Petition for Writ of Certiorari — Air Line Pilots Ass'n, International v. Delta Air Lines, Inc.
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| ‘FILED
88-1901, MAY 24 1989
JOSEPH Ff. SPa
No. CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Petitioner,
Ve
DELTA AIR LINES, INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
GARY GREEN
EUGENE B. GRANOF
JERRY D. ANKER
FELICE BUSTO *
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL
1625 Massachusetts Ave., N.W.
Washington, D.C. 20036
(202) 797-4088
Attorneys for Petitioner
Air Line Pilots Association,
International
* Counsel of Record
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
@ EE 00
QUESTIONS PRESENTED
An arbitrator acting under a collective bargaining
agreement determined that an air line pilot’s misconduct
(operating a commercial airliner while under the influ-
ence of alcohol) did not constitute “just cause” for dis-
charge, despite its obvious seriousness, because of various
mitigating circumstances, including the pilot’s subsequent
successful treatment for alcoholism and recertification by
the Federal Aviation Administration. The Court below
refused to enforce the arbitration award on the ground
that the pilot’s misconduct violated public policy as de-
fined in United Paperworkers International Union v.
Misco, Inc., 108 S. Ct. 364 (1987), even though there is
no public policy requiring discharge in such cases. The
court also held that the arbitration panel exceeded its
authority by considering the pilot’s post-discharge treat-
ment and recertification.
The questions presented are:
1. Did the court below, by applying the Misco stand-
ard to the employee’s misconduct rather than the arbi-
trator’s decision concerning the appropriate penalty, mis-
construe Misco and substitute its judgment for that of
the arbitrator in violation of the principles set forth in
Steelworkers Trilogy?
9 Did the court also err by holding that the arbitra-
tion panel exceeded its authority in considering events
occurring after the discharge in determining the issue
of just cause?
(i)
TABLE OF CONTENTS
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REASONS FOR GRANTING THE WRIT ....................
I.
II.
Ii].
CONCLUSION
THERE IS A DIRECT CONFLICT IN THE
COURTS OF APPEALS CONCERNING THE
CIRCUMSTANCES IN WHICH A LABOR
ARBITRATION AWARD MAY BE VACATED
ON GROUNDS OF PUBLIC POLICY ................
THE ELEVENTH CIRCUIT’S DECISION
UNDERMINES THE RULE OF JUDICIAL
NONINTERFERENCE WITH LABOR ARBI-
a ccepichnacckiteinnneecxettnumnnaminenumiicennss
CERTIORARI SHOULD ALSO BE GRANTED
TO REVIEW THE LOWER COURT’S HOLD-
ING THAT THE ARBITRATOR WAS PRE-
CLUDED FROM CONSIDERING POST-
eT 38 4s
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
Butterkrust Bakeries v. Bakery Workers Int’l
Union, 726 F.2d 698 (11th Cir. 1984) 11
Diamond v. Terminal Railway Ala. State Docks,
421 F.2d 228 (5th Cir. 1970) ................................ 11
Towa Elec. Light & Power v. Local Union 204 Int'l
Bhd. of Elec. Workers, 834 F.2d 1424 (8th Cir.
ROPE Pricind earns eee ate ee 7
John T. Wiley & Sons, Ine. v. Livingston, 376 U.S.
ee CEN eo eas ae Ree es eee a eh 13
Muschany v. United States, 324 U.S. 49 (1945)... 6
Northwest Airlines, Inc. v. Air Line Pilots Ass’n,
808 F.2d 76 (D.C. Cir. 1987), cert. denied, 108
Be ROU CRO evs ncesgeecc ee es 8, 12
Stead Motors v. Automotive Machinists Lodge
1173, 843 F.2d 357 (9th Cir.), reh’g granted,
Sov Wie Gee CI re a 8, 10
Union Pac. Ry. v. Sheehan, 439 U.S. 89 (i978)... 11
United Paperworkers Int'l Union v. Misco, Ine.,
Pee Ss ee EOE oe ee 5, 6, 7, 9, 10, 12
United States Postal Service v. National Ass’n of
Letter Carriers, 810 F.2d 1239 (D.C. Cir.), cert.
granted, 108 S. Ct. 500, 56 U.S.L.W. 3410, No.
87-59 (Dec. 14, 1987), cert. dismissed, 108 S. Ct.
ROOT SOOOD cence awiascun t Oe 7,12
United States Postal Service v. National Ass'n of
Letter Carriers, 839 F.2d 146 (3d Cir. 1988)... 7,12
United Steelworkers v. American Mfg. Co., 363
URN WE elena amen t tren Maa Uip ner at ua aalion 9, 10
United Steelworkers v. Warrior & Gulf Na vig. Co.,
SO Wi OES CROO RC ee ke 9,10
United Steelworkers v. Enterprise Wheel and Car
Corp., 363 U.S. 593 (1960) 9, 10
W.R. Grace & Co. v. Local 759, Int’l Union of
United Rubber Workers, 461 U.S. 757 (3963)... - € 9
Vv
TABLE OF AUTHORITIES—Continued
Page
STATUTES
28 U.S.C. § 1254 (1) .......-.-------- Pere eek eit nice ns ss ae 2
Railway Labor Act
ra bm. © Oe & |. SeemnRinnnnnrnnentner ne TC oC Coc asta 2
45 U.S.C. § 153 (First (q) .....--------------------> ee 11
Pv SOP. 2 Oe |. Een eenrEn Coe ei 2
REGULATIONS
Leo Fe ty fp Reeeeenne nnn en Ct aaah 2
yee ot oe ky | Benen ear 2
14 C.F B. § 121.542 ...........--20--n-000--enesnnenionnanecnssnnsnanensns 10
MISCELLANEOUS
T. Denenberg & R. Denenberg, Alcohol and Drugs,
Issues in the Workplace 4 (BNA) (1983)...---- 12
Edwards, Judicial Review of Labor Arbitration
Awards: The Clash Between the Public Policy
Exception and the Duty to Bargain, 64 Chicago-
Kent L. Rev. 3 (1988) .....-.-------:----secrteeeesseete tt 11
F. Elkouri & E. Elkouri, How Arbitration J Works
(Ath edd. 1985) -...-.-:----:c-c-necenc-censvonnsnonennsarneoumacmnnas 12
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
No.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Petitioner,
¥a
DELTA AIR LINES, INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Petitioner Air Line Pilots Association, International
(“ALPA”), respectfully petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals has been officially
reported at 861 F.2d 665 (11th Cir. 1988) and is re-
printed at App. la-20a. The court of appeals’ denial of
rehearing in bane is unreported and reprinted at App.
79a-80a. The decision of the district court is officially
reported at 686 F. Supp. 1573 (N.D. Ga. 1987) and is
reprinted at App. 2la-37a. The arbitration decision and
award is not reported and is reprinted at App. 38a-76a.
JURISDICTION
The judgment of the court of appeals was entered on
December 8, 1988. Thereafter, on January 23, 1989, the
eourt of appeals denied a petition for rehearing. On
2
April 13, 1989. Justice Kennedy signed an order extend-
ing the time for filing the petition’ for certiorari to and
including May 24, 1989. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254 (1).
STATUTES
The issues in this case arise within the framework of
provisions of both the Railway Labor Act (“RLA"),
45 U.S.C. §§ 153 and 184, and the Federa] Aviation Reg-
ulations, 14 C.F.R. $91.11; 14 CFR. S$ 67.19. These
provisions are reprinted at App. 81a-96a.
STATEMENT OF THE CASE
1. Captain Day’s Discharge
On January 10, 1985, Captain William D. Day served
as Pilot-in-Command of a Delta Air Lines’ passenger jet
from Bangor, Maine to Boston. Although the flight ar-
rived without incident, after the aircraft landed Delta
learned that Captain Day had piloted the plane while
intoxicated. After further investigation Delta terminated
Captain Day for Violating Company rules and Federal
Aviation Agency (FAA) regulations prohibiting the con-
sumption of aleohol Within twenty four hours of a flight
and for reporting for duty and operating a flight while
under the influence. (App. 2a; 39a-40a). At the time of
his discharge, Captain Day had been a pilot for Delta for
nineteen years with an unblemished disciplinary record.
(App. 41a; 73a-74a).
Shortly after his termination, Captain Day sought sev-
eral medical evaluations and was diagnosed as an alco-
holic. (App. 56a-57a)-. On March 21, 1985. he entered a
treatment program at South Miami Hospital, which in-
cluded 28 days as an in-patient followed by “aftercare”
as an out-patient. By December 2, 1985, he had pro-
gressed to the point where his physicians concluded that
he was ready to return to flying status. (App. 63a-64a).
3
On January 16, 1986, the FAA determined that he was
eligible to return to flight duty under a “special issu-
[ance] medical certificate.” (App. 66a).
2. The System Board Award
As required by Section 204 of the RLA. 45 U.S.C.
$184, the applicable collective bargaining agreement es-
tablished a System Board of Adjustment to resolve “dis-
putes between any pilot covered by this Agreement and
the Company growing out of grievances or out of inter-
pretation or application of any of the terms of this Agree-
ment.” (App. 28a). Captain Day submitted a grievance
concerning his discharge, which in due course was pre-
sented to a System Board comprised of two members ap-
pointed by Delta, two by ALPA, and a neutral Chairman.
The issue before the Board was “solely to determine
whether, in grievant’s specific case, there was just cause
for his discharge.” (App. 74a).
On January 31, 1987, the Board, with the two Delta
members dissenting, issued a thirty-five page decision and
award concluding that Captain Day’s discharge was not
for just cause, and that a lesser penalty should be im-
posed. The Board’s conclusion rested on four grounds:
(1) Captain Day had an unblemished record of nineteen
years service with Delta; (2) the uncontradicted medical
evidence demonstrated that he flew while intoxicated be-
‘FAA regulations permit the Federal Air Surgeon to grant a
special issuance medical certificate to a rehabilitated alcoholic pilot
upon a showing that he can perform his duties as a pilot without
endangering air safety. 14 C.F.R. $67.19. The “special issuance”
granted to Captain Day required him to be monitored by a super-
visor designated by his employer and a trained pilot representative,
both of whom had to submit monthly reports attesting to his con-
tinued total abstinence from alcohol. In addition. Captain Day was
required to keep up his “aftercare” program and to submit quar-
terly progress reports from his treatment clinic. He also had to
submit a yearly evaluation by a psychiatrist designated by the
FAA as well as periodic blood tests.
4
cause he was an undiagnosed alcoholic who ‘succumbed
to his disease of alcoholism on January 9 and 10” (App.
67a), but who thereafter was successfully treated so as
to be deemed eligible for recertification by the FAA; (3)
the two pilot crew members who failed to prevent Captain
Day from flying were equally guilty under Company pol-
icy but were not discharged; and (4) Captain Day had
been disparately treated by Delta in the application of
the Company’s alcohol policies because at least three
other pilots who had reported for duty under the in-
fluence had not been terminated but had instead been
permitted to enter Delta’s alcohol rehabilitation program.’
(App. 52a-54a).
Although recognizing that Captain Day’s misconduct
was “serious,” the Board reasoned that he should have
been offered the option of enrolling in the Company’s
aleohol rehabilitation program and ordered that he be
reinstated, but without backpay or other retroactive bene-
fits. Delta was also ordered to cooperate with the FAA
in its recertification of Captain Day and to reimburse
Captain Day for the costs of his alcohol rehabilitation
program as though he had been offered the option of
enrolling in it. (App. 6a; 74a).°
2A fourth pilot who performed preflight duties but was inter-
cepted after a mechanical problem delayed the flight was reinstated
by a unanimous System Board. (App. 59a-60a). In addition, Delta
had returned over 100 reformed alcholic pilots to the cockpit since
1986.
3 After Delta refused to comply with the award, Captain Day
obtained employment with another carrier, Amerijet International
where he has served as Pilot-in-Command of a Boeing 727 since
February 1987. In May 1988, he was promoted to Chief Pilot and
is responsible for the training and supervision of sixty pilots. In
January 1989. the FAA determined that Captain Day was eligible
for an unconditional first class medical certificate, i.e., without
monitoring.
3. The Decisions Below
On February 12, 1987, Delta filed a complaint in the
district court to set aside the arbitration award. The
district court vacated the award on September 30, 1987,
on the ground that it violated public policy. This deci-
sion was issued prior to this Court’s decision in United
Paperworkers International Union v. Misco, Inc., 108
S. Ct. 364 (1987).
The court of appeals affirmed, concluding that Misco
was distinguishable. The court noted that the employee’s
wrongdoing in Misco “was unrelated to his employment
duties.” (App. 9a). Accordingly, the court reasoned that
the pertinent public policy question is whether there is a
“public policy condemn{ing| the performance of employ-
ment activities in the manner engaged in by the em-
ployee.” (App. 13a).
After reviewing state and federal laws prohibiting fly-
ing an airplane while under the influence of alcohol, the
court concluded that “there is a well defined and explicit
public policy against the operation of an aircraft while
intoxicated.” Because the public policy was “inextricably
related to the performance of employment duties,’ the
court found that the arbitration award reinstating Cap-
tain Day violated public policy:
Delta . . . was under a duty to prevent the wrong-
doing of which its Pilot-In-Command was guilty,
and it could not agree to arbitrate that issue.
The collective bargaining agreement between Delta
and the ALPA, as interpreted by the System Board,
insofar as it would submit to arbitration the ques-
tion of whether Delta should authorize operation of
aircraft by pilots under the influence of alcohol,
violates public policy and cannot be enforced.
‘App. 19a).
The court also held that the System Board was pre-
cluded from considering Captain Day’s diagnosis of al-
6
coholism and his subsequent rehabilitation in mitigation
of the punishment. Rather, the arbitrator was “limited
to whether Delta had just cause to discharge Day, after
he had flown an airplane while drunk, and before he had
given the airline any indication that he was an alcoholic.”
(App. 19a).
REASONS FOR GRANTING THE WRIT
The decision below is a classic example of a court’s
substitution of its judgment for an arbitrator’s under
the guise of public policy. The decision is in direct con-
flict with the decision of another circuit on virtually iden-
tical facts, and is part of a broader pattern of conflict-
ing interpretations in the lower courts of the scope of the
public policy exception even after this Court’s decision in
Misco. A further clarification of the circumstances in
which courts may set aside arbitration awards on public
policy grounds is necessary to halt the continuing erosion
of the doctrine of finality of arbitration awards.
I. THERE IS A DIRECT CONFLICT IN THE COURTS
OF APPEALS CONCERNING THE CIRCUM-
STANCES IN WHICH A LABOR ARBITRATION
AWARD MAY BE VACATED ON GROUNDS OF
PUBLIC POLICY
First in W.R. Grace & Co. v. Local 759, International
Union of United Rubber Workers, 461 U.S. 757 (1983),
and four years later in Misco, this Court defined in the
narrowest of terms the circumstances in which a labor
arbitration award may be set aside as violative of pub-
lic policy. The award must violate “some explicit public
policy” that is “‘well defined and dominant.” and that
can be “ascertained by ‘reference to the laws and legal
precedents and not from general considerations of sup-
posed public interests.’” 'W.R. Grace, 461 U.S. at 766;
Misco, 108 8. Ct. at 373, quoting Muschany v. United
States, 324 U.S. 49, 66 (1945). A court’s own concept
.
of public policy, even if “firmly rooted in common sense,”
cannot justify setting aside “an arbitration award that
was entered in accordance with a _ valid collective-
bargaining agreement.” Misco, 108 S. Ct. at 374.
Despite these decisions, the courts of appeals continue
to be divided concerning the circumstances under which
an award may be vacated as contrary to public policy.’
Some courts read Misco to hold that an arbitration award
may not be set aside unless there is a direct conflict be-
tween the award itself and public policy. See €.9.,
United States Postal Service v. National Ass’ n of Letter
Carriers, 839 F.2d 146 (3d Cir. 1988) (public policy of
protecting coworkers from employee violence did not re-
quire discharge of postal employee who fired shots into
Supervisor’s empty vehicle). Other circuits, like the
Eleventh Circuit here, continue to vacate arbitration
awards requiring reinstatement of an employee even if
there is no conflict between public policy and the award,
if they find that the employee’s misconduct which was at
issue in the case violates public policy. See Iowa Elec.
Light & Power v. Local Union 204 Int’l Bhd. of Elec.
Workers, 834 F.2d 1424, 1427 (8th Cir. 1987) (award
reinstating employee who intentionally violated interlock
4In Misco, this Court granted certiorari “Tb]ecause the Courts
of Appeals [were] divided on the question of when courts may set
aside arbitration awards as contravening public policy.” 108 S. Ct.
at 369 n.7 (collecting cases). The Court, however, did not reach
the issue of whether a court may vacate an award only when it
violates positive law or compels unlawful conduct. 108 S. Ct. 374
n.12. Two weeks after Misco was decided the Court granted cer-
tiorari in United States Postal Service v. National Association of
Letter Carriers, 810 F.2d 1239 (D.C. Cir.) (per curiam), cert.
granted, 108 S. Ct. 500 (1987) on the question of “should fan]
arbitration award ordering Postal Service to reinstate employee
who has been discharged for, and criminally convicted of, failing
to deliver thousands of picces of mail be set aside as contrary to
public policy.” See 56 U.S.L.W. 3410, No. 87-59 (Dec. 14, 1987).
After oral argument the Court dismissed the petition as improvi-
dently granted. See 108 S. Ct. 1589 (1988).
8
device in nuclear power plant set aside because employ-
ee’s conduct violated public policy) ; Stead Motors v. Au-
tomotive Machinists Lodge 1173, 843 F.2d 357 (9th Cir.),
reh’g granted, 857 F.2d 686 (1988) (award reinstating
employee who failed to tighten lug bolts on car set aside
because employee’s conduct violates public policy).
