no judicially
enforceable public policy precludes his reinstatement. We address each
contention in turn.
A. The RLA
1. Standard of Review
We review a district court’s grant of summary judgment de novo.4
Summary judgment is appropriate when the
record indicates no genuine issue of material fact, and that the
moving party is entitled to judgment as a matter of law. In
considering summary judgment, we must view the evidence in the
light most favorable to the nonmoving party. Yet, the nonmoving
party must set forth specific facts showing the existence of a
genuine issue concerning every essential component of its case.5
2. Applicable Law
This is a dispute over a grievance that involves the interpretation and
application of the Continental-ALPA CBA and of the LCA entered into by
McWhirter and Continental. As such, it is classified as a “minor dispute” under
the RLA.6 Minor disputes must be resolved through compulsory and binding

3
45 U.S.C. §§ 151 et seq. (2006).
4
Resolution Performance Prods., LLC v. Paper Allied Indus. Chem. & Energy Workers
Int’l Union, Local 4-1201, 480 F.3d 760, 764 (5th Cir. 2007).
5
Am. Eagle Airlines, Inc. v. Airline Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003)
(internal citations and quotation marks omitted).
6
Mitchell v. Cont’l Airlines, Inc., 481 F.3d 225, 230-31 (5th Cir. 2007).

4
 No. 07-20835

arbitration before the SBA.7 “Judicial review of [SBA] decisions arising from the
terms of a [CBA] is narrowly limited, and courts should afford great deference
to arbitration awards.”8 The standard for this review is “among the narrowest
known to the law”9 and flows from the RLA’s “preference for the settlement of
disputes in accordance with contractually agreed-upon arbitration procedures.”10
We will defer to an SBA decision based on any reasonable ground presented by
the parties, even if not relied on by the SBA in its decision.11
We may decline to defer to a decision of the SBA only if (1) the SBA failed
to comply with the RLA, (2) there is evidence of fraud or corruption in the SBA,
or (3) the order by the SBA did not “confine itself to matters within the scope of
[the SBA’s] jurisdiction.”12 Absent one of those exclusive grounds, or a judicially
created exception for public policy concerns, we must defer to the SBA’s
decision.13 Continental does not contend that the SBA failed to comply with the
RLA or that there is evidence of fraud or corruption in the SBA. Accordingly,

7
Id. at 231.
8
Resolution Performance, 480 F.3d at 764 (internal quotation marks omitted)
(discussing a non-RLA CBA).
9
E. Air Lines, Inc. v. Transp. Workers Union, Local 533, 580 F.2d 169, 172 (5th Cir.
1978) (internal quotation marks omitted).
10
Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 323 (1972).
11
Resolution Performance, 480 F.3d at 767 n.20.
12
Mitchell, 481 F.3d at 231; see 45 U.S.C. § 153(q) (2006).
13
We have also said that we must defer unless we find the SBA’s decision to be “wholly
baseless and completely without reason.” Cont’l Airlines, Inc. v. Int’l Bhd. of Teamsters, 391
F.3d 613, 617 (5th Cir. 2004). It is unclear from our cases that quote this language from
Gunther v. San Diego & Arizona Eastern Railway Co., 382 U.S. 257, 261 (1965), whether that
phrase announces an independent basis for declining to defer to an SBA decision. As
Continental does not argue that the district court’s order may be sustained on this basis, we
need not address it.

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only Continental’s contention that the SBA failed to conform or confine itself to
its jurisdiction is at issue.
The jurisdiction of the SBA and the limits of that jurisdiction arise out the
CBA.14 The SBA therefore fails to conform or confine itself to its jurisdiction if
it issues a decision that is contrary to an unambiguous provision of the CBA15 or
an LCA.16 An LCA is a supplement to the CBA, and its terms are just as binding
on an arbitrator as those of the CBA: Unambiguous provisions of an LCA may
not be ignored.17
This is a narrow exception, however, and “‘a court should not reject an
award on the ground that the [SBA] misread the contract[s].’”18 The SBA’s
decision need only “‘draw its essence from the contracts[s] and [not] simply
reflect the [SBA’s] own notions of industrial justice,’”19 so that the decision is
“grounded in the [contracts].”20 That is, “‘as long as the arbitrator is even
arguably construing or applying the contract[s] and acting within the scope of
his authority, that a court is convinced he committed serious error does not

14
E. Air Lines, 580 F.2d at 170 n.1.
15
Resolution Performance, 480 F.3d at 765. Other cases hold that the decision must
be contrary to “clear and unequivocal” or “plain” language to warrant reversal. See Am. Eagle
Airlines, Inc. v. Airline Pilots Ass’n, Int’l, 343 F.3d 401, 406 (5th Cir. 2003). We do not perceive
a difference in these standards.
16
Cont’l Airlines, 391 F.3d at 618.
17
Int’l Union of Operating Eng’rs, Local 351 v. Cooper Natural Res., Inc., 163 F.3d 916,
919 (5th Cir. 1999) (discussing a non-RLA LCA).
18
Cont’l Airlines, 391 F.3d at 617 (quoting United Paperworkers Int’l Union v. Misco,
Inc., 484 U.S. 29, 38 (1987)).
19
Id.
20
Id. (citing Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889
F.2d 599, 602 (5th Cir. 1989)).

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suffice to overturn his decision.’”21 The SBA “may look beyond the written
contract when interpreting a collective bargaining agreement if the instrument
is ambiguous or silent upon a precise question.”22
If we determine that the SBA has exceeded its authority, we are
empowered to vacate or modify the SBA’s ruling, or to remand to the SBA for
further proceedings.23 “Even in the very rare instances when [SBA] procedural
aberrations rise to the level of affirmative misconduct, as a rule the court must
not foreclose further proceedings by settling the merits according to its own
judgment of the appropriate result . . . .”24 To do so “would improperly substitute
a judicial determination for the [SBA’s] decision that the parties bargained for.”25
“[T]he court should simply vacate the award, thus leaving open the possibility
of further proceedings if they are permitted under the terms of the agreement
. . . [or] remand when this step seems appropriate.”26
3. Analysis
It is clear from the foregoing that we must defer to the SBA’s decision if
it may be supported by any analysis of the LCA and CBA, whether or not relied
on by the SBA, that “arguably construes” those agreements. Even if the chain
of reasoning is not correct, and the SBA’s decision appears to us to be a serious

21
Id. (quoting Misco, 484 U.S. at 38).
22
Delta Queen, 889 F.2d at 602.
23
Am. Eagle Airlines, Inc. v. Airline Pilots Ass’n, Int’l, 343 F.3d 401, 406 (5th Cir.
2003); see 45 U.S.C. § 153(q).
24
Misco, 484 U.S. at 40 n.10 (emphasis added). “[T]his court has cited Misco with
approval when setting out the standard of review governing awards under the RLA.” Cont’l
Airlines, Inc., 391 F.3d at 617 n.3. But see 48 AM. JUR. 2D Labor and Labor Relations § 43
(2008) (suggesting that such use must carefully considered).
25
Misco, 484 U.S. at 40 n.10.
26
Id.

