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August 25, 1980


The opinion of the court was delivered by: Marshall, District Judge.


Plaintiff Robert L. Kendall is a former pilot with United Air Lines and a member of the Worldwide Church of God. In this action for declaratory, injunctive and monetary relief, he claims that United was guilty of religious discrimination in terminating his employment when he refused to report for work on his Sabbath. Kendall's claims are based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.*fn1 and the First and Fifth Amendments to the federal constitution. Jurisdiction is invoked under 42 U.S.C. § 2000e and 28 U.S.C. § 1343, 2201 and 2202.

Findings of Fact

The parties submitted to a bench trial and presented three witnesses. Plaintiff testified on his own behalf. He also called John Traynor, who is presently employed by United as a DC-8 captain and is based in San Francisco. As Chairman of the Contract Interpretation Committee in the San Francisco domicile for the Air Line Pilots Association (ALPA), Captain Traynor has considerable experience and expertise in testifying on behalf of pilots on issues of contractual interpretation before industry arbitration panels. ALPA represented United's pilots, including Kendall, in collective bargaining with the company. United called one witness, Captain Melvin Volz, who is presently employed as vice president of flight operations for the company's central division. He was Kendall's flight manager at the time of his discharge.

On May 27, 1969, Kendall was hired by United as a pilot and was assigned to the Chicago pilot domicile as a Second Officer in the Boeing 737 fleet. Seven months later, in December, 1969, Kendall joined the Worldwide Church of God. Members of this church are prohibited from working on their Sabbath, which occurs between sunset Friday and sunset Saturday, and from working on thirteen other religious holidays during the year. The sincerity of Kendall's beliefs in his religion is unquestioned. (T. 83).

Kendall's membership immediately created a potential conflict with his flight schedule, since United's flights run seven days a week. However, because of unilateral efforts in adjusting his flight schedule, Kendall was able to avoid an actual conflict until July, 1972. To understand how conflicts arose or could be avoided, we must give a rather detailed description of United's scheduling system.

Flight schedules for United's pilots are determined according to the provisions of a collective bargaining agreement between United and ALPA. Two types of monthly schedules are used: a scheduled line of flying and a reserve schedule. "Line-holders" receive a schedule which assigns them to specific flights and specific days off. They therefore know in advance the exact trips they will fly on each of their working days. Reserve pilots receive a schedule which only specifies their days off. On working days, reserves must be on call to replace scheduled pilots who are unavailable or ill and to provide coverage for unscheduled flights such as charters. A reserve pilot has no idea in advance what flights he will have or even whether there will be one. In addition, very few reserve pilots have Fridays or Saturdays off, because weekends are peak travel periods.

Scheduled lines of flying and reserve pilot schedules are prepared for each particular configuration of aircraft equipment (e.g. 747, DC-8, 737), pilot status (e.g. captain, first officer or second officer), and pilot domicile (e.g. San Francisco, Chicago, Newark). In 1972, there were ninety-two different combinations of equipment-status-domicile. (T. 131). Within each of these combinations, United created a number of different availability patterns to assure that pilot coverage was relatively uniform during the month.

These monthly schedule patterns are published and posted in advance of their effective date so that pilots may bid on their preferences. The bid consists of the pilot's seniority ranking, and schedules are awarded to the most senior bidder. In general, the more senior pilots received scheduled lines of flying, and the less senior pilots received reserve schedules. (T. 22, 143). In addition, the senior pilots generally bid for schedules with weekends off. (T. 144).

