This appeal presents questions regarding the reviewability of the award of an air carrier board of adjustment, established pursuant to Section 204 of the Railway Labor Act as amended, 45 U.S.C.A. § 184, and the interpretation of a collective bargaining agreement entered into between the Air Line Pilots Association International and Pan American World Airways, Inc. In 1950, appellant Sigfred, a pilot with more than twenty years' service with Pan American, suffered an ear injury which caused him occasional dizziness while in flight and resulted in the company grounding him for varying periods of time during that year. Medical examination later disclosed that he was unfit for further flight duty and on March 29, 1951, the company advised him that since there were no other available jobs for which he was qualified, he would be discharged from its service effective April 1, 1951. Under Section 25 of the collective bargaining agreement between the Air Line Pilots Association International and Pan American, the company paid Sigfred his full salary while he remained in its employ, but since his discharge it has refused to make any further payments. Sigfred claims here that, in accordance with Section 25,1 he is entitled to his full salary for as long as his disability continues, for the balance of his life if it lasts that long.

On April 27, 1951, Sigfred brought suit against Pan American in a Florida court for a decree declaring his rights under the collective bargaining agreement. The company removed the case to federal district court, which dismissed the complaint without prejudice, holding that jurisdiction should be declined until the plaintiff should exhaust his administrative remedies under the Railway Labor Act or elect to pursue 'his statutory or Common Law remedy for breach of contract for wrongful discharge.' Sigfred then filed a claim for workmen's compensation with the Florida Industrial Commission, and obtained an award to the effect that his disablement was a result of an occupational injury.

This having been established, he reasserted his claim with the company that it pay him his full salary. The company denied liability beyond workmen's compensation, and an appeal was taken to the Pilots' System Board of Adjustment, which disallowed the claim. Sigfred then brought the present action in district court, challenging the board's construction of the collective bargaining agreement and seeking damages in the amount of his salary from April 1, 1951 until the filing of the complaint. The district court dismissed the complaint on the ground that the board's interpretation of the contract was correct, and Sigfred brings this appeal.

The company argues that the judgment must be affirmed because the plaintiff elected to pursue the administrative route through to an award by the system board, which is made 'final and binding,' by the collective bargaining agreement; and because in any event both the board and the court properly interpreted the agreement as not allowing recovery. Sigfred contends that his election to pursue his remedy to the Pilots' System Board of Adjustment was not voluntary, but pursuant to Florida law; that Florida law governs the reviewability of the board's award; that under the Florida rule of reviewability of arbitration awards all pure questions of law may be reexamined by the reviewing court, and that a consideration of the board's interpretation of the agreement will reveal it to be patently erroneous.

Without expressing any opinion on the first of these propositions, a matter not entirely free from doubt under Florida law,2 we may proceed to an examination of the second, viz., that Florida law governs the reviewability of the board's award. The establishment of boards of this type is authorized under the 1936 amendments to the Railway Labor Act, extending many of the provisions of that Act to air carriers in interstate and foreign commerce. 45 U.S.C.A. § 181. The Act as originally passed stated among its general purposes the avoidance of any interruption to commerce and the providing for the prompt and orderly settlement of labor disputes, including those arising out of the interpretation or application of collective bargaining agreements. 45 U.S.C.A. § 151a. Pursuant to these aims, Congress provided that disputes concerning the interpretation of collective bargaining agreements in rail transportation are to be 'handled in the usual manner up to and including the chief operating officer of the carrier', but that if no adjustment is reached at this level, they can then be referred by petition of either party to a division of the National Railroad Adjustment Board, whose decision, except insofar as it contains a money award, is final and binding. 45 U.S.C.A. § 153, First (i, m). It also provided, however, that any carrier, system, or group of carriers and their employees may establish system, group or regional boards for the deciding of disputes of the same character, with the express provision in the statute that if either party to such an arrangement becomes dissatisfied therewith, it may elect upon ninety days' notice to come under the jurisdiction of the national Adjustment Board. 45 U.S.C.A. § 153 'Second.'

