Amicus Curiae Brief — Northwest Airlines, Inc. v. Air Line Pilots Ass'n

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E No. 86-1548

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IN THE

x Supreme Court of the United States

OCTOBER TERM, 1986

NORTHWEST AIRLINES, INC.,

Petitioner,

v.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE AND BRIEF OF

THE AIR TRANSPORT ASSOCIATION OF AMERICA

AND THE

AIRLINE INDUSTRIAL RELATIONS CONFERENCE

AS AMICI CURIAE SUPPORTING CERTIORARI

LAWRENCE D. LEVIEN, P.C.

(Counsel of Record)

DAVID P. CALLET, P.C.

BETTY LEACH

AKIN, GUMP, STRAUSS, HAUER

& FELD

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

Counsel for the Air Transport

Association of America and the

Airline Industrial Relations

Conference as Amici Curiae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1548

NORTHWEST AIRLINES, INC.,

V. Petitioner,

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE IN SUPPORT

OF PETITION FOR CERTIORARI

The Air Transport Association of America (“ATA”)

and the Airline Industrial Relations Conference (“Air

Conference”) respectfully request this Court’s leave to

file a brief as amici curiae in support of the petition for

certiorari filed by Northwest Airlines, Inc. (‘Northwest’)

on March 26, 1987. Northwest has given its consent to

the filing of this brief. Respondent Air Line Pilots As-

sociation, International, however, has refused to consent,

necessitating this motion under Supreme Court Rule 36.1.

ATA and the Air Conference have a substantial inter-

est in the disposition of this petition for certiorari. ATA

is a Washington-based trade and service association of

twenty-two United States airlines and two Canadian air-

lines. Air Conference is an independent, voluntary asso-

ciation of twenty-one United States scheduled air carriers.*

Air Conference was formed to facilitate the exchange of

ideas and information concerning personnel and labor

relations issues in the airline industry, and to represent

the member carriers with respect to related legislative,

judicial and administrative matters.

This case raises issues of extraordinary concern to all

of ATA’s and Air Conference’s members. Northwest has

petitioned the Court to review a District of Columbia

Circuit decision holding that the district court did not

have discretion to overturn an arbitrator’s award rein-

stating a pilot who was terminated for flying a passenger

jet while intoxicated. All member carriers have company

aleohol use policies similar to the Northwest policy at

issue here. They believe that their ability to enforce those

policies is essential in discharging the obligation imposed

upon them by the Federal Aviation Act to provide the

“highest degree of safety” to the flying public. 49 U.S.C.

§ 1421(b).

ATA and Air Conference wish to provide this Court

an industry-wide perspective on the issues raised by the

petition. In the attached brief, ATA and the Air Con-

ference describe the vital need for effective carrier meas-

ures that will prevent the slightest degree of danger to

the flying public from pilot alcohol use. They describe

current carrier alcohol use policies, and the origins of

those policies outside the collective bargaining processes

upon which the policy of deference to labor arbitration

awards is premised. ATA and Air Conference present

the industry’s view as to why their obligation to preserve

air safety should be recognized as a “public policy” justi-

fying the reversal of a labor arbitrator’s award under

the criteria established by this Court in W.R. Grace &

Company v. Local 759, International Union of Rubber

* Lists of ATA and Air Conference members appear as an appen-

dix to the attached brief.

Workers, 461 U.S. 757 (1983). ATA and Air Confer-

ence believe that the attached brief will illustrate that

the public safety issues Northwest petitions this Court

to resolve have continuing, vital importance throughout

this important sector of the Nation’s transportation

industry.

For these reasons, ATA and Air Conference respect-

fully request that the Court grant them leave to file the

attached brief as amici curiae. This motion and brief

are timely filed.

Respectfully submitted,

LAWRENCE D. LEVIEN, P.C.

(Counsel of Record)

DAVID P. CALLET, P.C.

BETTY LEACH

AKIN, GUMP, STRAUSS, HAUER

& FELD

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

Counsel for the Air Transport

Association of America and the

Airline Industrial Relations

Conference as Amici Curiae

Date: April 25, 1987

QUESTIONS PRESENTED

The Air Transport Association (“ATA”) and the Air-

line Industrial Relations Conference (“Air Conference’’)

submit this brief as amici curiae in support of the peti-

tion for certiorari filed by Northwest Air Lines, Inc.