The most direct and dramatic conflict is between the
decision of the Eleventh Circuit in the present case and
the decision of the District of Columbia Circuit in North-
west Airlines, Inc. v. Air Line Pilots Association, 808
F.2d 76, 83 (D.C. Cir. 1987), cert. denied. 108 S. Ct.
1751 (1988). Both cases involved pilots who, while suf-
fering from alcoholism, had operated aircraft while in-
toxicated. In Northwest Airlines, the court of appeals
held that no public policy was violated by an arbitration
award which would restore the pilot to service after he
had been successfully treated for his alcoholism as deter-
mined by the FAA. The court dismissed the public pol-
icy argument as “meritless” because “the [System]
Board’s decision merely required Northwest to reinstate
Morrison if and when he was recertified by the FAA as
fully fit and licensed to fly.”” The court reasoned that:
To suggest that the Board’s award violates public
policy is to contend that the FAA was derelict in its
responsibilities in considering Morrison for recer-
tification. Obviously, it would be patently absurd for
us, under the guise of ‘public policy,’ to reverse an
arbitration award that is expressly limited by defer-
ence to the ultimate judgment of the agency that is
charged with the enforcement of the public policy
here at issue... .It would be the height of judicial
chutzpah for us to second-guess the present judg-
ment of the FAA recertifying Morrison for flight
duty.
Id. at 83.
The Eleventh Circuit in this case did precisely what
the D.C. Circuit in Northwest refused to do: it held that
9
because the pilot’s conduct violated public policy—a mat-
ter about which no one disagrees—the arbitrator’s deter-
mination that discharge was not the appropriate penalty
likewise violated public policy. We believe that the D.C.
Circuit’s analysis of the issue is persuasive and the re-
sult it reached is correct.’ Certiorari should be granted,
however, not just to reverse an erroneous decision by the
Eleventh Circuit, but, more importantly, to resolve the
conflict between the circuits on the public policy question.
II. THE ELEVENTH CIRCUIT’S DECISION UNDER-
MINES THE RULE OF JUDICIAL NONINTERFER-
ENCE WITH LABOR ARBITRATION
Since the’ Steelworkers Trilogy® it has been a settled
principle of labor law that judges lack the authority to
set aside an arbitrator’s award because they disagree
with the arbitrator’s reasoning or his resolution of the
dispute. Misco, though continuing to recognize the pub-
lic policy exception to this rule articulated in W.R. Grace,
nonetheless made clear that the exception would not be
permitted to swallow the rule. The Misco opinion espe-
cially cautioned against using the public policy exception
to overrule the arbitrator’s determination concerning the
appointment of the penalty:
Even if it were open to the Court of Appeals to
have found a violation of ... [the Company’s rules]
because of the marijuana found in Cooper’s car, the
5 The only conceivable public policy issue that could be presented
by the award in either case is whether reinstatement might create
too great a risk that the pilot might again fly while intoxicated.
That issue, however, was eliminated by the arbitrators’ findings in
both cases that the pilots’ misconduct was the result of alcoholism,
and by the FAA’s determination that the pilots had been success-
fully treated and were eligible for recertification.
8 United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960) ;
United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574
(1960); United Steelworkers v. Enterprise Wheel and Car Corp.,
363 U.S. 593 (1960).
10
question remains whether the court could properly
set aside the award because in its view discharge was
the correct remedy. Normally, an arbitrator is au-
thorized to disagree with the sanction imposed for
employee misconduct. In Enterprise Wheel, for ex-
ample, the arbitrator reduced the discipline from
discharge to a 10-day suspension. The Court of Ap-
peals refused to enforce the award, but we reversed,
explaining that though the arbitrator's decision must
draw its essence from the agreement, he “is to bring
his informed judgment to bear in order to reach a
fair solution of a problem. This is especially true
when it comes to formulating remedies.” 363 U.S. at
597, 80S. Ct. at 1861....
Misco, 108 S. Ct. at 8372 (emphasis as in original).
The decision below disregards the limitations upon the
public policy exception set forth by the Court in Misco
and, if permitted to stand, significantly weakens the
Trilogy. In the Eleventh Circuit’s view, all that is re-
quired to set aside an arbitrator’s award reducing a dis-
charge penalty is a showing, not that an explicit pub-
lie policy mandates the discharge, but only that the mis-
conduct for which the penalty was imposed violates a
work-related public policy. A deliveryman who gets a
parking ticket, a truckdriver who is cited for going ten
miles over the speed limit, a pilot who engages in non-
essential conversation in the cockpit in violation of 14
C.F.R. § 121.542 (or, for that matter, violates any other
FAA regulation)—all would be subject to discharge on
public policy grounds. The Ninth Circuit has gone even
a step further in Stead Motors, implying that public
policy can be used to sustain the discharge of any em-
ployee who creates a safety hazard by failing to do his
job properly.
In short, so many work-related acts or omissions can
be deemed violative of public policy that the Eleventh Cir-
cuit’s standard is really no standard at all. “|T]here
are no limiting principles once a court chooses to look
11
past the legality of the arbitrator’s award to the nature
of the underlying conduct at issue.” Edwards, Judicial
Review of Labor Arbitration Awards: The Clash Be-
tween the Public Policy Exception and the Duty to Bar-
gain, 64 Chicago-Kent L. Rev. 3, 22 (1988). Hence,
‘“li]n the proverbial next case, only the court will know
whether the arbitrator’s award violated public policy.”
Id.’
III. CERTIORARI SHOULD ALSO BE GRANTED TO
REVIEW THE LOWER COURT’S HOLDING THAT
THE ARBITRATOR WAS PRECLUDED FROM CON-
SIDERING POST-DISCHARGE EVENTS
Further warranting review by this Court is the holding
by the court below that the arbitrator could not consider
events occurring after Captain Day’s discharge—
specifically, his diagnosis of alcoholism, treatment for the
disease, and subsequent rehabilitation—in determining
whether discharge was the apnpropriate penalty for his
misconduct. The Eleventh Circuit relied in this regard
on its earlier decision in Butterkrust Bakeries v. Bakery
Workers International Union, 726 F.2d 698 (11th Cir.
1984), which it described as “hold{ing] that an arbitra-
tor is bound to decide just cause for discharge, vel non,
at the time of discharge.” (App. 8a).
* The principle of judicial noninterference with labor arbitration
applies with special force under the Railway Labor Act. The Act
explicitly limits judicial review to three specific grounds: (1) fail-
ure of the Board to comply with the requirements of the Act; (2)
failure of the Board to conform, or confine, itself to matters within
the ecope of its jurisdiction; and (3) fraud or corruption. 45
U.S.C. §$ 153 First (q). The Fifth Circuit aptly characterized this
scope of jucicial review as “among the narrowest known to law.” °
Diamond v. Terminal Railway Ala. State Docks, 421 F.2d 228, 233
(5th Cir. 1970). This Court later cited that characterization with
approval in emphasizing that the standard of review language
“means just what it says.” Union Pac. Ry. v. Sheehan, 439 U.S. 89,
93 (1978).
12
Contrary to the Eleventh Circuit, arbitrators routinely
consider post-discharge events in mitigation of an em-
ployee’s misconduct. See F. Elkouri and E, Elkouri, How
Arbitration Works 675-677 (4th ed. 1985). Especially in
cases where the employee’s misconduct is found to have
been the result of alcoholism, arbitrators have explicitly
recognized not only that alcoholism is an illness rather
than willful misconduct, but also that rehabilitative ef-
forts after discharge should be considered as mitigating.
See T. Denenberg & R. Denenberg, Alcohol and Drugs,
Issues in the Workplace 4, 15-16 (BNA) (1983). The
Eleventh Circuit’s view that this is improper arbitral
practice is in direct conflict with the view of other cir-
cuits."
The Eleventh Circuit’s view is also out of step with
Misco. To be sure, in Misco the arbitrator’s refusal to
permit an employer to justify a discharge on the basis
of the employee’s post-discharge conduct was sustained.
The Court’s rationale, however, was not that the law
requires an arbitrator to reject as irrelevant “after-
discovered evidence,” but rather that it is up to the arbi-
trator, not a reviewing court, to determine whether and
to what extent such evidence will be considered. 108 S.
Ct. at 371. As the Court made clear, although “arbitra-
tors often, but not always, confine their considerations
to the facts known to the employer at the time of dis-
charge,” this is one of those “procedural” determinations
8 Arbitration awards finding mitigating circumstances on the
basis of post-discharge events have been upheld in the following
cases: United States Postal Service v. National Association of Let-
ter Carriers, 839 F.2d 146 (3d Cir. 1988) (employee’s post-
discharge conduct demonstrated no propensity to repeat previous
misconduct) ; Northwest Airlines v. Air Line Pilots Ass’n, 808 F.2d
76 (D.C. Cir. 1987), cert. denied, 108 S. Ct. 1751 (1988) (pilot’s
post-discharge diagnosis of alcoholism and subsequent rehabilita-
tion); United States Postal Service v. National Association of Let-
ter Carriers, 810 F.2d 1239 (D.C. Cir. 1987) (post-discharge
attendance at “Gamblers’ Anonymous” and cessation of gambling).
13
which is within the arbitrator’s discretion to make. Id.
at 371 n. 8, 371-872. See John T. Wiley & Sons, Inc. v.
Livingston, 376 U.S. 548, 557 (1964).
Like its expansive reading of the public policy excep-
tion, the Eleventh Circuit’s limitation on arbitral discre-
tion should not be left standing by this Court because
it, too, dangerously undercuts the longstanding rule of
judicial noninterference with labor arbitration.
CONCLUSION
For the reasons stated, the petition for a writ of cer-
tiorari should be granted.
Respectfully submitted,
GARY GREEN
EUGENE B. GRANOF
JERRY D. ANKER
FELICE BUSTO *
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL
1625 Massachusetts Ave., N.W.
Washington, D.C. 20036
(202) 797-4088
Attorneys for Petitioner
Air Line Pilots Association,
International
Dated: May 24, 1989 * Counsel of Record
APPENDIX
la
APPENDIX
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
DELTA AIR LINES, INC.,
Plaintiff-Counter-Claimant,
Defendant-A ppellee,
Cross-Appellant,
Arr LINE PILOTS ASSOCIATION, INTERNATIONAL,
Defendant-Counter-Claimant,
Plaintiff-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Georgia
Dec. 8, 1988
Before HILL and FAY, Circuit Judges and DUBINA*,
District Judge.
HILL, Circuit Judge.
* Honorable Joel F. Dubina, U.S. District Judge for the Middle
District of Alabama, sitting by designation.
2a
I. FACTS
This case concerns the discharge of William D. Day, a
former Delta Airlines pilot, who was discharged by Delta
for operating an aircraft while drunk. The facts, which
were established at Day’s grievance hearing before the
Delta System Board of Adjustment, are not in dispute.
On January 9, 1985, Day was the Pilot-In-Command
of Flight 410 from Boston to Bangor, Maine, which
arrived about 2:00 p.m. The other cockpit crew members
were First Officer David Rothbart and Second Officer
Peter V. Voorhees. The four flight attendants (F/A’s)
were Robin Surette, Maureen Dion, Linda Rehal and
Debbie Kleibech. The crew had a scheduled layover at
the Bangor Holid:y Inn. Flight 437 to Boston departed
at 7:05 a.m. on January 10. This same crew was to
operate that flight.
Before dinner on the evening of January 9, Day met
some of the other crew members in the lounge of the
hotel and drank three beers. The three pilots, two of the
F/A’s and Angela Miller (a friend of Voorhees) then
went to dinner, where they shared three carafes of wine.
After dinner, the group returned to the lounge for a
“nightcap.” Day and Miller remained in the lounge to
finish their drinks after the others had left. A stranger
at the next table offered to buy Day a drink; Day
accepted and consumed more alcohol. Although Day
maintains that he “blacked out” around 10:00 p.m. on
January 9, he acknowledges that he must have changed
his beverage of preference to scotch whiskey later in the
evening. Bar bills indicate that Day continued to drink
scotch until 12:30 a.m. The next thing Day remembers
is his alarm clock sounding at 5:15 a.m. January 10.
Rothbart knocked on Day’s door around 6:15 a.m., but
Day told him to go on to the airport without him.
Testimony of F/A’s Surette, Dion and Rehal establish
that Rothbart, upon returning from Day’s room, told the
3a
other crew members, “We’re going without him. He’s
still out cold.”
Day eventually made his way to the airport and
entered the aircraft shortly before departure and just
as the last passenger was boarding. His fellow flight
deck officers did not interfere with his boarding; more-
over, Day was supported by Rothbart as he entered the
aircraft. His face was very red; his eyes were glassed
over; and he appeared to be very disoriented. F/A
Surette smelled liquor on Day’s breath as be passed by
her. F/A Rehal testified that after observing Day’s
difficulty in getting into his cockpit seat, she said to
F /A Dion, “He’s drunk.”
The cockpit door was immediately closed and locked.
F/A Surette knocked on the cockpit door, attempting to
see if Day was too drunk to fly the airplane. Voorhees
opened the door, but stood in the doorway blocking
Surette’s view. Upon questioning by Surette, Voorhees
replied, “Everything is fine.” Noticing F/A Rehal, Voor-
hees said, “The blonde doesn’t look convinced.” Surette
answered, “She’s not, and neither am I.”
Nevertheless the flight departed Bangor with Day as
Pilot-In-Command. The aircraft, a Boeing-727, was
filled with passengers. All of the flight deck crew mem-
bers testified that Day flew the aircraft the entire trip.
After reaching cruise altitude, Voorhees walked back to
the galley and obtained coffee to carry to the flight deck.
F/A Surette told Voorhees that the F/A’s believed that
Day was drunk, but he again replied that everything
was all right. Upon his return to the cockpit, Voorhees
wrote a note to Rothbart stating, “We got trouble with
the F /A’s.” Rothbart, upon reading the note, instructed
Voorhees to disconnect the cockpit voice recorder, which
he did. This was a direct violation of Federal Aviation
Regulations. While the recorder was disconnected, the
pilots discussed the problem presented by there being
4a
F'/A’s who were perceived as being disagreeable because
their Pilot-In-Command was drunk. After about five
minutes, they reconnected the recorder.
Flight 437 did arrive and land at Boston. Thereupon,
the F/A’s reported to Chief Pilot James Baker that Day
was drunk while flying the aircraft. At the same time,
the passenger who had been last to board and who had
also believed Day was drunk, reported his observations
to a Delta Customer Service Manager, who, in turn,
gave the information to Baker.
Captain Baker called the pilot crew into his office
and promptly concluded that Day’s appearance and _ be-
havior indicated Day was drunk. All three pilots were
given blood alcohol tests. No alcohol was detected in
the blood of either Rothbart or Voorhees. However,
Day’s blood contained alcohol. Expert analysis demon-
strated that, given time for the alcohol to dissipate, Day
had a blood alcohol content of approximately .13 grams
at the time he flew the aircraft.1 Day was discharged
on January 15, 1985. Prior to his discharge, Day made
no attempt to enroll in an alcohol rehabilitation pro-
gram operated by Delta or any other such program,
though he had experienced other incidents of blackouts
from drinking.’
The Federal Aviation Administration (FAA), by
regulation, forbids the operation of any aircraft while
drunk. Federal Aviation Regulations provide:
§ 91.11 Liquor and Drugs
(a) No person may act as a crew member of a
civil aircraft—
1J~In Massachusetts, .1 gram is presumptive of operating an auto-
mobile under the influence of alcohol. Mass.Gen.Laws Ann. ch. 90
§ 24(1)(e).
2 Only after Delta denied Day’s discharge grievance did Day seek
evaluation concerning his alcoholic tendencies. Day was diagnosed
an alcoholic and entered in-patient treatment in March 1985.
5a
(1) within 8 hours after the consumption of
any alcoholic beverage;
(2) while under the influence of alcohol;
(3) while using any drug that affects the per-
son’s faculties in any way contrary to safety.
Delta forbids such conduct. Its Flight Operations Pro-
cedures Manual, Section 3, page 11 (10-12-84) states:
USE OF ALCOHOL OR OTHER DRUGS
Use of intoxicating beverages, including wines and
beer, by flight crew members while in uniform or
within 24 hours prior to departure of a flight is
prohibited.
The excessive use of intoxicants or drugs by any
flight crew member, regardless of the above limita-
tions, constitutes cause for discharge.
Any evidence of the use of alcohol or other drugs
which is apparent at the time of reporting for flight
duty, also constitutes reason for discharge.
Any flight crew member who knowingly permits
another flight crew member to attempt to perform
his flight duty while under the influence of intoxi-
cants or drugs shall be considered equally guilty.
Day was discharged for violating both the Delta rules
and the FAA Regulations.
Upon termination, Day submitted a grievance letter to
Delta. The grievance was denied. The Air Line Pilots
Association (ALPA), asserting that Day’s flying of
Flight 437 while drunk was not a sufficient cause for his
discharge, submitted the dispute to the System Board.
In a confusing three-to-two opinion, a majority of the
System Board found that, although Day had committed
a dischargeable offense, there was no just cause for dis-
6a
charge. According to the Board, Day should have been
offered the option of entering the Delta alcohol rehabilita-
tion program instead of being terminated. The Board
determined that Delta, by firing Day, did not administer
its aleohol rehabilitation program uniformly or fairly.
This conclusion was based on the fact that, on at least
three prior occasions, crew members who were appar-
ently en route to reporting for duty while intoxicated,
had been intercepted by fellow crew members or other
Delta employees prior to take-off. These three, who had
not served as crew members while drunk, were given
the opportunity to enter Delta’s rehabilitation program
and/or given punishment less severe than discharge. In
addition, the Board considered the fact that Voorhees and
Rothbart were suspended rather than discharged. The
majority also found it significant that, after discharge
and after rejection of his grievance, Day was diagnosed
as an alcoholic and had pursued a rehabilitation program
with effective results.
