Petition for Writ of Certiorari — Independent Federation of Flight Attendants v. Trans World Airlines, Inc.

Supreme Court brief1990

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, Qi

Petitioner,

TRANS WoRLD AIRLINES, Inc., GQ

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WILLIAM A, JOLLEY

(Counsel of Record)

STEVEN A. FEHR

JOLLEY, WALSH, HAGER & GORDON

204 West Linwood Boulevard

Kansas City, Missouri 64111

On the Brief (816) 561-3755

Scott A. RAISHER Attorneys for Petitioner

JANAE L. SCHAEFFER Independent Federation

DALE L. INGRAM of Flight Attendants

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ «EEF c

QUESTIONS PRESENTED

1. In an action under § 2, First of the Railway Labor

Act, 45 U.S.C. § 152, wherein—

(a) it is claimed that the carrier breached its duty

to exert every reasonable effort to make agree-

ment; and

(b) the district court found that the carrier’s prin-

cipal stockholder (who established the carrier’s

bargaining objective) advised the Union that he

insisted on greater concessions from a predomi-

nantly female workforce because they were “‘sec-

ond incomes” rather than “breadwinners”; and

winner” reference was “truly a basis for deci-

sion, IFFA [the Union] would doubtless be

right” that the carrier had violated its duty

under § 2, First—

may the carrier avoid a finding of a violation without

proving by a preponderance of evidence that it would

have taken the same action even if it had not relied on

gender-based stereotypes—as would be the case in an ac-

tion under Title VII of the Civil Rights Act of 1964

(Price-Waterhouse v. Hopkins, US. , 109 S.Ct.

1775 (1989) )?

2. Has a violation of § 2, First been established—

contrary to the Court of Appeals’ decision based solely on

the “clearly erroneous rule’”—when the district court

found that:

(a) the airline’s principal stockholder advised the

Union that he insisted on greater salary and

work rule concessions from a predominantly fe-

male workforce because they were “second in-

comes” rather than “breadwinners’” ;

(b) during the course of negotiations, the airline en-

gaged in many instances of unjustified refusal

to supply information or to answer questions;

(i)

in bargaining [claims including, inter alia, writ-

ten agreement with another union concerning

concessions to be obtained by the carrier from

the Union, direct dealing with employees over

employment terms, insistence on predictably un-

acceptable proposals, threats to liquidate the air-

line if the Union prevailed and implementation

of changes in employment terms not subjected to

negotiation] may be generally accepted?

PARTIES

The Petitioner is Independent Federation of Flight

Attendants (“IFFA”-or “the Union’’), an unincorporated

labor organization designated as the bargaining repre-

sentative under the Railway Labor Act for employees of

Trans World Airlines, Inc. in the Flight Attendant craft

or class.

The Respondent is Trans World Airlines, Ine.

(“TWA”), a “common carrier by air’ within the mean-

ing of Title II (45 U.S.C. §§ 181, et seg.) of the Railway

Labor Act.

There are no other parties to the proceeding in the

Court of Appeals whose judgment is sought to be re-

viewed.

TABLE OF CONTENTS

Page

OPINIONS BELOW .........-...--..-::-.::1s-seeeseeseeeeeeesnssseeseeenees l

ZUIPREITIDIO TION qo xvc..cccxo..00ceeccneeeeesscrcerscencceescnnsnenssveceneonness 1

STATUTES INVOLVED ..................-..cccceseeeeeccssccnenenssnsees 2

STATEMENT OF THE CASE ...............-.-------...0---+- vali 2

Summary et sn tcansnannnteumnnnannhabans 3

The District Court Decision ...........................-----..---- 7

The Court of Appeals Decision ..............................-- 1l

REASONS FOR GRANTING THE WRIT ................... 11

I. DOES A FACTUAL FINDING THAT THE

CARRIER ESTABLISHED AND MAIN-

TAINED A BARGAINING POSITION AD-

VERSE TO ITS FEMALE EMPLOYEES,

FOR REASONS ASSERTEDLY INCLUDING

THE PERCEPTION OF SUCH FEMALE

EMPLOYEES AS “SECOND INCOMES”,

COMPEL A CONCLUSION THAT THE CAR-

RIER VIOLATED § 2, FIRST OF THE RLA,

UNLESS THE CARRIER PROVES THAT IT

WOULD HAVE TAKEN THE SAME AC-

TION IN THE ABSENCE OF SUCH CON-

a eeanedanhenianewaannauenens 13

A. The Decisions Below Are In Conflict With »

This Court’s Decision In Price-Waterhouse 13

B. The Decisions Below Upset The Harmony

Between Title VII And The Federal Labor

a ermeenennanineneonne 18

(iii)