(“Northwest”) on March 26, 1987.* This case presents

two questions whose resolution will vitally affect the abil-

ity of ATA’s and Air Conference’s member air carriers

to safeguard the flying public against the dangers created

by alcohol use among pilots. Northwest has requested

that this Court determine whether a reviewing court may

overturn an arbitrator’s award reinstating a pilot who

had beer discharged for flying a passenger jet while in-

toxicated. Northwest also has asked the Court to decide

whether the Federal Aviation Act requirement that a

carrier “maintain the highest degree of safety” deprives

a Railway Labor Act arbitrator of jurisdiction to over-

rule a carrier’s policy of requiring dismissal as the pen-

alty for flying while intoxicated.

* A formal statement of the interest of ATA and Air Conference

in the disposition of the petition for certiorari appears in their

foregoing Motion for Leave to File Brief as Amici Curiae in Sup-

port of Petition for Certiorari. Lists of ATA and Air Conference

members are attached as an apendix to this brief.

(i)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ........................ ' iv

STATEMENT - 1

1. Air Safety And Problems Of Employee Alcohol

WII cccecisineinsesiunccniiansenittnbeansalitieaidanicildadamibldaiaiatstialhaaineiiiapines 1

2. The Federal Aviation Act Public Safety Man-

Gt 2 eee ee 3

3. Carrier Alcohol Use Rules ............................... 5

4. FAA Rulemaking Proceedings on Alcohol And

Ne Fe iaalsiscsncestihistcndtaciiatiatantailiiahiitnnasieedhidcinanidndeidnins 8

REASONS FOR GRANTING THE WRIT ................. 9

I. The Court Of Appeals Improperly Restricted

the “Public Policy” Exception That This Court

Established In W.R. Grace —.......0202.--220......... 9

II. This Court Should Resolve The Conflict Among

The Circuits As To Whether The Federal Avia-

tion Safety Mandate Restricts The Jurisdiction

Of Railway Labor Act Arbitrators, To Elimi-

nate Continuing Uncertainties About The En-

forceability Of Carrier Safety Measures ........... 14

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(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Harriss v. Pan American World Airways, Inc.,

437 F. Supp. 413 (N.D. Cal. 1977), aff'd in rele-

vant part, 649 F.2d 670 (9th Cir. 1980)... 3

Misco, Inc. v. United Paperworkers International

Union, 768 F.2d 739 (5th Cir. 1985), cert.

granted, —— U.S. ——, 107 S.Ct. 871 (Jan. 12,

ST aks. IED accconsnnncpniemneniadniietoedniegnemauapiimenss 10

Murnane v. American Airlines, Inc., 667 F.2d

98 (D.C. Cir. 1981), cert. denied, 456 U.S. 915

CO iets re i eae eer 3

Muschany v. United States, 324 U.S. 49 (1945) .... 10

Northwest Airlines, Inc. v. Air Line Pilots Assoc.,

International, 808 F.2d 76 (D.C. Cir. 1987),

rev'g, 633 F. Supp. 779 (D.D.C. 1985) .....11, 12, 14, 15

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224

Ts I cieethicteciseitinitinsietecienantaciinnncasiiielatlainittisde 4

W.R. Grace & Company v. Local 759, International

Union of Rubber Workers, 461 U.S. 757 (1983).. 9,10

World Airways, Inc. v. International Brotherhood

of Teamsters, Airline Division, 578 F.2d 900

ee 5, 14

Statutes

Federal Aviation Act

49 U.S.C. § 1421(a) (Supp. 1987) ............................. 4

49 U.S.C. § 1421(b) (Supp. 1987) .............................. 3

Regulations

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14 C.F.R. § 91.11(a) (1) (1986) .........................0.....

14 C.F.R. § 91.11 (a) (2) (1986) 2.2.0.2...

14C.F.R. § 91.11(a) (4) (1986) 000. .

14C.F.R. § 121.413 (a) (4) (ii) (1986) 00.

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SP is Bs IIE CD ccncecccncnsesoncnccncneccccosnsscnsnnsnn

51 Fed. Reg. 44,432 (1986) (to be codified at 14

C.F.R. Part 91) (proposed Dec. 9, 1986)........ 2,

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v

TABLE OF AUTHORITIES—Continued

Arbitrations

Grievance of William D. Day, Delta Airlines

Pilots’ System Board of Adjustment, ALPA

Case No. 1-85 (Jan. 31, 1987), complaint to va-

cate award pending sub nom. Delta Airlines,

Inc. v. Air Line Pilots Association, C.A. No. C87-

239A (N.D. Ga., filed Feb. 12, 1987) ...................

Grievance of Larry Morrison, Northwest Airlines,

Inc. Pilots’ System Board of Adjustment, Griev-

ance 406-82 (Oct. 29, 1964) ..................................