After the finding of “dischargeable offense,” the Board,
nevertheless, concluded that the discharge was “without
just cause although [Day] did commit serious miscon-
duct.” Day was awarded reinstatement, without back
pay or related benefits. and Delta was ordered to pay
for the costs of the alcohol rehabilitation program in
which Day had participated. Delta was also ordered to
cooperate with Day and with the FAA so that Day could
be granted special issuance of a first-class airmen medi-
cal certificate.*
On February 12, 1987, Delta filed a complaint in the
district court, seeking to have the arbitration award set
aside. The district court overturned the decision of the
System Board, except for that portion of the award re-
quiring Delta to reimburse Day for the costs of his alco-
3 Day’s pilot’s license and medical certificate had been suspended
by the FAA.
7a
hol rehabilitation. The district court found that enforce-
ment of the award finding no just cause for discharge
would violate clearly established public policy against al-
lowing pilots of airliners to operate aircraft while under
the influence of alcohol. 686 F.Supp. 1573. The ALPA,
arguing that Day’s conduct was not just cause for dis-
charge, filed a Notice of Appeal. Delta filed a Notice of
Cross-Appea! concerning the order for reimbursement.
II. DISCUSSION
A. Scope of Review and Binding Authority
In deciding whether it was proper for the district
court to overturn the arbitrator’s decision, we note that
[t]he function of the court is very limited when the
parties have agreed to submit all questions of con-
tract interpretation to the arbitrator. It is confined
to ascertaining whether the party seeking arbitra-
tion is making a claim which on its face is governed
by the contract.... The courts, therefore, have no
business weighing the merits of the grievance. -
United Steelworkers of America v. American Manufac-
turing Co., 363 U.S. 564, 567-68, 80 S.Ct. 1343, 1346,
4 L.Ed.2d 1403 (1960). As long as the arbitrator’s
award “draws its essence from the collective bargaining
agreement,” and is not merely “his own brand of indus-
trial justice,” the award is legitimate. United Steelwork-
ers of America v. Enterprise Wheel & Car Corp., 363
U.S. 593, 597, 80 S.Ct. 1358, 1861, 4 L.Ed.2d 1424
(1960). However, we must also be aware that there are
public policy considerations which may be applicable
under the facts of a given case. W.R. Grace & Co. v.
Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.
2d 298 (1983).
Our inquiry focuses on the three-to-two award of the
Delta System Board of Adjustment. Examination of the
award reveals an ambiguity in the several findings of
8a
the majority. First, the majority found that Day “did
commit a dischargeable offense.” Then, in the following
paragraph, they found that there was no just cause for
Day’s discharge. In addition, the majority stated, in a
passage that might be taken as a disclaimer, that its
opinion “should not be interpreted as expressing a judg-
ment on the reasonableness of . . . [Delta’s] policies re-
lating to alcohol consumption and abuse.”
Notwithstanding this ambiguity, because the award
specifically states that there was no just cause for dis-
charge, we take it, for purposes of this review, that the
System Board majority found just that—no just cause—
and that Delta’s discharge of Day was improper. We
review the award as such.
We are particularly bound and informed by three
cases pertinent to the issue at hand: United Paperwork-
ers International Union v. Misco, Inc., U.S. ;
108 S.Ct. 364, 98 L.Ed.2d 286 (1987); Florida Power
Corp. v. International Brotherhood of Electrical Work-
ers, 847 F.2d 680 (11th Cir.1988); and Butterkrust
Bakeries v. Bakery, Confectionery and Tobacco Workers
International Union, 726 F.2d 698 (11th Cir.1984).
Butterkrust holds that an arbitrator is bound to decide
just cause for discharge, vel non, at the time of dis-
charge. The arbitrator’s responsibility is discharged
upon his determination of the existence of just cause.
If this finding has been made, the arbitrator is not
authorized to employ “his own brand of industrial jus-
tice’ and decide what post discharge good works would
entitle the properly discharged employee to rehire. While
the arbitrator (or independent member of a split panel)
may be an actual or potentially excellent personnel ex-
pert, his cpinion as to what employment opportunities
one ought to have if he or she, after discharge, con-
structively addresses the problems that led to discharge,
is not pertinent to arbitration duties. The arbitrator’s
9a
effort to impose his views on that subject upon the parties
to the arbitration amounts to his basing his decision
upon “his own brand of industrial justice,’ which is
forbidden.
Misco deals with the pubic policy exception to judicial
deference to arbitration awards. Misco follows the prin-
ciples of W.R. Grace & Co. v. Rubber Workers, 461
U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) with
respect to public policy:
In W.R. Grace, we recognized that “a court may not
enforce a collective-bargaining agreement that is
contrary to public policy” ... 461 U.S. at 766 [103
S.Ct. at 2183]... . We cautioned, however, that a
court’s refusal to enforce an arbitrator’s interpreta-
tion of such contracts is limited to situations where
the contract as interpreted would violate ‘some ex-
plicit public policy” that is “well defined and domi-
nant, and is to be ascertained ‘by reference to the
laws and legal precedents and not from general con-
siderations of supposed public interests.’” Id (quot-
ing Muschany v. United States, 324 U.S. 49, 66,
65 S.Ct. 442, 451, 89 L.Ed. 744 (1945)) (emphasis
in original text).
Misco, 108 S.Ct. at 373 (1987). In Misco, the employee
was apprehended on company premises in an atmosphere
of marijuana smoke in another’s car, and traces of mari-
juana were found in his own car on the company lot.
The Misco court found the reversal of the arbitration
award improper because the employee’s conduct was un-
related to his employment duties. As the Supreme Court
pointed out, the Court of Appeals did not ascertain any
“well defined and dominant” public policy violated by
the arbitrator’s interpretation of the contract to the ef-
fect that he may decide the question of whether the
company can continue to employ an employee who was
caught in a car with marijuana.
10a
In Florida Power, although the panel did not discuss
the public policy issue, the facts suggest that the dis-
charge was for conduct not integral to employment du-
ties. The employee in Florida Power, while off company
property and off company time, was stopped and arrested
for driving while intoxicated. A search of the employee’s
ear revealed cocaine, drug paraphernalia and a concealed
weapon. Upon learning of the employee’s arrest, the com-
pany discharged the employee for violation of a recently
adopted drug policy. The employee’s arrest resulted from
conduct unrelated to his employment duties, and for this
reason, the panel applied Misco. The court did not find
it necessary to discuss public policy considerations, it not
appearing that there is any public policy against employ-
ing someone who sells drugs away from the employment
premises. With respect to the scope of the arbitrator’s
authority, the panel merely followed the established prec-
edent and decided that the arbitrator's award was drawn
from the essence of the contract 2s required.
To summarize, we are instructed that our function in
reviewing an arbitration award is very limited. While
W.R. Grace makes it clear that we should reverse, if to
affirm, we enforce an agreement contrary to public pol-
icy, Misco teaches that we must find such public policy
from a more clear expression than our own notions of
what it might, or should, be. In Misco, it was not shown
that there existed explicit public policy forbidding the
continued employment of an employee who consumed
marijuana. We glean, inferentially, from Florida Power
that, no matter how strong a public policy may condemn
trafficking in drugs, Florida Power may, nevertheless,
agree to arbitrate the issue as to whether a party might
work for Florida Power, though guilty of such trafficking
off the job.
These cases he!p define the public policy exception enun-
ciated in W.R. Grace; none disapproves it. Such a doc-
trine exists, but examples of arbitration results that so
lla
offend public policy that they should be set aside by a
court are not readily to be found. This is not surprising.
An arbitrator’s result may be wrong; it may appear un-
supported; it may appear poorly reasoned; it may appear
foolish. Yet, it may not be subject to court interference.
The offending arbitrator’s award which properly results
in our setting it aside must be so offensive that one is to
be seen only rarely. Examples come to mind more read-
ily than exist in the real world.
It can hardly be denied that public policy would forbid
the enforcement of a contract submitting to arbitration
whether a complaint to the EEOC of racial discrimina-
tion constitutes just cause for discharge. See, e.g., Pett-
way v. American Cast Iron Pipe Co., 411 F.2d 998 | 5th
Cir.1969) (employee who was discharged for filing
charges with EEOC must be reinstated) ; Price v. Can-
non Mills Co., 607 F.Supp. 1146 (D.C.N.C. 1985) (dis-
charge of employee in retaliation for filing EEOC charges
violates Title VII). Should an employer make such an
assertion and an arbitrator find the assertion valid, the
court should promptly set the award aside. With this
background in mind, we review the award of the Delta
System Board of Adjustment.
B. Public Policy
The issue before this court is whether the district court
properly set aside the award of the System Board as
contrary to public policy.
We agree with the district court that, in the case be-
fore us. we have the rare example of an award the en-
forcement of which would violate clearly established pub-
lie policy which condemns the operation of passenger air-
liners by pilots who are under the influence of alcohol.
If this conclusion is correct, there must be some prin-
cipled difference between this case and Misco and Florida
Power. The difference is apparent.
,
12a
The employee in Misco appears to have smoked mari-
juana in a car in the plant’s parking lot. The employee
in Florida Power was discovered to have drug parapher-
nalia in his automobile. In these cases, the apparent
wrongdoing was serious and is seriously condemned.
However, in deciding to commit the wrong, the wrong-
doer was not making an employment decision. The em-
ployer, on the other hand, may reasonably have disliked
furnishing employment to one who is committing such
wrongs. Yet, should the employer decide to continue to
employ such a wrongdoer, even though his actions are
condemned by public policy, that decision—to continue
employment—is not itself contrary to public policy. Fur-
thermore, the wrongdoing by an employee can be ended
without affecting his employment. The wrongdoing and
the employment are parallel but not intertwined. The
wrongful conduct is wrongful, in and of itself, and its
lawfulness vel non does not depend in any way on the
employment. If public policy is offended—as it seems to
have been—the performance of employment duties has
nothing to do with it.
The case before us is remarkedly different. Here, it is
the employee gua employee who is the wrongdoer. It is
Day’s employment which made his intoxication violate
law and public policy. Day could not correct his offensive
conduct without altering the performance of his employ-
ment duties. He could not continue his offensive conduct
and yet perform his employment duties legally. Further-
more, Delta could not permit Day to continue to perform
his employment duties while his offensive conduct con-
tinued, without being an accessory to the wrongdoing.
As noted above, Misco requires the finding of a well
defined public policy and an award that conflicts with
that policy. The public policy of which the Supreme Court
speaks in Misco seems to be a public policy not ad-
dressing the disfavored conduct, in the abstract, but
disfavored conduct which is integral to the performance
18a
of employment duties. The question we are instructed,
by Misco, to ask is not, “Is there a public policy against
the employee’s*conduct?”, but, rather, “Does an estab-
lished public policy condemn the performance of employ-
ment activities in the manner engaged in by the em-
ployee?” Such a policy does exist in this case; the arbi-
trator’s finding of no just cause explicitly conflicts with
that policy.
The case before us is the case Misco was talking about.
The arbitrator has construed the collective bargaining
agreement in such a manner that it appears that Delta
has agreed to submit to arbitration the question as to
whether it should authorize operation of aircraft by
pilots while they are drunk. We must ascertain “by ref-
erence to the laws and legal precedent” whether there is
some explicit public policy that is “well defined and dom-
inant” which would prohibit Delta from entering into
such a contract. In order to find out, we must look at
what the people have done on this subject through their
elected representatives.
1. Laws and Legal Precedents
With the advent of the automobile came the need for
laws against drunk driving. The substitution of mechan-
ical power for that of horses and mules, as well as the
increased speed capability of the automobile, heightened
the dangers of vehicular traffic. In response to this, the
people, through their elected representatives, passed laws
which made it a crime to drive an automobile while in-
toxicated. Today, it is universally accepted throughout
the country that the operation of a motor vehicle while
drunk is a crime.
Likewise, the advent of the airplane, and its three
dimensions of movement and danger, produced a need
for laws against drunk flying. Public policy against the
operation of any vehicle while intoxicated promptly ex-
l4a
tended to that mode of travel as the people, again through
their elected representatives, passed laws against the op-
eration of aircraft while intoxicated. Today, laws pro-
hibiting flying while intoxicated have been adopted in
nearly every state, including Maine and Massachusetts
from which and into which Day piloted Flight 437. These
states include:
Alaska—Alaska Stat. § 02.30.030(a)
Arizona—Ariz.Rev.Stat. § 28-1744( B)
Arkansas—Ark.Code § 27-116-101
California—Cal.Pub.Util.Code § 21407.5
Connecticut—Conn.Gen.Stat. § 15-77
Florida—-Fla.Stat.Ann. § 860.13(1) (a)
Hawaii—Hawaii Rev.Stat. § 263-11
Idaho—Idaho Code § 21-112
[linois—Ill.Ann.Stat. ch. 15!. § 22.45d
Indiana—Ind.Code § 8-21-4-8
lowa—Iowa Code Ann. § 328.41
Kansas—Kan.Stat.Ann. § 3-1001
Kentucky—Ky.Rev.Stat. § 183.100
Louisiana—La.Rev.Stat.Ann. § 14:98(A)
Maine—Me.Rev.Stat.Ann. tit. 6, § 202(9)
Maryland—Md.Transp.Code Ann. § 5-1006(a)
Massachusetts—Mass.Gen.Laws. Ann. ch. 90 § 44
Michigan—-Mich.Comp.Laws § 259.185
Minn.Stat.Ann. $ 360.075
Mississippi—Miss.Code Ann. $ 61-11-1
Minnesota
Montana—Mont.Code Ann. § 67-1-204(7)
Nebraska—Neb.Rey.Stat. § 28-1465
Nev.Rev.Stat. § 493.130
Nevada
15a
New Hampshire—N.H.Rev.Stat.Ann. § 422:34(X)
New Jersey—N.J.Stat.Ann. § 6:1-18
New York—N.Y.Gen.Bus.Law § 245(7)
North Carolina—N.C.Gen.Stat. § 63-27
North Dakota—N.D.Cent.Code § 2-03-10 (2)
Ohio—Ohio Rev.Code Ann. § 4561.15 (c)
Oregon—Or.Rev.Stat. § 493.160
South Carolina—S.C.Code Ann. § 55-1-100(A)
South Dakota—S.D.Codified Laws § 50-13-17
Tennessee—Tenn.Code Ann. § 42-1-201
Texas—Tex.Rey.Civ.Stat.Ann. art. 46f-3
Vermont—-Vt.Stat.Ann. tit. 5, § 187
Virginia—Va.Code § 5.1-13
Washington—Wash.Rev.Code Ann. § 47.-68.220
West Virginia—W.Va.Code § 29-2A-11
Wisconsin—Wis.Stat.Ann. § 114.09
Wyoming—Wyo.Stat.Ann. § 10-6-103
Not only have the state legislatures passed these laws,
but the courts consistently upheld them. See State ex
rel. Schafer v. Fenton, 104 Ariz. 160, 449 P.2d 939
(1969) (damage to airplane which defendant crashlanded
was only an incident to offense of operating aircraft
while intoxicated and was not so closely related to the
offensive act as to bring into play misdemeanor compro-
mise statute, such that defendant was not entitled to
dismissal of information charging flying while intoxi-
eated, though he settled with owner of aircraft for dam-
age incurred in the crash); State v. Bahl, 242 N.W.2d
298 (Iowa, 1976) (defendant’s conviction for manslaugh-
ter can result from operating a motor vehicle, including
an aircraft, while intoxicated); Ward v. State, 280 Md.
485, 374 A.2d 1118 (1977) (statute making it a crime
l6a
to operate aireraft while intoxicated does not conflict
with federal law which, while proscribing identical con-
duct, imposes civil, rather than criminal penalties: there-
fore, defendant’s conviction under the statute upheld),
cert. denied, Ward v. Maryland, 434 U.S. 1011, 98 S.Ct.
723. 54 L.Ed.2d 754 (1978) ; Sanders v. State, 96 Okl.
Crim. 397, 256 P.2d 205 (1953) (where defendant pled
guilty to charge of operating an aircraft while intoxi-
cated, sentence which was not near the maximum was
affirmed). It appears that, of those states where we find
no specific statutory prohibitions, none allow operation
of an aireraft while intoxicated. Instead, those states
have general statutes which. properly construed, pro-
hibit reckless or dangerous flying (for example, Ala-
bama—-Ala.Code § 4-2-10 and Delaware—Del. Code Ann.
tit. 2. $309), and these statutes appear to be used to
penalize pilots who fly while intoxicated. On the federal
level, FAA Regulations, to which we have referred, for-
bid piloting an aireraft while intoxicated. We emphasize
that we have found no state that approves of operation of
an aireraft while drunk.
In addition to state statutes and federal regulations,
ease law also helps define public policy. As earlier ob-
ceyved. it is not to be expected that an extensive body of
case law has been, or will be, developed illustrating the
setting aside of arbitration decisions offending public
policy. Arbitrators are not prone to such extreme results.
However, with the principles we have outlined in mind,
we find precedential support in two cases, National La-
bor Relations Board (N.L.R.B.) v. Dixie Motor Coach
Corp., 128 F.2d 201 (5th Cir.1942) and Jowa Electric
Light and Power Co, v. Local Union 204 of the Interna-
tional Brotherhood of Electrical Workers, 834 F.2d 1424
(8th Cir.1987).
In Dixie Motor, the issue before the court was whether
there was sufficient evidence to support the award of the
N.L.R.B. reinstating certain employees. One employee, a
|
17a
bus driver, was discharged for his continued use of liquor.