TABLE OF CONTENTS—Continued

Page

Il. DO FACTUAL FINDINGS—THAT A CAR-

RIER (TWA) UNDER THE RLA ENGAGED

IN MISCONDUCT, IDENTICAL TO THAT

HELD UNDER THE NLRA TO BE BAD

FAITH BARGAINING—COMPEL THE CON-

CLUSION THAT THE CARRIER’S MISCON-

DUCT BREACHED § 2, FIRST, CAUSED THE

IMPASSE AND PROMPTED THE STRIKE,

IN THE ABSENCE OF PROOF INTRO-

DUCED BY THE CARRIER TO THE CON-

WUNNUTE T ~uiiutinncsnlesejiiliccnipisessiaiesnamntadainiaelllicaiaiidincstbiene 20

A. The Lower Courts’ Holdings, That The RLA

Forbids “Surface Bargaining’ And “Little

Else”, Construes § 2, First As Imposing A

Lesser Bargaining Obligation Than The

NLRA: This Holding Misapplies The Stat-

ute And Presents A Conflict With The Sec-

ae A PS 20

B. The Decisions Below On The Issue Of Denial

Of Requested Information Are In Conflict

With This Court’s Decision In Truitt And

With Decisions Of Virtually Every Circuit,

Including The Eighth Circuit; On The Issue

Of Dealing With Other Than The Exclusive

Representative, They Are In Conflict With

This Court’s Decision In Virginia Railway. 23

1. TWA’s Refusal To Provide Information. 23

2. TWA’s Dealings With Other Than

ASRS SRE, Aore es pee ee rete 27

C. The Decisions Below Are Inconsistent With

This Court’s Decision In NLRB v. Transpor-

tation Management Corp. The Courts Below

Failed To Impose Upon TWA A Burden To

Prove That, Despite Its Proven Misconduct,

It Did Not Breach § 2, First, An Impasse

Would Have Been Reached And A Strike

Would Have Occurred ...................................... 28

TABLE OF CONTENTS—Continued

CONCLUSION .....................-. sdsilpisitribiiniliicagsionnnians 30

APPENDICES

APPENDIX A. Opinion And Judgment Of The

U.S. Court Of Appeals For The Eighth Circuit.. la

APPENDIX B. Order Of The U.S. Court Of

Appeals For The Eighth Circuit Denying Peti-

tion For Rehearing And Suggestions For Re-

eRe TD BIG ceicsinitincsiecichsinatentnitiiiatesiieaiiiinenn 6a

APPENDIX C. Revised Opinion And Judgment

Of The U.S. District Court For The Western

RES tne Sov aon CORTON 7a

APPENDIX D. Text Of Statutes Involved

II SINE BIE senenichcs nedinicsestendiencitntceeienaninions 69a

SD re BO OE BE secncittinceitin 7la

National Labor Relations Act -......................... 72a

Labor Management Relations Act .................... 75a

TABLE OF AUTHORITIES

Cases Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

CRIED cncsthneenesteneesuctsateuitindiiin eaten: 18

Boston Herald-Traveler v. NLRB, 223 F.2d 58 (ist

GEIR BIR IINUI: anetcctintiennscscesnainininietateisineienttnrinleaimaiaasiaia ia aa 24

BRAC v. Florida East Coast Railway Co., 384 U.S.

RRC SEE Ss 2 SEP AES eR 20

Chicago & N.W. Rwy. Co. v. United Transporta-

tion Union, 402 U.S. 570 (1971) own... 8, 21, 22

Chi., RI. & P. R.R. v. Switchmen’s Union, 292

F.2d 61 (2nd Cir. 1961), cert. den., 370 U.S. 986

GRTIIIIED . cctsaacpstsninenestansnianehienstebinebeenetneinetenenieiemiieniieis 22

Curtiss-Wright v. NLRB, 347 F.2d 61 (8rd Cir.

EE ee 24, 25

Detroit & Toledo Shoreline RR. v. United Trans-

portation Union, 396 U.S. 142 (1969) ................. 20

Elgin, Joliet & Eastern R.R. v. Burley, 325 U.S.

