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"But nothing contained in this subdivision or in subdivision one of this section shall be construed to prevent the termination of the employment of any person who is physically unable to perform his duties or to affect the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of said subdivisions;"

It is Complainant's contention that the policy of Respondent and that portion of the agreement incorporating such policy has no valid basis of reasonable necessity, is arbitrary and discriminatory therefore, and has always been a subterfuge to eliminate sixty year old pilots from any and all employment at Eastern airline, and that regardless of when said policy began, the continuation of said arbitrary and discriminatory practice subsequent to the enactment of the New York Statute continues to be a subterfuge to evade the purposes of said subdivisions.

While it was stipulated by Complainant's counsel during the above hearing (T-291) that Respondent airline has in the past concerning certain mechanical and other safety features added additional requisites to the FAA minimum requirements, it has never to complainant's knowledge, nor did any testimony so show, (a) result in a deprivation of human rights, and (b) in each instance it was based upon a reasonable necessity. It is these two factors which distinguish other additional requirements imposed by respondent from the arbitrary and completely unnecessary requirement of periodic on-line revenue passenger flights by aviation instructors, supervisory, check test and ferry pilots as a condition of employment

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