Witnesses testified that the driver frequently became in-
toxicated, and that on occasions he drove his bus on his
regular run before he had fully recovered from a drink-
ing spree. The Rules and Regulations of the Railroad
Commission of Texas clearly forbade the operation of a
motor bus by an operator who drinks intoxicating liquor
either on or off duty. The court held that:
[t]he public interest, as well as that of the employer,
requires of any one entrusted with the lives and
safety of the travelling public that he conduct him-
self in a manner in keeping with his responsibilities.
The undisputed facts show that this employee’s
drinking habits were such as to place upon his em-
ployer the duty to discharge him.
Id. at 203. The court found that reinstatement of an
employee who drives drunk to a position of public serv-
ice “would do violence to the public welfare and to the
purposes of the National Labor Relations Act.” Jd. Thus,
the court reversed the order reinstating him. Driving a
bus while drunk, like flying an airplane while drunk,
offends public policy in such a way that discharge must
be justified, if not demanded. The driver’s misconduct—
driving while drunk—was inextricably related to the per-
formance of his employment duties. Discharge was there-
fore authorized, and the employer’s decision to discharge
for such an offense was not subject to being set aside.
The arbitration award in Jowa Electric called for the
reinstatement of a nuclear power plant machinist who
had been discharged for deliberately violating important
federally mandated safety regulations. The employee, in
a rush to get to lunch early, deliberately ordered a fore-
man to pull a fuse on the interlock door system so that
he could leave the secondary containment area. This door
system is used as a measure to protect the public from
exposure to harmful radiation. The district court va-
18a
cated the arbitrator’s award on public policy grounds,
and the Eighth Circuit Court of Appeals affirmed.
The court found a “well defined and dominant’ na-
tional policy requiring strict adherence to nuclear safety
rules. The court then concluded that this strong public
policy would be violated by judicial enforcement of an
arbitrator’s award requiring the reinstatement of an
employee who had deliberately violated nuclear safety
regulations. The employee’s misconduct occurred in the
midst of, and as a part of, the performance of employ-
ment duties, as did Day’s, and discharge was found to be
justified.
2. Conflict with Public Policy
In our investigation, we have not uncovered any stat-
ute, law, ordinance or court precedent to the effect that
flying under the influence of alcohol is consistent with
publie policy. It may be remarkable to find in any field
of public opinion and policy such unanimity and _ total
absence of dissent.
The existence of public policy denouncing the operation
of any aircraft, even those not occupied by passengers,
while intoxicated is “explicit,” “well defined and domi-
nant,” and “ascertained by reference to laws and legal
precedents” we have here reviewed. When public policy
is offended by what a person does, unrelated to the per-
formance of his employment duties, an employer may
well conclude that he should discharge that person as an
expression of disapproval, though there be no public pol-
icy one way or the other. Where the person performs
his employment duties and, in doing so, violates stand-
ards, restraints and restrictions on conduct, clearly and
explicitly established by the people in their laws, a re-
quirement that the employer suffer that malperformance
and not discharge the offender does itself violate the
same well established public policy. The public policy de
19a
nouncing the operation of any aircraft while drunk ad-
dresses disfavored conduct which is inextricably related
to the performance of employment duties, and thus fits
within the limitations imposed by Misco. What Day did
as performance of his employment is the very thing which
offends public policy. He flew an airplane while drunk and
endangered the lives of his passengers and crew.
While the employers in Misco and Florida Power may
have wished to use the leverage of employment to vindi-
cate public condemnation of marijuana smoking and
drug dealing, neither was under a duty to do so. Delta,
on the other hand, was under a duty to prevent the
wrongdoing of which its Pilot-In-Command was guilty,
and it could not agree to arbitrate that issue.
The collective bargaining agreement between Delta
and the ALPA, as interpreted by the System Board, inso-
far as it would submit to arbitration the question of
whether Delta should authorize operation of aircraft by
pilots under the influence of alcohol, violates public pol-
icy and cannot be enforced. The award of the System
Board, which would give effect to such an interpretation,
cannot be enforced,
As the district court noted, we are not suggesting that
an airline pilot may not be reinstated under different
circumstances or that a discharged pilot cannot be re-
habilitated and hired once again to fly. There is no pub-
lie policy against rehiring former alcoholics, post-rehabil-
tation. However, the arbitrator in this esse was not
authorized to decide whether, having been rehabilitated,
Day should be rehired. The arbitrator’s decision in this
case was limited to whether Delta had just cause to dis-
charge Day, after he had flown an airplane while drunk,
and before he had given the airline any indication that
he was an alcoholic. The System Board’s finding of no
just cause falls within the public policy exception, as lim-
20a
ited by Misco, and was properly set aside by the district
court.
Finally, we must examine that portion of the district
court’s judgment which required Delta to reimburse Day
for the expenses of his alcohol rehabilitation. As the
district court noted, Day, although asserting his right to
treatment in Delta’s alcohol rehabilitation program well
after discharge, made the claim the subject of his griev-
~ ance. As such, the issue was properly before the System
Board for determination. Given the factual conclusions
reached by the Board regarding Day’s entitlement to
treatment in Delta’s program, the district court held that
requiring Delta to reimburse Day for the costs of private
therapy did not exceed the arbitrator’s authority. We
agree. It may well be that the System Board would have
come to another result on this issue had it reached what
we hold was required on the principle issue, reinstate-
ment. We do not speculate on that. Contrary to that
which obtains vis-a-vis just cause for discharge, there
are no public policy implications in paying for rehabili-
tation. Were we initial deciders, we should perhaps be
guided by the fact that Day did not seek or request re-
habilitation until after his discharge. We are not initial
deciders. We end up where we started. “The courts,
therefore, have no business weighing the merits of the
grievance.” United Steelworkers of America v. American
Manufacturing Co., 363 U.S. at 568, 80 S.Ct. at 1346.
As to rehabilitation expense, there being no public policy
implicated, we agree with the district court.
III. CONCLUSION
For the reasons stated above, the district court’s order
is
AFFIRMED.
ne
21a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Civil No. C87-239
DELTA AIR LINES, INC.
VS.
AIRLINE PILOTS ASSOCIATION
ORDER
{Filed Sept. 30, 1987]
This action seeking to overturn an arbitration award
handed down pursuant to the provisions of the Railway
Labor Act (“RLA”) is before the court on cross motions
for summary judgment.
This case concerns the discharge of William D. Day, a
former Delta pilot, who was discharged by Delta for
operating an aircraft while intoxicated. The facts un-
derlying both parties’ motions for summary judgment
were established at Mr. Day’s grievance hearing before
the Delta System Board of Adjustment, (“the Board’),
and are unchallenged.
On January 9, 1985, William D. Day served as the
Pilot-in-Command of a flight which arrived in Bangor,
Maine around 2:00 p.m. He and the crew were schedule
to lay over in Bangor for the night then fly Delta
Flight No. 437 from Bangor to Boston at 7:05 a.m. the
next morning.
22a
During that lay over, Day drank unknown quantities
of scotch whiskey, as well as wine and beer, and became
extremely intoxicated. At his hearing, Day indicated
that he did not have a clear idea of how much alcohol
he drank. He stated that he could not remember any-
thing that happened after about 10:00 p.m.
The next morning Day was unable to get out of bed
in time to leave for the airport with the rest of the
crew. He arrived at the airport just prior to the sched-
uled departure. Witnesses indicated that another mem-
ber of the cockpit crew, first officer David Rothbart, had
to assist him on board the aircraft. At least one pas-
senger and two flight attendants indicated their concern
-buut Day’s condition. His eyes were glazed, his face
was red and swollen, and he smelled strongly of alcohol.
One flight attendant knocked on the locked cockpit door
to voice her objections to having a drunk fly the plane.
The second officer, Peter Voorhees, opened the door
slightly, and simply responded that everything was fine.
After takeoff, the second officer left the cockpit to get
some coffee. One of the flight attendants told Voorhees
that she knew the captain was drunk and that she hated
him for putting the flight attendants in that position.
Upon returning to the cockpit the second officer passed
a note to the first officer stating, “We got trouble with
the F/A’s.” Immediately thereafter, the cockpit voice
recorder was deliberately disconnected, in direct violation
of FAA regulations, while the crew discussed what to do
about the flight attendants’ concerns regarding Day’s
condition.
On arriving in Boston, one of the passengers con-
tacted a Delta customer service supervisor and declared
that the captain of the aircraft was intoxicated. The
flight attendants went directly to Captain James Baker,
Delta’s chief pilot in Boston, and reported that Captain
Day was drunk.
23a
Realizing the seriousness of these accusations, Captain
Baker met with Day in his office. He indicated that Day
was moving slowly, that his speech was slurred, and
that he looked drunk. Baker ordered Day and the first
and second officers to submit to a blood alcohol test. The
test results of the first and second officers were both
negative. Captain Day’s test indicated an alcohol con-
tent of .065 miligrams. Expert analysis indicated that
given time for the alcohol to dissipate, at the time that
Captain piloted Flight 437 from Bangor to Boston he
had a blood alcohol content of around .13 grams.’
Under the Delta Flight Operations Procedures Manual,
Use of intoxicating beverages, including wines and
beer, by flight crew members while in uniform or
within 24 hours prior to departure of a flight is pro-
hibited. The excessive use of intoxicants or drugs by
any flight crew members regardless of the above lim-
itations, constitutes cause for discharge.
Any evidence of the use of alcohol or other drugs
which is apparent at the time of reporting for flight
duty, also constitutes reason for discharge.
Federal aviation regulations specify that:
No person may act as a crew member of a civil
aircraft-—
1. Within eight hours after the consumption of any
alcoholic beverage
2. While under the influence of alcohol;
8. While using any drug that affects the person’s
faculties in any way contrary to safety; or
4. While having .04% by weight or more alcohol in
the blood
1In Georgia, .1 gram is presumptive of operating an automobile
under the influence of alcohol.
24a
Having clearly violated these rules by acting as pilot
in command of a flight while drunk, Captain Day was
terminated by Delta on January 19, 1985. The parties
agree that Delta had no reason to know about Day’s
drinking problem before the incident occurred, and that
he did not inform Delta that he thought he was an al-
coholic until after his discharge. Nor did Captain Day
ask to be enrolled in Delta’s alcohol rehabilitation pro-
gram prior to his discharge.
Day subsequently filed a grievance against Delta,
which was denied. The Airline Pilots Association then
requested arbitration, and the System Board of Adjust-
ment was covened pursuant to the Airline Pilots’ col-
lective bargaining agreement with Delta.
In an opinion issued in January, 1987, the System
Board determined that:
[Day] ingested a considerable quantity of alcohol
(beer, wine and Scotch Whiskey) in violation of the
Company’s (then) 24-hour rule and the FAA’s 8-
hour rule. He reported for Flight 437 on January
10, 1985, under the influence of aleohol and flew this
Bangor-Boston trip as captain despite his impaired
condition. A blood alcohol test administered to
[Day] at 11:33 a.m. on January 10, 1985, indicated
approximately 0.13 grams percent aleohol (well
above the usual d.c.i. standard of 0.10) when griev-
ant commenced flight 4387 at about 7:05 a.m. that
morning.
System Board Opinion, p. 27.
In a three-to-two opinion, a majority of the System
Board found that, although Day had committed a dis-
chargeable offense, he should have been offered the op-
tion of entering the Delta alcohol rehabilitation program
instead of being terminated. The Board determined that
Delta, by firing Captain Day, did not administer its
aleohol rehabilitation program uniformly or fairly. This
25a
conclusion was based on the fact that, on at least three
prior occasions, crew members who attempted to report
for duty while intoxicated were intercepted by fellow
crew members or other Delta employees before take off.
Rather than be discharged, they were either given the
opportunity to enter Delta’s alcohol rehabilitation pro-
gram and/or given punishment less severe than dis-
charge. Further, the Board’s decision turned on its find-
ing that although under Delta’s Operations Manual crew
members who allowed fellow crew members to operate
air craft while under the influence of alcohol were
“equally guilty,” the first and second officers in this case
were suspended and not discharged. The System Board’s
opinion reasoned:
Nothing in the record indicates that the Company
has advised its pilot group that a pilot who reports
for work under the influence of alcohol but who is
intercepted before he gets to the plane will prob-
ably not be discharged, but that if this pilot enters
the plane his discharge will be automatic. The
[Flight Operations Manual] says only that report-
ing for flight duty under the influence is cause for
discharge.
The Company, in other words, has not effectively im-
plemented the policy it claims to have designed to
encourage interception [of crew members under the
influence] in the interest of flight safety.
* * * *
The troublesome element model in this case is that
under the Company’s scenario grievant should have
been intercepted, and the fact that he was not in-
tercepted was not grievant’s fault but that of his
fellow crewmembers. Moreover, as noted above, the
Company, by having failed to communicate effec-
tively its real interception policy, must share in the
responsibility for the non-interception.
System Board Opinion at 32-33.
26a
In its award, the Board concluded that the discharge
of Captain William D. Day was “without just cause
although [Day] did commit serious misconduct.” Cap-
tain Day was awarded reinstatement, without back pay
or related benefits, and Delta was ordered to pay for the
costs of the alcohol rehabilitation program in which Day
had privately enrolled several months after his termina-
tion with Delta. Further, Delta was directed to cooper-
ate with Day and with the Federal Aviation Administra-
tion to allow Day to receive a first-class airman medical
certificate.
The scope of judicial review over arbitration awards
is extremely narrow. “Substantive review of an award
is limited to a determination of whether an award is
irrational, whether it fails to draw its essence from the
collective bargaining agreement, or whether it exceeds
the scope of the arbitrator’s authority.” Butter Arust
Bakeries v. Bakery, Confectionary and Tobacco Workers
International Union, 726 F.2d 698, 699 (11th Cir.
1984). In addition, a court may overturn an arbitration
award where the award is contrary to a well-defined
and definite public policy. W. R. Grace v. Local Union
759, International Union of United Rubber, Cork, Linol-
eum and Plastic Workers, 461 U.S. 757, 766 (1983).
Delta argues that the arbitration award in this case
must be set aside because the Systems Board exceeded
its authority, and because the award violates a clearly
defined public policy against allowing pilots to fly while
intoxicated.
With respect to the first argument, Delta maintains
that the Board acted outside its authority by fashioning
a remedy which interfered with Delta’s ability to carry
out its statutory obligation to provide “the highest pos-
sible degree of safety in the public interest.” 49 U.S.C.
$1421(b). Delta contends that federal law, including
FAA regulations, place upon the company the exclusive
authority to assess a pilot’s abilities, giving full con-
27a
sideration to “personal characteristics that could ad-
versely affect safety.” 14 C.F.R. § 121.413(4) id. The
evidence produced at the hearing indicated that Day had
at least two prior drinking episodes during which he
suffered complete blackouts or loss of memory. The sec-
ond of these incidents occurred less than a month prior
to the blackout he suffered before piloting Delta flight
437.
Delta contends that Day’s voluntary decision to begin
drinking shortly before he was to act as pilot in com-
mand of a passenger flight evidences a deficiency in
judgment and a willingness to endanger the lives of
hundreds of passengers. It contends that an air carrier’s
decision as to such safety factors as pilot judgment may
not be usurped by the Systems Board.
In support of its position, Delta cites World Air Ways,
Inc. v. International Brotherhood of Teamsters, 578 F.2d
800 (9th Cir. 1978). In that case, the arbitration award
reinstated a pilot whom the air carrier believed lacked
the sound judgment necessary to operate an air craft.
The pilot had been discharged after a series of incidents,
including flying a plane with too little fuel, and missing
approaches at at least three different airports. The ar-
bitration board ordered his restatement, notwithstanding
testimony indicating that increased training would en-
hance his technical capabilities but not ameliorate his
poor judgment.
The Ninth Circuit Court of Appeals overturned the
award, explaining that although there was a _ strong
policy in favor of allowing disputes to be arbitrated, an
equally strong federal policy gave carriers the responsi-
bility for determining whether a given pilot has the
capacity to operate an air craft safely. The Court found
that, “It was the duty of the carrier to determine the
competency of its pilots in the interest of public safety
taking into account such things as ‘personal characteris-
28a
tics that could adversely affect safety.” 578 F.2d at
803, quoting 14 C.F.R. § 121.413(4) (il).
However, the scope of this decision was restricted in
a later case when the Ninth Circuit held that the deci-
sion in World Airways did not exclude air passenger
safety issues from arbitration. The Court explained that
it was not the consideration of a safety-related issue
that exceeded the appropriate scope of an arbitrator’s
authority; rather, the remedy in World Airways went
beyond the arbitrator’s authority because evidence in the
record indicated that the pilot’s judgmental errors were
not correctable. Association of Professional Flight At-
tendant v. American Air Lines, 767 F.2d 13831, 13834
(9th Cir. 1985).
Under the collective bargaining agreement at issue
here, the System Board’s jurisdiction is extremely broad.
The Board may consider “disputes between any pilot cov-
ered by this Agreement and the Company growing out of
grievances or out of interpretation or application of any
of the terms of this Agreement.” * Nor does the agree-
ment list specific reasons for discharge. Thus, the safety-
related issue presented by Day’s discharge was properly
before the Board so long as the remedy did not violate
the agreement or public policy. See Northwest Air Lines
v. Air Line Pilots Ass’n Int., 808 F.2d 76 (D.C. Cir.
1987), pet. for cert. pending.
