Western Air Lines v. Civil Aeronautics Board, 12867.
| Decision Date | 31 January 1952 |
| Docket Number | No. 12867.,12867. |
| Citation | 194 F.2d 211 |
| Parties | WESTERN AIR LINES, Inc. v. CIVIL AERONAUTICS BOARD. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Guthrie, Darling & Shattuck, Los Angeles, Cal., for petitioner.
H. G. Morison, Asst. Atty. Gen., J. Roger Wollenberg, Sp. Asst. to Atty. Gen., John H. Wanner, Acting Gen. Counsel, James L. Highsaw, Jr., Chief, Litigation & Research Division, O. D. Ozment and Charles H. Resnick, Attys., Civil Aeronautics Board, Washington, D. C., for respondent.
Edward J. Hickey, Jr., Washington, D. C., Richard R. Lyman, Clarence M. Mulholland, Toledo, Ohio (Mulholland, Robie & Hickey, Toledo, Ohio, of counsel), for intervening respondent Brotherhood of Railway & S. S. Clerks.
Dana, Bledsoe & Smith, San Francisco, Cal., Joseph W. Rogers, Jr., San Francisco, Cal. (John B. Lampe, Chicago, Ill., of counsel), for Air Line Pilots, as amicus curiae.
Before MATHEWS, HEALY, and POPE, Circuit Judges.
Western Air Lines seeks review of two orders of the Civil Aeronautics Board retrospectively imposing labor protective provisions as a condition to the transfer by Western to United Air Lines of a certificate of public convenience and necessity for operation between Los Angeles and Denver (Route 68), and of various properties incident to the route.1
The original proceeding, begun before the Board in 1947, involved the question whether approval of the proposed transfer should be conditioned upon observance by the parties of provisions designed to protect employees adversely affected by the transfer. The Air Line Pilots Association, an intervenor in the proceedings, specifically requested that protective conditions be imposed for the benefit of the Western pilots assigned to Route 68. A like request was made by the Brotherhood of Railway and Steamship Clerks on behalf of Western's clerical employees. Western agreed to submit information at the hearing concerning the effect of the transfer upon employees, and the hearing was in part devoted to this question. The Board's original order, issued August 25, 1947, imposed no conditions on the subject. In its opinion or findings accompanying the order the Board indicated that the omission was being made in light of the testimony of Western's president that no employee would be adversely affected by the transfer of the route.
It appears that on September 4, 1947, 10 days after the approval by the Board of the transfer of the route, Western notified 23 of its pilots that new schedules would require their removal from the payroll effective September 19, 1947. On September 9, 1947, other Western employees were notified by letter that they would be furloughed on September 14, "due to the disposal of Route 68." Without knowledge of these facts, the Board on September 11, 1947, issued its supplemental order transferring the certificate for Route 68 to United, effective September 15, 1947. The effective date corresponded with that prescribed in the contract between Western and United.
Rule 11 of the Board's Rules of Practice2 provides a 30-day period within which petitions may be filed for reconsideration of Board orders. Within this period, namely on September 24, 1947, the Air Line Pilots Association filed a petition for reconsideration of the Board's order of approval, alleging in substance that, contrary to the assurances of Western's president, pilots of Western were in fact being discharged because of the transfer of Route 68. The petition requested that labor protective conditions be imposed. Similar petitions were filed on behalf of mechanical and clerical employees. On September 29, 1947, Public Counsel recommended that the Board defer passing upon these petitions until the parties had made an effort to reach voluntary arrangements for the protection of Western's displaced employees, and it was recommended that in the event the parties should fail to agree the proceedings be reopened for the purpose of determining what employee protective conditions, if any, should be imposed.
The Board followed these recommendations, and the record indicates that over a long period it made efforts and held conferences looking toward an informal settlement. The efforts came to naught, and in July of 1948 the Brotherhood of Railway and Steamship Clerks informed the Board that nothing further could be accomplished by the negotiations. On August 25, 1948, the Board reopened the proceeding for the purpose of determining whether any employees of Western had been adversely affected as a result of the transfer, and if so, whether any employee protective conditions should be attached to the Board's approval of the transfer. After completion of the usual procedural steps the Board, on July 7, 1950, issued its opinion and order providing for the protection of adversely affected employees. The order provided that in the event of a failure to agree among the parties as to the persons who sustained monetary loss, and what such losses were, the parties should submit to arbitration on those issues, the Board retaining jurisdiction to modify or clarify the terms of its order. A clarifying order was subsequently issued on December 29, 1950. It is these two latter orders that are before us for review.
Western contends that the Board is without statutory authority to impose labor protective conditions on the approval of a transfer. It is not open to doubt that the Board has power to condition its approval by the imposition of terms bearing some just relation to the public interest. Section 401(i) of the Civil Aeronautics Act, 49 U.S.C.A. § 481(i), provides that "No certificate may be transferred unless such transfer is approved by the Board as being consistent with the public interest." And where, as here, air carrier properties are to be transferred with the certificate. Board approval is likewise required. See § 408 of the Act. The latter section expressly authorizes approval of the acquisition "upon such terms and conditions as the Board shall find to be just and reasonable and with such modifications as it may prescribe: * * *." The only problem, then, is whether conditions for the protection of employees can reasonably be said to...
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