The 1936 amendments, in extending many provisions of the Act to air carriers, did not provide for the immediate establishment of a National Air Transport Adjustment Board. 45 U.S.C.A. § 185. Instead, Congress provided that such a board should be set up when 'it shall be necessary', 'in the judgment of the National Mediation Board.' 45 U.S.C.A. § 185. It expressly applied to air carriers that section declaring it to be the duty of carriers and employees 'to exert every reasonable effort to make and maintain' collective bargaining agreements. 45 U.S.C.A. § 181. It also made it the duty of every carrier and its employees to establish a board of adjustment with jurisdiction not exceeding that of the system, group and regional boards created in rail transportation under the original Act. 45 U.S.C.A. § 184. Finally, Congress required that disputes be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes, with the added proviso that failing adjustment in this manner, the dispute may then be referred by petition of either party 'to an appropriate adjustment board.' 45 U.S.C.A. § 184.

The question in this case is whether Florida law or federal law governs the reviewability of an award made by such a board in interpreting a collective bargaining agreement negotiated under the duty to bargain imposed on air carriers and their employees by the Act. Florida law makes unenforceable any agreement to arbitrate future disputes3 and thus would strike down the provision in the agreement that awards of the Pilots' System Board of Adjustment shall be final and binding. Appellant urges that it likewise allows the review of any pure question of law. However tenuous the distinction between so-called 'unmixed' questions of law and those requiring the deciding of a factual issue also, the appellant contends that we have such a pure question of law before us here in the problem of interpreting the collective bargaining agreement.

Without passing on the issue of whether such a rule exists in Florida, it becomes plain upon a moment's reflection that such a system of review would completely sweep aside Congress's efforts to provide for a prompt and orderly settlement of labor disputes by system boards of adjustment. Moreover, such a result would obtain solely as a matter of compliance with Florida's contrary policy of allowing disputants a court review of their disputes, regardless of their agreements to arbitrate those questions with finality. It would rest the effectiveness of the statutory plan upon the variegated characteristics of state law, and eventually lead to the anomaly of a National Air Transport Adjustment Board whose decisions, except in awarding money, must be final,4 existing alongside coordinate system boards in Florida whose decisions cannot be final. Although the parties could achieve what they have here sought, a final decision by a board versed in the problems of the industry, by electing to come under the national board,5 they would lose thereby whatever advantages there are in operating under a board established by a single carrier and its employees.

We see no reason to force such an election. Congress having required the negotiation of collective bargaining agreements, and the establishment of boards of adjustment to interpret them, we deem it a reasonable corollary thereto that it intended that the scope of review in appeals from these boards should be determined by federal courts, applying federal law. In the light of the declared aims of the act, we also find it to be the intent of Congress to allow the parties to make the awards of such boards final and binding. Therefore, giving normal effect to these words, we refuse to review a challenged ruling of law, there being no question raised regarding the jurisdiction of the board or the regularity of its proceeding. James Richardson & Sons v. W. E. Hedger Transportation Corp., 2 Cir., 98 F.2d 55.

However, it was urged upon the district court that the system board's construction of the agreement is arbitrary and capricious. If we regard this as an assertion that the board's arbitrariness rose to the level of a denial of due process, it is not amiss to add that we regard the board's interpretation of the agreement not only entirely reasonable, but we believe it to be the correct interpretation. The language in question reads as follows:

'The Company will provide or compensate the pilot for the cost of complete medical care for occupational sickness or injury. In the event of non-occupational injury or illness occurring while on assignment at a point other than the pilot's base station, or outside the Continental United States, the Company agrees to reimburse the pilot for such additional expenses occasioned by the pilot's location at the time of such injury or illness. During such period the pilot's salary will be continued and the pilot agrees that all workmen's compensation benefits due under applicable laws shall be paid by the pilot to the Company.'