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error, we must defer as long as no step in the reasoning process ignores an
unambiguous provision of the LCA and CBA.
Continental asserts that the SBA exceeded its jurisdiction in three ways:
(1) The SBA should not have considered McWhirter’s non-medical explanation
for his refusal to take the no-notice test; (2) the SBA was without power to order
McWhirter’s reinstatement based on his non-medical explanation; and (3) the
SBA was without power to order McWhirter’s continued participation in
Continental’s EAP. We address each in turn.
a. Non-medical Mitigation Evidence
If the LCA unambiguously excludes any non-medical explanation of
McWhirter’s refusal to be tested, then Continental’s first contention would be
correct; the SBA would have acted out of conformity with the jurisdiction
conferred on it by the parties. But the LCA not only fails unambiguously to
reject inclusion of the non-medical mitigation provision of the CBA, its structure
and brevity essentially compel incorporation of the CBA’s mitigation provisions.
The relevant portions of the LCA are:
Pursuant to Section [15] of the collective bargaining
agreement between [Continental] and [ALPA], we have agreed that
your employment is subject to the following terms and conditions:
1. As a condition of continuing employment, you agree to
undergo evaluation by the Employee Assistance Program
(“EAP”) Director (or designee) and to complete any
rehabilitation recommended by EAP . . . .
....
3. Your continuing employment shall be conditional upon your
compliance with all of the following conditions:
....
c. You shall agree in writing to be subject to “no
notice” alcohol testing at the direction of the
Company as frequently as the Company may
decide for a period of five (5) years from the
completion of the formal rehabilitation program.
Following the five (5) year period during which
you shall be subject to no notice testing, you shall

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be obligated only to submit to such further
testing as may be required by applicable federal
regulations or the collective bargaining
agreement . . . .
The LCA’s preamble to all of the conditions on McWhirter’s continued
employment makes clear by its terms that Continental and McWhirter agreed
to those conditions “[p]ursuant to Section [15]” of the CBA. Accordingly,
Continental cannot plausibly maintain that, using the terms of Section 15 of the
CBA, the SBA’s analysis of McWhirter’s refusal to be tested was not just
“seriously wrong,” but a failure even arguably to construe the language of the
contracts.
The district court recognized that the CBA’s mitigation provisions must
have been included in the LCA. It concluded that the LCA “does not say
[McWhirter] will be fired for not taking a test. This is likely because
circumstances could arise that would prevent him from doing it.”27 Common
sense compels this conclusion. It is quite unlikely that at the time that it
entered into the LCA, Continental believed that it could fire McWhirter for
refusing to take an alcohol test if, say, his doctor concluded that his blood volume
was so low that it was medically dangerous for him to give a blood sample. The
parties must have contemplated that there would be some acceptable excuses for
refusing to take a no-notice test when they entered into the LCA.
That observation makes the point that the LCA must have incorporated
some parts of the CBA. Continental offers no reason why the SBA’s implicit
conclusion — that because Sub-part 8(A) must have been incorporated, Sub-part
8(B) must also have been incorporated — was not at least an arguable
construction of the CBA and LCA. We deal with Continental’s arguments about
the propriety of applying Sub-part 8(B) to McWhirter’s case below; here we only

27
Cont’l Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, No. H-07-1349, 2007 WL 3047221,
at *1 (S.D. Tex. Oct. 18, 2007).

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make the point that if Sub-part 8(A) must have been incorporated into the LCA,
it was a perfectly reasonable construction for the SBA to conclude that Sub-part
8(B) must have been similarly incorporated. Incorporation is a question logically
prior to application. The “[p]ursuant to Section [15]” language in the preamble
to the section containing the no-notice testing requirement makes the provisions
of Section 15 an obvious choice to provide content to this issue on which the LCA
is silent.
Continental itself seemed to recognize as much when it wrote to
McWhirter that he “had failed to offer a ‘sufficient explanation’” for refusing the
no-notice test. The district court relied on that letter to conclude that
Continental thought itself obliged to consider explanations and to excuse
McWhirter’s refusal for at least some subset of those explanations. The SBA has
the ability to look beyond the LCA when faced with an ambiguous term or
silence; it could have considered Continental’s letter evidence of the parties’
intention that some reasons proffered for refusing to test must be acceptable
under the LCA.
The brevity of the LCA and its failure to define no-notice testing also belie
Continental’s argument that the LCA did not incorporate the mitigation
provisions of the CBA. The LCA is obviously intended to supplement the CBA,
not replace it. For example, what is no-notice testing? The practices of the
parties appear to have conformed to the no-notice testing procedures set out in
Section 15 of the CBA, something else the SBA could have considered when
deciding whether reference to Section 15 of the CBA was appropriate in
interpreting the LCA.
Finally, according to the SBA’s decision, Continental relied primarily on
part of Section 15, albeit a different part than did McWhirter, during the SBA

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proceedings.28 That is evidence that Continental considered Section 15 to be
incorporated by reference into the LCA, or, at the least, that such a reading was
arguable.
Some of the above arguments may not be the most natural reading; some
may be incorrect; some may even be “serious errors” of interpretation. None of
that matters under the RLA, however, because the existence of such arguments
in favor of reading the LCA and Section 15 of the CBA in pari materia compels
the conclusion that the SBA’s interpretation — that the LCA incorporates or
does not displace the CBA’s mitigation provisions — “draws its essence” from the
agreements between Continental and McWhirter.29
Turning to those provisions, Section 15, Part 5, Sub-part 8(B) of the
version of the CBA that the parties agree governs this dispute states:
A pilot who refuses or fails to cooperate in any drug or alcohol test
as mandated . . . by this Agreement, or who misses a no-notice test
without a valid reason shall upon request have his circumstances
reviewed by the Company. The Company shall consider such
mitigating circumstances as the pilot may offer, and give those
circumstances fair consideration.