Miscellaneous

Air Transport 1986, The Annual Report of the

U.S. Scheduled Airline Industry ........ are

Comments of the Air Transport Association of

America to the Federal Aviation Administra-

SSS SEOs SIIIIED wctncisunncscsniaettatictadienenasneenes

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1548

NORTHWEST AIRLINES, INC.,

Petitioner,

V.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF

THE AIR TRANSPORT ASSOCIATION OF AMERICA

AND THE

AIRLINE INDUSTRIAL RELATIONS CONFERENCE

AS AMICI CURIAE SUPPORTING CERTIORARI

STATEMENT

1. Air Safety and Problems of Employee Alcohol Use

Since the fares charged by scheduled air carriers were

deregulated in 1978, air traffic has increased dramati-

cally. There were 748,549 more aircraft departures in

1985 than in 1977, and 139,698,000 more passengers

flown. The scheduling difficulties caused by this in-

1U.S. scheduled airlines had 4,936,519 scheduled departures in

1977 and 5,685,068 departures in 1985. The airlines carried

2

creased traffic, and the burdens imposed upon airports

and air traffic control capacities, are well-publicized sub-

jects of National transportation policy debate. To op-

erate aircraft safely in this environment, pilots must

perform at peak mental alertness and physical capacity

at all times. The increased flight schedules have caused

corresponding increases in airline employment. Each

plane flown by an air carrier has a rotating, permanent

crew of approximately fifteen pilots and thirty-five flight

attendants.

The increase in air traffic coincides with a growing

national concern about alcohol and drug abuse among

transportation industry employees whose job performance

affects passenger safety. The recent Amtrak-Conrail

train collision, in which sixteen were killed and 170 were

injured, illustrates the grievous consequences of errors in

judgment caused by employee use of drugs or alcohol on

the job. An alcohol or drug-related catastrophe in the

airline industry would take a far greater toll than an

accident in other forms of transportation. Domestic air

disasters have claimed as many as 275 lives in a single

incident.

Carriers involved in such disasters are subject to stag-

gering liabilities. Recent settlements have reached over

$800,000.00 per passenger in cases in which there were

claims of carrier negligence. Although there has been

no commercial air disaster to date among U.S. carriers

in which pilot alcohol use has been shown to be a factor,*

carriers are justifiably concerned that juries might view

240,326,000 revenue passengers in 1977 and 380,024,000 passengers

in 1985. Air Transport 1986, The Annual Report of the U.S.

Scheduled Airline Industry (“ATA Report”) at 2. Copies of the

ATA Report have been lodged with the office of the Supreme

Court Clerk for the Court’s convenient reference.

2 Settlements in the 1982 Air Florida crash at Washington, D.C.

National Airport averaged over $800,000.00 per passenger.

3 Federal Aviation Administration Advance Notice of Proposed

Rulemaking, 51 Fed. Reg. 44,432, 44,433 (1986).

3

their failure to prevent such incidents as gross negligence

or recklessness, possibly justifying punitive damages in

addition to the already overwhelming compensatory dam-

ages. Carriers that fail to conform to Federal Aviation

Administration (“FAA”) safety standards also can incur

steep penalties and/or loss of their certifications.

2. The Federal Aviation Act Public Safety Mandate

In formulating all safety policies, including those re-

lating to alcohol use, carriers are guided by the Federal

Aviation Act public safety mandate. This mandate im-

poses upon carriers a duty to maintain public safety in-

dependent of the regulatory responsibilities of the FAA.

The Aviation Act provides that “the [FAA] Administra-

tor shall give full consideration to the duty resting upon

air carriers to perform their services with the highest

possible degree of safety in the public interest... .” 49

U.S.C. § 1421(b) (Supp. 1987) (emphasis added).

Several circuits have recognized that this independent

Congressional mandate justifies broad deference to air

carrier safety measures. In upholding an age-forty cut-

off for second officer applicants, the District of Columbia

Circuit rejected an argument that the low probability of

safety hazards was insufficient justification for the hard-

ship to rejected individuals, reaffirming that a carrier

must avert even the slightest potential danger:

As an air carrier with a public duty to operate with

the highest degree of safety, [a carrier] is in the

business of avoiding and managing the risks result-

ing from low probability occurrences which could

have extremely serious consequences. Indeed, such

risk management is the essence of [a carrier’s] busi-

ness, since aircraft accidents and incidents are in-

variably unique and low probability occurrences.

Murnane v. American Airlines, Inc., 667 F.2d 98, 101

(D.C. Cir. 1981), quoting Harriss v. Pan American

World Airways, Inc., 487 F. Supp. 418, 434 (N.D. Cal.

4

1977), aff'd in relevant part, 649 F.2d 670 (9th Cir.

