Because these two appeals stem from the same incident and raise the same issue we dispose of them together in this Memorandum. Aloha Airlines Inc. (Aloha) asks us to vacate as against public policy two arbitration awards by the Aloha Airlines System Board of Adjustment (Board) under the Railway Labor Act (RLA) 45 U.S.C. Sec. 151-188. In both cases the Board ruled in favor of the Association of Flight Attendants AFL-CIO (Union) and against Aloha by reinstating a discharged Aloha employee. The district court (in separate cases before different Court) granted summary judgment in favor of the Union enforcing the Board's decision and denied Aloha's cross-motion to vacate the awards. We have jurisdiction under 28 U.S.C sec. 1291 and affirm.

Background

The facts are not in dispute. Aloha fired flight attendants Janice Hirashima and Martin Souza for their conduct in connection with a July 26 1994 flight. The aircraft a Boeing 737-400 initially carried four flight attendants as required by the Federal Air Regulations (FAR) 14 C.F.R. Sec. 121.391.

En route to Maui Hiroshima was depressed about family matters and told Souza the supervising flight attendant that she was not feeling well. She asked Souza if upon arrival she could leave the plane to make a telephone call. Souza later suggested that Hiroshima simply remain in Maui where she lived and not return to work for the flight back to Honolulu. After the passengers disembarked in Maui Hiroshima left the plane. Five minutes later she called Souza from within the airport and Souza again encouraged her to remain. She did. Aloha Flight 229 returned to Honolulu with only three flight attendants in violation of the FAR. Souza never informed the pilot or Aloha of Hiroshima's absence and the flight log indicated Hiroshima's presence on the flight. Hiroshima was paid for the day.

When Aloha later learned of Hiroshima's departure it discharged her and Souza and informed the Federal Aviation Administration (FAA) of the violation. The FAA took no action against either employee. However pursuant to its collective bargaining agreement with Aloha the Union filed grievances on behalf of both Souza and Hiroshima which went to arbitration before the Board. In Hiroshima's case the Board found that she had engaged in serious misconduct. However it ruled that her long tenure her impaired mental state at the time of her misconduct her acceptance of responsibility and her efforts to seek medical treatment warranted her reinstatement as a flight attendant after medical clearance. Her prior absence from work was converted into a suspension and she was given an additional two week suspension.

In a separate proceeding the Board found that Souza had been aware that his conduct violated the FAR and company policy. However the Board found that Aloha had inconsistently disciplined employees for violations of rules and regulations and that Souza's expressions of remorse and acceptance of responsibility were persuasive. It awarded Souza reinstatement but without back pay. Dissatisfied with the Board's awards Aloha refused to reinstate either employee. These actions followed.

Discussion

We review de novo a district court's decision to grant summary judgment. Bagdadi v. Nazar 84 F.3d 1194 1197 (9th Cir. 1996). Federal court review of adjustment board awards under the RLA is among the narrowest known to law. English v. Burlington N. R.R. 18 F.3d 741 743-44 (9th Cir. 1994) (citation and internal quotation marks omitted) (limiting review to three grounds stated in 45 U.S.C. Sec. 153 First (q) and to constitutional challenges); Edelman v. Western Airlines Inc. 892 F.2d 839 842 (9th Cir. 1989). Nonetheless as with any illegal contract we will not enforce labor arbitration awards that violate public policy and "the question of public policy is ultimately one for resolution by Court." United Paperworkers Int'l Union v. Misco Inc. 484 U.S. 29 43 98 L. Ed. 2d 286 108 S. Ct. 364 (1987) (quoting W.R. Grace & Co. v. Local Union 759 Int'l Union of the United Rubber Workers 461 U.S. 757 766 76 L. Ed. 2d 298 103 S. Ct. 2177 (1983)).

This public policy exception to the finality of arbitration awards however is limited. In this circuit a reviewing court may not vacate an arbitration award as against public policy unless: (1) there is an explicit well defined and dominant public policy; and (2) this public policy specifically militates against the relief ordered by the arbitrator. Arizona Elec. Power Co-op. Inc. v. Berkeley 59 F.3d 988 992 (9th Cir. 1995) (citing Stead Motors v. Automotive Machinists Lodge No. 1173 886 F.2d 1200 1212-13 (9th Cir. 1990) (en banc)). *fn1

In cases involving reinstatement of discharged employees we have repeatedly held that our inquiry focuses not on whether the employee's underlying conduct violated public policy but rather on whether there is a specific public policy contrary to awarding reinstatement. In Amalgamated Transit Union v. Aztec Bus Lines 654 F.2d 642 644 (9th Cir. 1981) (per curiam) we enforced an arbitrator's decision to reinstate a bus driver who knowingly drove a bus with faulty brakes because we found there was no statute "which would make it illegal to employ bus drivers who have previously shown bad judgment." Sitting en banc in Stead Motors we enforced an arbitrator's reinstatement of a mechanic who in contravention of instructions from his supervisor recklessly failed properly to tighten lug bolts on the wheels of a car. We noted that "there has been no showing that reinstatement violates public policy." Stead Motors 886 F.2d at 1216 (emphasis in original).

Recently we enforced an arbitrator's decision to reinstate two employees who had been terminated for violating their employer's random drug testing policy. United Food Workers Int'l Union v. Foster Poultry Farms 74 F.3d 169 (9th Cir. 1996). Although the employer cited federal regulations that prohibited employees who test positive for drug use from operating motor vehicles we noted that these regulation did not require the employer automatically to discharge such employees. Id. at 174. Thus public policy did not "specifically militate[sic] against the relief ordered by the arbitrator." Id. (citing Stead Motors 886 F.2d at 1212-13) (alteration in original).

Here it is undisputed that Hiroshima left Flight 229 with the encouragement of Souza thereby causing Aloha's plane to be operated with fewer than the four flight attendants required by the FAR 14 C.F.R. Sec. 121.391. However Aloha makes no effort to argue that the FARs or other expressions of public policy directly conflict with the Board's reinstatement of Hirashima and Souza. Nor does it attempt to distinguish our precedents. Instead Aloha asks us to revisit our circuit's approach to the public policy exception and to adopt the approach of other circuits by looking at whether the underlying conduct of the employees violates public policy. See e.g. Gulf Coast Indus. Workers Union v. Exxon Co. U.S.A. 991 F.2d 244 252-54 (5th Cir. 1993); Delta Air Lines Inc. v. Air Line Pilots Ass'n Int'l 861 F.2d 665 671-74 (11th Cir. 1988). We decline this invitation.

First we are of course bound by our court's prior decisions in Aztec Bus Lines Foster Poultry Farms and Stead Motors. *fn2 United States v. Garza 980 F.2d 546 555 (9th Cir. 1992) ("It is well established . . . that a panel not sitting en banc may not overturn Ninth Circuit precedent."). Further we note that Aloha's assertion that our circuit has created an impossibly strict standard for the public policy exception is belied by federal regulations that directly bear upon the reinstatement of employees. See e.g. 14 C.F.R. Part 121 app. I Sec. VI(F) (permanently precluding employee who twice tests positive for drugs from performing safety-sensitive duties); 46 C.F.R. Sec. 16.201(c) (mandating that employees who test positive for drugs be denied employment or removed from safety operations on ships). We therefore reject Aloha's arguments and enforce the arbitration awards.