28
“As the parties’ positions clearly demonstrate, the Carrier places primary reliance
upon Sub-part A of Section 15 while the Association relies upon Sub-part B of Section 15.” In
Re Arbitration Before the Cont’l Airlines, Inc. & Air Line Pilots Ass’n. Sys. Bd. of Adjustment,
No. CAL-ALPA 05-01/McWhirter, p. 31 (SBA, Feb. 11, 2007).
29
Continental cites International Union of Operating Engineers, Local 351 v. Cooper
Natural Resources, Inc., 163 F.3d 916 (5th Cir. 1999), to support the proposition that LCAs
must be strictly construed by an SBA. In our discussion of Cooper in Continental Airlines, Inc.
v. International Brotherhood of Teamsters, 391 F.3d 613, 618 (5th Cir. 2004), we explained that
LCAs and CBAs are entitled to the same amount of deference. Some circuits appear to treat
interpretations of an LCA less deferentially. See, e.g., Ohio Edison Co. v. Ohio Edison Joint
Council, 947 F.2d 786, 787 (6th Cir. 1991); Tootsie Roll Indus., Inc. v. Local Union No. 1,
Bakery, Confectionery & Tobacco Workers’ Int’l Union, 832 F.2d 81, 83–85 (7th Cir. 1987). If
so, that approach, like the markedly less deferential approach of some circuits to any SBA
decision, see Boise Cascade Corp. v. Paper Allied-Indus., Chem. & Energy Workers (PACE),
Local 7-0159, 309 F.3d 1075, 1085-86 (8th Cir. 2002); Coca-Cola Bottling Co. of St. Louis v.
Teamsters Local Union No. 688, 959 F.2d 1438, 1441-42 (8th Cir. 1992), is not the law of this
circuit. We did not, however, find those cases in conflict with our precedents in Continental
Airlines. 391 F.3d at 618-19.

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This provision, combined with the SBA’s jurisdiction over all disputes arising out
of the CBA,30 entitled the SBA to consider whether Continental gave fair
consideration to the non-medical mitigating circumstances that McWhirter
offered.
First, Sub-part 8(B) refers to no-notice testing, but Sub-part 8(A),31 the
provision that Continental insists is applicable, does not. Sub-part 8(B)
therefore appears to be the most obvious provision to consult concerning
McWhirter’s refusal to be tested. Second, Sub-part 8(B) applies when a pilot
“misses” a no-notice test “without a valid reason.” Continental’s reasoning that
Sub-part 8(B) countenances only medical excuses because it only allows
consideration of “valid reason[s]” is flatly contradicted by the plain text of Sub-
part 8(B). Third, Continental’s assertion that “misses” may not embrace a
refusal to test is arguable. Continental contrasts “misses” in the second clause
with “refuses or fails to cooperate” in the first clause. Rather than treating
“misses . . . without a valid reason” as a reformulation of “refuses or fails to
cooperate,” Continental reasons that, because McWhirter refused his test but did
not miss it (without a valid reason), he was required to have a medical excuse.
Even if it were possible to miss a test without a valid reason without having

30
“The [SBA] will have jurisdiction over disputes between any employee covered by this
Agreement and the Company growing out grievances or out of the interpretation or application
of any of the terms of this Agreement.” CBA Section 21, Part 2(C).
31
A pilot who refuses or fails to cooperate in any drug or alcohol test
as mandated by applicable federal regulations or by this
Agreement, or in any rehabilitation related testing by refusing to
provide a breath or urine specimen, or a breath or urine specimen
of sufficient quantity will be withheld from service without pay
pending investigation. If the investigation of the refusal or
failure to cooperate fails to find a valid medical reason for the
pilot’s refusal or failure to cooperate, or in the case of an
insufficient specimen if a medical evaluation determines that
there was not genuine inability to provide the required specimen,
he shall be terminated.
CBA Section 15, Part 5, Sub-part 8(A).

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refused or failed to cooperate with the test (at least a plausible construction, as
was conceded at oral argument) McWhirter’s no-notice test was “mandated . . .
by this Agreement” as well, because it was ordered pursuant to an LCA entered
into under the scheme of the CBA.32 And, refusals or failures to cooperate in
tests mandated by the CBA (and an LCA entered into pursuant to it) are not
subject to a requirement that any excuse be “valid.” Finally, even if the CBA
requires that the reasons for failing to cooperate, refusing, or missing a no-notice
test be “valid,” it would not contradict the plain language of the parties’
agreements to construe “valid reason” to embrace non-medical excuses.
Again, this construction could be “seriously wrong.” For example, (1) Sub-
part 8(A) might limit Sub-part 8(B) in some way, (2) the treatment of “refusals”
to be tested as required “by this Agreement” and a no-notice test missed “without
a valid reason” the same might be incorrect, (3) Sub-part 8(A)’s rehabilitation-
related testing provisions may be the correct section on which to rely, or (4)
“such mitigating circumstances” might refer to something other than being upset
at the company. These possibilities are irrelevant. The SBA’s construction is
not so contrary to an unambiguous term that it fails to construe arguably the
CBA’s two sections that could address McWhirter’s refusal to take a no-notice
alcohol test. Sub-parts 8(A) and 8(B), and the relationship between them, admit
ambiguity and multiple interpretations. As such, the SBA was free to choose
among arguable constructions of them.

32
This interpretation would seem to render the separate language addressing no-notice
tests mere surplusage. Yet, if — as Continental urges and ALPA appears to have conceded
— “misses” means something different from “refuses or fails to cooperate,” then the additional
no-notice testing language would not be redundant. In fact, no-notice tests would then be a
subset of the tests “mandated by applicable federal regulations or by this Agreement” subject
to an additional exception (when missed without a valid reason that was somehow not a
refusal or failure to cooperate). In any event, it is unclear whether our canons of construction,
such as the requirement that our interpretations not create redundancies, must be followed
in order for a construction to be arguable.