1980). See also Usery v. Tamiami Trail Tours, Inc., 531

F.2d 224, 236, n.80 (5th Cir. 1976) (airline industry

must be accorded great leeway and discretion in deter-

mining the manner in which it may be operated most

safely) (emphasis in original).

The Aviation Act requires the FAA to play the coordi-

nate role of prescribing minimum standards for air

safety and pilot qualification. 49 U.S.C. § 1421(a)

(Supp. 1987). Pursuant to this authorization, the FAA

has adopted regulations governing the qualifications for

the pilot certifications required under the Aviation Act.

FAA regulations establish requirements for training,

flight proficiency, airplane performance ratings and re-

lated issues. See generally, 14 C.F.R., Part 61. The reg-

ulations also establish the minimum health qualifications

needed for pilots to obtain FAA medical certificates. See

generally id., Part 67.

Evaluating pilot competency and judgment is an in-

tegral part of a carrier’s public safety responsibility.

While the FAA evaluates pilots’ medical fitness through

its medical certification procedures, FAA regulations

make carriers solely responsible for “[p]roper evaluation

of pilot performance including the detection of . . . per-

sonal characteristics that could adversely affect safety.”

14 C.F.R. § 121.413(a) (4) (ii). Carriers are extremely

selective in choosing, among medically certified persons,

those individuals whom they believe best qualified to bear

responsibility for the safety of hundreds of lives. There

presently are 692,758 persons who hold FAA medical

certificates, of whom 115,808 hold first-class certificates,

but only 40,153 certified persons were employed by U.S.

scheduled air carriers as of January 1, 1986.4 The Ninth

4 Statistics on numbers of currently certified persons were ob-

tained by telephone from the FAA Statistics Division on April 23,

1987. Statistics for numbers of certified persons employed by U.S.

scheduled carriers appear in ATA Report, supra note 1, at 12.

5

Circuit has recognized that federal law, as embodied in

the Aviation Act mandate, entrusts airlines with the re-

sponsibility to evaluate whether an individual has the

character and judgment to serve as a pilot-in-command.

World Airways, Inc. v. International Brotherhood of

Teamsters, Airline Division, 578 F.2d 800 (9th Cir.

1978).

In accordance with the two-pronged air safety scheme,

the FAA’s regulations establish minimum standards for

pilot alcohol use. The regulations prohibit service as a

crew member while under the influence of alcohol, while

having .04 percent or more alcohol in the blood by weight,

or while subject to a medical deficiency such as alco-

holism. 14 C.F.R. §§ 91.11(a) (2) and (4); 61.53. The

regulations also prohibit consumption of any amount of

alcohol within eight hours before serving as a crew mem-

ber. Id. § 91.11(a) (1). The FAA has explicitly recog-

nized that its eight-hour rule is “a ‘rock-bottom’ mini-

mum,” 35 Fed. Reg. 17,036 (1970), and that “an excel-

lent rule is to allow twenty-four hours between the last

drink and the takeoff time.” 35 Fed. Reg. 9217 (1970).

3. Carrier Alcohol Use Rules

To prevent alcohol-related disasters, many carriers

have adopted pilot alcohol use policies that are stricter

than the FAA’s minimum alcohol abstinence regulations.®

Half of Air Conference’s members have “twelve hour’ or

5 Most carriers enforce company policies that are stricter than

FAA minimum requirements on other issues that could affect in-

flight safety. For example, the vast majority of carriers require

appiicants for pilot positions to have uncorrected 20/20 vision, even

though FAA regulations require only 20/100 vision (correctable to

20/20) to obtain a first-class medical certificate. 14 C.F.R. § 67.13

(b) (1). Also, most carriers require all three members of a flight

crew—pilot, first officer and flight engineer—to have a first-class

medical certificate, even though FAA regulations permit a flight

engineer to have a second-class medical certificate. Id. § 63.31(c).

6

“twenty-four hour rules” similar to the Northwest rule

at issue in this case.®

Most carriers have adopted employee assistance pro-

grams (“EAPs”) to enable employees to seek rehabilita-

tion for alcohol problems. Although the terms and condi-

tions of carriers’ EAPs vary, most resemble the North-

west program in requiring that the employee enter the

program voluntarily, or through “intervention” proce-

dures involving family members or co-workers, before the

employee actually violates company rules and endangers

public safety. All carriers offer reinstatement, generally

with no loss of seniority or pay, to an alcoholic pilot who

volunteers for rehabilitation under an EAP without vio-

lating company alcohol use rules.

