Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Intern.

• Decision Date: 08 December 1988
• Docket Number: No. 87-8839,87-8839
• Citation: 861 F.2d 665
• Parties: 130 L.R.R.M. (BNA) 2014, 57 USLW 2419, 110 Lab.Cas. P 10,852 DELTA AIR LINES, INC., Plaintiff-Counter-Claimant, Defendant-Appellee, Cross- Appellant, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Defendant-Counter-Claimant, Plaintiff-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 665

861 F.2d 665

130 L.R.R.M. (BNA) 2014, 57 USLW 2419,

110 Lab.Cas. P 10,852

DELTA AIR LINES, INC., Plaintiff-Counter-Claimant Defendant-Appellee, Cross- Appellant, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL Defendant-Counter-Claimant, Plaintiff-Appellant Cross-Appellee.

No. 87-8839.

United States Court of Appeals Eleventh Circuit.

Dec. 8, 1988.

Rehearing and Rehearing En Banc Denied Jan. 23, 1989.

Felice Busto, Legal Dept., Air Line Pilots Assoc., Int'l, Washington, D.C., for defendant-counter-claimant, plaintiff-appellant, cross-appellee.

Jefferson D. Kirby, III, Ford & Harrison, Paul D. Jones, Gregory L. Riggs, Law Dept., Delta Air Lines, Inc., Hartsfield/Atlanta Intern. Airport, Atlanta, Ga., for plaintiff-counter-claimant, defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before HILL and FAY, Circuit Judges, and DUBINA ^*, District Judge.

HILL, Circuit Judge:

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 Holiday 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 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; moreover, 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 he 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."

                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 other crew members, "We're going without him.  He's still out cold."
                

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, Voorhees 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 members 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 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 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 behavior 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 demonstrated 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 The Federal Aviation Administration (FAA), by regulation, forbids the operation of any aircraft while drunk. Federal Aviation Regulations provide:

rehabilitation program operated by Delta or any other such program, though he had experienced other incidents of blackouts from drinking. ²

Sec. 91.11 Liquor and Drugs

(a) No person may act as a crew member of a civil aircraft--

(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 person's faculties in any way contrary to safety.

Delta forbids such conduct. Its Flight Operations Procedures 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 limitations, 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 intoxicants 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 discharge. According to the Board, Day should have been offered the option of entering the Delta alcohol rehabilitation program instead of being terminated. The Board determined that Delta, by firing Day, did not administer its alcohol rehabilitation program uniformly or fairly. This conclusion was based on the fact that, on at least three prior occasions, crew members who were apparently 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 misconduct." 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 medical certificate. ³

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 requiring Delta to reimburse Day for the costs of his alcohol rehabilitation. The district court found that enforcement of the award finding no just cause for discharge would violate clearly established public policy against allowing 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 discharge, filed a Notice of Appeal. Delta filed a Notice of Cross-Appeal concerning the order for reimbursement.

II. DISCUSSION

A. Scope of Review and Binding Authority

In deciding whether it was proper...