Kent v. Civil Aeronautics Board
| Decision Date | 08 May 1953 |
| Docket Number | No. 202 and 213,Dockets 21860 and 22236.,202 and 213 |
| Parties | KENT v. CIVIL AERONAUTICS BOARD. KENT v. CIVIL AERONAUTICS BOARD et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward P. Hodges, Acting Asst. Atty. Gen., Ralph S. Spritzer, Special Asst. to the Atty. Gen., Department of Justice, Emory T. Nunneley, Jr., General Counsel, Civil Aeronautics Board, Washington, D. C., John H. Wanner, Associate General Counsel, Washington, D. C., James L. Highsaw, Jr., Chief, Litigation and Research Division, Washington, D. C., O. D. Ozment, Jerome S. Boros and Lester M. Bridgeman, Civil Aeronautics Board, Washington, D. C., for respondents.
Albert W. Fribourg and Max Toberoff, New York City, on the brief, for petitioner.
Daniel Kornblum, Washington, D. C., for intervenors, Former AOA Flight Engineers and AOA Chapter, Flight Engineers Int'l, A. F. L.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
When the Civil Aeronautics Board, following the direction of the President, approved the merger of the Pan American World Airways (PAA) and the American Overseas Airlines (AOA) in a proceeding known as the North Atlantic Route Transfer Case, the order included a temporary provision that no employee of PAA or AOA in the North Atlantic operations of either company should be discharged other than for cause; but this provision was superseded by an order of the Board dated September 22, 1950 which provided that for a two year period PAA should compensate all employees who lost their jobs, had their salaries reduced, or suffered other pecuniary injury because of the merger. As to the employees of AOA who were taken over by PAA after the merger, difficulty was encountered in determining how their seniority rights as employees of AOA could be given just recognition. The Board at first left the solution of that problem at large with the admonition that it be settled by negotiation by the interested parties and, failing such settlement, be submitted to arbitration; and imposed the condition that no group of employees should have the benefit of the protective provisions of the order unless it did reach agreement as to seniority rights or agreed to submit them to arbitration.
Some groups of employees did settle their differences by negotiation. Others did so by arbitration and we have already affirmed that award. O'Donnell v. Pan American World Airways, Inc., 2 Cir., 200 F.2d 929. The flight engineers, however, were unable to negotiate a settlement and they would not agree to submit to arbitration. Thereupon the CAB reopened the case and, after hearing the parties, its examiner recommended a formula for integrating such employees into the PAA seniority lists. After due consideration the Board, one member dissenting, adopted the examiner's recommendation and ordered the integration accordingly. That order has been stayed until thirty days after our decision on these petitions to review; and meanwhile an interim order has been in effect directing the maintenance of separate rosters for PAA and the unintegrated former AOA personnel for their assignments to jobs on a ratio basis from the PAA and and the AOA seniority lists. In so far as we are presently concerned, the orders now under attack directed integration on the basis of giving length of service with AOA the same effect that the same length of service with PAA was given and that the two groups of employees be placed on the seniority list of PAA in accordance with their respective rights so determined. PAA was forbidden from making any labor contracts in the future which would discriminate against former AOA employees in respect to their seniority so determined.
Briefly the dispute between the two groups of flight engineers is that the PAA engineers insist upon having the former AOA engineers placed upon the seniority list without credit for any service with AOA. The effect of that would be to give all of the flight engineers of PAA at the time of the merger seniority over all of the AOA engineers.
The basic contention of the petitioner is that the Board was without jurisdiction to make any order determining the respective seniority rights of the flight engineers and we will first turn to that. The authority of the Board to deal with proposed mergers of this type is as provided in Sec. 408 of the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 488. Its authority over the transfer of a certificate of public convenience and necessity is derived from Sec. 401, 49 U.S.C.A. § 481, and its general powers and duties are as provided in Sec. 205 ...
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