The arguments of counsel debate whether the third sentence of the section refers to the second sentence or to the first sentence as well. The company argues that the words, 'During such period,' at the beginning of the third sentence, by their natural sense refer to the period mentioned in the immediately preceding sentence. It is significant that it is only the second sentence that makes a reference to time ('while on assignment at a point * * *' etc.). Sigfred urges that such an interpretation is patently erroneous because a pilot would then draw full salary during periods of non-occupational injury, but only workmen's compensation during periods of occupational injury. Therefore, he reasons, sentence 3 must refer also to sentence 1, granting full salary during the period of any occupational injury.

We perceive in this agreement, as construed by the arbitration board, a clearly understandable and helpful policy of the company. It provides that when a pilot is away from home, and it is of peculiar value when he is in a foreign country, he is protected in his salary if mishap befalls him, whether or not such mishap is occupational. Instead of providing for the cost of complete medical care, as is provided for in the case of occupational sickness or injury, this provision takes care of such 'additional expenses' beyond what he would be put to if he were at his home base, thus excluding reimbursement for medical treatment if such medical treatment is not more expensive on account of the pilot's being away from home. It then provides the further assurance, partially, no doubt, because of the failure to provide complete medical care, that during such period his salary will be continued.

The construction of this paragraph in the manner contended for by the appellant would amount to providing a guaranteed full salary payment for life in the event of any permanent occupational disability that disqualified the pilot from passing a rigid physical examination. Of course, such a provision could be included in a collective bargaining agreement. But if it were it is not too much to assume that it would be in such terms and with such clarity that there could be no doubt about its meaning. We think it also appropriate to remark that in those exceptions to the normal subjects covered by collective bargaining agreements in which provision is made for benefits after employment ceases, the provisions relating to such pensions are usually carefully spelled out in the agreement, as they should be.

Without, therefore, making a choice between the alternative constructions, since we find that the complaint failed to set out a cause of action for review of the action of the board, we nevertheless express the conviction that the arbitrators could not easily have yielded to a construction that would require the company to pay a pension of the full $13,400 annual salary to all pilots who no longer meet rigid flight medical requirements for as long as their disability exists. Certainly we cannot strike down as arbitrary an award which refused to make such an interpretation.

It is finally argued that not every employer-employee dispute falls within the exclusive jurisdiction of the system board. Thus, it was held in Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S. Ct. 754, 85 L. Ed. 1089, that a suit under state law for wrongful discharge could be brought by a former employee, despite the fact that he might also have a right to reinstatement and back pay under the collective bargaining agreement. However, in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S. Ct. 577, 94 L.Ed 795, the Supreme Court held that a state court has no power to declare rights under a collective bargaining agreement negotiated under the Act, since the statutory procedure in such cases is exclusive. The appellant here does not claim that he was wrongfully discharged (in fact, he concedes that he was not), and does not assert a cause of action arising out of any rights except those created by the collective bargaining agreement. The interpretation of such an agreement was held by the Slocum case to be within the exclusive jurisdiction of the statutory board there involved. The construction of this agreement was therefore correctly referred to the Pilots' System Board of Adjustment, and since, as noted above, its award presents no reviewable question of law, the district court's dismissal of appellant's complaint was correct.

Affirmed.

BROWN, Circuit Judge (dissenting).

While I differ finally from the majority on the interpretation of the contract, the difficulties on any interpretation of of it and doubts about the final correct one are such that, standing alone, I would not have thought my contrary views sufficiently well founded to outweigh the collective judgment of my associates or move me to dissent. But there is much more to this case than that-- much more than the able opinion of Judge Tuttle reflects.

I would accept their interpretation of this contract, or for that matter the district judge's alone, had there ever been one. The trouble is that here, and below, all that Sigfred got was a 'but if' opinion-- the award of the Adjustment Board construing the contract is not subject to review but if it were, we would agree. But Sigfred is entitled to more than a 'but it' adjudication. Had he gotten that I would again have submerged my own small differences and would have joined in an unanimous decision.