ARRAS og ot! 20, 21, 27

Emporium Capwell Co. v. Western Addition Com-

munity Organization, 420 U.S. 50 (1975) .......... 19

Fibreboard Paper Products v. NLRB, 379 U.S.

BE Ge ccccitabintscandisibtiddladiahsnpessaiabinmasaiamiceesi. 26

Franks v. Bowman Transportation Co., Inc., 424

Cae WS CUED cccncenicstinstilihbennrnsnnninntatainabies tale T asses 19

Frontiero v. Richardson, 411 U.S. 677°(1973) 8, 14, 18

General Electric Co. v. NLRB, 466 F.2d 1177 (6th

Cir. 1972) ....... seinapiatillaahiativiekoatedeiianiiaciaaaiaMiaaal ttt sea. 24

Hall v. Ledex, Inc., 669 F.2d 397 (6th Cir. 1982). 8

Independent Federation of Flight Attendants v.

Trans World Airlines, Inc., 819 F.2d 839 (8th

Cir. 1987), cert. denied in part, —— U.S. ——,

108 S.Ct. 1219 (1988), rev'd in part, Trans

World Airlines, Inc. v. Independent Federation

of Flight Attendants, ——- U.S. ——, 109 S.Ct.

RD INES -chitscsdivacetinitstin ehitctadeiticcdaliastesdemeiaiaanaes _.. passim

Japan Airlines v. IAM, 588 F.2d 46 (2nd Cir.

1976), aff’g, 389 F. Supp. 27 (1975) ............... 22

Mastro Plastics Corp. v. NLRB, 350 U.S. 270

| REESE ssenntilsitictiiadbdiesebpeldidianesdmiemmadiindad ania 3

McDonnell-Douglas v. Green, 411 U.S. 792 (1973). 17

vii

TABLE OF AUTHORITIES—Continued

Page

NLRB v. Acme Industrial, 385 U.S. 482 (1967)... 24, 25

NLRB v. Billion Oldsmobile-Toyota, 700 F.2d 454

en 29

NLRB v. Herman Sausage, 275 F.2d 229 (5th

RR FE ccicrtnntinathnninnevcenninamennnaniannninedinndnannnann 29

NLRB v. Montgomery Ward, 183 F.2d 676 (9th

GL: TRIED ecssiscrntcterpmennainapennnncanndinatimcdsemppiianennens 29

NLRB v. Transportation Management Corp., 462

fe 2 a a 16, 28, 29

NLRB v. Truitt Mfg. Co., 351 US. 149 (1956)... 23, 24

NLRB v. Whitin Machine, 217 F.2d 598 (4th Cir.

1954), cert. den., 349 U.S. 905 (1955) .............. 24, 25

NLRB v. Yawman and Erbe, 187 F.2d 947 (2nd

a ren 24

Newspaper Guild v. NLRB, 548 F.2d 863 (9th Cir.

TITITIIEE cenisnctesetneniosinectabapeienebunsamnniianhasnnianaiibecnaipeaien 24, 25, 26

Price-Waterhouse v. Hopkins, —— U.S. ——, 109

Se GD ceccrniniinnsincntntsnnivinniiincansanniiennalil passim

Proctor & Gamble Mfg. Co. v. NLRB, 603 F.2d

SD BE Ga, TED cceecneentencrsticmnntmnenqunestttantinnnntn 24, 25

Queen Mary Restaurants v. NLRB, 560 F.2d 403

IS GE, TR seccencencenscncesnennteeniinrnsineematbangiannianss 29

Railroad Trainmen v. Jacksonville Terminal Co.,

ld 8 21

Seattle-First National Bank v. NLRB, 638 F.2d

ff. ) | 11

Teamsters v. United States, 431 U.S. 324 (1977). 19

Textile Workers v. Lincoln Mills, 353 U.S. 448

RID wececescnnenssvsccesesnsencnnadenceenehennneennueniaetichaanienenmns 18

Trans World Aivlines, Inc. v. Hardison, 432 U.S.

