Cook v. Pan American World Airways, Inc.

771 F.2d 635, 38 Fair Empl. Prac. Cas. (BNA) 1344

• Court: Court of Appeals for the Second Circuit
• Decided: August 22, 1985
• Docket: No. 875, Docket 84-7972
• Status: Published

Opinion

MANSFIELD, Circuit Judge:

John C. Cook and more than 400 other current or former Pan American Pilot-Flight Engineers, all over age 40, appeal from a judgment of the Southern District of New York, Robert J. Ward, Judge, dismissing their complaint against Pan American World Airways, Inc. (“Pan Am”) and four union defendants — Air Line Pilots Association (“ALPA”), International; ALPA, Pan Am Chapter; Flight Engineers’ International Association (“FEIA”); FEIA, Pan Am Chapter — for lack of subject matter jurisdiction. Their complaint alleged that, by adopting and implementing a 1981 seniority list integrating the pilots and flight engineers of two merged airlines, Pan Am and National, the defendants had violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 623-31 (1982), and New York Human Rights Law (“NYHRL”), N.Y.Exec.Law §§ 290, et al. (McKinney 1982 & Supp.1984-85), and that defendant unions had in addition violated the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (1982). Finding that plaintiffs’ action constituted an impermissible collateral attack on a final order of the Civil Aeronautics Board (“CAB”), not appealed in accordance with the provisions of § 1006 of the Federal Aviation Act, 49 U.S.C. § 1486(a), Judge Ward dismissed their complaint for lack of subject matter jurisdiction. We affirm in part, reverse in part, and remand for further proceedings.

This case arises out of Pan Am’s acquisi- ■ tion of control of and merger with National Airlines, effective January 19, 1980. The merger was approved by the CAB pursuant to 49 U.S.C. § 1378(b), which empowers it to determine whether mergers are “consistent with the public interest” and to approve them “upon such terms and conditions as it shall find to be just and -reasonable and with such modifications as it may prescribe”. The CAB conditioned its approval of the merger upon compliance with its labor protection provisions (“LPPs”), see Flying Tiger-Slick Merger Case, 18 C.A.B. 326 (1954) (approving airline merger but imposing labor protective conditions and retaining jurisdiction), and retained jurisdiction “to make such amendments, modifications, and additions to the labor protective conditions as the circumstances may require____” CAB Order 79-12-164, at 1. Two of the LPPs are central to this case:

“Section 3. Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with section 13.

“Section 13(a). In the event that any dispute or controversy * * * arises with respect to the protections provided herein, which cannot be settled by the parties within 20 days after the controversy arises, it may be referred by any party to an arbitrator * * *. The decision of the arbitrator shall be final and binding on the parties.”

On March 19, 1980, the four unions involved — the ALPA Master Executive Council (“MEC”) for the Pan Am pilots, ALPA’s MEC for the National Pilots, FEIA’s Pan Am Chapter, and FEIA’s National Chapter — agreed on a procedure for determining how to integrate the seniority lists. In the event that agreement on seniority integration should not be reached within a limited period arbitration was to be “mandatory,” and “[t]he Award of the Arbitrator shall be final and binding as to all flight deck operating crew members and shall be defended by the parties.” March 19, 1980, Agreement ¶ 8(j).

After unsuccessful inter-union negotiation and mediation on seniority integration, arbitration took place before Lewis M. Gill, whom the parties had designated as their first choice. The four union representatives participated fully in the arbitration hearing, which lasted approximately 35 days and closed on January 14, 1981. Arbitrator Gill subsequently held 15 days of executive session with the union parties. The final record contained over 4,700 transcript pages and hundreds of exhibits. Arbitrator Gill issued his Award on March 12, 1981.

In his lengthy opinion explaining the award Gill identified several issues. First, the “cross-bidding” arrangements between pilots and flight engineers at Pan Am were entirely different from those at National. Although both airlines required three crewmen in the cockpit, Pan Am used a pilot/flight engineer (“PFE”) as the third crewman, while National used an engineer who was not qualified as a pilot. Pan Am accordingly maintained a single seniority list, with PFEs being allowed to bid for pilot vacancies and fall back to engineer positions, bumping less senior PFEs to avoid furlough. National, however, maintained two independent seniority lists, one for its pilots and one for its flight engineers, and did not permit cross-bidding or displacement between the groups.

Having decided not to disturb the premerger cross-bidding situation, Gill constructed two integrated lists. One, the “Pilot List,” contained National pilots and all Pan Am airmen; the other, the “Engineer List,” contained National engineers and all Pan Am airmen. Gill then directed that cross-bidding be

“[a]s before on each airline. Pan Am airmen continue cross-bidding practices vis-a-vis each other, but Pan Am Pilots cannot bump National Engineers. National Pilots cannot bid Engineer positions, National Engineers cannot bid Pilot positions. National Engineers to have same rights as [a small class of Pan Am engineers who did not qualify as pilots] against being displaced from Engineer seats by Pilots.” (Award at IY.C.)

A second issue, labelled “explosive” by Gill, concerned the manner in which approximately 400 Pan Am pilots on furlough at the time of the merger were to be integrated. This large number of furloughees resulted from Pan Am’s switch from smaller planes to B747s, the largest wide-bodied aircraft, and Pan Am’s poor financial health in the preceding few years. Gill stated that this furlough situation created

“a head-on clash over the relative equities as between large numbers of National airmen hired between 1968 and 1978 and actively employed at the time of the merger, and large numbers of these Pan Am furloughees with earlier dates of hire who still have recall rights but who brought no active jobs to the merger.” (Gill Op. at 8).

Gill’s solution was to calculate the Pan Am furloughees’ length of service at the time of their recall, and to slot them into the list by comparing their length of service with that of the active airmen at that time. (An exception was made for about 34 furloughed Pan Am pilots who had received notice of recall before January 19, 1980). He indicated a willingness, had the parties (or the “JANUS” group, representing the furloughees) submitted a proposal estimating the likely dates of recall of the furloughees and the likely length of service of the active pilots at those dates, to integrate the furloughees on that basis. However, no such proposal was forthcoming “[pjerhaps because of the difficulties in fashioning projections of that nature.” Id. at 41. While noting that his solution to the furloughee problem might seem novel, Gill observed that

“the problem itself is novel — there has not been any previous merger case called to my attention where such massive numbers of furloughees, with such long periods of being off the property, were pitted against active airmen from the other airline who brought current jobs to the merger.” Id. at 40.

Finally, differences between Pan Am and National created further conflicts between the interests of the various union groups. While Pan Am’s fleet consisted primarily of B747s, National mostly used the smaller B727s. Although National was in “a healthy financial condition at the time of the merger,” Pan Am had been in financial difficulties over the preceding few years. Because of these and other differences, the parties before Gill advocated three different methods for integrating the seniority lists: (1) the National pilots and engineers advocated “ratio” methods; (2) the Pan Am pilots a mixed length of service (“LOS”) and date of hire (“DOH”) method; and (3) the Pan Am engineers a straight DOH method. Under a ratio method, a certain number of identified airmen from one airline are listed followed by a similar listing of a specified number of airmen from the other airline (e.g., 1 National pilot followed by 3 Pan Am pilots). The ratios can form all or part of a master list. In the latter case the balance of the list can name airmen on an LOS and/or DOH basis.

Gill concluded that a “fair and equitable” solution required that two integrated seniority lists be constructed by different methods. He constructed the entire Engineer List, and the top and bottom of the Pilot list, by a straight LOS/DOH method. However, for the middle portion of the Pilot List he used a mixed-ratio method, which distributed Pan Am and National pilots in a ratio of approximately 3.25 Pan Am pilots for every one National pilot.

On March 15, 1981, ALPA mailed copies of the arbitrator’s award to all the pilots and on March 25, 1981, FEIA mailed copies to the flight-engineers. On June 26, 1981 Pan American accepted the Gill award and agreed to implement it without change.

Two groups of airmen petitioned the CAB to set aside the Gill award. The Janus Group, formed at the time of approval proceedings before the CAB and representing 510 Pan Am crewmen who had been furloughed before the merger, maintained that the Gill award failed adequately to consider the interests of its members and that it was not “fair and equitable” within the meaning of the labor protection provision of CAB Order 79-12-164, at 1. The Janus Group sought a new arbitration in which it would be granted full party status.

Pan American Pilots Fighting (“PAPF”), a group of Pan American crewmen who had been employed from dates before the merger, which was formed after the arbitration award to oppose it, argued that the Gill award must be set aside because it used a ratio method to integrate the middle portion of the Pilot List. PAPF maintained that only a “time served” method of integration, either LOS or DOH, was “fair and equitable” and that use of a ratio method was inconsistent with the labor protective provisions that the CAB had imposed in approving the merger. PAPF sought a CAB order integrating the seniority list on a time served basis or renegotiation of the integration with PAPF and the Janus Group as parties.