All ATA member carriers maintain a strict separation

between EAP rehabilitation procedures and the disci-

plinary measures applied to employees who violate com-

pany rules. Carriers deem it critical that they have the

discretion to tailor sanctions to the seriousness and cir-

cumstances of the offense, and to judge whether the in-

dividual demonstrates the judgment and character needed

in a person who is entrusted daily with responsibility for

hundreds of lives. For serious offenses that reflect upon

an employee’s judgment and endanger public safety, all

carriers deem it essential to protect the flying public by

dismissing that individual, without offering him the same

opportunity for rehabilitation and continued employment

that a nonviolator would receive. No offense poses a more

serious peril to human life, or reflects more poorly upon

the judgment of the offender, than serving as a member

of a flight crew while intoxicated.

6 In this case, Morrison violated the FAA “eight hour rule” and

the prohibition against serving as a crew member while intoxicated,

as well as the Northwest “twenty-four hour rule”. This fact il-

lustrates the untenable predicament that the arbitration award

creates for carriers. Failure to impose discipline for violation of

FAA rules could lead to severe civil liabilities or penalties; im-

position of discipline results in an adverse arbitration award.

7

ATA carriers always have implemented their alcohol

abstinence rules unilaterally. No carrier has ever estab-

lished through collective bargaining its policy concerning

the length of the pre-flight period during which it pro-

hibits a pilot frem drinking. More important, no carrier

has ever negotiated concerning the disciplinary measures

to be applied to pilots who violate the alcohol policy, ei-

ther as a discrete bargaining issue or in connection with

the industry standard of requiring “just cause” for pilot

termination. The only subject related to alcohol use on

which some carriers historically have bargained is the

company’s agreement to establish an EAP.

Recent grievances, in which arbitrators have found

that carriers did not have “just cause” to terminate

pilots who flew passenger aircraft while intoxicated, pose

a serious threat to carrier efforts to safeguard the flying

public. Such decisions will vitiate the deterrent purpose

of carrier disciplinary policies by suggesting to alcoholic

pilots that they need not immediately volunteer for re-

habilitation, since even the most flagrant violations of

alcohol use rules may not result in termination.

In the instant case, the System Board convened pur-

suant to the Railway Labor Act ordered reinstatement of

pilot Morrison, who had jeopardized public safety by serv-

ing as first officer of a flight while intoxicated, on grounds

that Morrison’s actions were non-volitional due to his

alcoholism. Grievance of Larry Morrison, Northwest Air-

lines, Inc. Pilots’ System Board of Adjustment, Grievance

405-82 (Oct. 29, 1984), attached to Petitioner’s Brief,

Appendix at 7la. In another recent grievance, an arbi-

trator ordered Delta Airlines to reinstate pilot William

Day, who served as a pilot-in-command while legally in-

toxicated. Grievance of William D. Day, Delta Airlines

Pilots’ System Board of Adjustment, ALPA Case No.

1-85 (Jan. 31, 1987), complaint to vacate award pending

sub nom. Delta Airlines, Inc. v. Air Line Pilots Asocia-

tion, C.A. No. C87-239A (N.D. Ga., filed Feb. 12, 1987).

8

4. FAA Rulemaking Proceedings on Alcohol and Drug Use

Although the FAA has begun a rulemaking proceeding

addressing drug and alcohol abuse in the aviation in-

dustry, the rules it may adopt cannot resolve the issues

raised by this case. The FAA has indicated no intention

to supplant individual carrier alcohol use rules, or car-

rier judgment on disciplinary measures to be applied to

pilots who violate those rules. In an Advance Notice of

Proposed Rulemaking, 51 Fed. Reg. 44,432 (1986) (to be

codified at 14 C.F.R., Part 91) (proposed Dec. 9, 1986),

the FAA stated that any new alcohol and drug abuse rules

could include mandatory alcohol testing, including both

random and scheduled testing and testing upon “reasonable

suspicion,” and extension of drug and alcohol rules to ad-

ditional job categories such as mechanics. Id. at 44,434.

The FAA also may require carriers to establish EAPs

that would include “(1) prevention through education

and training, (2) detection through training of employ-

ees and mandatory random testing and (3) rehabilita-

tion.” Id. Each element “would be required to conform

with minimum FAA standards.” Jd. None of the specific

questions on which the agency seeks comment concerns

the discipline to be applied to individuals who violate

present or proposed rules.’ See id. at 44,434-36.