GID cvenreescesetesetestenceecsinctenecntnnhennneennintinentinne 19

Trans World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants, 809 F.2d 483 (8th

Cir. 1987), aff'd by equally divided court, 485

U.S. 175 (1988), reh’a denied, US. —,

8 EE Re ere 2

United Air Lines v. Evans, 481 U.S. 553 (1977)... 19

viii

TABLE OF AUTHORITIES—Continued

United Packinghouse Union v. NLRB, 416 F.2d

1126 (D.C. Cir.), cert. den. 396 U.S. 9038

SEIT aiins lucien teiertaennnamssitininichaeamaiiaiaicaaaidataamiaiial 18, 29

Virginia Railway v. System Fed. No. 40, 300 US.

| ERT Cae reese seer ee Seer 23, 27

Wal-Lite Div. of U.S. Gypsum v. NLRB, 484 F.2d

I I ees 29-30

Wright Line, 251 NLRB 1083 (1980), enf’d, 662

F.2d 899 (1st Cir. 1981), cert. den., 455 U.S.

Statutes

Rules

SUEY UII a tarscriccinetnissltsintsdiubatiggnabiesnindinnebeabiniiaiacdsinnennds 29

ENE IRE ee 2

I a ee = 7

28 U. s. C. § 2201 A es APN is lee a ator aD 7

Civil Rights Act of 1964, Title VII, 42 U.S.C.

IN TIE III: ncenpsarniahanemnnenegnbenabaseiienmddiiebennnbees passim

Labor Management Relations Act, 29 U.S.C.

EERSTE SSS TRAE a SR Ae Oe 20

National Labor Relations Act, 29 U.S.C. §§ 151 et

Re I Ot a 9 SR oe passim

Section 8 (a) (5), 29 U.S.C. § 158 (a) (5). ......... 21

Section 8(d), 29 U.S.C. § 158(d) -..................... 22

Railway Labor Act, 45 U.S.C. §§ 151 et seq. passim

Section 2, First, 45 U.S.C. § 152, First —..... passim

Section 2, Ninth, 45 U.S.C. § 152, Ninth... 27

Rule 41(b) Federal Rules of Court Procedure _. 7

Other Authorities

Cox, The Duty to Bargain in Good Faith, 71 Harv.

I II OI oo sane eeRRSISSSNNNNNION 22

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, Gi

. Petitioner,

TRANS WorLD Arrives, INc., Gi

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioner, IFFA, respectfully prays that a writ of

certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Eighth Cir-

cuit entered August 16, 1989.

OPINIONS BELOW

The opinion and judgment of the U.S. Court of Ap-

peals for the Eighth Circuit, reported at 878 F.2d 254,

are reprinted as Appendix A' hereto. They affirm a

judgment and opinion of the U.S. District Court for the

Western District of Missouri, reported at 682 F.Supp.

1003, which is reprinted as Appendix C hereto.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 28, 1989. On July 21, 1989, IFFA timely filed a

Petition for Rehearing and Suggestion for Rehearing En

Banc. On August 16, 1989, the court below entered an

order (reprinted as Appendix B) denying the petition,

and also denying petition for rehearing en banc by rea-

1 The pages of the appendices to this petition are referred to as

“se ,

son of the lack of a majority of the active judges voting

to rehear the case en banc. This petition is filed within

ninety (90) days of that date. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The relevant provisions of the Railway Labor Act

GMMMBN” or “the Act”), as amended, (45 U.S.C. §§ 151,

et seq.), Title VII of the Civil Rights Act of 1964 (‘Title

VII’) (42_U.S.C. §§ 2000e, et seg.) and the National

Labor RelafMMMBAct (“NLRA”), as amended, (29 U.S.C.

§§ 151, et seg.) are reprinted as Appendix D hereto.

STATEMENT OF THE CASE

This is the third case to come before this Court aris-

ing out of IFFA's efforts (thus far unsuccessful) to reach

an amended collective bargaining agreement with TWA.

The first case, “TWA I’, involved the unilateral imple-

mentation of changed terms by TWA upon release to self-

help. “TWA II” involved the failure of TWA to rein-

state certain strikers at the end of an unsuccessful strike

resulting from TWA’s unilateral changes. This case cen-

ters upon the failed negotiations themselves, and TWA’s

conduct in those negotiations.