The CAB rejected the two petitions in an order dated April 15, 1982, noting:

“The carrier’s action is wholly consistent with our long-held, and judicially approved, view that ‘absent a showing of bad faith, the adoption by a carrier of an integrated seniority list proposed by the collective bargaining representatives of the employees involved amounts to the carrier having made “provisions * * * for the integration of seniority lists in a fair and equitable manner” within the meaning of section 3 of the Board’s labor protective provisions.’¹³ It follows, therefore, that we also dismiss Janus Group’s and PAPF’s petitions to set aside the award.

CAB Order 82-4-75 at 11.¹ Having concluded that resolution of the seniority integration was reached in a fair and equitable manner, the Board declined to. review “the intrinsic nature of the integration system established by the award.” Id.

The CAB further found that the Janus Group was not entitled to full party status at a new arbitration since its members’ interests were adequately represented both by its own statements at several points during the arbitration and by union representation at all stages. It also rejected PAPF’s claim that only a “time-served,” i.e., LOS or DOH, method of integration was “fair and equitable”, finding that Arbitrator Gill acted within his prerogative in using a ratio method to integrate the middle portion of the Pilot List. In making this finding, the Board again confirmed the propriety of its refusing “ ‘to look behind the freely negotiated list.’ ” Id. at 12 (quoting Northeast Master Executive Council v. C.A.B., 506 F.2d 97, 105 (D.C.Cir.1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975)). No appeal was taken from the CAB’s denial of the two petitions, even though an appeal was available under 49 U.S.C. § 1486, which provides in relevant part that “any” order of the Board “shall be subject to review by the courts of appeals of the United States” which “shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of, in whole or in part, and if need be, to order further proceedings by the Board.... ” 49 U.S.C. §§ 1486(a), (d). The statute further provides that the Board’s findings, if supported by substantial evidence, shall be conclusive, 49 U.S.C. § 1486(e).²

The complaint in the present action, which was filed on March 7, 1984, alleged that plaintiffs were all over age 40 and that many had, in the period April 12, 1983 to September 2, 1983, filed in various federal and state equal employment offices charges containing some or all of the allegations stated in the complaint. The complaint charged that the pilot seniority list resulting from the Gill arbitration award, which used a ratio formula “to insert large numbers of former National pilots under age 40 ahead of older and more experienced Pan Am pilots over the age of 40,” 1111, was first implemented on a system-wide basis on March 28, 1983, and that it had been and would continue indefinitely to be implemented. Further, the complaint maintained that on June 15, 1983, Pan Am had caused to be furloughed, under the Gill seniority integration, three of the plaintiffs.

The complaint further alleged that “[b]y using and adopting, and by indefinitely continuing to use and adopt, the above-described seniority system in making employment decisions” defendant Pan Am has engaged in “willful and continuous violation” of both § 4(a) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a), and § 296 of the New York Human Rights Law, N.Y.Exec.Law § 296; and that the four defendant unions, “[b]y actively supporting and/or acquiescing in, and by indefinitely continuing to actively support and/or acquiesce in, the above-described seniority system,” had engaged in “willful and continuous violation” of § 4(c) of the ADEA, 29 U.S.C. § 623(c), and § 296 of the New York Human Rights Law, and that they had thereby breached their duty under the Railway Labor Act, 45 U.S.C. §§ 151, et seq., to fairly represent the interests of the plaintiffs. Plaintiffs sought injunctive relief, including an order directing defendants to construct and implement a seniority system which eradicated the effects of the allegedly unlawful employment practices described; damages to make them whole; liquidated damages; and attorneys’ fees and costs.

Pan Am sought dismissal of the complaint on the grounds that the ADEA cause of action was time-barred and that the pendent claim should be dismissed for lack of jurisdiction. ALPA and FEIA also moved for dismissal on the grounds that plaintiffs’ ADEA and duty of fair representation claims were time-barred and that the complaint constituted an impermissible collateral attack on a final order of the CAB.

At the end of a hearing held on October 31, 1984, Judge Ward issued an oral opinion and an order dismissing plaintiffs’ complaint on the ground that it constituted an impermissible collateral attack on a final order of the CAB that had not been appealed in accordance with the provisions of § 1006 of the Federal Aviation Act, 49 U.S.C. § 1486(a). This appeal followed.

Discussion

The principal issue is whether the integrated seniority list formulated by the parties’ mutually-selected arbitrator pursuant to the CAB’s labor protection provisions may, notwithstanding the CAB decision, be challenged through the present lawsuit on the ground that it violates plaintiffs’ rights under the ADEA and the New York Human Rights Law. The starting point for consideration of that issue lies in Supreme Court decisions upholding de novo judicial determination of claims asserted under similar federal statutes, McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (civil rights claim under 42 U.S.C. § 1983); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (Minimum wage provisions of Fair Labor Standards Act); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (Title VII action). Gardner-Denver has particular relevance for the reason that the prohibitions of the ADEA, enacted only a few years after Title VII, are in terms almost identical to those of Title VII, Hodgson v. First Fed. Sav. & Loan Ass’n, 455 F.2d 818, 820 (5th Cir.1972), and both laws have received parallel interpretations. Aronsen v. Crown Zellerbach, 662 F.2d 584, 589 (9th Cir.1981), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983). See also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756-58, 99 S.Ct. 2066, 2071-73, 60 L.Ed.2d 609 (1979).

In Gardner-Denver, supra, the Supreme Court unanimously held that, since Congress intended to give federal courts parallel jurisdiction over a de novo proceeding, an employee’s statutory right under Title VII to obtain judicial relief from discrimination in his employment is absolute and not barred or waived by his resort to the grievance-arbitration machinery of a collective-bargaining agreement. Congress, said the Court, intended

“to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination. In sum, Title VII’s purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.” Id., 415 U.S., at 48-49, 94 S.Ct. at 1019-1020.

The Court noted, as reasons for its decision, that the arbitrator’s role was “to effectuate the intent of the parties rather than the requirements of enacted legislation,” id. at 56-57, 94 S.Ct. at 1023-1024, that the arbitrator’s competence “pertains primarily to the law of the shop, not the law of the land,” id. at 57, 94 S.Ct. at 1024, that the record of arbitration is usually not as complete as that of a court proceeding, that the rights and procedures common to civil trials are often limited or unavailable and that arbitrators have no obligation to give their reasons for an award. These reasons were echoed and adopted in McDonald in support of the Court’s holding that a federal court may not, in a civil rights action under 42 U.S.C. § 1983, give preclusive effect to an arbitration award, concluding that arbitration is not the equivalent of a “judicial proceeding” within the meaning of 28 U.S.C. § 1738. 104 S.Ct. at 1804.

Some of the Supreme Court’s reasoning may not be as fully applicable to the arbitration proceeding in the present case as it was in Gardner-Denver and McDonald. For instance, the fairness of integrated seniority may have been resolved by the arbitrator consistently with the aims of ADEA. But we are persuaded that this difference in shading is not of sufficient significance to outweigh the statutory entitlement to the de novo determination provided for by Congress in its enactment of ADEA.

There remains, therefore, the question of whether, since Arbitrator Gill’s order was appealed as of right to the CAB by way of a motion to set it aside and the CAB’s resulting order was in turn appealable to a court of appeals, vested by statute with “exclusive jurisdiction” to hear such appeals, the principles of Gardner-Denver and McDonald still apply or whether the order of the CAB must be given collateral estoppel or preclusive effect. The answer turns largely on whether the issue before the administrative agency, in this case the CAB, was the same as that raised in the later court proceedings and whether the administrative agency had the authority to decide that issue. In City of Tacoma v. Taxpayers, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958), relied on by the district court, collateral attack was barred when the issue raised by the State of Washington in a proceeding before the state court, the legality and effect of a license issued by the Federal Power Commission, was the same as that raised by it earlier before the Commission itself, which was fully competent to resolve the issue, and was decided upon appeal by the Court of Appeals, which had “exclusive jurisdiction” to review the Commission’s order. In Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671 (1922), also cited by the district court, collateral attack upon an order of the Interstate Commerce Commission was barred since the issue raised in the later court proceeding was one which the ICC was explicitly empowered to decide.