2 Delta also argues that the Board acted outside its authority
by evaluating Day’s dismissal in light of Delta’s alcohol rehabilita-
tion program. Delta claims that because the program is not men-
tioned in the collective bargaining agreement, the Board may not
consider it. However, this argument ignores the language of the
agreement, which gives the Systems Board jurisdiction over dis-
putes stemming from “grievances or out of an interpretation of ap-
plication” of the collective bargaining agreement. {Emphasis sup-
plied]. The term “grievances” is not limited by any language in
the contract. Given this sweeping language, the arbitrators were
authorized to consider Delta’s alcohol rehabilitation program in
connection with Day’s discharge. Cf. Loveless v. Eastern Air
Lines, 681 F.2d 1212 (11th Cir. 1982).
a
29a
This court reads World Airways to stand for the prop-
osition that an arbitration award cannot put an air car-
rier in the position of violating its duty to ensure air
safety. Flight Attendents makes clear that the earlier
ease did not really involve an arbitration award going
beyond the arbitrator’s authority. Rather, the true ra-
tionale underlying World Airways was that it is con-
trary to public policy to allow a pilot to fly when his
judgment is irreparably impaired.
Thus World Airways can be seen to support Delta’s
second argument, that being that the arbitrator’s award
violates public policy. In order for an arbitrator’s award
to be overturned as a violation of public policy, the
policy must be “well-defined and dominant.” W. R.
Grace, 461 U.S. at 766. The public policy at issue may
be ascertained by “reference to the laws and legal prece-
dents and not from general considerations of supposed
public interests.” /d., quoting Muschany v. United
States, 324 U.S. 49, 66 (1945).
It seems that two different interpretations of the public
policy doctrine have developed among the circuits. The
Eleventh Circuit has not yet delineated the scope of the
doctrine, other than to acknowledge its existence. See
e.g., Shopmen’s Local 539 v. Nosher Steel Co., 796 F.2d
1361 (11th Cir. 1986), and Drummond Coal v. United
Mine Workers of America, District 20, 748 F.2d 1495
(llth Cir. 1884). The First, Fifth and Seventh Circuits
have held that where the worker’s conduct constituted a
blatant violation of a clearly defined public policy that
reinstatement is inappropriate. The D. C. Circuit has
recently promulgated a much narrower view of the public
policy doctrine, holding that the act of reinstating a
discharged worker must somehow violate a specific policy.
An examination of the relevant case law makes this dis-
tinction clear. In United States Postal Service v. Amer-
ican Postal Workers Union, 736 F.2d 822 (1st Cir.
|
30a
1984) a postal worker embezzled funds from the post
office during his employment. The arbitration board,
finding that certain mitigating circumstances existed,
ordered that he be reinstated without back pay. The
post office sued to overturn the award on grounds that
reinstatement would violate public policy. The union
argued that because there was not a specific public policy
against the reinstatement of embezzlers, that the award
did not violate public policy.
The First Circuit held that the public policy doctrine
was not as narrow as the union claimed. Although in
at least one prior case reinstatement itself violated a
federal law,’ the Court did not require such a close nexus
between the award and a specific public policy in all
cases. Rather, the court determined that reinstatement
of a worker who had embezzled funds from the post
office would serve to encourage embezzling and under-
mined the government’s ability to enforce the public
policy against embezzling. The Court explained:
Aside from any considerations bearing directly on
Cote |the dismissed employee] we cannot avoid the
common sense implications that requiring the rehir-
ing of Cote would have on other postal employees
and on the public in general. Other postal employees
may feel there is less reason for them to be honest
than they believed-the Union could always fix it if
they were caught. Moreover, the public trust in the
Postal Service, and in the entire federal government,
could be diminished by the idea that graft is con-
doned.
736 F.2d at 825.
3In American Postal Workers v. United Postal Service, 682 F.2d
1280 (9th Cir. 1982), a postal worker engaged in an unauthorized
strike. The arbitration board oravred the worker reinstated. His
reinstatement explicitly violated 5 U.S.C. § 7311, which stated that
individuals who participated in strikes against the United States
government may not hold a position with the government. On this
basis, the Ninth Circuit declined to enforce the arbitrator’s award.
3la
Similarly, in S. D. Warren Company v. United Paper
Workers International Union, 815 F.2d 178 (1st Cir.
1987), the Court declined to enforce an arbitration award
which required the reinstatement of two employees who
had been fired for using or possessing illegal drugs on
company property. The Court once again noted that in
order to invoke the public policy exception the court need
not point to some positive rule of law declaring that
reinstatement of an employee fired for possession of
drugs is illegal. Rather, the Court found that the rein-
statement of employees who had clearly violated not only
company policy but public law by possessing illegal nar-
cotics was sufficiently in violation of public policy to war-
rant overturning the arbitrator’s decision. The Court
was particularly concerned with the issue of work place
safety, because the employees worked around heavy
machinery, and doing so under the influence of drugs
could jeopardize the safety of their co-workers.*
The Fifth Circuit has applied the public policy doctrine
in the same manner. In Amalgamated Meat Cutters v.
Great Western Food Company, 712 F.2d 122 (5th Cir.
1983), the Court considered the case of a discharged
employee who had wrecked the company’s tractor-trailer
rig while under the influence of alcohol. The arbitrator
ordered the employee reinstated on grounds that Great
Western failed to investigate the accident thoroughly, al-
though the employee did admit to drinking shortly before
the accident. The Court noted that drinking within four
hours of operating a motor vehicle or operating a motor
4The Court also held that the decision was outside the scope
of the arbitrator’s authority because the unambiguous wording of
the collective bargaining agreement said that where drugs are im-
plicated an employee may be fired. Thus, once the arbitrators de-
termined that the employees had actually used or possessed drugs
on company property, they did not have the authority to consider
mitigating circumstances in deciding whether the employees should
have been discharged. Here, the arbitrators’ authority was not so
constrained.
32a
vehicle under the influence of alcohol violated federal
motor carrier safety regulations. The Court determined:
Thus, the public policy of preventing people from
drinking and driving is embodied in the case law, the
applicable regulations, statutory law, and pure com-
mon sense. The policy is “well defined and definite.”
W. R. Grace and Company, U.S. at , 103
S.Ct. at 2182. To enforce the arbitrator’s award in
this case, an award which compels the reinstatement
to. driving duties of a truck driver who admittedly
drank while on duty, would violate this public policy.
Therefore, the district court erred in enforcing the
award.
712 F.2d at 125.
The Fifth Circuit again considered the public policy
doctrine in Misco, Inc. v. United Paper Workers Inter-
national Union, 768 F.2d 739 (Sth Cir. 1985), cert.
granted, 55 U.S.L.W. 3472 (1987) (No. 86-651). In that
case, the arbitrator ordered reinstatement of an employee
found to be in violation of the company’s prohibition
against possession of drugs on company property because
the arbitrator did not consider the presence of marijuana
in the employee’s car to be a significant violation. The
Fifth Cireuit disallowed enforcement of the arbitration
award, noting that use or possession of drugs, especially
in the work place, was contrary to the public policy and
that enforcement of the award could encourage other
workers to engage in illegal and potentially dangerous
conduct.
The Seventh Circuit has also construed the public pol-
icy exception in a manner consistent with the First and
Fifth Circuits’ approach. In FJ, DuPont de Nemours v.
Grassclli Employment Association, 790 F.2d 611 (7th
Cir, 1986), the Seventh Circuit noted that in reviewing
an award a reviewing court must respect the arbitrator’s
finding of facts but that the judgment of whether the
33a
award violates public policy is a de novo one for the
court. The Court explained that the arbitration award
need not, by itself, violate a positive rule of law. Rather,
the enforcement of the award must have the effect of
violating a clearly defined public policy. See also Inter-
national Union of United Auto Workers v. Keystone Con-
solidated Industries, 782 F.2d 1400 (7th Cir. 1985) (ar-
bitrator’s award vacated where enforcement would vio-
late clearly defined public policy behind the enactment
of ERISA).
The D. C. Circuit stands alone in giving a limited in-
terpretation to the public policy exception. In Northwest
Air Lines, 808 F.2d at 76, the first officer was termi-
nated for flying an aircraft while intoxicated. The sys-
tem board determined that in light of the employee’s
alcoholism, subsequent rehabilitation, and other mitigat-
ing factors, the discharge should be reduced to a suspen-
sion without back pay with reinstatement dependent
upon his unconditional recertification by the FAA. The
district court overturned the award on grounds that it
violated public policy. The Court of Appeals for the
District of Columbia reversed, holding that in order
for an award to contravene public policy the act of re-
statement must itself violate some positive rule of law.
The Court found that there was no FAA regulation or
other rule forbidding the reinstatement of alcoholic pilots
who have undergone rehabilitation. Thus, the court
found that public policy exe»ption inapplicable.
The contrast between the two approaches is clearly
illustrated by the D.C. Circuit’s treatment of a postal
worker dismissed for embezzling. In American Postal
Workers v. United States Postal Service, 789 F.2d 1
(D.C. Cir. 1986), the arbitrator reinstated an employee
who had admitted to dishonesty in postal service trans-
actions because he found that the postal worker should
have bcen given Miranda warnings before being ques-
tioned about his illegal embezzlement of post office funds.
34a
The postal service sought to overturn the award as vio-
lative of public policy, as the First Circuit did when it
dealt with a similar fact situation... The D.C. Circuit
found that “the arbitrator’s award was not itself un-
lawful, for there is no legal prescription against the re-
statement of a person such as the grievant. And the
award did not otherwise have the effect of mandating
any illegal conduct.” 789 F.2d at 8. Thus the court
found public policy exception inapplicable.
Although the Eleventh Circuit has not had the occasion
to analyze the public policy exception in detail, the for-
mer Fifth Circuit did apply it in at least one case, that
being National Labor Relations Board v. Dixie Motor
Coach Corp., 128 F.2d 201, 203 (5th Cir. 1942). In that
case, the former Fifth Circuit denied enforcement of an
NLRB award order reinstating a bus driver who had
been discharged for drinking while on duty.” In light of
this former | ifth Circuit decision, this court finds that
the correct approach is the majority position outlined
above, and declines Defendant’s invitation to follow the
D. C. Circuit in its narrow construction of the public
policy doctrine.’
After carefully examining the facts of this case as well
as the above legal precedents, the court finds that en-
forcement of this award would violate clearly established
public policy against allowing the pilots of airliners to
operate aircraft under the influence of alcohol. That
policy is “well defined and dominant” and codified in
FAA regulations. The public safety implications of a
5 See United States Postal Service v. American Postal Workers
Union, 736 F.2d 822 (1st Cir. 1984), discussed above.
6 Under Bonner v. The City of Prichard, Ala., 661 F.2d 1206 (11th
Cir. 1982), former Fifth Circuit precedent is binding upon this
court.
7Even in the absence of binding precedent, the court would
follow the majority approach as the better-reasoned position.
35a
situation such as the one that occurred when Captain
Day piloted Delta Flight 437 are enormous. While in
some sense it may be “unfair” that Captain Day was
fired while other pilots who were intercepted before fly-
ing were allowed to try to rehabilitate before being dis-
charged, Delta is perfectly correct in arguing that fail-
ure to discharge in this case could render ineffective the
only real deterrent that an airline carrier can use to try
and prevent its employees from operating aircraft under
the influence of alcohol.
In fact, Delta indicated that this is the only time in
Delta’s history, to its knowledge, that an aircraft was
actually flown by an intoxicated pilot. While in some
sense it may not be Captain Day’s “fault” that he flew
the airplane while drunk, he did so, and allowing his
reinstatement would give other aircraft pilots the mes-
sage that, when they get into that kind of trouble, “the
union could always fix it.” .Postal Services, 736 F.2d at
825. The court cannot imagine a more egregious viola-
tion of the public policy against allowing pilots to fly
while intoxicated.*
The court is not suggesting that an airline pilot may
not be reinstated under different circumstances, or that a
discharged pilot cannot be rehabilitated and hired by
another airline. However, the arbitrators in this case
were not authorized to decide whether, having been re-
habilitated, Captain Day should be rehired. See Butter
Krust Bakeries, 726 F.2d at 698 (remedial events occur-
ring after termination are not to be taken into account
as mitigating a dischargeable offense). Rather, the ar-
bitrators’ decision was limited to whether or not Delta
8 The negative impact of the System Board’s decision is exacer-
bated by the fact that the arbitrators’ award may be interpreted
to mean that every Delta pilot must be given the opportunity to go
into alcohol rehabilitation before being discharged, thus giving each
pilot the opportunity to fly an airplane drunk at least once before
being discharged.
36a
was justified in discharging Day at the time, after he
had flown an airplane while drunk, and before he had
given the airline any indication that he was an alcoholic.
The fact that Captain Day sought treatment for alcohol-
ism after his discharge, and subsequently controlled his
drinking, is quite simply irrelevant to the public policy
implications of this case.°
Finally, Delta argues that requiring Delta to pay the
costs of the private alcohol rehabilitation treatment which
Captain Day sought after his discharge amounts to puni-
tive damages, and is beyond the scope of the arbitrator’s
authority. The court agrees with Defendant that these
damages are compensatory, not punitive, and therefore
permissible. However, the court cannot find eny allow-
able reason to overturn the arbitrators’ award. As noted
previously, the Board has jurisdiction over all grievances
arising between Delta pilots and the company. See note
2, supra. This includes any grievance Day may have
with respect to his entitlement to enroll in Delta’s alcohol
rehabilitation program. While it is true that Day did not
assert a right to such treatment until well after his
discharge, Day made the claim the subject of his griev-
ance and the question was therefore properly before the
Systems Board.
No matter how strongly this court may disagree with
the factual findings ’® or conclusions of the Board, it
does not have jurisdiction to overturn the arbitrators’
decision unless the award fails to pass scrutiny on one of
®In fact, Defendant has informed the court that Captain Day,
having successfully undergone treatment, is currently working for
another airline.
10 It seems inconceivable that Day should be entitled to participate
in Delta’s alcohol rehabilitation program when he did not make
such a request until after his discharge, but such were the findings
of the Systems Board, and this court has no authority to second-
guess them.
37a
the four grounds enumerated above. Requiring Delta to
reimburse Day for the costs of his private therapy does
not exceed the arbitrators’ authority, given their factual
conclusions regarding his entitlement to treatment in
Delta’s program. Given the sweeping scope of the
Board’s jurisdiction under the Agreement, the court can-
not say that the award fails to draw its essence from the
Agreement. It is not irrational, and no corruption has
been alleged.
With respect to the public policy considerations, the
court finds that requiring Delta to cooperate with Day
and the FAA in recertifying Day is violative of public
policy, for the same reasons his reinstatement is unsup-
portable. However, the court cannot say that, as a mat-
ter of law, allowing Day to be treated for alcoholism
violates public policy. Thus this portion of the award
must be upheld.
In sum, Plaintiff’s motion for summary judgment is
GRANTED in part and DENIED in part. Defendant’s
cross motion for summary judgment is GRANTED in
part and DENIED in part. The court vacates the Sys-
tems Board’s award insofar as it required reinstatement
of Captain Day, or that Delta cooperate in getting Day
recertified. Delta is ordered to pay the money damages
awarded to Day by the Board. The clerk is directed to
enter final judgment based upen this order. Plaintiff’s
request for oral argument is DENIED.
SO ORDERED, this 30th day of September, 1987.
/s/ Orinda D. Evans
ORINDA D. EVANS
United States District Judge
38a
DELTA AIR LINES PILOTS’ SYSTEM
BOARD OF ADJUSTMENT
ALPA Case #£1-85
William D. Day
OPINION OF NEUTRAL CHAIRMAN
AWARD OF SYSTEM BOARD
System Board
Richard Colby and James Suckow
(appointed by Association )
John Moran and C. A. Smith
(appointed by Company)
Mark L. Kahn, Neutral Chairman
Hearings held Jahuary 28, 29, 30 and 31, 1986
Atlanta, Georgia
For the Company
Appearances:
Thomas J. Kassin, Esq.
Gregory L. Riggs, Esq.
Witnesses:
Robin Surette, F/A, BOS
Maureen Dion, F/A, BOS
Linda Rehal, F/A, BOS
Helen Frazier, Customer
Service Supervisor, BOS
James Baker, Chief Pilot, BOS
James W. Panter, Supervisor
Implied Consent Section
Georgia Bureau of Invest.
39a
Peter V. Voorhees, 727 F/0, BOS
David Rothbart, 727 S/O, BOS
Harry C. Alger, Asst. V.P. Opns.
Lynn Hankes, M.D., Dir., Addiction Treatment
Program
South Miami Hospital, FL
Nestor Kowalski, M.D., Avn. Prev. Medicine Assoe.,
Denver, CO
For the Association
Appearances:
William A. Roberts, Esq.
Robert A. Drew, Contr. Adm.
Witnesses:
William D. Day
Grievant
Joseph Westermeyer, M.D.
Dir., Program for Alcohol. Drug Dependence,
Univ. of Minn. Hospitals & Clinics
OPINION
This proceeding before the Delta Air Lines Pilots’ Sys-
tem Board of Adjustment, ALPA Case #1-85, involves
the grievance of William D. Day, a B-727 Captain based
at Boston. Captain Day was discharged on the basis of
the following “Notice of Termination” dated January 15,
1985, from Captain James M. Baker, Chief Pilot at
Boston (BOS):
This letter is being presented to you in accordance
with Section 18.C.1 of the current Agreement be-
tween Delta Air Lines Inc. and the Air Line Pilots
in the service of Delta Air Lines Inc. as repre-
sented by the Air Line Pilots Association Interna-
tional.
On January 9, 1985, you flew as Captain on Flight
410 from Boston to Bangor, Maine, and arrived in
40a
Bangor at approximately 2 P.M. You had a sched-
uled layover at the Holiday Inn in Bangor and were
scheduled to fly Flight 437 from Bangor to Boston,
departing at 7:05 A.M. on January 10, 1985.
