United until he had enough seniority to bid Fridays and Saturdays
On July 24, Kendall appealed his discharge to Captain W.E.
Dunkle, who was United's Senior Vice-President for Flight
Operations. At the hearing on August 10, the company was
represented by Captain Treece, who acted as Dunkle's designee,
and by a member of Dunkle's staff. Kendall appeared with Bill
West, who was an ALPA Grievance Chairman, and with another ALPA
observer. (Diary; Exhibit M). West urged the company to reinstate
Kendall on a trial basis and to make a "special arrangement" with
no precedential value. (Diary). Kendall also voiced a proposal.
He saw no principled basis for United to allow a pilot to drop a
trip for health reasons and to not permit a drop for religious
reasons. (T. 99). So he suggested that after a pilot had
unsuccessfully attempted to avoid a conflict by normal bidding
procedures, he should be permitted to make a "religious trip
drop." (Diary). This type of drop would have narrow applicability
and would only affect about the twenty most junior men in the
seniority list, because more senior pilots could avoid conflicts
by normal procedures. (T. 99). Captain Treece's reaction to this
proposal stuck in Kendall's mind — "he kind of laughed and he
said, `That very well might be feasible but it's intolerable.'"
(Diary; T. 99).
Kendall then suggested that he be given a leave of absence
until he accumulated sufficient seniority to bid the days off he
needed. As he put it "a leave of absence might allow me to come
back to work within a year when I have sufficient seniority to
bid the days off I need." (Diary). Captain Treece's position,
which was expressed both at the hearing and in a subsequent
August 21 letter denying Kendall's grievance, was that Kendall
had knowingly accepted seven-day-a-week availability at the time
of his hiring, and that his intervening religious conversion
required him to either adapt his principle to those stated
conditions of employment or to leave the airline.
On September 6, 1972, Kendall submitted a grievance for
arbitration before the five-member Pilots' System Board of
Adjustment, which was organized under provisions of the Railway
Labor Act, 45 U.S.C. § 184. The Board held a hearing in February,
1974, when it received testimony on the interaction among
Kendall's requested accommodation, available scheduling
alternatives, company efficiency, and the requirements of the
collective bargaining agreement.
On September 27, 1974, the Board denied Kendall's grievance,
finding that his discharge was for "just cause" and did not
violate the collective bargaining agreement. The Chairman's
opinion stated that
For the Company to rearrange the schedules of Pilots
who had bid for schedules in accordance with their
seniority to "accommodate" Kendall would in fact
adversely affect seniority rights of other Pilots.
The Company has an affirmative obligation to observe
the seniority rights of Pilots as reflected in the
schedules bid by the Pilots. The Company would have
no right to alter such bids or schedules for the
purposes which Kendall sought to accomplish.
However, the two union members of the five-man board filed a
concurring opinion in which they disagreed with the Chairman's
analysis of the agreement. They did not believe that United would
have violated the agreement if it had permitted Kendall to swap
days off to accommodate his religious practices. They agreed with
the Board's decision only because they found nothing in the
agreement which permitted an employee to insist that the company
must accommodate his religious practices.