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November 27, 1985


The opinion of the court was delivered by: GREEN

 For the reasons set forth below, the Court concludes that summary judgment must be granted in favor of the plaintiff.

 I. Factual Background

 Both parties agree that the material facts are not in dispute. Plaintiff Northwest Airlines, Inc. is a commercial passenger airline with air carrier service to a variety of cities within the United States and abroad. Defendant ALPA, an unincorporated association, is a labor organization. ALPA has served in the past -- and currently still serves -- as the collective bargaining representative for all pilots employed by Northwest. Larry W. Morrison is a former Northwest pilot.

 On Friday, July 30, 1982, Morrison served as the co-pilot of Northwest Flight 125. The flight originated in Minneapolis, Minnesota, stopped briefly in Spokane, Seattle, and San Francisco, and concluded its journey in Las Vegas, Nevada. The plane arrived in Las Vegas at approximately 7:00 p.m. on the evening of the 30th. Morrison's expected stay in Las Vegas was to be brief; the reverse flight of flight 125 -- flight 81 -- was scheduled to leave approximately 30 hours later, at 7:40 a.m. on August 1, with Morrison once again serving as co-pilot. Majority Opinion (Maj. Opin.), System Board of Adjustment at 3.

 On his arrival in Las Vegas, Morrison ate a sandwich, drank a beer, and bought two pints of vodka. Id. At "around midnight" of the 30th, id., Morrison "chug-a-lugged" approximately 3/4 of a pint of vodka in his room at the Hilton Flamingo Hotel, DX 5 at 3-4, and then went to sleep. When he awoke at 8:00 a.m. the next morning he "chug-a-lugged" an additional quarter pint of vodka, Maj. Opin. at 3, and then went back to sleep.

 Waking for the second time at 2:30 p.m. on the afternoon of the 30th, Morrison decided to sunbathe at the hotel pool. There Morrison ordered and drank two double vodkas. Id. That evening Morrison ate at an Italian restaurant and consumed a liter of wine. He returned to his hotel room around 10:00 p.m., "chug-a-lugged" approximately 3/4 of the second pint of vodka, and went to sleep. Id. at 4. Around 4:00 a.m. the next morning, less than four hours before the scheduled departure of Flight 81, Morrison awoke and finished the second bottle of vodka. Id.

 At 6:30 a.m. the crew for Flight 81 gathered in the lobby of the Hilton Flamingo in preparation for the trip to the airport. Morrison did not appear. Second Officer Donald Allan called Morrison's room, spoke with Morrison, and reported to the rest of the crew that Morrison was sick, but would be right down. Soon thereafter Morrison paged John Dill, captain of Flight 81, from his hotel room and informed him that he (Morrison) was too ill to make the flight. Captain Dill immediately contacted Northwest's scheduling office to find a replacement for Morrison. Unable to locate a replacement, Northwest instructed Dill that if Morrison could not fly, the flight would have to be cancelled. Dill relayed this information to Morrison, and the latter agreed to make the flight -- provided that Dill would fly the San Francisco and Seattle legs and that a substitute first officer would be brought on in Seattle. Id. at 4.

 At approximately 9:00 a.m. on August 1, 1982, Flight 81 touched down safely in San Francisco. Morrison was immediately replaced as first officer and directed to submit to a blood test. After some hesitation and consultation with an ALPA representative, Morrison agreed to cooperate. The test was administered at 10:46 a.m. -- over two and one-half hours after Flight 81 had taken off from Las Vegas -- and revealed that Morrison had a blood alcohol level by weight and volume of 0.13%. *fn1"

 Northwest began an immediate investigation of the events leading up to the August 1, 1982 flight. At an August 6, 1982 Northwest hearing in Minneapolis, Morrison was questioned closely by company officials about past drinking habits and his activities during the Las Vegas layover. Morrison admitted that he had consumed substantial quantities of alcohol less than 24 hours before the departure of Flight 81, but insisted that his illness on the morning of August 1, 1982 was the result of a virus, not the drinking. Morrison confessed to Northwest officials that he had been "drinking straight from the bottle for some 10 years, sometimes consuming a pint of vodka on the 50-mile drive home, that he would drink heavily on the first days of the 3-day Orient layovers he asked for and preferred, that he had suspicions he might be an alcoholic, but never sought treatment because he knew he would be 'canned.'" Maj. Opin. at 6-7. Morrison also told Company officials that the Las Vegas layover was not the first time that he had violated the "24-hour rule." *fn2" Id.

 After the hearing Northwest formerly discharged Morrison. The Company concluded, based on the evidence before it, that the discharge was justified because Morrison had violated the Company's 24-hour rule and had flown under the influence of alcohol while serving as a cockpit crew member:

Your dismissal is the result of your violation of Company rules and regulations prohibiting the consumption of alcoholic beverages within 24 hours of flight duty. On August 1, 1982, you were assigned to be an operating crew member of Flight 81 LAS-SFO. During the 24-hour period preceding the flight you consumed alcoholic beverages. This constituted just cause for your immediate discharge. Your misconduct was further aggravated in that you consumed sufficient quantities of alcohol so as to be under the influence of alcohol during the flight thereby jeopardizing the safety of the flight.

 Id. at 8.