Had some effective right of judicial review been recognized, I would have accepted also the thesis that the claim must be tested by Federal, not Florida, law, although the approach of Judge Tuttle seems to me to place responsibility entirely on the appellant's contentions instead of the historical fact that the Supreme Court, not Sigfred, in Moore, and revived in Koppal, imported state principles into these problems arising under the Railway Labor Act.

But the Court by-passes these important matters altogether. It does not even discuss the basic notion of the necessity for some character of judicial review even though that has been expressly left open by the Supreme Court. And, under the severe limitation of space imposed upon appellate opinions, it compresses the problem into a nice academic inquiry to the point that it loses nearly all of the essential flesh to give it life, especially in terms of agonizing, tactical-strategic problems facing diligent counsel as they attempt to chart the course for passage between Moore-Koppal versus Slocum, State versus Federal, Voluntary versus Involuntary administrative remedy-- a task which, in contrast, makes the classic figure of Odysseus between Scylla and Charybdis quite unforeboding.

In view of this, some elaboration of my views may be justified.

After 21 years of faithful service as Chief Pilot with a ranking of 19 out of 1200 on the seniority roster, Captain Sigfred became a casualty of his own air age when airotitis media-- an occupational disturbance of the ears-- made him, Pan American doctors declared, 'permanently disqualified for flight status with this Company.' Discharged on April 1, 1951, he has, with tenacious persistence, twice in State Courts of Florida, twice in Florida Federal Courts, once in a Florida administrative agency, and twice in the administrative forum of a Railway Board of Adjustment, sought a judicial determination of his contention that, having spent his life for the Company, it is obligated, under the Collective Bargaining Contract1 with the Pilots' Union, ALPA, to pay medical expenses and, most important, his salary during the continuance of such occupational disability.

In this final action, filed in the Court below June 17, 1954, Sigfred sought a money judgment only for his back pay.2 The complaint detailed historically his Pilgrim's Progress3 including, of course, the final decision of the Pilots' System Board of Adjustment4 which he attacked as arbitrary, unsupported by, and contrary to law, especially in the light of an admitted service-connected, occupationally precipitated disability.5 The trial judge, treating it as both an appeal from the Adjustment Board and suit for breach of the contract, denied relief apparently on the dual ground that, if reviewable at all, the Adjustment Board's decision was correct since it conformed to his own independent interpretation of the contract that payment of salary (as distinguished from medical expense) was not required by 25(a) and was permissive under 25(b). Pan American urges both to sustain the decision.

In our task, as I view it, we cannot reach the merits, to approve or disapprove the holding unless there were a justiciable case before the district court. We are forced, and ought therefore, to examine into the complex field of the availability, use, exhaustion and finality of any existing administrative remedies.

This involves this further process: Was Sigfred's claim a Moore or Solcum case?6 If Moore: (a) Did Florida law require him to exhaust the administrative remedies under collective bargaining contract and System Board of Adjustment, if so, was adverse award by Board binding at all, and by what standards, State or Federal, is this to be determined? (b) If exhaustion of remedies was not required, was his pursuit of them voluntary; and, if so, is he bound; if not, what is the extent of the review and by what standards, State or Federal, is it to be determined? If Solcum: (a) Is the award reviewable by the terms of the statute Railway Labor Act? (b) If not, must a right of review be implied, and if so, what is the extent of the review?

If form alone controls, this is not a Moore case for while the administrative contract grievance machinery was first invoked because of Sigfred's discharge April 1, 1951, the issue presented through the Adjustment Board and in both Civil Actions was the obligation, if any, under Section 25 for salary during disability and not that of wrongful discharge7 as such.