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Accordingly, the part of the SBA’s decision that considered McWhirter’s
non-medical excuse for refusing to be tested draws its essence from the parties’
agreements and was an action within its jurisdiction. Therefore, we now turn
our attention to the jurisdiction of the SBA to order McWhirter’s reinstatement.
b. Reinstatement
If the SBA’s authority to hear disputes is to mean anything, the CBA must
bestow the power to order reinstatement of a grievant. Nothing in the CBA,
LCA, or practices of the parties of which we are aware precludes the SBA from
asserting that power.33 Continental nevertheless insists that once the SBA
found that Continental did consider the putatively mitigating circumstances that
McWhirter offered, the matter was at an end; the requirements of the CBA were
satisfied. Continental contends that the SBA was therefore without authority
to order reinstatement under the unambiguous language of the CBA.
That is not, however, the only arguable construction of Sub-part 8(B). The
SBA could have read Sub-part 8(B) to require fair consideration. By concluding
that Continental should have given more weight to the circumstances McWhirter
presented, the SBA also could have concluded that Continental did not fairly
consider that which McWhirter presented. By ordering reinstatement, it could
have concluded that fair consideration of McWhirter’s excuse would reveal no
just cause for his termination.34 If the SBA’s interpretation of the CBA to permit

33
To the extent that Continental Airlines, 391 F.3d at 618, appears to review less
deferentially an arbitrator’s decision to equate permission from a doctor’s office to take a
medication containing alcohol with a doctor’s prescription for such medication (the latter being
required by the applicable LCA), the relevant section of the LCA in that case said that failure
to obtain a doctor’s prescription for a substance containing alcohol constituted “a violation of
this Agreement.” Id. at 615. Although the LCA in the instant case makes continued
employment contingent on a number of listed conditions, the relevant condition requires only
that McWhirter “agree in writing to be subject to ‘no notice’ alcohol testing.” Continental does
not argue that McWhirter failed to do that. Only by referring to the CBA are the consequences
of refusing to take the test when ordered clear.
34
Unlike in American Eagle Airlines, Inc. v. Airline Pilots Ass’n, International, 343 F.3d
401, 405 (5th Cir. 2003), and Container Products, Inc. v. United Steelworkers, Local 5651, 873

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non-medical mitigation evidence was within its jurisdiction, it would read the
“give fair consideration” requirement out of the CBA to conclude that an order
of reinstatement based on the SBA’s consideration of the merits of such evidence
was outside of its jurisdiction. The fact that no express provision of the CBA or
LCA forbids an order of reinstatement by the SBA — indeed, several sections
contemplate it35 — means that we must defer to the SBA’s interpretation of the
“justiciability” of the fair-consideration requirement and the proper remedy.
Continental also argues that the plain terms of the LCA require that
McWhirter be fired for refusing a no-notice test, and that those terms override
any CBA requirement to consider mitigating evidence. This argument is without
merit. The no-notice testing provisions of the LCA do not say that McWhirter
will be terminated for refusing, missing, or failing to comply with a order to be
tested. Instead, they condition McWhirter’s employment on his agreement “in
writing to be subject to ‘no notice’ alcohol testing at the direction of the Company
as frequently as the Company may decide for a period of five (5) years.” One
construction of this language would require McWhirter’s termination for
refusing a no-notice test. Another interpretation would, as demonstrated above,
require Continental to take account of certain mitigating factors. Even
Continental, if only as a back-up argument, seems to acknowledge — as did the
district court — that at the very least a valid medical excuse for refusing,
missing, or failing to comply with a no-notice test would not be grounds for
immediate termination without further consideration. In contrast, and as an

F.2d 818, 819-20 (5th Cir. 1989), the SBA in the instant case need not have made an implicit
finding of just cause because the CBA provision, “give those circumstances fair consideration,”
can be read as part of the just-cause inquiry.
35
Cf. CBA Section 19, Part 2(D) (describing the SBA’s review as an “appeal” from a
determination that just cause exists to discharge or discipline a pilot); id. Part 4(D) (“If as a
result of any hearing or appeal as provided herein and in Section 21 [constituting the SBA],
the grievant is reinstated . . . . ”).

15
 No. 07-20835

example of what qualifies as an “unambiguous provision,” the LCA says: “Upon
release by EAP to return to work, you will be required to complete a return-to-
work drug and alcohol test. A positive result for any drug or alcohol test shall
be cause for your immediate termination.” (emphasis added). Had McWhirter
tested positive on his return to work, the SBA would not have been free to order
his reinstatement. The difference in the clarity of the two provisions’ phrasings
— the testing requirement and the consequences of a positive test — are obvious.
The CBA has better language to support Continental’s position. Section
15, Part 5, Sub-part 5(D)(2)(f) provides: “If the pilot fails to comply with the
provisions of the conditional reinstatement, termination will result. If the
Company terminates the pilot, the only matter that may be grieved is whether
or not the pilot has violated the provisions of the conditional reinstatement.” On
one reading, this provision would preclude the SBA from considering anything
other than whether McWhirter refused the no-notice test. On another reading,
particularly in pari materia with the reference to no-notice testing in Sub-part
8(B), whether McWhirter “violated the provisions of the conditional
reinstatement” depends in part on the existence of mitigation (whether medical
or non-medical). The conflict between Sub-part 5(D)(2)(f) and Sub-part 8(B)
allows the SBA to pick any arguable construction of the two, which it did.
We repeat for emphasis: Our cases make clear that when a CBA or LCA
is not unambiguous, any arguable construction by the SBA is owed deference.
With this in mind, we next turn our attention to the power of the SBA to order
McWhirter’s continued participation in Continental’s EAP.
c. The EAP Condition
The SBA’s requirement that McWhirter participate in the EAP program
for two years cannot be the result of an arguable construction of the LCA and
CBA. The best argument in favor of the SBA’s authority to order the EAP
condition, which nevertheless fails even on this deferential standard of review,

16
 No. 07-20835

is that CBA Section 15, Part 5, Sub-Part 6(A)(2) recognizes that the SBA may
order no-notice alcohol testing. No-notice testing, unlike the EAP, is not
committed to the discretion of the EAP director and protected by federal
regulations; further, the SBA’s power to order it is clear from the text. In
contrast, both agreements appear to commit the length of time spent in the EAP
to the discretion of its director.36 With even clearer language, 49 C.F.R. §
40.297(a) vests sole discretion in a Department of Transportation (“DOT”)
accredited Substance Abuse Professional (“SAP”) to make treatment evaluations
of, or recommendations for assistance about, an employee who has violated DOT
drug and alcohol regulations.37 It states in relevant part:
[N]o one (e.g., an employer, employee, a managed-care provider, any
service agent) may change in any way the SAP’s evaluation or
recommendations for assistance. For example, a third party is not
permitted to make more or less stringent a SAP’s recommendation
by changing the SAP’s evaluation or seeking another SAP’s
evaluation.
There can be no dispute that the SBA qualifies as a third party and is
swept into the regulation’s scope by the “no one” language. There are, however,
a few ambiguities around the applicability of this regulation to the subject case.
For example, the title of the regulation refers only to initial evaluations by a
SAP, and an initial evaluation is not at issue here. Next, even though the plain
language of § 40.297(a) is not limited to an initial evaluation, it is limited to “the
SAP’s evaluation or recommendations for assistance.”