While on your layover in Bangor, you consumed
alcoholic beverages within twenty four hours of the
scheduled departure of your assigned flight in direct
violation of Company rules. You continued to con-
sume alcoholic beverages within eight hours of the
scheduled departure of your flight in direct violation
of Federal Aviation Administration Regulations.
On January 10, 1985, you reported for duty on
Flight 437 under the influence of alcohol. You
served as Captain on that flight and operated the
aircraft from Bangor to Boston, during which time
you were under the influence of alcohol.
Your actions in consuming alcoholic beverages in
violation of Company and FAA Rules and Regula-
tions. and in reporting for and operating an as-
signed flight while under the influence of alcohol
demonstrate a blatant disregard for your profes-
sional responsibilities and for the safety and welfare
of your passengers, fellow crewmembers and _ the
public. Accordingly, your employment is hereby ter-
minated effective this date.
Captain Day’s grievance letter was submitted the fol-
lowing day to Captain C. A. Smith, Vice President /
Flight Operations. The requested hearing was conducted
on January 24, 1985, by Glen Sage, System Manager —
Line Operations. Captain Sage denied the grievance on
January 28, 1985, and the Association, on January 31,
1985, submitted the dispute to the System Board.
A four-member System Board deadlocked after hear-
ing this case on or about June 25, 1985. A five-member
System Board, including the undersigned as fifth member
*
4la
and Neutral Chairman, conducted hearings on January
28, 29, 30 and 31, 1986. Both parties agreed, at the out-
set (Tr. 6-7), that this case was properly in arbitration
before the System Board. Each party had a full oppor-
tunity, during these hearings, to present evidence and
argument on behalf of its position, and a transcript of
the hearings was prepared by certified court reporters.
Closing oral argument was waived in favor of post-
hearing briefs and reply briefs. Receipt of,each party’s
brief dated July 18, 1986, and of each party’s reply brief
dated August 22, 1986, completed the record. On Octo-
ber 21, 1986, the System Board reviewed the record and
considered the merits of the case during an executive ses-
sion in Atlanta, Georgia. A draft of this decision was
subsequently prepared by the Neutral Chairman and sub-
mitted to the other Board members for review and com-
ment. Sole responsibility for the content of this Opinion
remains, of course, with the Neutral Chairman.
Background
Grievant has a Delta pilot seniority date (including
prior Northeast Airlines service) of January 17, 1966,
and had never been disciplined by the Company prior to
his discharge on January 15, 1985. On January 9, 1985,
grievant was the Captain on Flight 410 from Boston,
where he was based, to Bangor, Maine, arriving at about
2:00 P.M. The other cockpit crew members were First
Officer David Rothbart and Second Officer Peter V.
Voorhees. Four Flight Attendants comprised the cabin
crew: Robin Surette (the A-Line F/A, in charge),
Maureen Dion, Linda Rehal and Debbie Kleibech. The
crew had a scheduled layover at the Bangor Holiday Inn,
and was to operate Flight 437 to Boston with a sched-
uled departure of 7:05 A.M. the following day.
Grievant testified that he had been sick with the flu,
and in bed with a high fever for four days, during the
42a
week before his current trip began on January 7; that
he was still feeling tired when, against his wife’s wishes,
he took the trip; that he was taking Sudafed (a de-
congestant), vitamins and aspirin; and that he was still
feeling tired on January 9 and 10 from the after-effects
of the flu. (Tr. 714-16)
Grievant testified that when he arrived at the Bangor
Holiday Inn at about 2:50 P.M. on January 9, he took
some Sudafed and aspirin and rested until about 4:15
P.M.: that he went to the lobby at about 5:00 P.M. to
join the crew for dinner, but found no one there; that
F/O Rothbart was in the lounge having a beer and
waved grievant over; that grievant had a beer and some
cheese. and then a second beer, while they waited for the
others: and that when others arrived there was another
round during which grievant drank a third beer before
six of them went to dinner in a car driven by SO
Voorhees: the three pilots, Angela Miller (a friend of
SO Voorhees) and two of the four Flight Attendants.
During their dinnner at the Pilot House restaurant, ac-
cording to grievant, the group of six shared three carafes
of wine.
Grievant testified that unon arriving back at the Holi-
day Inn at about 8:45 P.M., the entire group went into
the lounge for a “nightcap”; that F O Rothbart and
S/O Voorhees left: that grievant and Angela Miller, who
hadn’t finished their drinks, were talking and were joined
by a man from the next table who wanted to get infor-
mation about the Bangor area; that Miller moved over
to where the band was playing, and the man offered to
buy grievant a drink; that grievant accepted the offer;
that he and the man continued to talk; ‘and that’s basi-
cally about the last I remember of the evening.” (Tr.
717-21, 785-87)
Grievant now maintains that he blacked out shortly
before 10:00 P.M. on January 9, but he acknowledges
43a
that he must have switched to scotch and — based on bar
bills examined at the four-member Board hearing — that
he continued to drink scotch until about 12:30 A.M. (Tr.
769, 834-35). Grievant testified (Tr. 787) that his next
recollection was “When my alarm went off at 5:15 in
the morning.”’; that “I was cold, it was cold in my room
and I... had a sore throat, swollen glands, and sinus
congestion, tired.”; but that he had no awareness of how
late he had been up drinking the previous night (Tr.
788, 722).
Grievant fell back asleep after his 5:15 A.M. alarm
and remained asleep until awakened at 6:10 or 6:15
A.M. when F/O Rothbart knocked on the door to griev-
ant’s room. Grievant told Rothbart that the others should
proceed to the airport and that he would get there soon.*
Rothbart, at about 6:40 A.M., called grievant from Oper-
ations and said that the van would be waiting for him
at the Holiday Inn’s front door. Grievant told Rothbart
that he was “going out the door.” (Tr. 723)
Rothbart met grievant at the ticket counter door, told
grievant that his flight kit (which had remained at
Operations overnight) was already on board, and the
two walked through the baggage bin area and out of
that door across the ramp to the jetway stairs, a dis-
tance (according to grievant) of about 200 feet (Tr.
833). Grievant testified (Tr. 723-25) that there was
patchy ice, wind blowing at 30 or 35 knots, and some
dry snow blowing across the ramp:
I went first up the stairs, I opened the door, Dave
[Rothbart] grabbed the door behind me, I walked
in because there was only room for one person to
1 The testimony of Flight Attendants Surette, Dion and Rehal
(Tr. 60, 92, 99-100, respectively) establishes that F/O Rothbart,
upon returning to the Holiday Inn lobby from grievant’s motel room,
told the rest of the crew: “We’re going without him. He’s still out
cold.”
44a
go through the door at a time. He came in behind
me. I had my bag in my hand; he grabbed me by
the arm, he said, “I’ll take your bag, you just get
undressed and get in your seat.”
Grievant maintains that he did not feel drunk that morn-
ing but simply didn’t feel well, just as he had not felt
well the entire trip (Tr. 722-23). Grievant asserts that
he must have experienced a blackout starting just before
10:00 P.M. on January 9, 1985, because he had no recol-
lection of drinking to excess and violating the eight-hour
no-aleohol rule of the FAA.”
The testimony of all three cockpit crew members is
that grievant flew the trip from Bangor to Boston with-
out incident. According to grievant (Tr. 729):
_.. When we got out to the end of the runway 33
in Bangor, Dave Rothbart asked me, he says,
“Would you like me to fly because — until you get
caught up?” He thought that since I was rushed
and everything, which often happens when you're
rushed you feel uncomfortable. I told him no, I
felt fine.
2 According to grievant, this was his third blackout. He testified
that the first blackout had occurred at a party in 1977, when he
began drinking on an empty stomach at about 6:00 P.M., drank for
about two hours, and then awakened in his own bed the following
afternoon with no recollection of the intervening period. Grievant
stated that this experience so frightened him that he did not drink
at all for two or three years and then limited himself to beer and
wine when he resumed drinking in 1980. His second blackout, ac-
cording to grievant, took place around Christmas of 1984 upon his
return from a four-day trip at a party in his home. Grievant re-
calls drinking about three Scotches and being very tired, after
which he remembers nothing until awakening the following after-
noon. Grievant testified that he then decided to stop drinking
Scotch. which seemed to be associated with his blackouts, and to
stick to beer and wine; that he initially drank only beer and wine
on January 9, 1985, in Bangor; and that “when I started drinking
Seotch that night, I know now that that’s when I lost control.”
(Tr. 769)
‘ee
45a
Grievant had entered the aircraft shortly before
depariure time and just as the last passenger was also
boarding. Flight Attendant Surette testified (Tr. 62):
Dave [Rothbart] was supporting the Captain.
He had his arm behind the Captain’s arm and ap-
peared to be holding on to the back of his arm, like
around the elbow portion. And the Captain seemed
to be leaning against Dave.
F/A Surette also testified (Tr. 81) that she smelled
liquor as grievant and Rothbart walked by, and that
(Te Clie
His [grievant’s] face was very red, his eyes were
glassed over, and he just looked very disoriented,
not right.
Surette added that “Maureen [F/A Dion] and I ex-
changed a look of utter fear.” F/A Dion (Tr. 94-95)
and F/A Rehal (Tr. 100-103) corroborated the sub-
stance of F/A Surette’s testimony. F/A Rehal testified
that after observing grievant’s difficulties in getting into
his cockpit seat she said to F/A Dion: ‘“He’s drunk.”
The cockpit door was immediately closed and locked,
after which the cabin door was closed and the jetway
pulled away. F/A Surette knocked on the cockpit door.
When the door was opened by S/O Voorhees, who stood
right in the doorway and opened the door only enough
to talk te Surette, she asked him if everything was all
right and he replied, “Everything is fine.” According to
F/A Surette (Tr. 64-65) :
And then, from his viewpoint, he could see...
Linda Rehal leaning against the galley. And he said
to me, “The blonde doesn’t look convinced.” And I
said, “She’s not and neither am I.” And he said,
everything is fine. You take care of things out
there.” And I said, “No, you take care of things up
46a
there.” And then we were pushing back, the door
shut, and I had to do my PA.
After reaching cruise altitude, S/O Voorhees walked back
to the First Class galley and obtained coffee for himself
and the other pilots. There, he had a substantial conver-
sation with F/A Surette during which she told Voorhees
that the Flight Attendants believed that grievant was
intoxicated (Tr. 253-55, 66-67) and he again assured
her that everything was all right.
S/O Voorhees, upon returning to the cockpit, promptly
wrote a note that he passed up to F/O Rothbart: “We
got trouble with the F/A’s”. Rothbart, upon reading
the note, instructed Voorhees to disconnect the cockpit
voice recorder by pulling the appropriate circuit breaker
(Tr. 267). Voorhees did so.* The three cockpit crew
members then engaged in what may fairly be called some
off-the-record discussion of the Flight Attendant “trouble”
until, four or five minutes later, the cockpit voice re-
corder was turned back on at Rothbart’s direction (Tr.
353).
The Flight Attendants, discussing the situation among
themselves, decided that it would have to be reported at
Boston to Chief Pilot James Baker. This was done by
F/A Rehal. Meanwhile, the passenger who had been
last to board at Bangor, and who also believed that the
Captain was intoxicated, reported this at Boston to a
Delta Customer Service Manager and she, in turn, gave
this information to Captain Baker.
Captain Baker called the pilot crew into this office and
promptly concluded that grievant’s appearance and_ be-
havior fully justified the concerns of the Flight Attend-
ants. All three were removed from flight duty and
ordered by Baker to take blood alcohol tests, which were
3 It is concededly a violation of the Federal Aviation Regulations
to disconnect the cockpit voice recorder during a flight.
47a
administered at the Logan Airport Medical Station. No
alcohol was detected in the blood of either F/O Rothbart
or S/O Voorhees. The outcome of grievant’s blood test
is set forth in the following joint stipulation of the
parties (Tr. 5-6, Co. Ex. 3):
1. The grievant . . . was given a blood alcohol
test cn January 10, 1985 at 11:33 a.m. by the Logan
Airport Medical Station of Massachusetts General
Hospital.
2. The results of the blood alcohol test given to
the grievant on January 10, 1985 at 11:33 a.m.
established that the grievant had a blood alcohol
level of 65mg percent (.065 grams)... .
Grievant, as noted above (p. 1) was discharged on Janu-
ary 15, 1985. On that same date, F/O Rothbart was
issued a one-year suspension without pay and benefits,
and S O Voorhees was issued a six-month suspension
without pay and benefits. Their discipline notices each
contained the following statement regarding the basis for
their respective disciplinary penalties:
On January 10, 1985, you served... on Flight 437
from Bangor to Boston... Prior to the commence-
ment of this flight, you became aware of the obvious
fact that the Captain appeared to be intoxicated,
vet you and Mr. Voorhees [or Mr. Rothbart] will-
ingly participated in the conduct of the flight as
crewmembers. Your actions jeopardized the safety
of Flight 437, the safety of the passengers, as well
as the safety of the other crewmembers on said
flight.
Your knowing participation in the operation of the
flight while in violation of the Company’s twenty
four hour rule and while you were aware that Cap-
tain Day appeared to be intoxicated compromised the
safety of the flight. You intentionally disregarded
48a
your professional responsibilities and in doing so
endangered your passengers, fellow crewmembers
and the public. Such irresponsible conduct will not
be tolerated.
Subsequently, however, the Company reduced FO Roth-
bart’s one-year penalty to fe#-months and S/O Voor-
- fnalty to three months (Tr. 386).
The Company’s policy relating to alcoho! use, as of
January 1985, was set forth in its Flight Operations
Procedures Manual |FOPM}], Section 3, page 11 (10-12-
84):
USE OF ALCOHOL OR OTHER DRUGS
Use of intoxicating beverages, including wines and
beer, by flight crew members while in uniform or
within 24 hours prior to departure of a flight is
prohibited.
The excessive use of intoxicants or drugs by any
flight crew member, regardless of the above limita-
tions, constitutes cause for discharge.
Any evidence of the use of alcohol or other drugs
which is apparent at the time of reporting for flight
duty. also constitutes reason for discharge.
Any flight crew member who knowingly permits an-
other flight crew member to attempt to perform his
flight duty while under the influence of intoxicants
or drugs shall be considered equally guilty. [Orig.
emphasis. |
The Federal Aviation Regulations (FARs) provide:
$91.11 Liquor and Drugs
(a) No person may act as a crewmember of a
civil aircraft —
(1) within 8 hours after the consumption
of any alcoholic beverage;
49a
(2) while under the influence of alcohol;
(3) while using any drug that affects the
person’s faculties in any way contrary to
safety.
The Company, in 1977, instituted an Alcohol Rehabili-
tation Program. The 1980 statement of Standard Prac-
tice for this Program includes this introductory ma-
terial (ALPA Ex. 3):
1026.1 GENERAL
Excessive use of alcohol normally results in job
related problems such as absenteeism and deteriorat-
ing performance, as well as personal problems in-
cluding ill health, financial difficulties and degenera-
tion of relationships with family and friends. To-
day, the problem of alcohol dependency has been
resolved for many by their dedicated resolve to help
themselves through participation in alcohol rehabili-
tation programs at various centers throughout the
country. Delta’s Alcohol Rehabilitation Program is
designed to assist personnel who suffer from alcohol
dependency if they individually recognize or admit
that they have a problem and are willing to face up
to the situation by obtaining treatment.
It is hoped that through this program, individuals
who suspect they may be developing a dependency
on alcohol will be encouraged to seek help before
their dependency results in a serious deterioration
of their health or on-the-job performance. Individ-
uals who participate in the program will be assured
of confidentiality. A request for treatment of al-
cohol dependency will not jeopardize an individual’s
job security. ...
This program should not be construed in any man-
ner as condoning intemperance or lowering company
50a
standards applicable to on-the-job conduct and job
performance. Participation in the program will not
absolve individuals from their responsibilities to
Delta, their fellow employees, or appropriate au-
thorities, or in any manner infringe upon the com-
pany’s rights and responsibilities to administer dis-
cipline in connection wth any associated acts of mis-
conduct.
The Program provides (§ 1026.10) that where the em-
ployee has developed work-related problems, he or she
is to be “offered the choice of admitting the problem and
entering the Alcohol Rehabilitation Program, or being
terminated for unacceptable work performance.” It is
also specified that an employee may participate in the
Program only once, and that failure to complete the Pro-
gram successfully will result in termination (§ 1026.8-B).
Position of the Company
The Company emphasizes that it is charged by law to
provide “the highest possible degree of safety in the
public interest.” 49 U.S.C. § 1421 (b). Accordingly, in
the Company’s view, “An airline’s determination regard-
ing a pilot’s fitness and competency is not to be set
aside unless,it can be shown that the airline acted ar-
bitrarily or in bad faith.” (Br. 37)
The Company points out that, to ensure against pilot
impairment, it prohibits aircraft operation by a pilot
under the influence of any alcohol. (Br. 41) It cites the
applicable provisions in its FOPM (see above, p. 10),
noting that later in 1985 its 24-hour rule was amended
so as to prohibit alcohol consumption within eight hours
of a flight, “consistent with the Federal Aviation Reg-
ulations.” (Br. 42) The Company describes its alcohol
policy this way (Br. 15-16):
. . . To keep aleohol out of the cockpit, Delta has
developed a comprehensive set of incentives and de-
5la
terrents to encourage pilots with alcohol problems to
come forward and seek assistance prior to an inci-
Jent of alcohol related job misconduct (T. 368).
Among those incentives is a program whereby pilots
with alcohol problems who are identified prior to an
incident of alcohol related job misconduct are eligible
for participation in Delta’s aleohol rehabilitation
program. The costs of treatment, sick leave and
other benefits are paid for by Delta (T. 369-371).
As a deterrent, however, pilots identified as having
an alcohol problem as a result of an alcohol related
incident of job misconduct, face disciplinary action
up to and including termination (T. 369, 414-415).