 Both parties agreed to certain factual stipulations:

(1) Larry Morrison admits consuming alcohol in violation of the Company's '24-hour rule' on July 31, 1982 and the morning of August 1, 1982.
(2) Larry Morrison admits serving as a crew member on Flight 81 on August 1, 1982 from LAS to SFO while under the influence of alcohol.
(3) Larry Morrison has not presented a valid First Class Medical Certificate since August 1, 1982, and is not claiming any back pay from that date to the present.
(4) In the State of California, the legal level of blood alcohol establishing a presumption of intoxication is .10% (W/V) or greater. At 10:45 AM on August 1, 1982, Larry Morrison's blood alcohol content was .13% (W/V).
(5) Flight 81 was scheduled to depart LAS on August 1, 1982 at 7:40 AM. It actually departed LAS at 8 AM due to crew delay. Flight 81 was scheduled to depart SFO to SEA at 9:30 AM. It actually departed at 10:05 AM.

 Id. at 9.

 On August 16, 1982, Morrison protested the discharge and requested a second investigation and hearing. A second investigation and hearing was undertaken, and Northwest upheld its initial decision. Morrison then appealed to the System Board of Adjustment. *fn3" At issue before the Board was the question "whether or not the Company had just cause to discharge the grievant? [and] If not, what should the remedy be?" Memorandum in Support of Plaintiff's Motion for Summary Judgment at 6.

 At the hearing before the Board, ALPA conceded that Morrison had violated the 24-hour rule, but contended that his discharge "was without just cause because his admitted rule violation was the unavoidable consequence" of alcoholism. Maj. Opin. at 9. ALPA insisted that Morrison had been completely rehabilitated, and had satisfied both the FAA, and Northwest's, requirements for reinstatement to active duty. ALPA did not request retroactive reinstatement. The Association asked the Board only to permit Morrison "to exercise his seniority as any other pilot returning from sick leave." Maj. Opin. at 26.

 Northwest, in turn, argued that "'as a matter of public policy and based on the obligation of a common carrier to promote safety to the highest possible degree, the Board has no jurisdiction to overturn the discharge.'" Memorandum in Support of Plaintiff's Motion for Summary Judgment at 7. The Federal Aviation Act, Northwest noted, "authorizes the air carrier to determine what safety policies should [be] adopted and how . . . those policies . . . should [be] enforce[d]." Id. (Emphasis added.) Regardless what the Company knew at the time of the discharge about Morrison's condition, "'the better approach' is to reject entirely the concept of alcoholism as a defense to a 24-hour rule violation." Maj. Opin. at 25.

 Over Northwest's objection, the Board considered evidence submitted by ALPA that described and evaluated the medical treatment received by Morrison after the discharge. Reduced to its essence, the evidence purported to show that:

(1) Morrison voluntarily entered an Alcohol Treatment Program in Washington State one day after the discharge;
(2) after resisting acceptance of his condition at the outset, Morrison made enormous strides toward understanding and controlling his dependency;
(3) on September 4, 1982, Morrison was discharged from the Alcohol Treatment Program after successfully completing the 28-day program;
(4) Morrison continued to meet on a regular basis with small groups of recovering alcoholics to talk over common concerns;
(5) in the 25-month period between the discharge from Northwest and the System Board hearing Morrison did not consume a single alcoholic drink;

 The Board also heard testimony from medical experts discussing the nature of alcoholism, its origin and symptoms, its effect on those afflicted, and the manner in which it manifested itself in Morrison's particular case. The same experts gave opinions on the severity of Morrison's dependency, and the extent to which Morrison had regained "control" of his life.

 After weighing all the evidence, the Board ruled on October 29, 1984 that Morrison had been discharged without just cause. The decision was split, with the Northwest representative voting to affirm the Company's decision. In a lengthy opinion, the System Board chairman found that "Morrison [had] violated the 24-hour rule on August 1, 1982 and [had] also participated in a flight with sufficient alcohol in his bloodstream to raise a presumption of intoxication . . . ." Maj. Opin. at 27. Chairman Nicolau also found that on the day of the flight Morrison was "an untreated alcoholic" who had "crossed the line separating the problem drinker from one inflicted with the illness of alcoholism." Id. Although Nicolau concluded that Morrison was addicted and severely ill on the morning of the flight, he also found that the co-pilot was "out of control", and therefore not capable of performing a "volitional" act. Thus, even though Morrison had "committed serious offenses" -- violations "that must weigh heavily against him" -- id. at 38, those offenses were the "unavoidable consequence of the illness of alcoholism." That disease, the chairman went on to conclude, had subsequently been "arrested and successfully treated." Id. at 39. Indeed, the Chairman noted, the Federal Air Surgeon had found Morrison eligible for a special medical certificate that would clear him to fly provided monitoring requirements were met.

 Under these circumstances, and given that Morrison had now regained "control over his behavior and [maintained] abstinence from intoxicants," id. at 38, the Board found it reasonable to conclude that reinstatement was appropriate. Accordingly, the Board granted an award offering Morrison reinstatement provided that he met the Federal Air Regulation's non-monitoring provision, see § 67.13[d][1][i]. Under that provision, Morrison would not be permitted to fly unless he demonstrated, to the satisfaction of the Federal Air Surgeon, that "established clinical evidence" indicated he had "recovered" and "sustained total abstinence from alcohol for not less than the preceding 2 years." Id. In short, the Board granted Morrison a reinstatement, without back pay, fringe benefits, or "accumulation of longevity for pay purposes," on the condition that he demonstrate an ability to perform his duties, under FAA guidelines, without monitoring. See Award of System Board of Adjustment.

 It is from this award that Northwest now appeals.

 II. Regulatory Framework and Parties' ...

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