36
See, e.g., CBA Section 15, Part 5, Sub-part 5(D)(2)(b) (“[T]he pilot must successfully
complete the course of rehabilitation recommended by Continental’s EAP . . . . The
rehabilitation will be directed and facilitated by Continental’s EAP . . . .”). The LCA provides:
“As a condition of continuing employment, you agree to undergo evaluation by the [EAP]
Director . . . and to complete any rehabilitation recommended by EAP . . . .” (emphasis added).
37
These regulations apply to employees who participate in DOT safety-sensitive duties.
See 49 U.S.C. § 45102 (2006). Airline pilots are DOT safety-sensitive employees. See id.

17
 No. 07-20835

There may be an argument that the SBA order does not alter a
recommendation or evaluation. For example, McWhirter argues that the EAP
condition simply requires that, in addition to whatever else McWhirter’s
compliance with the LCA (and so the EAP) might require of him, he must stay
in the EAP for at least two years. If, however, the SAP were to recommend that
McWhirter be released before two years, that would be an “evaluation or
recommendation,” and the SBA’s order would interfere with that decision by the
SAP. Further, the plain language of the regulation says that “a third party is
not permitted to make more or less stringent a SAP’s recommendation.” Only
if Continental’s SAP should decide independently that McWhirter must remain
in the program for two additional years would the SBA’s order not “change in
any way the SAP’s evaluation.”
We cannot see how interfering with a SAP’s recommendation to discharge
McWhirter from the EAP before two years would not serve the purposes of the
DOT regulations governing the return to work of safety-sensitive employees.
After all, that would be forcing more treatment and longer observation than the
DOT regulations require. Further, McWhirter does not challenge this provision
of the SBA’s order or ask to be relieved of additional EAP participation, and he
is the party that the regulation is likely intended to protect by its prohibition
against more stringent recommendations for assistance. Continental
nevertheless urges that we reverse this condition, and the plain terms of §
40.297(a) do not countenance any interference with a SAP’s evaluations or
recommendations, even if that interference results in “more . . . stringent”
conditions.
Having established that an applicable federal regulation does not permit
the SBA to interfere with a SAP’s treatment recommendation, Continental urges
that the SBA cannot issue a decision in contravention of that regulation and
claim that the decision draws its essence from the CBA; the CBA by its terms

18
 No. 07-20835

purports to be in compliance with federal regulations.38 In reply, McWhirter
points out that interference with a SAP’s discretion does nothing more than take
McWhirter’s rehabilitation out of compliance with the DOT’s return-to-work
provisions. Under the regulations cited by Continental, there does not appear
to be a reason why the company could not do as it wished with McWhirter’s EAP
participation. If McWhirter is to be returned to safety-sensitive work, e.g.,
flying, the DOT regulations must be observed.39 The inverse is not obviously
untrue, and Continental has not invited our attention to anything in the CBA,
LCA, or DOT regulations that requires it to assign McWhirter to safety-sensitive
tasks.
Nevertheless, to permit the SBA to order McWhirter to participate in the
EAP for two more years — forcing Continental to enroll McWhirter in the EAP
for that duration regardless of the SAP’s professional opinion — comes so close
to directly contravening a controlling federal air-safety regulation that, if such
a decision were not outside of the SBA’s jurisdiction, it would be a violation of
public policy. We hold that by vesting the EAP director with the discretion to
prescribe McWhirter’s course of treatment, the CBA and LCA cannot be
construed to vest that power in the SBA. United Paperworkers International
Union v. Misco, Inc.,40 teaches that the proper remedy in this case is a vacatur
of the EAP condition and remand for further proceedings, and this is what we
order.

38
See, e.g., CBA Section 15, Part 5, Sub-part 1 (“All pilots will be subject to drug and/or
alcohol testing to the extent required by applicable federal regulations . . . .”).
39
See CBA Section 15, Part 5, Sub-part 9(E) (“Nothing in this Section shall be construed
to require the Company to utilize or compensate a pilot who is not fully licensed and certified
to perform revenue flying for the Company.”).
40
484 U.S. 29, 40 n.10 (1987).

19
 No. 07-20835

We have been presented with no reason — and are aware of none — why
on remand the SBA is prevented from ordering McWhirter to comply with
whatever period of additional EAP participation Continental’s SAP might
recommend. Section 40.297(a) speaks only to the impermissibility of
“chang[ing] in any way the SAP’s evaluation or recommendations for assistance.”
Accordingly, the SBA is free on remand to order McWhirter to comply with the
SAP’s recommendations for assistance.
B. Public Policy
McWhirter’s second contention is that his reinstatement and the EAP
condition do not violate public policy. Continental contends that the district
court correctly concluded that concerns about air-traffic safety compel reversal
of the SBA’s reinstatement order and the EAP condition.
We concluded above that the SBA exceeded its jurisdiction by ordering
McWhirter’s continued EAP participation. The correct remedy for that error is
to vacate the EAP condition and to remand rather than reverse. But, if reversal,
rather than vacatur, of any EAP-like condition is required for reasons of public
policy, we could prevent two unnecessary remands by resolving the question
now. Therefore, in the interests of judicial economy, we address Continental’s
objections to any EAP condition on public policy grounds.41 We address the
reinstatement order and the EAP condition in turn.
1. Standard of Review

41
See C&B Sales & Serv., Inc. v. McDonald, 177 F.3d 384, 389 (5th Cir. 1999).
Otherwise, we would have to remand to the district court to remand to the SBA to determine
whether a new EAP condition is warranted. The district court would then have to address
Continental’s public policy objections to any EAP condition if they were re-urged. We are in
just as good of a position as the district court to reach this issue. We therefore exercise our
discretion to do so.

20
 No. 07-20835

As with the district court’s resolution of Continental’s RLA claim, we
review de novo its grant of summary judgment on the basis of public policy.42
2. Applicable Law
To understand the result that we must reach in this case, a healthy dose
of background is necessary. The most recent incarnation of the public policy
exception for arbitration awards began with the Supreme Court’s Labor
Management Relations Act (the “LMRA”) case, W.R. Grace & Co. v. Local Union
759, International Union of United Rubber, Cork, Linoleum & Plastic Workers.43
There, the company was in an awkward position: It could either follow the
mandate of a district court to obey a conciliation agreement in a sex-
discrimination case, risking liability for breaching the CBA as interpreted by the
arbitrator, or avoid liability under the CBA by flouting the mandate of the
district court, risking Title VII liability and contempt. The company claimed
that the arbitrator’s award violated public policy by creating an incentive to
disobey the district court’s order and by chilling voluntary compliance with Title
VII through the EEOC conciliation process. The Court first established that
such claims are cognizable, saying that “[i]f the contract as interpreted by [the
arbitrator] violates some explicit public policy, we are obliged to refrain from
enforcing it.”44 The Court next claimed for the judiciary, not the arbitrator, the
power to determine questions of public policy.45 The theory behind this non-
LMRA (and non-RLA) exception to deference is the same as for the refusal of
courts to enforce any contract that violates public policy: A court will not assist

42
See Cont’l Airlines, Inc. v. Int’l Bhd. of Teamsters, 391 F.3d 613, 616 (5th Cir. 2004).
43
461 U.S. 757, 766-69 (1983).
44
Id. at 766.
45
Id.