Delta’s safety net of policies and practices is de-
signed to maximize the-opportunity for detection of
impaired pilots prior to the point at which the safety
of the traveling public is directly threatened. To en-
courage co-worker participation in accomplishing this
objective, Delta has determined that the period of
detection of an impaired pilot without fear of au-
tomatic discharge should run to the point that a
pilot reports to the aircraft (T. 974-975). If an
impaired pilot is detected by a co-worker after re-
porting to work but prior to reporting to the air-
craft, it is Delta’s policy to evaluate all of the cir-
cumstances (Tr. 976). In exceptional circumstances,
a pilot may be admitted into the Company’s alcohol
rehabilitation program without disciplinary sanc-
tions. Once a pilot reports to the aircraft, Delta’s
overriding concern for the safety and welfare of its
passengers compels the termination of that pilot (T.
976).
Delta management had found this extended period
for detection to be an effective incentive for co-
workers to intervene in a positive manner in the
interest of safety without fear of reprisal for re-
porting a co-worker. Delta firmly believes that this
EE
52a
period is essential to break the conspiracy of silence.
among pilots to ensure that its safety net works so
that no flight operates with a pilot under the in-
fluence of alcohol (T.977)....
The Company observes, in regard to this case (Br. 43):
Delta’s no-alcohol policy is well-known to all of
its pilots. The grievant admitted that he was aware
of Delta’s rules relating to alcohol (T. 820). De-
spite his knowledge of the rules and his professional
obligations, he started an evening of heavy drinking
that progressed from beer and wine to scotch. With
a blood alcohol level of .13 grams percent alcohol,'
which caused him to have difficulty in walking (i.e.,
requiring First Officer Rothbart to hold him up and
bumping the center console as he entered the cock-
pit) and talking (i.e., he had to intentionally slow
down his speech in an effort to minimize slurring),
the grievant proceeded to pilot and command the
Delta passenger jet from Bangor to Boston.
The Company observes (Br. 45):
Delta has a well established policy of strictly en-
forcing its no-aleohol rule. It has consistently drawn
the line at reporting to the aircraft, and has ter-
minated the employment of all pilots who crossed
that line. The grievant not only reported to the air-
craft, but he operated the aircraft as pilot in com-
mand, directly jeopardizing the safety of the pas-
sengers and other crew members. [Orig. emphasis. |]
The Company summarizes as follows the characteris-
ties of four previous instances in which a Company pilot
4The estimate of 0.13 grams percent alcohol is derived from
grievant’s blood alcohol test result at 11:33 A.M. on January 10,
1985 (0.065), projected backward to 7:00 A.M. that same day on
the premise of an average alcohol assimilation rate of 0.015 grams
percent alcohol per hour. See testimony of James W. Panter, Geor-
gia Bureau of Investigation (Tr. 224).
| 53a
reported for work under the influence of alcohol: 7 arr,
Rochford, O’Shea and Cantrell (Br. 45-48) -
. . . Tarr and Rochford were pilots who reported
for duty under the influence of alcohol but were de-
tected prior to ever reaching the aircraft. Tarr
was intercepted by two other pilots who reported
him to the Chief Pilot. Following an intervention
and alcohol rehabilitation, Tarr was reinstated with-
out discipline because the safety net worked and the
pilot was intercepted by other pilots well before the
flight was to operate (T. 424-425). Rotchford was
given the opportunity to retire in lieu of facing dis-
ciplinary action. He was never permitted to pilot
another Delta aircraft following that incident (T.
424).
O’Shea and Cantrell were pilots who actually re-
ported to the aircraft while under the influence of
alcohol. Both pilots were intercepted prior to operat-
ing the flight. O’Shea was stopped by the other
pilots, who properly cancelled the flight. Cantrell
was reported by the flight attendants on board the
aircraft prior to the flight departing. Both pilots
were terminated by Delta.
O’Shea was ultimately brought back to work by
Delta voluntarily after one year without a System
Board case. Delta acted due to a premature promise
made by Captain Alger to Captain O’Shea at the
time that he initially investigated the O’Shea inci-
dent and prior to all of the facts involving O’Shea’s
drinking coming to light. As explained by Captain
Alger, “we felt because of Corporate ethics and mo-
rality, that we had an obligation to uphold our origi-
nal promise and commitment to Captain O’Shea in
his return to work. That does not in any way miti-
gate the fact that termination was the appropriate
discipline.” (T. 394)
54a
Mr. Cantrell was returned to work following a
System Board arbitration decision. In that case,
Delta Air Lines, Case No. 11-8 (Scearce, 1985), the
grievant was reinstated, although the System Board
found that the Company “had cause for removal of
the grievant.” Supra at 15. The facts of the case
are quite distinct from the case involving the griev-
ant.
Mr. Cantrell was a First Officer on the Boeing
767 aircraft. He reported to a flight in Atlanta, hav-
ing consumed two drinks while commuting as a pas-
senger on a flight from Dallas. Mr. Cantrell was
suspected of drinking by the flight attendants while
the aircraft was on the ground prior to passenger
boarding. When questioned by the Chief Pilot in
Atlanta, he readily admitted his drinking and was
removed from the flight prior to its ever operat-
ing...
_. . Although perhaps well intentioned and moved
by the extremely emotional testimony of the griev-
ant as to his recovery and extraordinary efforts to
help others, the System Board’s exception to Delta’s
no-aleohol policy has weakened Delta’s efforts to keep
aleohol out of the cockpit. [Underlining as in origi-
nal. |
The Company emphasizes that “in no other Delta dis-
ciplinary case did a pilot fly an aircraft while intoxi-
cated” and that “It is absolutely critical to Delta’s safety
net that no further exceptions to its no-aleohol policy
be made.” (Br. 48) ALPA has failed, in the Company’s
view, to show that the Company unfairly discriminated
against grievant: “ALPA’s claim of disparate treatment
is without merit and should be dismissed.” (Rep. Br.
9-10)
The Company submits that grievant’s undiagnosed al-
coholism does not excuse his operation of a passenger jet
55a
while under the influence of alcohol. “It is clear,” says
the Company, “from the way that the grievant conducted
himself on the morning of January 10th, that he knew
he was impaired.” (Br. 51) Moreover, in the Company’s
view, grievant was responsible for his impaired condi-
tion. His two previous blackouts, the last one only about
two weeks before January 10, 1985, caused him to realize
that he had a serious problem with Scotch (Tr. 770-
771), yet when he returned to the hotel bar after dinner
on January 10 he proceeded to drink two Scotches (Br.
59):
.. . He did all this knowing that he had just had a
blackout only days earlier and that he had a flight
scheduled for early the next morning. In doing so,
he intentionally placed himself in risk of another
blackout and is responsible for the consequences of
his actions. The grievant cannot now excuse his con-
tinued drinking until 12:30 a.m. by virtue of his
blackout... 5
The Company concludes as follows (Br. 63-64) :
Delta renews its motion to limit the jurisdiction
of the System Board. The grievant’s employment
with Delta was terminated for cause. He violated
Delta’s no-alcohol policy, Federal Aviation Regula-
tions, and the trust placed in him as a professional
airline pilot. The safety rules violated by the griev-
ant are not part of the collective bargaining agree-
ment between Delta and ALPA and there is no con-
tractual agreement to submit safety matters to ar-
*The Company cites these cases in support of its discharge de-
cision: Ozark Air-ALPA, Gr. STL-83-9-1 (Arb. John J. Mikrut,
Jr., 1985); Eastern Airlines, 74 LA 316 (Burton B. Turkus, 1980) ;
. Trans- World Air, NY-150-74 (Mark L. Kahn 1976): Ozark Air-
lines, LAX-87-74 (Leo C. Brown, 1975); and Eastern Airlines, 46
LA 549 (Jacob Scidenberg, 1965). All cases cited by the parties
have, of course, heen reviewed and considered by the Neutral
Chairman.
ee
56a
bitration. The System Board does not have jurisdic+
tion to modify, amend or revise the safety rules
which the grievant violated. Accordingly, the Sys-
tem Board may not consider the grievant’s alcohol-
ism defense. To do so would effectively place the
System Board in the position of substituting its
judgment for that of Delta’s management in an area
where the airline has substantial and exclusive re-
sponsibility for establishing and enforcing safety
rules.
Moreover, the grievant’s violation of Delta’s safety
rules is not to be excused by his claim of alcoholism.
At the time that he piloted the Delta jet he knew
that he was under the influence of alcohol. His con-
duct clearly demonstrated that he was aware that
he was drunk. Furthermore, the grievant knew from
two prior blackouts that he had a serious drinking
problem. Although aware of the drinking probiem,
he failed to take corrective action. On the evening
of January 9, 1985, he knowingly placed himself in
a position of having another blackout and is re-
sponsible for the consequences of his volitional acts.
Hence, the Company says, grievant’s discharge was for
just cause and his grievance should be denied.
Position of the Association
The Association points out that grievant, at the time
of the incident on January 10, 1985, suffered from the as
yet undiagnosed disease of chronic alcoholism (Br. 4).
The Association notes, and considers relevant, these later
events (Br. 2-3):
. . . Subsequent to his termination jon January 15,
1985], grievant sought evaluation to determine
whether he was an alcoholic (T. 737). He went to
the Ridgeview Institute near Atlanta, South Miami
Hospital and Mount Sinai Hospital in Miami Beach.
57a
The evaluations at all three institutions indicated
that [grievant] was an alcoholic and they recom-
mended in-patient treatment (T. 738-9, ALPA Ex.
4). [Grievant] entered the treatment program at
South Miami Hospital March 21, 1985 and remained
in the hospital for 28 days (T. 739, ALPA Ex. 4).
He received individual therapy, group therapy and
counseling in a “highly structured program” (T.
517-8). He is currently [January 1986] in the out-
patient phase of treatment or aftercare which in-
cludes group therapy for two years (T. 518, 540).
He also attends weekly meetings of Birds of a
Feather, a pilot AA group (T. 740).
with an airline transport rating (T. 741). The Fed-
eral Air Surgeon has determined that medical cer-
tification of |grievant] “with appropriate monitor-
ing would not compromise aviation safety.” He,
therefore, finds him eligible for special issuance of a
first class medical certificate when monitoring re-
quirements are arranged (Alpa Ex. 14).
The Association submits that grievant’s conduct on
January 9 and 10, 1985, “was inextricably tied to his
alcoholism.” (Br. 11) The Association maintains (Br.
12) that grievant was not aware he was impaired when
he boarded Flight 437 on January 10, 1985, because of
his blackout the previous night and because of the toler-
ance and denial characteristics of alcoholism (Br. 14):
The unrebutted medical evidence in the record
establishes not only that alcoholism is a disease (T.
455-60) but also that an individual has not control
over whether he will get the disease (T. 509, 624).
. Since [grievant's] actions were a result of his
alcoholism and since an individual is not at fault
or responsible for getting alcoholism, there is no
justification for imposing discipline based on con-
———
58a
duct that is a product of that disease... . How can
one rationally fix blame when the “perpetrator’s”
conduct was the result of a condition he was neither
aware of nor responsible for?
Certainly if an aircraft accident, involving a vio-
lation of Company operating rules, occurred as a
result of an undiagnosed epileptic pilot suffering a
seizure, or an undiagnosed pilot falling into insulin
shock,'*! Delta would not discipline the pilot if the
accident were the result of his illness. The evidence
indicates that there is no justification for treating
an undiagnosed alcoholic who violated Company
rules any differently....
Arbitrators, says the Association, have often found that
discipline was not for just cause in cases where the mis-
conduct was medically related to the disease of alcohol-
ism (Br. 16).7 Thus, Arbitrator George Nicolau, in
Northwest Airlines-ALPA SBA Docket 82-23, decided
October 29, 1984, held (at p. 39):
Thus, we have an employee, who after 16 years
of service, committed serious offenses, but offenses
that were the unavoidable consequence of the illness
of alcoholism, which illness has been arrested and
successfully treated. Our weighing of these factors
leads a majority of the Board to conclude that
[grievant], despite the seriousness of the infractions,
should be given an opportunity to demonstrate...
6 This example is inapt, since an undiagnosed diabetic pilot would
not be taking insulin. The appropriate example for this condition
would be a diabetic coma.
7The Association cites Armstrong Cork Co., 56 LA 527 (Wolf,
1971): Standard Packaging Co., 71 UA 445 (Fogelberg, 1978); Air
Wisconsin, Case No. AW-8-81 (Seidenberg, August 11, 1985);
Northwest Airlines, Inc., System Board Docket 82-23 (Nicolau,
October 29, 1984) ; and others.
59a
that he can meet the Company’s standards for fly-
ing.'®!
The Association calls particular attention to the deci-
sion of this System Board, with Abitrator James F.
Scearce serving as Neutral Member, in Cantrell, ALPA
11-83 (ATL), decided August 4, 1985. Cantrell, at B-
767 First Officer, had a scheduled trip departure from
ATL at 2:45 P.M. on November 8, 1983. As stated in
the Chairman Scearce’s Opinion:
. The record shows that the grievant changed
into a uniform, checked in and then went to
cencourse/gate to perform the regular pre-flight
walkaround. The grievant completed such duties and
SIt is pertinent to note here that Northwest Airlines challenged
this System Board award in Federal District Court. Northwest
Airlines, Inc. v. Air Line Pilots Association, International, 633 F.
Supp. 779 (D.D.C. 1985), decided 11-27-85. (See Co. Br. pp. 6-10.)
This Court reversed the Nicolau decision, finding that it “signifi-
cantly encroaches on Northwest’s responsibilities to the air travel-
ling public. ... Under the guise of a debate over policy and rules,
the Board’s decision substitutes its own policy for Northwest’s.”
On appeal by the Association, however, the judgment of the Dis-
trict Court was reversed (No. 85-6228, D.C. Cir., decided 1-6-87).
The C.C.A. asserted:
[T]he conclusion is inescapable that the Board acted
within its authority in considering [grievant’s] claim that he
had been fired without “just cause.” And in reviewing this
grievance, it is equally plain that the Board was authorized to
judge the legitimacy of the disciplinary penalty in the light
of mitigating circumstances. ... The fact that the arbitration
touches on issues related to airline safety is irrelevant. There
have been numerous arbitrations under the RLA involving
grievances that implicate safety issues, and no court has ever
ruled that an arbitral board lacked jurisdiction to consider such
issues.
This Opinion in no way relies on the above Court decision, which
appeared too recently to be part of the record. The ruling of this
System Board concerning its jurisdiction (Tr. 40-41, infra pp. 26-
27) does appear to be consistent with the view expressed by the
Court of Appeals as quoted above.
60a
went to the cockpit, at which time he learned that
a mechanical problem had been found which would
delay the flight departure. He apparently left the
cockpit and went to the galley area where a flight
attendant detected the odor of alcohol on his breath
and reported as much to her supervisor. The Chief
Pilot at Atlanta was contacted and advised of the
situation; he confronted the grievant with such cir-
cumstance. Whereupon, the grievant admitted that
while he traveled from D/FW at ATL on Flight
1020 [arriving about 36 minutes before his sched-
uled 2:45 P.M. departure] he was in civilian clothes
and consumed two scotches and sodas... .
FO Cantrell was discharged. The System Board decided
he should be reinstated without back pay and stated
(at pp. 13-14):
_.. [T]he Company has concluded that alcohol abuse
is a problem and has structured and effected a pro-
gram at considerable expense in an effort to salvage
deserving employees. Such an enlightened approach
ean be expected to recognize exceptions where un-
usual circumstances exist. This Board finds suffi-
cient basis to conclude that grievant meets such ex-
ceptions and is deserving of another opportunity to
prove his worth. ... The grievant will, of course,
have to meet the physical, flight and other qualifica-
tions attendant to his position. The particular and
individual circumstances of this case, including his
discipline-free and satisfactory prior record and his
own efforts of recovery form the basis to provide
him a special opportunity to return to duty.
The Association cites other cases in which arbitrators
“recognized that rehabilitative efforts, even after dis-
charge. should be considered as mitigating factors when
evaluating the Company’s disciplinary action.” (Br.
20-21)
6la
The Association maintains that such mitigating factors
are present in this case, since grievant has engaged in
a successful rehabilitation effort (Br. 21) :
[Grievant] voluntarily entered in-patient treatment
on March 21, 1985 and was discharged on April 18,
1985. In September [1985], Dr. David Millett, Di-
rector of Flight Medicine for Eastern Air Lines,
wrote that since his release from the _ hospital
[grievant] maintained a vigorous aftercare pro-
gram. ...” He further stated “It is my belief
that Captain Day has done very well, and I believe
that he will maintain his sobriety.”” On December 2,
1985 Dr. Carone, a psychiatrist, and Dr. Krinsky,
a psychologist, wrote about Captain Day as follows:
It’s gratifying to note that the signs of progress
have continued. He is pleasant, friendly and
continues to impress us as free of any major
psychopathology. The overall impression we
gain is that his insight has deepened and his
judgment is better. At the same time, his moti-
vation to attain and then maintain sobriety is
even stronger than it was previously.
The Association also cites the testimony of Lynn Hankes,
M.D., director of the Addiction Treatment Program at
South Miami Hospital (where grievant was hospitalized
for alcoholism), that grievant was doing the things that
were necessary for a sustained recovery and that his
prognosis is excellent (Tr. 534, 536). The Association
therefore urges (Br. 22) :
... Overturning his [grievant’s] termination would
be consistent with arbitral precedent in this industry
as well as with the rehabilitative approach to alco-
holism adopted by the FAA. It would also be con-
sistent with the precedent established by this System
Board on this property [Cantrel/]. Day’s 19 year
discipline free record (T. 713, 166) and his recov-
62a
ery, rehabilitation and recertification bring him
within the ambit of the prior award on this property.