On the other hand, when the administrative agency is neither authorized nor required to decide the issue later raised in a separate action, the court has jurisdiction to entertain the latter claim. In Beins v. United States, 695 F.2d 591 (D.C.Cir.1982), for instance, the court upheld the district court’s jurisdiction to entertain a pilot’s claim under the Federal Tort Claims Act against the government for damages based on alleged negligence of the Federal Aviation Commission. The government’s contention that the plaintiff’s sole remedy was an appeal to a court of appeals of the FAA’s denial of medical certification was rejected on the ground that the determinations made by a court of appeals “are distinct conceptually from a finding of negligence.” Id. at 598.

Applying these principles here, the record does not reveal any CAB ruling on the question now raised by the plaintiffs of whether the integrated seniority lists formulated by Arbitrator Gill were unfair as age-discriminatory. The CAB made no independent inquiry into possible age discrimination and held no evidentiary hearing. Indeed, none of the parties presented an issue based on age discrimination to the Board. In opposition to a motion by National Flight Engineers to confirm the award and in support of motions to set it aside, the Janus Group and PAPF argued only that their interests had not been adequately considered by the arbitrator, and that the ratio method used for part of the arbitrator’s integrated seniority lists, in contrast to “time served” methods (DOH and LOS), was not a fair and equitable basis for integration.

Nor did the CAB indicate that it would have considered itself authorized to rule upon such an issue (unfairness based on age discrimination) if it had been raised. On the contrary, although it reviewed in detail Arbitrator Gill’s 59-page decision, it repeatedly made clear that it considered its authority limited to deciding whether the arbitration had been conducted “in a fair and equitable manner ” (LPP § 3; emphasis added), i.e., as a procedural matter, rather than whether the terms of the award were substantively equitable. In short, it focused its attention on the procedures used by the parties to negotiate the seniority integration issue, to arrive at terms for arbitration of the issue when the negotiation failed, and to assure fair representation of union members in the arbitration itself.

“Our authority, however, over arbitration voluntarily undertaken by employee representatives in connection with a Board-approved acquisition or merger is confined to examining whether the arbitration was fairly and equitably conducted.” CAB Order 82-4-75, at 3.

The Board’s limited review of the merger (of seniority lists) claimed to have violated § 3 of the LPPs is consistent with the limited jurisdiction over labor matters conferred upon it by 49 U.S.C. § 1378(b) and with the Board’s own interpretation of the scope of that jurisdiction, which is entitled to considerable weight. See, e.g., Youakim v. Miller, 425 U.S. 231, 235, 96 S.Ct. 1399, 1402, 47 L.Ed.2d 701 (1976) (“The interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute.”); Manchester Environmental Coalition v. E.P.A., 612 F.2d 56, 59 (2d Cir.1979). As the Board has noted, despite its imposition of the LPPs,

“it has been the Board’s longstanding policy that the matters encompassed herein should be resolved by voluntary agreement between the carrier and the labor groups or employees involved or, failing agreement, by arbitration. This policy with respect to seniority integration is reflected in sections 3 and 13 of the labor protective conditions.” American-Trans Caribbean Merger, 57 C.A.B. 581, 585 (1971), aff'd sub nom. American Airlines v. C.A.B., 445 F.2d 891 (2d Cir.1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 681, 30 L.Ed.2d 663 (1972). (Footnotes omitted).

The purpose and scope of the LPPs is extremely limited:

“[W]e have characterized LPP’s as ‘an extraordinary intervention ... into the employer-employee relationship.’ [W]e have repeatedly refused to become entangled in carrier-employee labor disputes, because our jurisdiction is limited, we lack expertise in labor relations, and there are better equipped, more competent forums available to handle labor disputes. Moreover, it is important to recognize that the primary intent of the Board’s LPP's historically has been to prevent disruptions in the national air transportation system. Their purpose has not been to benefit carrier employees directly, or to avoid labor unrest with particular air carriers.” Texas International-Continental Acquisition Case, CAB Order 81-10-66, at 11 (footnotes omitted).

In implementation of its limited authority the Board will scrutinize a freely-negotiated integrated seniority list “only on a showing of bad faith, or deliberate attempt to subvert the Board’s order, or other compelling circumstances,” Delta-C & S Seniority List, 29 C.A.B. 1347, 1349 (1959), aff'd sub nom. Outland v. C.A.B., 284 F.2d 224 (D.C.Cir.1960). The Board will not find § 3 of the LPP’s satisfied unless it determines that the groups of employees affected have been adequately represented in formulating the list.

With these exceptions, which go to the “manner” in which the arbitration was conducted, the CAB leaves the resolution of all other issues to the parties or their mutually-selected arbitrator. Indeed, the CAB has acknowledged that a finding by it that seniority lists have been integrated “in a fair and equitable manner” does not necessarily bar petitioners from challenging the legality of the lists themselves in court. In Delta-C & S Seniority List, supra, 29 C.A.B. at 1350, it stated (after rejecting petitioners’ claim that the merged list was not fair and equitable), “[w]e take no position on whether petitioners have a cause of action cognizable by the courts.” See also Pan Am-TWA Route Exchange Agreement, CAB Order No. 80-6-95, at 4 (“We will not ... review the merits of a challenged [seniority integration list] award, the merits including questions of law and questions of fact.”). In a case in which petitioner charged that he had been subjected to age discrimination and sought damages, the CAB explicitly stated that “[a]ge discrimination is outside the scope of the LPP’s.” Caribbean-Atlantic Airlines, Inc.-Eastern Air Lines, Inc., Acquisition Case, CAB Order 80-10-65, at 2.

Thus, because of the ADEA’s statutory grant of de novo review and the CAB’s lack of authority to adjudicate the age-discrimination issue later raised in the present action, this action is not barred by reason of the collateral attack doctrine. Our conclusion that the district court has jurisdiction to consider the ADEA claims is not inconsistent with the principal authorities relied on by Judge Ward. For reasons already noted, City of Tacoma, supra, and Lambert Run Coal Co., supra, are clearly distinguishable. No ADEA, Title YII or similar claims were asserted in Kesinger v. Universal Airlines, Inc., 474 F.2d 1127 (6th Cir.1973), and Oling v. Air Line Pilots Ass’n, 346 F.2d 270 (7th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). Those two decisions did not rule upon the substantive fairness of integrated seniority lists but on whether the unions had breached their duty of fair representation before the CAB, an issue over which the CAB has jurisdiction because it bears directly on whether the lists were arrived at in a fair and equitable “manner” as provided for by LPP § 3. But even if the CAB’s authority were enlarged to permit it to rule on the substantive fairness of the integrated seniority lists, we believe, for the reasons already stated, that plaintiffs would not be precluded from obtaining a de novo federal court review of that issue. Gardner-Denver, supra; McDonald, supra.

We find ourselves unable, for the reasons already indicated, to follow the District of Columbia Circuit’s decision in Carey v. O'Donnell, 506 F.2d 107 (D.C.Cir.1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975), upon which Judge Ward relied. The court there held that the district court lacked jurisdiction over plaintiffs’ claim that the defendants had violated the ADEA, in view of the court’s approval on the same day, in Northeast Master Executive Council v. C.A.B., 506 F.2d 97, cert. denied, 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975), of the Board’s dismissal of petitions alleging that the underlying integration of seniority lists had not been arrived at in a “fair and equitable manner.” The D.C. Circuit purported to rely on the rationales expressed in Kesinger, supra, and Oling, supra, which are clearly distinguishable for the reasons we have noted above. Moreover, it did not analyze the claims before the district court, the limited authority of the CAB, and the right to a de novo trial of ADEA claims, but merely stated in eonclusory fashion that the action amounted to a collateral attack on the seniority lists approved by the Board.

Our holding that federal jurisdiction exists over plaintiffs’ ADEA claims is not intended to imply that the claims have merit or that plaintiffs will have the right to reopen the integrated seniority lists formulated by the parties’ mutually selected arbitrator. Although the complaint’s allegations of “willful and continuous violation of Section 4(a) of the ADEA” (Compl. ¶¶ 14, 16) at first blush appear to sound in terms of discriminatory intent with respect to each of the plaintiffs, this case is governed by § 4(f)(2) of the ADEA, 29 U.S.C. § 623(f)(2). That section insulates an employer or labor organization from ADEA liability for observing the terms of a “bona fide seniority system ... which is not a subterfuge to evade the purposes” of the ADEA.

The criterion for determining whether a seniority system is a “bona fide” one is stated in the pertinent regulation issued under the Act, 29 C.F.R. § 1625.9(a) (1984), which provides that “[tjhough a seniority system may be qualified by such factors as merit, capacity, or ability, any bona fide seniority system must be based on length of service as the primary criterion ...”. Since the merged list uses length of service at the top and bottom ends of the list and uses length of service combined with a ratio between the two former lists for the middle of the merged list, it would appear to satisfy the test that length of service be the “primary criterion.”