But Moore, in the light of Slocum, is not to be read so narrowly. Where the relationship of carrier and the concerned employee (either an individual or a group involved) exists, all disputes concerning the interpretation or application of the contract are exclusively within the province of the Adjustment Board for in such cases, 'its settlement would have prospective as well as retrospective importance to both the railroad and its employees, since the interpretation accepted would govern future relations of those parties * * *,' Slocum v. Delaware, L. & W.R. Co., supra, 339 U.S. at page 242, 70 S.Ct. at page 579. But where that relationship has ceased to exist, whether from rightful or wrongful cause so long as accepted and final, the controversy becomes a very narrow one: What is owed to this former employee? That interpretation of the contract is inevitably required is not decisive for Slocum recognizes, 'If a court in handling such a (Moore) case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board', Slocum v. Delaware, L. & W.R. Co., supra, 339 U.S. at page 244, 70 S.Ct. at page 580. Slocum intends that where the controversy is one in which the consequence of a court action is, or may be, to substitute a judicial agency for the Statutory Adjustment Board in the continuing superintendence and nurture of labor relations in the industry, it is then clearly beyond the pale. But where the impact is confined to the requirement that, in the court judgment, a carrier pay or not pay to a former employee a specified sum, this will have, if at all, only remote influence on future industrial relations. It would in no way involve the displacement8 of one, or one group, for another, cf. Slocum v. Delaware, L. & W.R. Co., supra; order of Ry. Conductors of America v. Pitney, 326 U.S. 561, 66 S. Ct. 322, 90 L. Ed. 318; Washington Terminal Co. v. Boswell, supra, the increase in rate or determination of pay for work performed by employees, cf. Order of Ry. Conductors of America v. Southern Ry. Co., 339 U.S. 255, 70 S. Ct. 585, 94 L. Ed. 811; and, as precedent it would not be binding on the Board, see Slocum, supra, in adjudication cases (so-called minor cases, cf. Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886); and, in negotiations for future contracts, it would be irrelevant in the function of the Mediation machinery, General Committee of Adjustment of Brotherhood, etc. v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S. Ct. 146, 88 L. Ed. 76; General Committee of Adjustment, etc. v. Southern Pac. Co., 320 U.S. 338, 64 S. Ct. 142, 88 L. Ed. 85; Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S. Ct. 95, 88 L. Ed. 61.

As a Moore claim, the Railway Labor Act did not deprive the court of jurisdiction to hear it or require an administrative finding as a prerequisite to the filing of the suit. But such remedy was sought in fact. Of what significance is that?

This depends, initially at least, on the policy of Florida. Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653, 73 S. Ct. 906, 97 L. Ed. 1325, conditions a Moore suit upon compliance with any existing state policy requiring the exhaustion of administrative remedies. If the state law demands exhaustion of the administration remedy, the suit, even though Federally permitted, cannot be maintained.9

Did Florida require exhaustion of the administrative remedy? We think that, under the circumstances of this case, Mountain v. National Airlines,10 Fla. 1954, 75 So. 2d 574, 577, answers this in the affirmative and in doing so thus applied the traditional Florida view, Ervin v. City of North Miami Beach, Fla., 66 So. 2d 235; DeCarlo v. Town of West Miami, Fla., 49 So. 2d 596, and the most recent case Morrison v. Plotkin, Fla.1955, 77 So. 2d 254. Moreover this is the view which the trial judge, familiar with Florida law, took in dismissing the original Civil Action 3774 in 1951.11 Of course Pan American cannot assert here that the action of dismissal of 3774 was wrong, or that Sigfred should have sought to upset it by an appeal.

Since Sigfred was required, either by Florida law, or by reason of an authoritative decision which Pan American can is not now free to question applying Florida law, to pursue his remedy through the System Adjustment Board, it is evident that, in assaying its impact upon his rights, the so-called 'election' was not voluntary, that is, one resulting from his free choice. But as I view it, this coercive12 characteristic need not alone be decisive here.