The Association also contends that grievant has been
subjected to disparate treatment in comparison to the
other cockpit crew members involved in the incident
of January 10, 1985. F/O Rothbart and S/O Voorhees
were both charged by the Company with being “aware
of the obvious fact that the Captain appeared to be
intoxicated, yet you... willfully participated in the
conduct of the flight as crewmembers.” (See above, p. 9)
Although the Flight Operations Procedures Manual
(FOPM) declares that this made grievant’s fellow crew
members “equally guilty” (see above, p. 10), the Com-
pany failed to apply its own policy to them. Neither
Rothbart nor Voorhees was discharged. (Br. 23-24)
The Association maintains that there has also been
discrimination between grievant and other Delta pilots
who violated the rule in the same FOPM that “evidence
of the use of alcohol . .. at the time of reporting for
flight duty, also constitutes reason for discharge.” Spe-
cifically, pilots Tarr, Rotchford and O’Shea (see above,
pp. 14-15) all reported for flight duty showing evidence
of alcohol use but were not discharged. Cantrell’s dis-
charge was reversed by the System Board (see above,
p. 20). The Association says (Br. 25-26) :
Captain Day is apparently the first and only
Delta pilot to be terminated for violating the FOPM
provision prohibiting evidence of the use of alcohol
at the time of reporting for flight duty. ... The
only difference between Captain Day’s incident and
these other cases, and perhaps the other 100 cur-
rently employed Delta pilots who have been treated
for alcoholism (Tr. 403) is that someone stopped
the alcoholic pilot and kept him from operating
under the influence. .. .
Captain Day’s disparate treatment from other
Delta pilots involved in similar rules violations can-
63a
not be justified. The rule prohibits reporting under
the influence. The actual violation in this case,
therefore, is identical to the violations of Tarr,
Rotchford and O’Shea in that they all reported for
duty under the influence. The difference between
those cases and the instant case is the fortuitous
intervention of another party. This intervention did
not occur as a result of any action by Tarr, Rotch-
ford, O’Shea or Cantrell. Captain Day is not respon-
sible for the fact that for whatever reason, no one
intervened to stop him. ...
The Association emphasizes that all three medical ex-
perts who testified in this case “agreed that medically
there was no difference either in terms of treatment or
diagnosis between the pilot who flew under the influence
and a pilot who stopped short of that.” (Br. 27). Thus,
Company witness Joseph Westermeyer, M.D., testified
(Tr. 967) :
Q. So that whatever the proper solution is, you
wouldn’t distinguish between a person who operates
the plane—
A. Right.
Q. —and the person who is stopped before he
actually operates it?
A. Yes. Twenty years of experience suggests to
me that the individual who takes step one is not
going to do things along the way to make it stop
happening. In other words, once they’ve set this
thing in action, they’re going to carry it through
as far as they can go....
The Association acknowledges the Company’s respon-
sibility for the safety of the public and its employees,
but it asserts that grievant’s reinstatement would not
constitute any threat to safey: “His disease is in re-
mission and he is doing what is necessary to sustain his
recovery. His prognosis is excellent and he is medically
64a
safe to fly.” (Br. 31) The Association also cites the
conclusion of Drs. Carone and Krinsky on December 2,
1985, that “from a psychiatric/psychological standpoint,
we believe that he is ready for a return to flying status.”
The Association adds that the FAA’s position on griev-
ant’s condition supports this conclusion, and observes
(Br..32).:
Since 1976, the FAA has had a procedure for and
has, in fact, recertified alcoholic air line pilots.
Nearly 600 alcoholic air line pilots had been re-
certified as of December 31, 1984. This recertifica-
tion... only occurs if the Federal Air Surgeon the
duties of the airman “can be performed without
endangering air commerce... .” ... [T]he Federal
Air Surgeon determined that medical certification in
this case would not compromise aviation safety and
did find Captain Day eligible for special issuance of
a medical certificate.
Moreover, says the Association, the Company “readily
acknowledges that alcoholic pilots can undergo success-
ful rehabilitation and return to work without compro-
mising safety’, as demonstrated by Delta’s own Alcohol
Rehabilitation Program and the fact that about one hun-
dred treated alecholics are currently flying for Delta.
In the Association’s view, the Company has failed to
provide any factual basis for distinguishing grievant’s
status from these one hundred other rehabilitated alco-
holic pilots.
The Association also argues that the Company has
failed in grievant’s case to adhere to its own Alcohol
Rehabilitation Program. Section 1026.2-C is pertinent:
C. Compulsory Confrontation
1. The individual is confronted as a result of on-
the-job problems or misconduct.
2. Immediate disciplinary action will be taken; and
65a
3. The individual will be advised of termination
alternative if he or she does not participate in and
successfully complete the program.
Thus, says the Association (Br. 34): “The Program
contemplates discipline short of termination since it pro-
vides for discipline and the choice of participation in
the Program or termination.” The only other reference
to termination is in Section 1026.1, 13, where it pro-
vides that “failure to comply with the requirements [of
the Program] will subject him/her to immediate ter-
mination of his/her services with Delta.” The Associa-
tion submits (Br. 35) that, since grievant was never 7
given an opportunity to enter the Program, he did not
fail to comply with its requirements and his immediate
termination was not justified.
As to the implications for air safety of grievant’s
discharge, the Association comments (Br. 37) :
. Moreover, this punitive approach discourages,
rather than encourages, pilots from coming forward
or fellow pilots from intervening on behalf of an-
other pilot. If a pilot knows his colleague will be
terminated for a rule violation he’ll be more apt to
“cover” for him and less apt to intervene and bring
the problem to the Company’s attention for solution
(Tr. 606, 698). Thus, there really is no persuasive
rationale to support the termination of Captain Day.
The Association concludes that the grievance should be
granted in full and urges the following remedy (Br. 38):
The grievant should be reinstated with his seniority
unimpaired. He should be treated retroactively in
conformity with the Company’s Alcohol Rehabilita-
tion Program and should be made whole for losses
he may have suffered as a result of the Company’s
failure to treat him in accordance with that Pro-
gram. He should receive compensatory back pay
66a
from the date the FAA certified that he was eligible
to receive a special issue airman medical certificate,
January 16, 1986. On that date he was legally able
to return to flying. Upon reinstatement he should be
allowed to exercise his seniority as a pilot returning
from sick leave.
Discussion
I have presented, above, the salient facts and major
arguments of the parties. The record of this case is a
substantial one: the testimony of thirteen witnesses, 979
transcript pages, 25 exhibits, many cited court and ar-
bitration decisions, and 147 pages of briefs. Accordingly,
I have not attempted to recapitulate every item of evi-
dence and each line of argument, and the parties should
understand that my analysis of this dispute is based
on the complete record.
As a threshold matter, this Opinion should first con-
sider the position of the Company in regard to the
jurisdiction or authority of the System Board in this
type of safety-related case. The Company, at the outset
of the Svstem Board hearing, asserted the following
position (Tr. 12-13):
... 80 what I would urge the Board is that its ju-
risdiction is limited in this case to determine whether
or not there was a violation of Delta’s safety rules
prohibiting the operation of an aircraft while under
the influence of alcohol, and if, in fact, the violation
did occur and the evidence of the case supports that
violation, then the Board ... [should] uphold the
termination of the pilot involved. And the Board
simply does not have jurisdiction to make exceptions
to that safety-based policy or to otherwise interpret
it or apply it.
The System Board, after hearing substantial argument
on this matter, ruled as follows (Tr. 45-46) :
67a
With regard to the Company’s position on what we
call the limits of the Board’s jurisdiction, the sim-
plest way to put it is: the Board does not accept that
limitation on its jurisdiction. ... In principle, the
Board has the right to entertain, for example, an
allegation or claim that a Company-formulated rule
is unreasonable; or that in a particular application
a reasonable rule has not been reasonably applied.
Obviously, if a reasonable rule has been reasonably
applied and appropriate action has been taken, then
presumably the grievance should be denied: but these
are all matters that fall within the Board’s author-
ity.
This Neutral Chairman has reconsidered the issue in re-
sponse to the Company’s renewal of its motion (see above,
p. 16) and finds no reason to modify the System Board’s
original ruling.
As to the facts of this case, there is no need to now
review or describe them in any detail. They are not in
significant dispute. Grievant is an aleoholic. He suc-
cumbed to his disease of alcoholism on January 9 and 10,
1985, when he ingested a considerable quantity of alco-
hol (beer, wine and Scotch whiskey) in violation of the
Company’s (then) 24-hour rule and the FAA’s eight-hour
rule. He reported for Flight 437 on January 10, 1985,
under the influence of alcohol and flew this Bangor-Boston
trip as Captain despite his impaired condition.’ A blood
® The testimony of grievant and his fellow flight crew members
is that grievant actually handled the flight controls and flew this
Bangor-Boston trip competently and without incident in spite of
his inebriated condition. There were no other witnesses to what
actually transpired in the cockpit, and both parties have accepted
as a fact that grievant did operate the flight controls. I am not
convinced of this. Under the circumstances, of course, the trip
would have been a far safer one with the First Officer at the con-
trols. In regard to the issues presented by this case, however, it
makes no difference, in my judgment, whether it was the intoxicated
Captain or the First Officer who actually handled the flight.
68a
alcohol test administered to grievant at 11:33 A.M. on
January 10, 1985, indicated approximately 0.13 grams
percent alcohol (well above the usual d.u.i. standard of
0.10) when grievant commenced Flight 437 at about
7:05 A.M. that morning.
Grievant was discharged on January 15, 1985, for
these violations of Company and FAA rules. F/O Roth-
bart was issued a one-year disciplinary suspension, later
reduced by the Company to four months, for violating
the 24-hour rule and for participating in the flight al-
though aware that grievant appeared to be intoxicated.
S/O Voorhees, on the same grounds, was issued a six-
month disciplinary suspension, later reduced by the Com-
pany to three months. Subsequently, the four-member
System Board reduced their penalties to three months
and two months, respectively.
It will be useful, at this juncture, to review the Com-
pany’s policies in regard to alcohol usage by pilots. These
policies, and how they have been communicated and ap-
plied, establish the context within which the Board must
determine whether just cause existed for grievant’s dis-
charge.
The Company’s published policy, as it relates to flight
crew members, appears in Section 3 of the Flight Opera-
tions Procedures Manual (see above, p. 10, for the FOPM
provisions in effect as of January 1985). Paragraph 3
of this policy declares that “Any evidence of the use of
aleohol or other drugs which is apparent at the time of
reporting for flight duty also constitutes reason for dis-
charge.”
The Company’s actual policy, as manifested by not
only by its actions in specific cases but also by its evi-
dence and argument in this case, differs significantly
from what is asserted in the FOPM. In actuality, says
the Company, automatic discharge would apply only to
the pilot who reports to the aircraft under the influence
69a
of alcohol. In order to encourage other employees to in-
tervene so as to prevent the impaired pilot from reaching
the aircraft after he reports for duty, the Company will
“evaluate all of the circumstances.” (See above, pp. 12-
13.) As Captain Harry Alger, Assistant Vice President
for Operations, testified on behalf of the Company (Tr.
976-7) :
Q. Will the pilot who reports to the cockpit un-
der the influence of alcohol always be terminated?
A. Yes, sir.
Q. Okay. Will the pilot who reports and signs
in but is detected prior to making it to the cockpit
always be terminated?
A. That will be discretionary discipline.
Q. Will that be a fact case-by-case determination?
A. Certainly, certainly.
Q. And why does Delta reserve the right to have
that discretion between the time of sign-in and the
time the man reports to the aircraft?
A. Well, I think that something short of termi-
nation is the appropriate discipline. Discipline is ap-
propriate, probably appropriate, but not termination.
Q. Okay. And you feel that’s necessary to retain
that discretion in order to break the conspiracy of
silence that exists among pilots?
A. Yes, yes, absolutely.
The pilot who reports for duty while‘ under the influence
of alcohol, but who is intercepted and does not get on the
plane, would be subject to the “compulsory confronta-
tion” option of the Company’s Alcohol Rehabilitation Pro-
gram: either enter the Alcohol Rehabilitation Program
and complete it successfully or be terminated (see above,
p. 24). Grievant was not offered this option on January
10, 1985, because he was not intercepted, did enter the
aircraft, and served as Captain during the Bangor-
Boston flight. It is a reasonable inference that if griev-
70a
ant had been intercepted, given his nineteen years of sat-
isfactory pilot service, he would not have been discharged.
Another difference between the FOPM and actual pol-
icy relates to the first paragraph of Section 3, which sets
forth the 24-hour no-alecohol rule (see above, p. 10).
There is undisputed testimony by grievant (Tr. 721, 778-
9), by F/O Rothbart (Tr. 346-350) and S/O Voorhees
(Tr. 285-6) that violations of this rule were common-
place and that the Company made no serious effort to
enforce it. The validity of this testimony is supported
by the Company’s decision, later in 1985 (after grievant’s
discharge), to eliminate the 24-hour rule and instead to
adopt the FAA’s eight-hour rule.’
Finally, at least in the judgment of the Neutral Chair-
man, the Company failed in this case to apply the un-
equivocal mandate of the fourth paragraph of FOPM
Section 3, a provision that appears in bold-face type:
Any flight crew member who knowingly permits
another flight crew member to attempt to perform
his flight duty while under the influence of intoxi-
cants or drugs shall be considered equally guilty.
The discipline notices issued to each of grievant’s fellow
flight crew members (see above, p. 9) asserted that they
had violated this rule. Although therefore just as guilty
as grievant (“equally guilty”) under the published pol-
icy, neither was discharged. Their initial penalties were
subsequently reduced, according to Captain Alger (Tr.
432-5), in part because they adhered to their claim of not
being aware that grievant was intoxicated and were
given the benefit of the doubt on this point by the Com-
pany. The critical point, here, is that even when the
Company considered Rothbart and Voorhees to have been
10 Captain Alger testified that the Company’s decision to reduce
the penalties initially imposed on F/O Rothbart and on S/O Voor-
hees was based in part on the change from a 24-hour rule to an
8-hour rule (Tr. 425, 431-5).
Tla
in violation of this paragraph, they were issued lesser
penalties than grievant.
The record leaves no doubt in this arbitrator’s mind
that F/O Rothbart and S/O Voorhees must have known
that grievant was impaired.’' Although they are not “on
trial” before this Board, their actions impacted signifi-
cantly on grievant’s fate. Their obvious responsibility
was to have stopped grievant from taking that flight.
Had they done so, Company policy indicates that griev-
ant would not have been discharged and he would have
been offered the option of the Alcohol Rehabilitation Pro-
gram. In addition, an intolerably hazardous incident
would have been avoided. Why didn’t Rothbart and Voor-
hees “intercept” grievant, prevent him from boarding
the flight, and thus—under the Company’s policy as enun-
ciated at the System Board hearing—promote safety
11 Tt would serve no useful purpose to assess in detail all of the
evidence bearing upon this conclusion. It will suffice, at this junc-
ture, to note that three Flight Attendants on board Flight 437 along
with the last boarding passenger had no doubt that grievant was
drunk; that Captain Baker, at Boston, had a similar impression;
that the First Officer (who had earlier advised the rest of the crew
that grievant was “out cold”) assisted grievant into the aircraft
(I do not credit his contradictory testimony); that the Flight At-
tendants were effectively excluded from observing or entering the
cockpit immediately after the Captain’s arrival; that S/O Voorhees
barely opened the cockpit door in response to F/A Surette’s knock
and blocked her view; that when Voorhees went to the galley for
coffee, and Surette repeated the charge that grievant was drunk,
Voorhees returned to the cockpit and passed a note to Rothbart
saying, “We got trouble with the F/A’s”; that Rothbart then di-
rected Voorhees to disconnect the cockpit voice recorder so that the
“problem” could be discussed; that at no time during the trip did
the flight crew permit or invite a Flight Attendant into the cock-
pit; and that after landing at Boston, grievant slipped away to get
coffee while Rothbart sought to convince the three Flight Attend-
ants still in the cabin that nothing was wrong. Of course, as later
established by the blood alcohol test, grievant was in fact substan-
tially “under the influence” during the flight.
Lt .
72a
and save grievant’s job? I must infer that it was be-
cause they were not aware of this Company policy.
Nothing in the record indicates that the Company has
advised its pilot group that a pilot who reports for work
under the influence of alcohol but who is intercepted be-
fore he gets to the plane will probably not be discharged,
but that if this pilot enters the plane his discharge will
be automatic. The FOPM says only that reporting for
flight duty under the influence is cause for discharge.
The Company, in other words, has not effectively im-
plemented the policy it claims to have designed to encour-
age interception in the interest of flight safety. Surely,
if grievant’s fellow crew members had understood that
the best way to protect grievant (and themselves) was to
keep him off the aircraft, this is what they would have
done. Instead, they helped grievant to board and serve
on Flight 437 while attempting to conceal his impaired
condition.
As the Association contends and as the medical evidence
indicates, any pilot who reports for duty under the in-
fluence of aleohol intends to get on the plane and fly the
trip (see above, p. 23). This will happen unless someone
intercepts the pilot and keeps him from boarding. One
must therefore infer that the pilot who reports for duty
while intoxicated but is intercepted has the same faulty
judgment as the intoxicated pilot who is not intercepted.
The Company asserts, however, that the intercepted pilot
will probably not be discharged and can return to the
flight deck if and after he is successfully rehabilitated
and satisfies FAA requirements. The Company does not
deem such a pilot a threat to safety. If that is so, then a
non-intercepted pilot who is similarly rehabilitated and
me2ts all FAA requirements can also safely return
This text is long and has been trimmed here. Open the source document for the complete record.
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