United's scheduling procedures provided a number of methods by which a pilot could modify his schedule for personal reasons after the schedule went into effect.*fn2 If the pilot was a line-holder, he could drop a scheduled trip and sign up in the open flying book to fly an equivalent trip on one of his days off. (T. 24). A drop had to be approved by the flight manager (T. 55), who was something like a chief pilot and had responsibility for supervising a group of pilots within all three classifications (e.g. Boeing 727 pilots at O'Hare). (T. 137-38). The flight manager had discretion whether or not to grant the drop, but the sole factor appeared to have been whether there was sufficient reserve availability to cover the dropped trip. (T. 25-26, 57). The contract did not place any limitation on the number of times a drop could be allowed (see § 3-I-1-a-(7)), and dropping was a common practice among line-holders in 1972 (T. 33, 56). Among the reasons used to justify a drop were weddings, golf dates, and attendance at a retirement party. (T. 33).

In addition to dropping a trip, line-holders could swap flights with other line-holders.*fn3 Unlike drops, swaps were arranged between pilots themselves, without the approval of the flight manager, even though the contract technically required company approval. (See § 3-I-1-a-(6); T. 33-37). Use of swaps was "reasonably common." (T. 34).

If the pilot was a reserve, parallel methods of schedule adjustment were available. Instead of shifting trips, reserves could shift their days off. The 1970 contract did not specifically authorize shifting by reserves. However, this method was recognized in an April, 1972 company policy statement and in subsequent arbitration decisions as being an established working practice (Deft's Exh. 1, ¶-3C; Pltf. Exh. 1 & 2) (T. 43-44, 49). The flight manager had discretion whether to grant the shift request, subject to the availability of reserve coverage. (T. 42, 61, 69, 186, 223). Although the April, 1972 policy statement allowed shifting only in unusual circumstances or for military leave (T. 164-65), in practice shifts were commonly granted for a host of nonemergency reasons, such as parties, vacations, travel, playing golf, and maximizing the number of days off in a row. (T. 43, 52, 222-223).

In addition to shifting, reserve pilots could swap days off with other reserve pilots. (T. 42). Unlike shifting, which was accomplished independently of other pilots' schedules, swapping required the agreement of another pilot. (T. 126). Swapping between reserves did not occur very often. (T. 49).

Although a pilot's seniority could buy him a particular monthly schedule, it could not help him modify that schedule. (T. 120, 155-56). Schedule adjustments were granted purely on a first-come, first-served basis, and remained available so long as there was sufficient coverage. Every pilot had an equal right under the agreement to go to his flight manager and ask for a change in his schedule based on his personal needs. (T. 120).

With this description of United's scheduling system in mind, we return to an analysis of its applicability to Kendall's situation. Kendall's employment with United can be divided into four periods. From May to December, 1969, Kendall was a pilot but was not a church member, so no conflict between work and a Sabbath was possible. From December, 1969 until June, 1971, Kendall was an active church member and a United pilot, but was able to avoid any actual conflict. (T. 85). He had more seniority than about 450 of United's 6,000 pilots. (T. 188). Consequently he was able to successfully bid for line or reserve schedules with his Sabbath off. (T. 87). When conflicts occasionally loomed in his schedule, Kendall was able to drop or swap the scheduled flight or to shift his reserve days off. (T. 87-89, 103). Kendall's ability to avoid schedule conflicts was preserved so long as a buffer of junior pilots remained beneath him. From June, 1971 until June 20, 1972, Kendall was furloughed because of company belt-tightening, so again a conflict was forestalled. However, when Kendall was recalled on June 20, 1972, his religious convictions and his work collided head-on, resulting in his discharge on July 17. It is this recall phase of Kendall's employment which is the focus of the present controversy.

At the time of his recall, Kendall was the most junior Boeing 737 Second Officer in Chicago and the second most junior 737 pilot in United's entire system. Consequently, his bidding rights were very weak. For the last ten days in June, Kendall confronted only one possible weekend flying assignment, and his request for that Sabbath off was granted with no questions asked. (T. 90).

Kendall faced four potential weekend assignments in July. The pertinent set of reserve schedules for that month offered virtually no chance for avoidance. None had both Fridays and Saturdays off. One had all but one Saturday off. That schedule was bid by ten other pilots senior to Kendall. Kendall was awarded a July schedule which required work on every Friday and Saturday. (T. 101). ...

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