ATA’s comments underscore the need to preserve car-

rier independence to adopt alcohol and drug use stand-

ards that exceed FAA minimums. Comments of the Air

Transport Association of America to the FAA, Docket

No. 25148 (“ATA Comments’’).* ATA proposes that the

7In its questions concerning “minimum” EAPs, the FAA asks,

“How far should a certificate holder go in terms of employee re-

habilitation, i.e. how many ‘relapses’ should the employee be al- —

lowed?” 51 Fed. Reg. at 44,435. This question does not touch upon

discipline for rule violators, since an alcoholic need not violate

alcohol use rules in suffering a relapse of his medical condition.

8 Copies of the ATA Comments to the FAA have been lodged

with the office of the Supreme Court Clerk for the Court’s con-

venient reference.

9

FAA require carriers to adopt programs incorporating

certain mandatory elements, including applicant screen-

ing, employee testing after accidents and “safety inci-

dents” and upon “reasonable suspicion.” ATA Comments

at 3. ATA emphasizes the need to retain carriers’ cur-

rent practice of excluding rule violators from eligibility

for EAP rehabilitation, id. at 3, 11-13, proposing that

the FAA program include

. . . One opportunity for rehabilitation for employees

who voluntary admit to a drug or alcohol problem

and are not in a job jeopardy status. Employees

whose drug or alcohol use is discovered by testing,

and employees who have violated other company

rules and who are in a job jeopardy status would not

be entitled to participate in a rehabilitation program.

Id. at 3 (emphasis added). ATA has advised the agency

that any offer of additional opportunities for rehabilitation

“should be left to the discretion of the carrier on a case-

by-case basis.” Jd. at 12. ATA also emphasizes the need

to preserve carriers’ current practice of enforcing alcohol

use rules, such as “twenty-four hour rules” that are more

stringent than FAA’s minimum “eight hour rule.” Jd.

at 8.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS IMPROPERLY RE-

STRICTED THE “PUBLIC POLICY” EXCEPTION

THAT THIS COURT ESTABLISHED IN W. R.

GRACE

The court of appeals’ holding that the district court

lacked discretion to overturn the arbitrator’s award is

based upon an insupportably narrow reading of the “pub-

lic policy exception” articulated by this Court in W. R.

Grace & Company v. Local 759, International Union of

Rubber Workers, 461 U.S. 757 (1983). In W. R. Grace,

the Court acknowledged that a court may refuse to en-

force an arbitration award issued under a collective bar-

10

gaining agreement “if the contract as interpreted by [the

arbitrator] violates some explicit public policy ...” Id.

at 766. The court stated

Such a public policy, however, must be well-defined

and dominant, and is to be ascertained ‘by reference

to the laws and legal precedents and not from gen-

eral considerations of supposed public interests.’

Muschany v. United States, 324 U.S. 49, 66 (1945)

Id. at 766. (emphasis added)

The Court suggested several factors that might render

an award contrary to public policy. These considerations

include not only the factor proposed by the court of ap-

peals—whether the award requires a party to violate a

statute, regulation or court order—but also whether the

award creatés an incentive for a party or others to vio-

late a clearly defined public policy, id. at 769, and

whether other important policies would be adversely af-

fected by the court’s action. Jd. at 770-71.

The petition in this case adequately demonstrates the

conflict among the circuits regarding the proper scope of

the public policy exception articulated in W.R. Grace,

and amici will not belabor the point. For the reasons

stated in the petition, this case should be heard together

with Misco, Inc. v. United Paperworkers International

Union, 768 F.2d 739 (5th Cir. 1985), cert. granted, ——

U.S. ——, 107 S.Ct. 871 (January 12, 1987) (No. 86-

651), as the vehicle for resolving that circuit conflict.

More important from ATA’s and Air Conference’s per-

spective, however, is the effect that the D.C. Circuit’s

overly restrictive reading of W.R. Grace will have on car-

rier’s ability to enforce alcohol use rules.

The D.C. Circuit has ignored the Court’s discussion of

other considerations relevant to the “public policy” ex-

ception, and restricted the exception to cases in which

the award contravenes positive law. The court below has

rewritten the statement that public policy must be “as-

11

certained by reference to laws and legal precedents,”

somehow concluding that this Court must have “meant

to say only that an arbitration award may not be

enforced if it transgresses “well defined’ and ‘dominant’

laws and legal precedents.” Northwest Airlines, Inc. v.

Air Line Pilots Association, International, 808 F.2d 72,

83 (D.C.Cir. 1987), rev’g, 633 F.Supp. 779 (D.D.C.

1985) (emphasis added). The court justifies its restric-

tive approach with the statement that the public policy

exception must be extremely narrow, in keeping with the

policy of deference to labor arbitration awards. /d.

Even if the Aviation Act safety mandate is not viewed

as positive law that would be violated by enforcement of

the award, the mandate certainly embodies the “well-

defined and dominant policy” of maintaining air safety,

which would be disserved by enforcement of the award.