If, as Koppal holds, the Railway Labor Act does not pull a Moore case out of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, to determine suability, I think it likewise follows that the state law will also determine the scope and force of the mandated administrative action. Florida law declares that, unless the proceeding is a Florida statutory arbitration, a party to an arbitration proceeding may have an unlimited right of court review on asserted errors of law. Glens Falls Ins. Co. v. Gulf Breeze Cottages, Inc., Fla., 38 So. 2d 828. See Steinhardt v. Consolidated Grocery Co., 80 Fla. 531, 86 So. 431; Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297.

Indeed, so strong is this Florida policy against ousting the courts of jurisdiction, that even assuming the pursuit of the administrative remedy was, in a legal sense, voluntary, the Florida courts would still be open for review of errors of law.13

Of course, in a very real sense the System Board of Adjustment was actually a board of arbitration which, under the agreement and by statute, was conceived as a bipartisan agency with deadlocks or impasses to be resolved by the naming of a 'neutral referee.' The provision in the supplemental agreement establishing the System Adjustment Board (see footnote 4, supra) that decisions should be final is, of course, an implied characteristic of arbitration agreements and would not exempt this action from the Florida policy.

If I am correct under I, II, III, the intrinsic merits are open to us and the court below for some character of review. I believe this same result follows if we assume it was a Slocum, not a Moore, case. Of course, in this approach the right of review must be found either expressly in the Railway Labor Act or by necessary, fundamental implication. I find no express right of review. The Board's award, denying, not granting, money relief, and in favor of, not against, the carrier is not reviewable under 45 U.S.C.A. § 153 First (m) or (p).14

But I think that if a controversy is of a nature which requires administrative determination by the Board of Adjustment, there must be some character of judicial review to test whether such action afforded a proper respect for basic guaranties inherent in our system of law.

I am aware, of course, of numerous expressions attributing positive finality to the Adjustment Boards' actions, and which take this to be a closed matter. The fact is, however, that the Supreme Court has at least twice taken specific pains to leave the question open. Most pointedly was this done in footnote15 7 in Slocum v. Delaware, L. & W.R. Co., supra (339 U.S. 239, 70 S. Ct. 580).

'We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive. 7

'7. * * * Nor are we called upon to decide any question concerning judicial proceedings to review board action or inaction.'

Elgin, J. & E. Ry. Co. v. Burley, supra, 325 U.S. at pages 719, 720, 65 S.Ct. at pages 1287, 1288, was another, and its affirmance by an equally divided court of Washington Terminal Co. v. Boswell,16 75 U.S.App.D.C. 1, 124 F.2d 235. affirmed 319 U.S. 732, 63 S. Ct. 1430, 87 L. Ed. 1694, indicates that the issue is substantial.

We would not have to mark out the full limits of the review. It is sufficient here to permit reappraisal of the construction of a written contract to determine whether, on the contract, there has been an error of law. I think this much is assuredly required. If not, substantial and vital rights are imperiled or may be lost altogether. And this must be determined in the light of actuality, reflecting no real, free, deliberate relinquishment of the right of recourse to all legal protection by the employee. Under the Act the employee must be represented by a union. If he desires to work in transportation (rail or air), he is compelled to work under the contract negotiated for him. The Act requires that the union and carrier establish compulsory grievance machinery, and that contract disputes, failing agreement, must be heard and determined by a Board.

A person's contract of employment covering his compensation for work done and, nowadays, all of those so-called fringe benefits relating to sickness and health payments, accidents, hospitalization, retirement and pension rights as well, is a vital right. Applied literally, the Act forces a person to commit every question as to the very existence, scope or application of that right to an agency having no standing as an official arm of the executive, legislative, or judicial branch of government.17

As we are not foreclosed by prior decisions or the contract,18 I adhere to the fundamental conviction that with rights so vital some suitable means must be available to determine whether the agency to which Congress has committed the parties to resolution of their differences has adequately adjudicated the controversy.

