# Air Line Pilots Association, International v. Civil Aeronautics Board, and New York Air Lines, Inc., Intervenors > Court of Appeals for the Second Circuit · March 9, 1981 · 643 F.2d 935 URL: https://www.frixlaw.com/law-library/cases/9467713 ## Case - **Full name:** AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, and New York Air Lines, Inc., Intervenors - **Court:** Court of Appeals for the Second Circuit - **Decided:** March 9, 1981 - **Citations:** 643 F.2d 935; 1981 U.S. App. LEXIS 19434 - **Precedential status:** Published - **Opinion:** Concurrence by Mansfield - **Judges:** Moore, Mansfield, Mulligan - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467713 ## Opinion text MANSFIELD, Circuit Judge (concurring): I concur in the affirmance of the Civil Aeronautics Board order, substantially for the reasons stated by Judge Mulligan in his carefully considered opinion. However, I believe that a few words of caution to the CAB are in order, lest our affirmance be misconstrued as a carte blanche approval for future purposes of the procedure followed by it in this case. The CAB must recognize that while the Deregulation Act of 1978 does not require it to go as far as the labor parties contend in evaluating recommendations regarding the safety implications of new services or the need to encourage fair wages and working conditions, it does impose some additional duties upon the Board, which must be performed. First, as the majority recognizes, in this case the CAB “could not and did not make the full evaluation required by Section 102(a)(1)” since it issued its own certificate before the FAA had acted in any meaningful way. In this respect the Board clearly erred. The proper procedure was for the CAB, before issuing its certificate, to wait until the FAA’s decision and recommendations had been issued so that they might first be considered in order to insure compliance with the CAB’s duty to make the “full evaluation of the recommendations of the Secretary of Transportation on the safety implications of such new services” as expressly required by the statute in the interest of assuring “[t]he assignment and maintenance of safety as the highest priority in air commerce.” The majority excuses this lapse because on December 18, 1980, the FAA did certify NYA to conduct its New York to Washington, D. C., operation. I agree that absent proof that the FAA acted arbitrarily, applied the wrong standards, or made safety findings unsupported by substantial evidence, no useful purpose would now be served by reversing the CAB’s decision, which would have the effect of suspending NYA’s ongoing operations, since a reconsideration by the CAB would certainly result in its approval and formalistic reissuance of a fitness certificate. Our decision, however, should not be construed as authorizing such premature action by the CAB. Now that it and applicant carriers are on notice as to the proper procedure to be followed, the Board may anticipate that repetition would be met with a reversal. Second, I believe it important to make clear that the reference in § 102(a)(3) to “the need to encourage fair wages and equitable working conditions” does impose affirmative duties on the CAB beyond insuring probable carrier compliance with Title II of the Railway Labor Act. The CAB is not required by § 102(a)(3) to investigate the details of wages, insurance and fringe benefits to be offered by the new carrier or to determine whether these amounts are *942 equal to or greater than those paid by existing carriers engaged in similar schedules or carriage. Nor must it become a labor expert or provide duplicative arbitration or mediation services. However, the CAB is expected under § 102(a)(3) to look at the carrier’s proposed wages and working conditions generally in order to satisfy itself that the carrier will not, because of lack of financial resources, drastically reduce pay scales or benefits or alter working conditions to the point where the benefit to be derived from the new service will be out-weighted by the injury to employee interests. Because the CAB appears to have complied sub silentio with this requirement in the present case, I am willing to concur. In the future, however, the Board should include specific findings with respect to this balancing of employee and service interests in its certification decisions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467713. Public record. Not legal advice.