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a party’s violation of public policy by using its powers to enforce an agreement
contrary to the public interest.46
The limiting portions of the opinion, however, have proved to be much
more important. The Court took a very narrow view of the public policy
exception, and, even though it acknowledged the catch-22 in which the company
found itself, the Court held that the arbitrator’s award did not violate public
policy, observing that “public policy . . . must be well defined and dominant, and
is to be ascertained by reference to the laws and legal precedents and not from
general considerations of supposed public interests.”47 The potential liability of
the company for violating the CBA by complying with the district court’s order
did not implicate public policy as thus defined.
Cases in the circuits after W.R. Grace employed the public policy exception
somewhat liberally to strike down arbitrators’ decisions that reinstated safety-
sensitive employees who had abused drugs or alcohol.48 For example, in
Amalgamated Meat Cutters & Butcher Workmen, Local Union 540 v. Great
Western Food Co., we said: “In a nation where motorists practically live on the
highways, no citation of authority is required to establish that an arbitration

46
Id. (“As with any contract, however, a court may not enforce a collective bargaining
agreement that is contrary to public policy.”).
47
Id. (internal quotation marks omitted).
48
E.g., Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l., 861 F.2d 665, 666-68, 674
(11th Cir. 1988) (affirming the reversal of an arbitration award’s reinstatement of a pilot who
flew while drunk); Amalg. Meat Cutters & Butcher Workmen, Local Union 540 v. Great W. Food
Co., 712 F.2d 122, 125 (5th Cir. 1983) (reversing enforcement of an award to reinstate a truck
driver who drank on duty); NLRB v. Dixie Motor Coach Corp., 128 F.2d 201, 203 (5th Cir.
1942) (permitting, pre-W.R. Grace, a company’s discharge of a bus driver who drank while
working his route). But see Oil, Chem. & Atomic Workers, Int’l Union, Local No. 4-228 v. Union
Oil Co. of Cal., 818 F.2d 437, 441-43 (5th Cir. 1987) (holding that an arbitrator’s award
reinstating an oil refinery worker who used drugs off-site was not against public policy at the
time it was issued, before new drug problems cropped up, but remanding for reconsideration
in light of the further drug use).

22
 No. 07-20835

award ordering a company to reinstate an over-the-road truck driver caught
drinking liquor on duty violates public policy.”49
One case in particular is instructive. In Misco, Inc. v. United
Paperworkers International Union, we concluded that an order reinstating a
safety-sensitive manufacturing employee who was caught smoking marijuana
in his car in the plant’s parking lot violated public policy.50 The Supreme Court,
however, would have none of it. Reversing us, it said:
As we see it, the formulation of public policy set out by the Court of
Appeals did not comply with [W.R. Grace] . . . . The Court of
Appeals made no attempt to review existing laws and legal
precedents in order to demonstrate that they establish a
well-defined and dominant policy against the operation of dangerous
machinery while under the influence of drugs. Although certainly
such a judgment is firmly rooted in common sense, we explicitly
held in W.R. Grace that a formulation of public policy based only on
general considerations of supposed public interests is not the sort
that permits a court to set aside an arbitration award that was
entered in accordance with a valid collective-bargaining
agreement.51
Several portions of the Misco opinion are instructive. First, the Supreme
Court invigorated W.R. Grace’s requirement that an SBA decision, not the
underlying conduct of the grievant, must violate “some explicit public policy that
is well defined and dominant, and [that] is . . . ascertained by reference to the
laws and legal precedents and not from general considerations of supposed
public interests.”52 Second, lest there be any doubt, the Court cautioned that “it
is apparent that [W.R. Grace] . . . does not otherwise sanction a broad judicial

49
712 F.2d at 124.
50
768 F.2d 739, 742 (5th Cir. 1985), rev’d, 484 U.S. 29, 43 (1987).
51
Misco, 484 U.S. at 44 (internal quotation marks and citations omitted).
52
Id. at 43 (internal quotation marks omitted).

23
 No. 07-20835

power to set aside arbitration awards as against public policy.”53 Third, the
Court pronounced that
[t]o conclude from the fact that marijuana had been found in
Cooper’s car that Cooper had ever been or would be under the
influence of marijuana while he was on the job and operating
dangerous machinery is an exercise in factfinding about Cooper’s
use of drugs[,] . . . a task that exceeds the authority of a court asked
to overturn an arbitration award. The parties did not bargain for
the facts to be found by a court.54
Finally, the Court noted that “[t]he issue of safety in the workplace is a
commonplace issue for arbitrators to consider in discharge cases, and it was a
matter for the arbitrator in the first instance to decide whether Cooper’s alleged
use of drugs on the job would actually pose a danger.”55
Undeterred by these remonstrations, we took up the challenge of satisfying
W.R. Grace, and, after Misco, we have refused to enforce at least two arbitration
awards reinstating a safety-sensitive employee discharged for drug or alcohol
abuse.56 Subsequently, however, the Supreme Court has again addressed the
issue. In Eastern Associated Coal Corp. v. United Mine Workers of America,57
the Fourth Circuit had concluded that an arbitration award that reinstated a
DOT safety-sensitive employee who had failed a drug test (while under an
analogue of an LCA because he had previously tested positive for drugs) violated
public policy. The Supreme Court reversed, saying:

53
Id.
54
Id. at 44-45.
55
Id. at 45 n.11.
56
Exxon Corp. v. Baton Rouge Oil & Chem. Workers Union, 77 F.3d 850, 856-57 (5th
Cir. 1996) (reversing an arbitrator’s reinstatement of a chemical plant supervisor who tested
positive for cocaine while employed in a safety-sensitive job); Gulf Coast Indus. Workers Union
v. Exxon Co., U.S.A., 991 F.2d 244, 250 (5th Cir. 1993) (reversing reinstatement of an
employee who used cocaine while employed in a safety-sensitive position)
57
531 U.S. 57, 67 (2000).