With respect to the requirement that a seniority system not be a “subterfuge,” a term that implies discriminatory or evasive intent, as in § 703(h) of the Civil Rights Act, 42 U.S.C. § 2000(e)-2(h), see American Tobacco v. Patterson, 456 U.S. 63, 64-65, 102 S.Ct. 1534, 1535-1536, 71 L.Ed.2d 748 (1982), the same regulation states that “a purported seniority system which gives those with longer service lesser rights ... may, depending on the circumstances, be a ‘subterfuge to evade the purposes’ of the Act.” Id. at § 1625.8(b). Among the circumstances to be considered in this case are the validity of the reasons advanced by the unions for the use of a ratio method in the middle of the list, as well as the validity of plaintiffs’ claim that defendants have engaged in “willful” discrimination.

The mere fact that plaintiffs would have fared better under a different scheme does not show that the merged seniority list is a “subterfuge” to evade the ADEA, especially in view of the distinction that must be drawn between age and seniority, in the absence of any evidence in the present record that the union representatives acted in bad faith or with an age-discriminatory motive in arriving at a compromise, or that Pan Am so acted in accepting and implementing it. That compromise recognized that a straight “time served” method would discriminate unfairly in favor of a large number of furloughed Pan Am pilots against actively employed National pilots bringing jobs with them to the merger, and it therefore adopted a ratio method for the middle portion of the integrated seniority list. As the CAB observed:

“Arbitrator Gill was faced with totally opposed positions for the integration of the seniority lists, and the parties were fully permitted to develop their cases supporting their separate positions in a record involving over 4,700 transcript pages and hundreds of exhibits. In the end the arbitrator did what most arbitrators do — he picked parts of the different positions and made compromises to arrive at what he believed was an equitable result. There is no way, given the sharply divergent and contested positions of the parties, that the arbitrator could ever reach a result that was fully acceptable to all parties — to say nothing of the individual pilots and flight engineers whose interests were represented in the proceeding. That is an inevitable result of arbitration. The fact that dissatisfaction remains is no basis for requiring another seniority integration.” CAB Order 82-4-75, at 13.

Plaintiffs’ claim that the defendant unions violated their duty of fair representation in the CAB proceeding stands on an entirely different footing from plaintiffs’ ADEA claim. To make out this claim plaintiffs must prove that the "union’s conduct toward a member of the collective bargaining unit [was] arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Subsequent interpretations have established that proof of mere negligence or errors of judgment on the part of the union is insufficient.

“To succeed [in a suit for violation of the duty of fair representation] under § 301 [of the Labor Management Relations Act, 29 U.S.C. § 185], an employee must show ‘substantial evidence of fraud, deceitful action or dishonest conduct,’ ... ‘hostile discrimination,’ ... arbitrariness or irrationality, ..., or conduct in bad faith____

“As long as the union acts in good faith, courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular advantage.” (Citations omitted). Capobianco v. Brink’s Inc., 543 F.Supp. 971, 975 (E.D.N.Y.1982) , aff'd mem., 722 F.2d 727 (2d Cir.1983) .

The CAB’s statutory authority under 49 U.S.C. § 1486(a), as amplified by § 3 of the LPPs, requires it, in order to rule upon whether seniority lists have been integrated in a “fair and equitable manner,” to determine whether the unions involved have fairly represented their members in the negotiations and ensuing arbitration proceedings. Moreover, the CAB did just that in the present case. The Board found, as had Arbitrator Gill, that the interests of all the employee groups had been vigorously represented throughout the proceedings and that neither the Janus Group nor PAPF had shown a violation of the unions’ duty of fair representation:

“Neither group, both formed to forward the views of some Pan Am furloughees and pilots, respectively, who were otherwise represented in the intra-union arbitration by Pan Am Engineers and Pan Am pilots, has shown that these union representatives breached their duty of fair representation. The record before us amply demonstrates that all union parties vigorously advocated positions on seniority integration advantageous to their members. Janus Group, in addition, appeared in the arbitration to express, directly to Arbitrator Gill, its position for furloughees. To the extent that some of the parties failed to prevail in the substance of their views, and hence occasioned disappointment for certain furloughees and pilots, that is not grounds for our review of the intrinsic nature of the integration system established by the award. It is well-settled that the Board properly ‘decline[s] to review and to enter judgment on the merits of * * * [union representatives’] negotiated resolution of * * * [an internal union] seniority dispute arising out of a merger’ if satisfied ‘that the resolution was reached in a fair and equitable manner.’ Here, the record shows that the labor parties adopted fair and equitable procedures — four-way negotiation, mediation, and final and binding arbitration— to resolve their differences on merged seniority; and that the procedures were faithfully carried out — even to the unanimous selection of an eminent arbitrator in airline seniority matters.” CAB Order 82-4-75, at 11 (footnote omitted).

Since the CAB is empowered to and did resolve the fair representation claim, and since plaintiffs are not entitled to de novo adjudication by a district court of that claim, the district court’s dismissal of the claim as an impermissible collateral attack on the CAB’s final order is affirmed.

Appellees next contend that the district court's dismissal of the action should be affirmed on the ground that appellants’ ADEA claim is time-barred for failure to file charges with the EEOC within the required 300 days after “the alleged unlawful employment practice occurred”. 29 U.S.C. § 626(d)(2). This requires us to “identify precisely the ‘unlawful employment practice’ of which [the plaintiff] complains.” Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). Appellees argue that the unlawful practice here occurred in September 1981 when the Gill arbitration award was filed and published by Pan Am, more than 300 days before plaintiffs’ filing of their ADEA charges with EEOC. Plaintiffs, on the other hand, contend that the crucial event for ADEA time-bar purposes did not occur until March 28, 1983, when Pan Am first implemented the alleged discriminatory seniority lists by making assignments in accordance with them, as alleged in Par. 12 of their complaint, and that their claim did not accrue until that time, which was within 300 days prior to the filing of their ADEA charges with the EEOC. Moreover, plaintiffs argue, even assuming their claim first accrued in 1981, the violation was a continuing one, thereby making timely their filing of EEOC charges, and the implementation of the seniority system was not a mere consequence or manifestation of the earlier conduct. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981).

We have recently held that “[w]hen employees are hired or refused employment pursuant to a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it, Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.1981) , cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982), provided such a continuing violation is clearly asserted both in the EEOC filing and in the complaint.”³ Miller v. I.T. & T., 755 F.2d 20, 25 (2d Cir.1985). In Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979), for instance, the court held that “adoption of a seniority system, if discriminatory as to age, constitutes a continuing violation of the ADEA as long as that system is maintained by the employer.” See also E.E.O.C. v. Home Ins. Co., 553 F.Supp. 704 (S.D.N.Y.1982); but cf. Bronze Shields, Inc. v. N.J. Dept. of Civil Service, 667 F.2d 1074 (3d Cir.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982). Applying these principles here, we hold that the alleged discriminatory violations in the present case must be classified as continuous ones, giving rise to claims accruing in favor of each plaintiff on each occasion when the merged seniority list was applied to him, provided he filed such charges with the EEOC, which he would be required to establish on remand, Miller v. I.T.T., supra, 755 F.2d at 25.

Appellants’ final contention, that appellees should be estopped from asserting the ADEA time-bar defense, needs little discussion. In Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982) , the court refused to find estoppel in the absence of a finding that the failure to make a timely filing was in consequence “either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.” Accord Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 359 (8th Cir.), cert. denied, — U.S. ---, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984). See also Pfister v. Allied Corp., 539 F.Supp. 224, 227 (S.D.N.Y.1982) (no estoppel where “no allegation that the defendant acted in bad faith or deceitfully lured the plaintiff into settlement discussions, or that it attempted in any way to cause the plaintiff to miss the appropriate filing date”).

Appellants here have not satisfied their burden on this issue. They make no estoppel argument against Pan Am. Against the defendant unions, they fail to allege detrimental reliance on any union representations. Nor could they do so, in view of Pan Am’s posting of the seniority lists in March 1981 and the retention by PAPF in May 1981 of the same law firm that currently represents plaintiffs.