But the court declines to permit any review. Indeed, it ignores the problem altogether. The result is that, out of the countless situations one can now think of, in which the heavy hand of Government determines the very economic existence or survival of an activity, the railway-airline employee vis-a-vis railroad-airline employer is the sole19 one in which no judicial review whatever is afforded.

The Adjustment Board mechanism is in no sense voluntary. It is forced on employer and employee alike. Government cannot compel people to resort to such a tribunal for the irrevocable determination of issues which go to the heart of life itself, unless some means is afforded to test the elemental correctness of it. Justice Brandeis, St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S. Ct. 720, 740, 80 L. Ed. 1033, phrased it:

'The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly. To that extent, the person asserting a right, whatever its source, should be entitled to the independent judgment of a court on the ultimate question of constitutionality.'

The need for this is as great for the railroad-airline as it is for the employee and, indeed, I would here be championing the same cause had the Adjustment Board held for, rather than against, Sigfred's construction of the contract.

The review which I hold must exist may, at least, take the form of the suits brought here for declaratory relief or for the recovery of the money value of the benefits sought and denied. Procedural niceties can be wrought out as necessary within the broad framework of suitable actions brought in courts having requisite jurisdiction presenting, without unreasonable delay, the basic propriety of the Adjustment Board's decision.

The scope of that review can likewise be fashioned. Here it is sufficient if it has the minimum capacity to review an asserted plain error of law in the construction of a written contract.20 The troublesome questions on the reviewability of controverted fact issues, the use or nonuse of a concept of substantial evidence, the problem of administrative expertise on inferences from uncontradicted evidence are points for determination at a later day.

I come then finally to the question: Was the Adjustment Board's decision that Section 25(a) did not require payment of salary during continuance of this occupation disability correct? In brief,21 Sigfred contends that the salary payable under sentence (3) relates to sentence (1); Pan American, on the other hand, insists that sentence (3) relates only to sentence (2), non-occupational injury or illness away from the pilot's base station, and that the provision for the continuance of salary is permissive within the sole discretion of the Company under sentence (4), Section 25(b).

On the basis of this analysis, construction of the contract is, to be sure, most difficult. However, I think that the fine, technical, intrinsic analysis of the Company cannot stand against the absurdities which would result, and that Sigfred's construction is, on the whole, the more reasonable one. The majority opinion oversimplifies the matter to suggest that arbitrators 'could not easily have yielded to a construction that would require the Company to pay a pension of the full sum of $13,440.00 annual salary to all pilots who no longer meet rigid flight medical requirements for as long as their disability exists.' This ignores the requirement of the contract of 'occupational sickness or injury' and, here, the fact which res judicata charges to Pan American that its own actions may well have been the cause of his final permanent incapacity. I would think-- since the majority has undertaken to assay its business reasonableness-- such a result was hardly to be described as unexpected.

This is not the case of a manual laborer. Here the contract dealt with persons having responsibilities and duties of those of near executive status. Airline pilots have exclusive care of equipment of millions of dollars in value and a serious responsibility for the safety and lives of forty to sixty people at one time. In terms of responsibilities committed to their judgment, I would doubt that management of independent business enterprises would, in many cases, exceed that of the Captain on a modern airliner. Yet these businesses recognizing the inevitable deficiencies in workmen's compensation schemes, Social Security, or the like, frequently provide for service-connected-disability payments approximating former income. My view is that reasonableness is not for us to determine-- but if it is, I cannot escape the feeling that if a business makes a person physically unfit to work, it is quite reasonable for it to agree to shoulder the responsibility.

The question would then be: did they so agree? With considerable uncertainty, I think they did. But the important thing is that that question ought to have been reviewed directly and affirmatively by a court and, on appeal by an appellate court.

That question has, at best, been only obliquely answered by judges to whom our system accords the right and duty to determine questions of law.

I therefore respectfully dissent.

Rehearing denied; BROWN, C. J., dissenting.