Because of its misunderstanding of the nature of the

public safety mandate, the court of appeals fails to

acknowledge the mandate as a countervailing statutory

policy that must be balanced against the policy of en-

forcing labor arbitration decisions.® Instead, it incor-

rectly reasons that overturning the award would under-

mine what it views as the exclusive role of the FAA in

regulating air safety:

. . . the Board’s award was conditioned upon a find-

ing by the FAA—i.e., the authorized public agency

responsible for licensing pilots—that Morrison was

fit and qualified to fly. To suggest that the Board’s

award violates public policy is to contend that the

FAA was derelict in its responsibilities in consider-

ing Morrison for recertification. Obviously, it would

be patently absurd for us, under the guise of “pub-

lic policy,” to reverse an arbitration award that is

expressly limited by deference to the ultimate judg-

ment of the agency that is charged with the enforce-

* The district court correctly recognized the independent status

of the FAA safety mandate. 633 F. Supp. at 788-96.

12

ment of the public policy here at issue. Unless the

FAA’s decision to recertify Morrison is overturned

pursuant to some lawful administrative or judicial

proceeding designed to consider such matters, we

must assume the legitimacy of Morrison’s recertifica-

tion. It would be the height of judicial chutzpah for

us to second-guess the present judgment of the FAA

recertifying Morrison for flight duty. At its core,

Northwest’s argument seeks just such a result...

808 F.2d at 83. (emphasis added)

The court of appeals thus fails to recognize that its

ruling thwarts carriers’ ability to implement their inde-

pendent safety mandate in their selection of trust-

worthy pilots. The court of appeals fundamentally mis-

construes the agency’s medical certification process by

failing to recognize that an FAA medical certificate only

represents that pilot has met minimal medical qualifica-

tions to fly aircraft. It is the carrier’s responsibility to

determine which of these medically certified pilots also

possess the necessary attributes of judgment, tempera-

ment, and experience to transport their passengers. The

small percentage of eligible, certified persons actually

employed by carriers illustrates that carriers exercise

great discretion in selecting pilots.

Moreover, the court of appeals disregards another

public policy consideration recognized by this Court—the

serious possibility that the award will create an incen-

tive for other alcoholic pilots to violate public policy, as

embodied in explicit FAA regulations as well as com-

pany rules, by flying while intoxicated. Morrison com-

mitted the most egregious possible breach of public

safety, and yet has received reinstatement on terms that

differ little from those he would have obtained if he had

volunteered for rehabilitation before he endangered doz-

ens of lives.

If enforced, the award will exacerbate alcoholic pilots’

tendency to postpone the difficult personal and profes-

Ee

13

sional adjustments associated with entering rehabilita-

tion. Pilots are more likely to delay acknowledging their

drinking problems until after they are discharged for

flying while intoxicated, knowing that they probably will

be reinstated after completing a rehabilitation program

and obtaining FAA recertification. If pilots thus believe

that they will not be discharged for even the most serious

breach of company rules and FAA regulations, it will be

impossible for carriers to maintain the integrity of pre-

flight alcohol use rules that are intended to ensure the

highest possible degree of public safety. Carriers cannot

counteract the threat to their safety measures by adopt-

ing stricter sanctions, including discharge, for lesser of-

fenses, since these sanctions probably would be even more

vulnerable to challenge in arbitration than discharges for

flying while drunk.

Finally, even if the court of appeals were correct in

ruling that violation of positive law is the only basis upon

which courts may find that an arbitration award violates

public policy, the award at issue does violate positive law.

The Aviation Act mandate that carriers maintain “the

highest possible degree of safety” is a federal statute,

not a “general consideration of supposed public interests”.

Because the court incorrectly views a carrier’s safety

obligations as subsumed under FAA air safety regula-

tions and actions taken thereunder, such as medical re-

certification of alcoholics, it does not take into account

the carriers’ universal practice of adopting individual

safety rules that exceed FAA minimums, pursuant to

their statutory duty. If carriers are unable to enforce

these stricter standards through correspondingly strin-

gent disciplinary measures, without having their judg-

ment questioned because of the existence of lower FAA

standards, carriers’ ability to carry out their statutory

mandate will be severely compromised.