The order of the district court is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

APPENDIX A

PLAINTIFFS WHO FILED CHARGES WITH E.E.O.C. OR STATE AGENCY

NAME ADDRESS CITY ST ZIP

AINSWORTH JR 9365 Spencer Las Vegas NV 89123

ALEXANDER DB 18 Birchwood Lane Ramsey NJ 07446

BANDY JM 7 Merwin Bk. Rd. Brookfield Ctr. CT 06805

BARNES KE 2244 Nightingale Dr. Santa Rosa CA 95401

BENTON, JE Rt. 9, Box 275 Goldsboro NC 27530

BERGAD JR P.O. Box 425 Torrington CT 06790

BILLINGS MX 641 S. Rivershire Dr. Conroe TX 77304

BLEDSOE RP P.O. Box 427 Coekeysville MD 21030

BOLING JR 52 Squires Rd. Madison CT 06443

BOWLES ME Rte. 6, Box 168A Charlottesville VA 22901

BROWN JM 204 E. Deer Park Dr. Gaithersburg MD 20877

BURMASTER RA Rte. 1, Box 349 E Leesburg VA 22075

CAMPBELL JD 3718 Divisadero St. San Francisco CA 94123

CARDINAL DP 552 Pinelawn Ave. Belleair FL 33516

CLARKE FR 19 Viejo Way Novato CA 94947

COOK JC 76 Davenport Dr. Stamford CT 06902

COOL CE Box 151 Henderson Harbor NY 13651

CORY DC RD 2 Frenchtown NJ 08825

DAHONEY TG 129 Clapp Road Scituate MA 02066

DAVIS MK 4908 Overview Dr. Apt. 1212 Arlington TX 76017

DELAVAN WP 67 Highpoint Dr. Gulf Breeze FL 32561

DONNELLY WJ 15601 SW 83rd Ave. Miami FL 33157

DURANT RJ 106 Hessian Hill Dr. Pennington NJ 08534

EAGER CE 103 Lincklaen St. Cazenovia NY 13035

ECKEL R P.O. Box 30664 JFK Airport Jamaica NY 11430

ENDRESEN DA Box 45 Botsford Hill Rd. Roxbury CT 06783

FINLEY CB P.O. Box 7671 Woodlands TX 77387

FRAGA RM 1540 Mancha Dr. Boulder City NV 89005

FRANK RK Box 615 Shelter Island NY 11964

FREEMAN CE 7747 Carrleigh Pkwy. Springfield VA 22152

GAUTHIER RW 3322 Cowper St. Palo Alto CA 94306

GRAY JE RFD 1, Box 186 Bethlehem CT 06751

GREEN JG 498 Scotts Lndg. Rd. Southampton NY 11968

GRISEL GR 7475 Estrella Cir. Boca Raton FL 33433

HALL RH P.O. Box KK Wellfleet MA 02667

NAME ADDRESS CITY ST ZIP

HAMMES PL 24 Governors Lane Bethel CT 06801

HANDLEY FK 2519 Manhattan Ave. Manhattan Beach CA 90266

HANSEL KA P.O. Box 4021 Burlingame CA 94011

HARGIS RO 225 Montalvo Rd. Redwood City CA 94062

HERNDON WK 42 Crest Dr. Little Silver NJ 07739

HOWE JG P.O. Box 101 Greendell NJ 07839

HUBBARD DG 5926 S. 73rd E Ave. Tulsa OK 74145

JARBOE RL 318 Lake June Dr. Lake Placid FL 33852

KAWAMOTO DK 6850 Glenview Dr. San Jose CA 95120

KELLEY RC 483 NW 105th Dr. Coral Springs FL 33065

KIRKMAN JD 2303 E. 2nd St #3 Bloomington IN 47401

KLAU DA 15 Pond Side Lane West Simsbury CT 06092

KORCHECK SM 1480 Coronet Dr. Reno NV 89509

LEE WR 2106 Oriole CT Fairfield CA 94533

LOCHER AH 151 Clapboard Ridge Danbury CT 06810

LUDWIN RJ RR 1 North Rd. New Milford CT 06776

LYNCH EJ 3002 Yorkshire Rd. Doylestown PA 18901

MALO ME 11500 Fairway Dr; #507 Reston VA 22090

MANIOUDAKIS EX RD 3 Box 372 Somerset NJ 08873

MARKHAM DA 7411 N.W. 8th Court Plantation FL 33317

MATEI MM 1913 Kenilworth Ct. Toms River NJ 08753

MAYO DQ Rte. 2 Box 85, Sunset Dr. Ottsville PA 18942

MCAULEY GH 928 Peninsula Ave #409 San Mateo CA 94401

MCGRORY RC 501 East Mill Road Flourtown PA 19031

MCVAY PR Route 1 Box 63 Roxbury CT 06783

MEIXSELL CF 202 Summer Ave. Horsham PA 19044

MILLER JW 15 Greta Dr. Danbury CT 06810

MOON EE 745 Windward Rd. Jackson MS 39206

MURPHY BP 5900 Sarah Ct. Austin TX 78731

NORDMAN VJ 5109 Green Acres Ct. Metairie LA 70003

O’BRIEN WJ 73 Princess Anne Ct Warrenton VA 22186

O’NEILL RF 474 Pepperwood Ct. Marco Island FL 33937

OBER RI 3 Thornwood Ct. Setauket NY 11733

OLESEK FW 9421 SW 147th St. Miami FL 33176

PARRISH BP 2970 Ávalon Ave. Berkeley CA 94705

PAUL RV 8800 SW 123d Ct., J-203 Miami FL 33186

PERRY RA 1152 St. John Place Santa Ana CA 92705

PICKEN WR 48 Big Oak Lane Stamford CT 06903

PLATTE CR 83 Kellogg Dr. Wilton CT 06897

POST RR Route 1 Box 357 Newport WA. 99156

RAHISER WS P.O. Box 306 Branford CT • 06405

RENNINGS AA Box 124 RD #2, Jonestown Rd. Oxford NJ 07863

SALKOVICS AJ 3144 Goldenspur Camarillo CA 93010

SCHWAB EA 2615 Majestic Dr. Wilmington DE 19810

SHEPARD HE 38 Jenkins Rd. Franklin NJ 07416

SLOAN GC 521 Altivo Ave. Watsonville CA 95076

STANNARD LA 129 Newton Ave. Norwalk CT 06851

TAUBERT AR Rte. 3, Foxrun Lane S Newtown CT 06470

UGIANSKIS RX PO Box 16, Candlewood Isle New Fairfield CT 06812

VAN WYK PD 68 New Garden Ave. Lancaster PA 17603

WARREN VF P.O. Box 579 Carnelian Bay CA 95711

WEAVER RH 1533 Sopera Ave. Coral Gables FL 33134

WENK PJ 52 Wellsweet Dr. Madison CT 06443

WILDER JB 251 Hickory Lane Roxbury CT 06783

NAME ADDRESS CITY ST ZIP

WILLEUMIER RC 618 Hill Street Barrington IL 60010

WIRKKI TK Box 423 Salem NY 12865

WYSARD JF RR 2, Box 91, West Lake Rd. Mayville NY 14757

ACKROYD KG 5331 Castle Hills Dr. San Diego CA 92109

BLAYDON CJ 245 West Maple Ave. Langhorne PA 19047'