24
 No. 07-20835

Regarding drug use by persons in safety-sensitive positions,
then, Congress has enacted a detailed statute . . . [and] [n]either
Congress nor the Secretary [who issued rules under the statute] has
seen fit to mandate the discharge of a worker who twice tests
positive for drugs. We hesitate to infer public policy in this area
that goes beyond the careful and detailed scheme Congress and the
Secretary have created.
We recognize that reasonable people can differ as to whether
reinstatement or discharge is the more appropriate remedy here.
But both employer and union have agreed to entrust this remedial
decision to an arbitrator. We cannot find in the Act, the regulations,
or any other law or legal precedent an “explicit,” “well defined,”
“dominant” public policy to which the arbitrator’s decision [to
reinstate a drug user] “runs contrary.”58
Several important principles emerge from Eastern Associated Coal. First,
an SBA decision might in theory violate public policy without directly
contravening positive law, but “the public policy exception is narrow and must
satisfy the principles set forth” that require, at a minimum, reference to
applicable laws and legal precedents.59 Second, courts should be particularly
chary when divining public policy from some laws, for example, those in which
“two political branches have created a detailed regulatory regime in a specific
field.”60 Finally, the Court pronounced that
[t]he award violates no specific provision of any law or
regulation. It is consistent with DOT rules requiring completion of
substance-abuse treatment before returning to work, for it does not
preclude Eastern from assigning Smith to a non-safety-sensitive
position until Smith completes the prescribed treatment program.
It is consistent with the Testing Act’s 1-year and 10-year driving
license suspension requirements, for those requirements apply only
to drivers who, unlike Smith, actually operated vehicles under the
influence of drugs. The award is also consistent with the Act’s

58
Id.
59
Id. at 63; see Weber Aircraft Inc. v. Gen. Warehousemen & Helpers Union Local 767,
253 F.3d 821, 826 (5th Cir. 2001).
60
E. Associated Coal, 531 U.S. at 63.

25
 No. 07-20835

rehabilitative concerns, for it requires substance-abuse treatment
and testing before Smith can return to work.
The fact that Smith is a recidivist — that he has failed drug
tests twice — is not sufficient to tip the balance in Eastern’s favor.61
Continental has cited no cases after Eastern Associated Coal, nor are we
aware of any, in which we have set aside an arbitration award on the grounds
of public policy implicated by reinstating a safety-sensitive employee who
habitually abuses drugs or alcohol. As this saga demonstrates, we and other
circuits have repeatedly attempted to protect what seems to us a common sense
notion of public safety: DOT safety-sensitive employees who habitually abuse
drugs or alcohol should not be reinstated by arbitrators. In measure equal to the
vigor that courts of appeal have applied to reversing awards of reinstatement,
the Supreme Court has reversed. Our ability to set aside decisions like that of
the SBA in this case is severely circumscribed. It is with this overarching
limitation firmly in mind that we now examine that award and the applicable
regulations.
3. Analysis
a. Reinstatement
Continental has identified no positive law that expressly precludes
McWhirter’s reinstatement to non-flying status. Yet it does cite a number of
different FAA and DOT provisions that embody a strong public policy against
alcohol abuse by pilots and a strong public policy in favor of Continental’s
protecting air-traffic safety.62 We therefore must consider whether that positive
law establishes a sufficiently “explicit,” “defined,” and “dominant” public policy.
We assume without deciding that if a public policy is “explicit” and
“defined” in this case, it is dominant. The problem with Continental’s position

61
Id. at 66 (internal citations omitted) (emphasis added).
62
See, e.g. 49 U.S.C. § 44701(d)(1)(A) (2006); 49 C.F.R. § 40.291(b) (2008); 14 C.F.R.
pt. 121, app. J, § V(A) (2008).

26
 No. 07-20835

is that we perceive no sufficiently “explicit” and “defined” policy against
McWhirter’s reinstatement. One “explicit” and “defined” public policy that we
identify from our cases, although Eastern Associated Coal calls it into question,
is a prohibition against reinstating employees who engage in substance abuse
while actually performing a safety-sensitive task. The cases on which
Continental relies establish only that,63 because they involve almost exclusively
employees caught on work sites with drugs in their system (although whether
the employees were actually at work under the influence is not clear in every
case). Further, our opinion that rejected a public policy rationale for declining
to enforce an arbitrator’s award of reinstatement focused on the fact that the
employee’s drug use prior to the arbitration (different issues were presented by
possible drug use subsequent to that arbitration) had occurred off-site and was
unlikely to hinder her job performance.64
Even if we assume that McWhirter had been drinking when he refused the
no-notice test, an assumption called into question by the negative test a month
earlier, there is absolutely no evidence that he was discharged for drinking while
engaged in a safety-sensitive task. In fact, he could not have been — he was on
leave and lacked the requisite credentials to fly an aircraft. Reinstating
McWhirter, even though he almost flew after drinking (the incident that resulted
in the LCA), does not fall within this narrow category of cases that precludes
enforcement of a reinstatement order for an employee who engaged in substance
abuse while actually engaged in a safety-sensitive task, not least of all because
McWhirter was not discharged for that, but for refusing a test.
Next, we consider whether a refusal to be tested is equivalent to being
drunk or stoned on the job. It appears that it is not. The CBA denies an LCA

63
See cases cited supra notes 48 and 56.
64
Oil, Chem. & Atomic Workers, Int’l Union, Local No. 4-228 v. Union Oil Co. of Cal.,
818 F.2d 437, 441-43 (5th Cir. 1987).

