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.
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
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
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).