DATER MR RD Box 5 Salisbury CT 06409

DUNPHY WW 4 Limekiln Rd. Ridgefield CT 06877

ENGLISH RB 103 Main St. Centerbrook CT 06409

GASKILL JP 1335 Wood Park Dr. Kennesaw GA 30144

GERT WA 8815 NE 28th St. Bellevue WA 98004

HAKIM PR 1881 Cragin Dr. Bloomfield Hills MI 48013

HOLLAND DK 107 Pt O’Woods Dr. Toms River NJ 08753

KURTZ D Paradise Valley Rd. RFD #1 Box 310-W Bethlehem CT 06751

MOREY RL 295 Morningsun Ave. Mill Valley CA 94741

NEUMEISTER JT 9 Baldwin Dr. Sussex NJ 07461

RHODES EA 3343 N.E. 116th St. N. Miami Beach FL 33160

STEFFAN KJ 253 Farview Ave. Long Valley NJ 07853

TURNER EB 20 Mt. Foraker Ct. San Rafel CA 94903

WAGER R Skyline Ranch Box 8 Jackson WY 83001

WEAVER LG Elvirasteig 43 1 Berlin 37

APPENDIX B

PLAINTIFFS WHO ARE OPTING INTO THIS ACTION

ABRAHAM JW 12831 Viscaino Rd. Los Altos Hills CA 94022

ADAMS FE 8 Autumn Ridge Rd. Weston CT 06883

ADAMS RJ 217 Woodland Dr. Osprey FL 33559

ALFORD TL 83 Robin Ridge Dr. Madison CT 06443

AMOS JI 2703 St. James Rd. Belmont CA 94002

ANDING JD River Rd. Wash Crossing PA 18977

ANTILL WZ 3459 NE 30th Ave. Lighthouse Pt FL 33064

ARCHER EL 506 S. Union Ave. Fergus Falls MN 56537

ARCHER SH 7340 SW 132nd St. Miami FL 33156

ARFSTEN KE 616 Rinaldo St. Santa Rosa CA 95405

AVINELIS FE 825 Wootten Dr. Kerman CA 93630

BAKER FA 17 Betsy Lane Ambler PA 19002

BALDINGER JE P.O. Box 662 Pullman WV 26421

BARKER HM 155 N. Harbor Dr. #1712 Chicago IL 60601

BARNETTE JL 140 NE 53 Ct. Ocala FL 32671

BEENE JT 4028 Lynbrook Lane Arlington TX 76015

BEHRE RE 101 Sagamore Dr. Murray Hill NJ 07974

BERDEAUX BJ P.O. Box 66-1335 Miami Springs FL 33266

BERGER RL 3100 NE 49th St. #1102 Ft. Lauderdale FL 33308

BETHEA WD 2716 Creekbed Lane Charlotte NC 28210

BLACK LD RD 8 Box 236 Flemington NJ 08822

BLUM JE 137 Elm St. San Mateo CA 94401

BRAISTED SC 5961 SW 17th St. Plantation FL 33317

BREEN CA 149 Northbridge Ave. Warwick RI 02886

BRICKEY RE 2314 South 22nd E. Salt Lake City UT 84109

BROWNING DG 740 Penfield St. Longboat Key FL 33548

BUTLER DE Wolzogenstr 17 1 Berlin 27

NAME ADDRESS CITY ST ZIP

BUTLER RE 3840 Wood Ave. Coconut Grove FL 33133

BUTTERILL JB 4101 NE 16th Ave. Ft. Lauderdale FL 33334

CALVERT JD 10362 Center Dr. Villa Park CA 92667

CANEDY DJ 4666 Vernette Dr. El Cajon CA 92020

CANTARANO TF 3530 W. 187th St. Torrance CA 90504

CARROLL PL 967 W Rambling Dr. W. Palm Beach FL 33411

CASEY TB 18 Ellsworth Park Cambridge MA 02139

CASSOTIS JN 9 Forest St. Londonderry NH 03053

CAVALLARO CF Box 704 Sharon CT 06069

CHAMBERLAIN KS 6677 Villa Bonita Rd. Las Vegas NV 89102

CLACK RH RR Box 380 Hamburg NJ 07419

COHEN SX Bozener Str 11 1000 Berlin 62

COLES AE RD 1 Box 505-B Stockton NJ 08559

COMPTON HG I Cove Rd. Brookfield CT 06804

COOKE WM 407 Sylvia Way San Rafael CA 94903

COOPER DE 240 NW Ferry St. Poulsbo WA 98370

COOPER JD RD #1 Box 93 Columbus NJ 08022

COSHLAND GC 2282 Dosinia Ct. Reston VA 22091

CRISTMAN VD 76 Locker St., P.O. Box 151 Beachwood NJ 08722

CROWL DL 9 Hemlock Dr. Deep River CT 06417

CUNNINGHAM JJ 615 Millcross Rd. Lancaster PA 17601

CUTCHIN AA RFD 2 Box 149 Onancock VA 23417

DAVIS CR P.O. Box 3339 San Clemente CA 92672

DICKINSON DC 1212 Winter Spring B Winter Springs FL 32708

DIETER CJ 258 East Wood Rd. Roxbury CT 06783

DORSEY RM Roxbury Station Roxbury CT 06783

DRENNAN DC 219 Paseo Del Rio Moraga CA 94556

DREW HE 16200 Mt. Rose Highway Reno NV 89511

DUNKLEE JC P.O. Box 4166 Incline Village NV 89450

DWYER DJ 5 Summit St. Rensselaer NY 12144

EUBBS SK 20 Mtn. Laurel Lane Fletcher NC 28732

EDGERLY DF 57 Rita Dr. New Fairfield CT 06810

EGERER RA 1480 Bradley Rd. Bow WA 98232

ELLISON GL 20775 Salida Terr. Boca Raton FL 33433

FAGERLAND DD 6000 93rd Ave. SE Mercer Island WA 98040

FALZARANO VL 7900 SW 146th St. Miami FL 33158

FARRINGTON ID 4260 Pines Rd. Paducah KY 42001

FELL DM P.O. Box 615 Homer AK 99603

FERNANDES DR R.D. 6, Box 342 Flemington NJ 08822

FIGUEROA FH 9280 Font’bleau Blvd. Miami FL 33172

FINDLAY DJ P.O. Box 310 Gig Harbor WA 98335

FLATTER DE 2630 NE 51st St. Lighthouse Pt. FL 33064

FLEISCHER RH 349 Vista Linda Dr. Mill Valley CA 94941

FLYNTZ J 63 Summit Rd. Sparta NJ 07871

FOURNET DJ 154 Gerald Dr. Danville CA 94526

FOXWORTH TG 5449 Rutherford Dr. Woodbridge VA 22193

FRIEND PE 2404 Lakefrt Dr. Knoxville TN 37922

FROST S 2760 NE 23rd Place Pompano Beach FL 33062

FUSTER AS 8125 Westbourne Dr. Pensacola FL 32506

GAGE LC 2255 Sunrise Reno NV 89509

GALLI RP II Gill St. Exeter NH 03833

GEORGE RL 6605 Tina Lane McLean VA 22101

GICK RP 2363 Greenswaro S. Warrington PA 18976

GIDDENS DR 390 Everett Place Danville CA 94526

GIROUARD NG 1701 NE 64th St. Ft. Lauderdale FL 33334

GOLIBER JT 25 Pine Hill Bend Ballston Lake NY 12019

NAME ADDRESS CITY ST ZIP

GOOLSBY TE RD 1 Sunset Lane Washington Depo CT 60794

GORMAN LR P.O. Box 20862 Billings MT 59104

GREINER RM 465 Harwood Ave. Satellite Bch. FL 32937

GUETTLER DP Gustav Freytag 15 1 Berlin 33

HAMAN DB PO Box 131, Candlewood Isle New Fairfield CT 06812

HARLAN RR 5850 Cameron Run Ter. Alexandria VA 22303

HATCH TE 9 Appletree Way Long Valley NJ 07853

HEATHCOCK AD 524 Fawns Walk Annapolis MD 21401

HEEMSTRA JW Winston Dr. Washington Depo CT 06794

HEINRICH RW P.O. Box 1575 Allentown PA 18105

HEWLETT BN Bogus Hill #248 New Fairfield CT 06812

HICKS LM 169 Rutledge Ct. Conroe TX 77302

HOFF TL 1503 Quaker Ridge Austin TX 78746

HOFFMAN DJ 1800 S.W. 75th Terr. Plantation FL 33317

HOFFMAN R 17 Skylark Rd. Bloomingburg NY 12721

HORROCKS AG 56 Old Bridge Rd. Brookfield CT 06804

HUBER DE 420 NE 9th Ave. Ft. Lauderdale FL 33301

HUDSPETH CB 1099 Tilton Rd. Sebastopol CA 95472

HUESMAN MJ 73 Shore Land Dr. Key Largo FL 33037

HUNSBERGER LM 7194 Hillcrest Dr. Macungie PA 18062

HURD TL P.O. Box 1384 Park City UT 84060

HUSKEY BP Rt. 7 Box 163, South Rugby Rd. Hendersonville NC 28739

ISRAELITE DZ 116 Central Park So. New York NY 10019

JOHNSTON IR 2361 Morrison Lane Suisun CA 94585

JONES JH 741 Marshall St. Beverly NJ 08010

JORGENSEN CW 47 Mohawk Ave. Corte Madera CA 94925

JUNG DH Clayallee 44 1000 Berlin 33

KANE TJ 1228 S. Inverness Way Fresno CA 93727