27
 No. 07-20835

arrangement to pilots who are discovered to be under the influence while
engaged in safety-sensitive tasks. The same is not true for other violations of
the CBA’s drug and alcohol policy, such as a refusal to be tested. It thus appears
that even the parties’ agreement recognizes a difference between actually being
impaired at work and refusing to be tested. Further, Continental claims that the
no-notice test that McWhirter refused was “not mandated by FAA regulations.
Rather, it was directed by the SAP and implemented by Continental.” The
failure of the FAA and DOT to mandate the test that McWhirter refused is an
indication that Continental is accorded wide latitude in designing testing
practices. If Continental need not have ordered this particular test as a matter
of positive law, it is unclear how McWhirter’s refusal to be tested contravenes an
“explicit” and “defined” public policy flowing from positive law. As Continental’s
discretion to protect air-traffic safety increases, the definition of any public
policy emerging out of that general concern decreases.
We next consider Continental’s contention that because McWhirter could
resume flying if the SBA decision stands, public policy is implicated. Based on
our review of the FAA and DOT return-to-work provisions, it does appear that
McWhirter could someday fly an aircraft again.65 That is true, however, whether
or not Continental continues to employ him. Misco requires that the arbitration
award, not the underlying conduct of the grievant or actions of third parties
(such as the possibility that the FAA and DOT might one day clear McWhirter
to fly again), violate public policy. Even were that not the case, we would be
engaging in an “exercise in factfinding” that the Misco Court prohibited if we

65
Both parties have attempted to cloud this issue. McWhirter focuses excessively on
the fact that the award only reinstates him to non-flying status, ignoring the obvious fact that
he could seek medical clearance from the FAA to fly again. Continental engages in histrionics
by claiming that McWhirter could pilot a commercial aircraft tomorrow if the SBA decision
stands. Instead, it appears that the FAA, after a review of the entirety of McWhirter’s medical
history, including his history of alcohol dependence, could grant him the certifications he needs
to fly. He would be required to complete the FAA and DOT return-to-work process.

28
 No. 07-20835

were to attempt to discern the relative probabilities that McWhirter will fly
again, with or without reinstatement, and the probability that he would do so in
a way that implicates public policy (e.g., while under the influence).66 “[I]t was
a matter for the arbitrator in the first instance to decide whether” McWhirter’s
refusal to be tested “would actually pose a danger.”67
Finally, if we nevertheless assume that the arbitration award itself plays
some additional role in risking air-traffic safety, Continental fundamentally
misapprehends Misco and Eastern Associated Coal: The absence of FAA and
DOT regulations that preclude McWhirter from flying again actually cuts in
favor of McWhirter. We quote those cases again. Misco said: “Although
certainly such a judgment [that operation of dangerous machinery while under
the influence of drugs] is firmly rooted in common sense, we explicitly held in
W.R. Grace that a formulation of public policy based only on general
considerations of supposed public interests is not the sort that” suffices to set
aside an arbitration award.68 Eastern Associated Coal said: “Neither Congress
nor the Secretary has seen fit to mandate the discharge of a worker who twice
tests positive for drugs. We hesitate to infer a public policy in this area that goes
beyond the careful and detailed scheme Congress and the Secretary have
created.”69
The Supreme Court has essentially concluded that, except in some
difficult-to-imagine example, if the FAA and DOT can someday be satisfied with
a pilot’s fitness to fly, it is not our job to meddle. Whether McWhirter might one
day satisfy the FAA and DOT that he is again qualified to fly is therefore not our

66
See United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 44-45 (1987).
67
Id. at 45 n.11.
68
Id. at 44 (internal quotation marks omitted).
69
531 U.S. 57, 67 (2000).

29
 No. 07-20835

concern. If it ever was, the Supreme Court divested of us of it in Eastern
Associated Coal and entrusted it to Congress and the Executive in the person of
the Secretary of Transportation. Continental’s independent duties to protect air-
traffic safety, which it so forcefully urges on us as a reason not to permit
McWhirter’s reinstatement, are yet another replacement for the bulwark —
against the specter of a pilot flying while drunk — that we cannot be.
Even if we have misread the CBA and Continental, despite a conviction
that he poses a threat to air-traffic safety, would be contractually required to
permit McWhirter to fly if he is cleared by the FAA and DOT, Continental would
be in essentially the same catch-22 as the company in W.R. Grace. It could
escape contractual liability only by contravening its independent duty to protect
air-traffic safety. In W.R. Grace, the Court refused to say that a choice between
contempt and contractual liability (forced by the arbitrator’s decision) violated
public policy. For the same reason, if McWhirter is re-certified to fly and
Continental faces a choice between some CBA-mandated contractual obligation
to permit McWhirter to fly versus public safety, we cannot say that forcing
Continental to choose contractual liability so disincentivizes it to comply with
federal regulations that this reinstatement order violates public policy.
b. The EAP Condition
The public policy analysis and the RLA analysis are essentially the same
for the EAP condition in this case. For the same reasons that an SBA order that
very likely violates federal regulations cannot be a valid construction of the CBA
and LCA, such an order violates public policy. In fact, the public policy rationale
for vacating the EAP condition is even stronger, because we perceive an
“explicit” and “defined” policy against interference with the professional
discretion of the SAP in 49 C.F.R. § 40.297(a), justified by the need for objective
and professional treatment of substance abuse in safety-sensitive employees,
that extends beyond the literal terms of the regulation. Accordingly, on a public

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policy analysis, we need not concern ourselves with hypertechnical possibilities
(such as a hypothetical concordance between the EAP participation ordered by
the SBA and the SAP’s recommendation or the necessity of complying with this
regulation if McWhirter is not to be re-assigned to safety-sensitive tasks),
although we still must ground our decision in references to positive law and its
“explicit” and “defined” policies. Section 40.297(a) says as clearly as it can that
only a SAP may have anything to do with the substance abuse assistance
recommended for a safety-sensitive employee.
What § 40.297(a) does not preclude, by its terms or in the policy we
perceive as motivating it, is an SBA order that an employee comply with
whatever treatment, assistance, program, or conditions a SAP recommends.
Accordingly, the SBA is free on remand to order such compliance as a condition
of its reinstatement order. It may not, however, prescribe a minimum or
maximum amount of time in the EAP.
III. CONCLUSION
We take no comfort in enforcing an SBA order that reinstates a pilot who
has refused to comply — simply because he was “upset” — with no-notice alcohol
testing after he was diagnosed with alcohol dependence and entered into an LCA
that mandated no-notice testing. We are even more discomforted that we must
vacate the one portion of the SBA’s order that seems to reflect a compromise in
favor of air-traffic safety. But, just as we cannot torture the RLA standards of
review, and just as we cannot embrace public policy as an end-run around RLA
deference, we cannot sanction even Solomonic “industrial justice” that comes
perilously close to direct conflict with federal regulations and is not a
supportable construction of the parties’ agreements.
Therefore, the judgment of the district court reversing the SBA’s order of
reinstatement is REVERSED, and this case is REMANDED with instructions
to VACATE so much of the SBA’s order as requires McWhirter’s continued

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participation in Continental’s EAP and for other proceedings consistent with this
opinion, such as remand to the SBA for further consideration of any conditions
that should be imposed on McWhirter’s reinstatement. To be clear, we perceive
no infirmity with the SBA’s reinstatement order, which should be enforced after
further SBA proceedings have concluded.
REVERSED and REMANDED with instructions.

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