Jottings By An Employer's Lawyer

Tuesday, November 16, 2004

Last Chance Agreement Strictly Interpreted by 5th Cir.

The airline business is a tough one, but at least one carrier had a bit of bright news today. The 5th Circuit upheld Continental's challenge to an arbitration ruling reinstating an employee it had terminated for violation of a last chance agreement, reversing the district court's grant of summary judgment. The Court did not buy Continental's argument that it should review the award under a "no deference" standard because it involved a Last Chance Agreement rather than a Collective Bargaining Agreement. Nevertheless, it agreed with Continental that it was entitled to win even under the appropriate deferential standard, since the award failed to "draw its essence" from the agreement. Continental v. International Brotherhood of Teamsters (5th Cir. 11/16/04) [pdf].

The LCA required that the employee abstain from all use of alcohol:
This includes mouthwash or other medications/substances which may contain alcohol. If your doctor prescribes medication which contains alcohol/narcotic drugs, you are required to inform the EAP staff of such medication.
The employee had not obtained a doctor's prescription for a drug containing alcohol, but instead had called the doctor's office to get an appointment and was told that he could not get a prescription over the phone, but could take over the counter medicine until then. Although the arbitral board found his action in keeping with the "spirit of the agreement," particularly since the employee had called the EAP to report that he was taking the medication, the 5th Circuit did not buy it. Instead it found
[b]y failing to require proof of a doctor’s order, the Board’s interpretation effectively reads “doctor” out of the EAP agreement. Such an interpretation is not an arguable construction of the agreements; thus, the Board exceeded the scope of its jurisdiction in fashioning its award."
Maybe it was just time for an airline to get a break.

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