KANODE JS Wingfield Res. Est., 1763 Cocoplum Ct. Longwood FL 32779

RASPAR MA Box 321 Lumberton NJ 08048

KAST R 41 White Pine Dr. Brookfield Ctr. CT 06805

KAY RE ' RD 2 Box 162E New Hope PA 18938

KELLY PL P.O. Box 331S Rd., Rhododendron Rd. Fitzwilliam NH 03447

KELLY WH 85 Viscount Dr., A-62 Milford CT 06480

KIEHLE GA 1486 Country Club Dr. Los Altos CA 94022

KILLER RE 3309 Melendy Dr. San Carlos CA 94070

KILLMON BC RT 1 Box 756 Moore Haven FL 33471

KLINE WJ P.O. Box 66 Elkton FL 32033

KNOWLES HW 1697 N. Goldeneye Ln. Homestead FL 33030

KNUDSON RC 2200 Panorama Way Salt Lake City UT 84124

LAMAR JW 7007 Erland Rd. Santa Rosa CA 95405

LAMBERT TD Laurel Lane New Castle NH 03854

LARSON LT 5213 NW 58th Court Gainsville FL 32606

LASH JF 578 Caber Drive Santa Rosa CA 95405

LAUMEYER RH Box 548 Teton Village WY 83025

LEET AC 4493 Faraone Court San Jose CA 95136

LEGARE MT 3761 NW 100th Ave. Coral Springs FL 33065

LESTER GT 2171 30th Ave. San Francisco CA 94116

LEWIS EW Box 2102 Castro Valley CA 94546

LIGHT HA 2870 NW 107 Ave. Coral Springs FL 33065

LIVINGSTON DB 19 Stoney Brook Rd. Holmdel NJ 07733

LONGLEY JD 240 Shore Drive P.O. Box 567 Ozona FL 33560

NAME ADDRESS CITY ST ZIP

LOWRY JR 4 Miller Place Rd. Miller Place NY 11764

MACGLASHAN DH 78 Nut Plains Rd. Guilford CT 06437

MAGUIRE JM Harborview Dr., Box 321 Essex CT 06426

MANCHESTER SA 99 Broadmoor Ct. Novato CA 94947

MANN KA 981 Bluebird St. Naples FL 33942

MARINO JM 25 Spring Garden Ave. Colts Neck NJ 07722

MASON T 350 Orion Court Merritt Island FL 32953

MAYER RL 220 Ersilia Trail Alamo CA 94507

MCALINDEN GI 3 Elm S., PO Box 194 Hopewell NJ 08525

MCCONNELL RH 1330 Concord St. Los Altos CA 94022

MCEWAN JL Rose Farm Center Rd. Lyndeboro NH 03082

MCKAY EA 19 Elizabeth’s Way Chatham MA 02633

MCLAY D 920 Lake Forest Rd. Clearwater FL 33575

MCLEAN BE 1116 SW 4th Court Gresham OR 97030

MICHEL FL 3215 Norman Dr. Reno NV 89509

MILLER C 235 Linden Dr. Boulder CO 80302

MILLER KG 764 Berkshire Drive Millbrae CA 94030

MONACO DR P.O. Box 1768 Orinda CA 94563

MONTGOMERY DC 2012 Leisure Dr. NW Winter Haven FL 33881

MOONEY WJ 10900 SW 112th Ave. Miami FL 33176

MORRIS GS 2115 Skyline Blvd. Reno NV 89509

MORRISON HA 18 Plaisted St, Bangor ME 04401

NEEDHAM FS 1777 Coralway North Vero Beach FL 32963

NELSON LM 6999 Estes Dr. Arvada CO 80004

NESSA NA Box 78 Solebury PA 18963

NEWBERRY JI Powersville GA 31074

NEWMAN GM 5530 Ambrose Drive Reno NV 89509

NOLAN CC 4189 Dimhold Court Winston Salem NC 27104

NOTINE DM 503 Bay 5th St. West Islip NY 11795

ODOM HB 220 Jagoe St. Denton TX 76201

OLASZ E P.O. Box 1005 Sanibel FL 33957

OMURA LH First Street Connelly NY 12417

ORR CW 13 E. Townhouse Lane Grand Praire TX 75051

OTT DE P.O. Box 5182 Incline Village NV 89450

OUELLETTE CA 556 So. Ely Blvd. Petaluma CA 94952

PAPA HW 3806 Ashley Dr. S. Mobile AL 36608

PARKER RC 323 Beach Rd. North Wilmington NC 28405

PARKER WS 245 E. 54 St., #15J New York NY 10022

PATE DC Kniephof Str. 26A 1 Berlin 41

PENN RA 4063 N. Canyon Rd. Camino CA 95709

PESZYNSKI PR 1105 Via Media Lafayette CA 94549

PIA VIS WW 4460 Lambert Dr. Kennesaw GA 30144

PINGREY RH 114 Sandalwood Ct. Santa Rosa CA 95401

PLASKON WG P.O. Box 1143 Mill Valley CA 94942

PLATTS RP 2024 Quincy Ct. Salina KS 67401

POIRIER EJ 209 Patricia Ave. Delran NJ 08075

POPE TW 3522 Central Ave. Nashville TN 37205

POUY FR 36 Flying Cloud Rd. Stamford CT 06902

PROFT CJ 4842 Fremont Ave. S. Minneapolis MN 55409

QUIMBY CF 2829 Ellis St. Bellingham WA 98225

RAGLAND JD 980 SW 74th Terrace Plantation FL 33317

REDMAN FW RR #1 Box 432 Bethel CT 06801

REMPE WH Lake Road Newtown CT 06470

ROBBINS RD 13 Winterberry Dr. Amherst NH 03031

ROGERS GA 128 Byram Shore Rd. Greenwich CT 06830

ROSS RM 2335 Odyssey Way Toms River NJ 08753

NAME ADDRESS CITY ST ZIP

RUPP RN 6 Summit Ct. Woodbury CT 06798

SABELLA RR SALISBURY WT 2720 NE 42nd St. 535 Fielder’s Lane Lighthouse Pt. FL Toms River NJ 33064 08753

SAVAGE KD 640 Ridgewood Rd. ■ Key Biscayne FL 33149

SCHAKE WE 4039 White Oak Ct. Sonoma CA 95476

SHAVER JK 48 Cottontail Rd. Norwalk CT 06854

SHEASLEY GF 16919 N.E. Clackamas Portland OR 97230

SHELFKO KA Rt. 3, Box 630 B1 Spokane WA 99203

SHUMAN JH 7901 SW 154 Terrace Miami FL 33157

SHUSTER JF RD #1 Achortown Rd. Beaver Falls PA 15010

SLIFKA RL 4359 Mt Helix, Highlands Dr. La Mesa CA 92041

SMITH CD 9903 NW 19th St. Coral Springs FL 33065

SMITH WT 237 Redwood Lane Cheshire CT 06410

SMITHSON RB 2253 Gilman Dr. W. #501 Seattle WA 98119

SONOMURA A 5152 Maple Irvine CA 92714

SPANGENBURG RB 9106 Lyon Park Ct. Burke VA 22015

SPELLANE WD 1020 Aoloa PI. #208A Kailua HI 96734

STAUFFER DL P.O. Box 2627 Truckee CA 95734

STEGMANN EP 1223 Eddie Dr. Port Orange FL 32019

STEPHENSON JE Janick Strasse 75 1 Berlin 37

STOECKER GG P.O. Box 33-1150 Coconut Grove FL 33133

THIELE GF 2 Pine Tree Hill Rd. Newton CT 06470

THOMAS JR RR #2 Box 952A, Hwy. 24 Chester NJ 07930

THOMAS WM 1018 Great Oaks Dr. Hopkinsville KY 42240

THOMPSON JM 26505 Dutcher Creek Cloverdale CA 95425

THORUP JS 1845 N. Santa Rita Tucson AZ 85719

TINGLE TH P.O. Box 3085 Incline Valley NV 89450

TOOKE HW 408 Timber Lane Newton Square PA 19073

VAN NOTE TE 3 Brookview CT Ho-Ho-Kus NJ 07423

VOTRUBA WK 251 Crandon Blvd., #129 Key Biscayne FL 33149

WACHTEL MR 24 Hastings Dr. Northport NY 11768

WAGNER DC 53 Main St. Ridgefield CT 06877

WAGNER RK Rt. 2 Box 144A-5 Umatilla FL 32784

WAGNER RR 165 Penn Harb Rd. Pennington NJ 08534

WALCHLI DC 2524 Laguna Vista Dr. Novato CA 94947

WALTERS AE P.O. Box 37 Pleasant Mount PA 18453

WARD TB 528 Parker Ave. SE Decatur GA 30032

WEBB RB 6420 Boca del Mar Dr. #406 Boca Raton FL 33433

WEBER HL 82 Eleven Levels Rd. Ridgefield CT 06877

WIK DC 2610 Patio Simpático Lake Havasu Cy AZ 86403

WILLETT WA Rt. 1, Box 263 Dundee OR 97115

WILLIAMSON KA 9 Swan Lane Hauppauge NY 11788

WILTJER JR 623 South Pitt St. Alexandria VA 22314

WOOD CL 1809 Edenwald Lane Lancaster PA 17601

WOOLDRIDGE DW Rt. 3, Box 81 Muskogee OK 74401

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WREN RP RFD 1, Box 516C Heber City UT 84032