icc aia ai i ik

14

II. THIS COURT SHOULD RESOLVE THE CONFLICT

AMONG THE CIRCUITS AS TO WHETHER THE

FEDERAL AVIATION ACT SAFETY MANDATE

RESTRICTS THE JURISDICTION OF RAILWAY

LABOR ACT ARBITRATORS, TO ELIMINATE

CONTINUING UNCERTAINTIES ABOUT THE

ENFORCEABILITY OF CARRIER SAFETY

MEASURES

As Petitioner has indicated, the District of Columbia

Circuit’s decision conflicts directly with the Ninth Cir-

cuit’s decision in World Airways, Inc. v. International

Brotherhood of Teamsters, supra. In World Airways,

the court held that the Aviation Act public safety man-

date imposes substantive restrictions upon the jurisdic-

tion of Railway Labor Act arbitrators. The Ninth Cir-

cuit concluded that a system board had overstepped its

jurisdiction by ordering retraining for a pilot who had

been demoted for numerous errors of judgment, on the

ground that determining competency and fitness of a pilot

is statutorily entrusted to the airline as part of its non-

delegable duty to maintain the highest standards of pub-

lic safety. The District of Columbia Circuit, however,

looked solely to the terms of the Northwest/ALPA col-

lective bargaining agreement to determine whether the

parties themselves had agreed to exclude safety issues

from the scope of contractual grievance arbitration:

There is nothing in the parties’ agreement that even

suggests that a disciplinary action related to an al-

leged breach of a safety rule is excluded from ar-

bitral review. Indeed, quite the contrary is true be-

cause all disciplinary actions taken pursuant to Sec-

tion 19 are made subject to Board review under Sec-

tion 21. There is no conceivable way to construe the

parties’ agreement as removing from the Board’s

jurisdiction disciplinary actions related to alleged

breaches of the twenty-four hour rule.

808 F.2d at 81-82. (emphasis in original). The court

states, “. . . it is not the role of the courts to alter the

15

labor-management balance struck in the collective bar-

gaining agreement.” Jd. at 83.

As the foregoing statements illustrate, the decision is

based upon a mistaken understanding of historical pat-

terns of bargaining concerning public safety issues cov-

ered by the FAA mandate. Safety measures like the

twenty-four hour rule have never been a subject of a

collective bargaining agreement between ALPA and any

carrier. Rather, each carrier has always implemented

its safety rules unilaterally. It has long been the car-

riers’ understanding that grievance arbitrations concern-

ing safety issues are confined to factual determinations

of whether the grievant committed the infraction of

which he was accused, not the validity of the carrier’s

safety policies or the de facto modification of those pol-

icies through alteration of the specified sanctions.

Absent resolution of the conflict among circuits, car-

riers will face continuing uncertainty about the enforce-

ability of the disciplinary measures they believe neces-

sary to implement the Aviation Act public safety man-

date. Without the Court’s guidance as to whether an

arbitrator has jurisdiction—other than as a fact-finder—

to overrule a carrier’s decision to discharge a pilot who

flies while intoxicated, carriers will remain uncertain as

to how they may prevent the unacceptable safety risk of

allowing that pilot to continue flying. In this period of

expanding commercial airline traffic, such uncertainty in

itself poses a hazard to public safety.

16

CONCLUSION

For the foregoing reasons, ATA and Air Conference

respectfully submit that this Court should grant a writ of

certiorari.

Respectfully submitted,

LAWRENCE D. LEVIEN, P.C.

(Counsel of Record)

DAVID P. CALLET, P.C.

BETTY LEACH

AKIN, GUMP, STRAUSS, HAUER

& FELD

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

Counsel for the Air Transport

Association of America and the

Airline Industrial Relations

Conference as Amici Curiae

Date: April 25, 1987

la

APPENDIX

ATA MEMBERS

AirCal

Alaska Airlines

Aloha Airlines

American Airlines

Braniff

Continental Airlines

Delta Air Lines

Eastern Air Lines

Evergreen International Airlines

Federal Express

The Flying Tiger Line

Hawaiian Airlines

Midway Airlines

Northwest Airlines

Pan American World Airways

Piedmont Airlines

PSA-Pacific Southwest Airlines

TranStar Airlines

Trans World Airlines

United Airlines

United Parcel Service

USAir

Associate Members

Air Canada

Canadian Pacific Air Lines

2a

AlIk CONFERENCE MEMBERS

Airborne Express

AirCal

Alaska Airlines

Aloha Airlines

America West Airlines

American Airlines

Braniff Airways

Continental Airlines

Eastern Airlines

The Flying Tiger Line

Midway Airlines

Northwest Airlines

Pacific Southwest Airlines

Pan American World Airways

Piedmont Airlines

Reeve Aleutian Airways

Tower Air

Trans World Airlines

United Airlines

USAir

World Airways

oy: ef

Oe i

ate

SN NR ER A Ee TS QIN NE Pete MED ee