YELTON RW 680 Miller Dr. 205W Miami Springs FL 33166

YOUNG GF P.O. Box 76 Stanfordville NY 12581

ZIPRIS M 7411 S.W. 9th St. Plantation FL 33317

TAYLOR GG 10840 Nollwood Dr. Chardon OH 44024

THOMAS HS Unter Den Eichen 114 1000 Berlin 45

THOMPSON JP 22763 A Voss Ave. Cupertino CA 95014

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THORNE ED 10467 Plum Tree Lane Cupertino CA 95014

VOGEL RK 1740 Donner Dr. Santa Rosa CA 95404

VAN GORGINER SB 2503 Bethaway Orlando FL 32806

WARE PN 8201 N.W. 37th St. Coral Springs FL 33065

WENTZ RL Box 137 Hope NJ 07844

WHITE RS 15825 S.W. 87th Ave. Miami FL 33157

WILLIAMS DD Holstwig 20 1 Berlin 37

AUSTIN RF 120 Candlewood Hgts. New Milford CT 06776

BARNES PD 35 Mistletoe Dr. Covington LA 70433

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BROWN RC 16750 S.W. 90 Ave. Miami FL 33157

DOUGHERTY DM RD 7, Box 7544 Stroudsburg PA 18360

ETHERSON JT 428 Norwood Court Fort Myers FL 33907

FENTNER CJ 5322 SW 118 Ave. Cooper City FL 33330

FOSTER MB 246 2nd Ave. Santa Cruz CA 95062

GILKES DE 917 Smith Dr. Metairie LA 70005

HANLEY MD 20400 SW 50th PI. Ft. Lauderdale FL 33330

HASELBY JW Tegel Flughaven 1000 Berlin 51 W. Germany

HERRERA FM Ten Rod Rd., RR 1, Box 472 Exeter RI 02822

HYMAS HV 32492 RD 168 Visalia CA 93291

JENKINS DW 8753 Wimbledon Dr. Knoxville TN 37923

KERREY TW 2100 Country Club Rd. Eustis FL 32726

KOSS CD P.O. Drawer D Miami Springs FL 33266

KYLE AM Blood St. Lyme CT 06371

LANGE RO 1099 31st Ave. San Mateo CA 94403

MARSHALL JF 5 Cove Lane Eustis FL 32726

McCABE JR 1001 Crescent Dr. Greencastle IN 46135

O’CONNOR JH 101 Gray Rock Rd. Trumbull CT 06611

O’DELL T 307 Kent Dr. Cocoa Beach FL 32931

OVERBY WC 7802 Cherry Place Ct. Humble TX 77346

RICH RA 1205 W. Dunne Ave. Morgan Hill CA 95037

SAVOIE JC ■ 6544 Harbour Rd. N. Lauderdale FL 33068

SAXON BF 1092 Serena Way San Marcos CA 92069

SCHLOTE FE 20 Roton Ave. Rowayton CT 06853

SCROGGIN GC 5325 SW 63d Ave. Miami FL 33155

SMITH DP Rt. 1, Box 975B99 Pensacola FL 32507

STULL FP 885 N.W. 6th Dr. Boca Raton FL 33432

TAYLOR JR 5116 S.W. 72d Ave. Miami FL 33155

WATERS DR 411 S.E. 13th Ave. Pompano Beach FL 33060

DOSS WW 14211 SW 104th Ave. Miami FL 33176

CRAHEN RR 3533 4th Lane, SW Vero Beach FL 32962

GAY HM RD #1, Box 1329 Bangor PA 18013

O’BRIEN SA P.O. Box 1104 Hollister CA 95024

STABENAU HM 20439 Interlachen Ln. Troutdale OR 97060

WOLF WA Box 3016 Stateline NV 89449

ZIESMER RA 501 29th Ave. Ct. Poyallup WA 98371

ALMQUIST GN • SR #1, Box 127-M Hawley PA 18428

ANDERSON AR Wareneck P.O. Wareneck VA 23178

ACKINSON WP Hohenzollern IB 1000 Berlin 39

BACON RN 348 Velma Dr. Largo FL 33540

BAILEY C RR #5, Echo Valley Rd. Newtown CT 06420

BISH LW 752 Ridge Dr. McLean VA 22101

NAME ADDRESS CITY ST ZIP

BROOKS RS 7440 NW 6th St. Plantation FL 33317

BURGER JJ 5 Woodsvale Rd. Madison CT 06443

BURROUGHS WJ, Jr. 9 Maple Ln. Brookfield CT 06804

CRAIG DC 1955 NW 108 Ln. Coral Springs FL 33065

COBB JP Berlin Pilot Mail PAA Hangar 17 MR Jamaica NY 11430

CROSS RL 2225 Colusa Hwy. Yuba City CA 95991

FREDERIC GC Box 6152 Incline Vlg. NE 89450

FULLER BB 5072 Country Club Way Pt. Orchard WA 98366

GOELTZ FS 2168 Candelero Santa Fe NM 87505

HUMBLE RA 5770 SW 114th Ter. Miami FL 33156

HAWES LJ 1407 Ball Road Eagle Pt. OR 97527

KANE M Johannisburgeralle 3 1 Berlin 19

KELLEY R 295 Dayton Rd. S. Glastonbury CT 06073

KLEIN RL Box 322 Rowayton CT 06853

KELLEY EG 14300 Clayton Rd. San Jose CA 95127

LAMP RJ 6300 Rogers Circle Lincoln NE 68506

LEINBACH SP, Jr. 317 Fairmont Ave. Winchester VA 22601

LEWIS JW Box 43 Star Rt. Pleasant Mt. PA 18453

LITTLEPAGE MJ 186 Vineyard Rd. Huntington NY 11743

LONG TE 1530 Alabama Dr. Winter Park FL 32789

MEFFERT MD Gelding Hill Rd Sandy Hook CT 06482

McKAY DI Te.el Rd. Fairfield NY 13336

MERCIER RD NEUWALD EJ 8 Gina Dr. Box 4074 Centerport Tequesta NY 11721 FL 33458

NEWSTROM HM Box 787 Somis CA 93066

PANZER DA Beergnstrasse Fa 1 Berlin 37

PARRAGA WA Box 3753 Incline Village NY 89450

PENWELL GS 24290 Sailview Dr. Elmira OR 97437

PHILLIPS, CM Fechnerstr. 16 1 Berlin 31

REMELY B 518 N 17th Ave. Bozeman MT 59715

RHODES SS 1956 Port Cardiff PI. Newport Bch. CA 92660

SMITH LW Rt. 1, Box 420 White Salmon WA 98672

SMITH W Box 962 San Mateo CA 94403

13 Delta-Northeast Merger Case, Order 73-1-24 at 5, aff’d Northeast Master Executive Council v. CAB, 506 F.2d 97 (D.C.Cir.1974), cert. denied, 419 U.S. 1110 [95 S.Ct. 783, 42 L.Ed.2d 806 (1975) ].”

1 . The CAB also dismissed a "Motion for Confirmation and Enforcement of [the] Arbitration Award,” filed by flight engineers formerly employed by National, as moot.

2 . We have held that for purposes of review under 49 U.S.C. § 1486(a) the word “order” should be construed liberally. State of New York v. F.A.A., 712 F.2d 806, 808 (2d Cir.1983). Although only final orders are reviewable, Mc-Manus v. C.A.B., 286 F.2d 414, 417 (2d Cir.), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961), we have defined a final order as one which "imposes an obligation, denies a right, or fixes some legal relationship.” Rombough v. F.A.A., 594 F.2d 893, 895-96 n. 4 (2d Cir.1979) (citing Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 112-13, 68 S.Ct. 431, 436-37, 92 L.Ed. 568 (1948)). The order in the instant case meets this criterion.

Our conclusion that the CAB order denying the petitions to set aside (rather than the original CAB order approving the merger but retaining jurisdiction to ensure that the LPPs are complied with) is appealable, see, e.g., Northeast Master Executive Council v. C.A.B., supra, 506 F.2d at 100, and consistent with cases in which we have held orders approving a merger to be non-reviewable, Overseas National Airways, Inc. v. C.A.B., 426 F.2d 725, 727 (2d Cir.1970) (CAB orders refusing to expand scope of hearing non-reviewable as merely "threshold determinations,” "interlocutory in nature”); McManus v. C.A.B., supra, (CAB orders "relating to various procedural details” not subject to review).

3 . At the request of the court, plaintiffs have submitted copies of charges filed with the EEOC in which plaintiffs clearly assert ongoing violations of the ADEA. The complaint also alleges ongoing violations. See ¶¶ 14-18.