In TWA I, the Eighth Circuit held that TWA’s actions

in implementing changes about which it had not bar-

gained, including the elimination of the contractual union

security provisions, violated the RLA (809 F.2d 483);

that decision was affirmed by an equally divided court,

485 U.S. 175 (1988). In TWA II, the Eighth Circuit ruled

that TWA violated the RLA by denying reinstatement

to full-term strikers improperly replaced by (a) trainees

who had not yet become Flight Attendants and (b) cross-

over Flight Attendants who, during the course of the

strike, returned to work (819 F.2d 839). This Court de-

nied certiorari as to the unlawful “trainee” replace-

ments, U.S. ——, 108 S.Ct. 1219 (1988), but re

versed as to the “crossovers”, —— U.S. , 109 S.Ct.

1225 (1989).

aati. aaNet

As this Court noted, the “trainee” and “crossover” case

was predicated on the assumption that striking Flight At-

tendants were “economic” (rather than unfair labor prac-

tice) strikers. However, as the Court also noted (109

S.Ct. at 1229), foreshadowing this Petition, this case

advances the Union’s claim that (1) the IFFA strike was

not an economic strike, but rather was caused or prompted

by TWA’s breach of its § 2, First obligation to ‘exert

every reasonable effort to make agreement”, and (2)

strikers are therefore “unfair labor practice” strikers,

uncer principles enunciated in Mastro Plastics Corp. v.

NLRB, 350 U.S. 270 (1956), who are not subject to per-

manent replacement but rather are entitled, inter alia, to

their jobs upon their unconditional offer to return to

work.

Summary Of Facts

IFFA is the duly certified bargaining representative

of TWA Flight Attendants. 85% of the Flight Attend-

ants are female. The International Association of Ma-

chinists (“IAM’’) represents TWA’s 10,000 ground em-

ployees, 85% of whom are male, including mechanics,

helpers, janitors, ramp and fleet service personnel and

employees in the dining and commissary units. The Air

Line Pilots Association (“ALPA’) represents TWA’s

cockpit crew employees, who are overwhelmingly male.

In the summer of 1985, Carl Icahn gained controlling

stock ownership of TWA. To offset the acquisition costs,

Icahn determined to obtain concessions from its em-

ployees, including those represented by unions (17a).

Icahn first reached agreement with ALPA. Notable in

that written agreement was a provision committing Icahn

to “best efforts to achieve aggregate cost savings in pay

and benefits at 20 to 22%” from IFFA-represented em-

ployees (17a).?

2 Unless otherwise indicated, appendix references refer to the

district court decision.

Icahn next reached agreement with the IAM. The court

characterized the new IAM contract as a 15% wage cut

(17a). Undisputed, in fact, is the clear record evidence

that the agreement with the IAM, calling for no work

rule changes or headcount reductions, consisted of

yearly concessions-of-$49 Million (in hourly wage reduc-

tions and reduced contributions to a supplemental retire-

ment plan) * from the IAM’s 10,000 members. The IAM

concessions represented a 15% reduction of total IAM

payroll cost ($336 Million), or 11% of IAM aggregate

labor costs of $465 Million.

Icahn’s negotiations with IFFA were scheduled to go

last (17a). In the first individual bargaining meeting be-

tween Icahn and IFFA representatives, Icahn insisted,

over IFFA objections, that IFFA grant concessions

greater than those accepted from the IAM (18a). When

asked why, by IFFA’s principal negotiator, Icahn re-

sponded, inter alia, that those represented by the IAM

were “breadwinners” with families at home to support,

while “you girls are second incomes” who “don’t need the

money” (18a, 62a) .*

Upon IFFA’s refusal to accede to his demand, Icahn

learned of a pending (pre-Icahn) TWA bargaining pro-

posal to IFFA inconsistent with his own demands. He

ordered the withdrawal of that pending proposal (ac-

3 Also undisputed is that both the IAM and ALPA agreements

contained a “snapback” returning salaries and benefits to pre-

concession levels at the end of the contract term; Icahn and TWA,

at all times, refused to grant IF FA a snapback.

4The district court also found that Icahn repeated the “bread-

winner” comments up to the point of the strike (19a). It spe-

cifically credited the “[f]irm trial testimony” of IFFA’s principal

negotiator (18a) and “generally” credited that of all of IFFA’s

principal witnesses (47a). That testimony, though not noted in the

decision, reflects that Icahn repeatedly said, “[I]t is just like I

told you all along . . . some of these women, they got rich hus-

bands, .. . they don’t need this job, anyway”; and “|T]|hey should

have married a pilot, should have married a rich husband.” These

statements further reflect Icahn’s (and thus TWA’s) stereotyped

perception of women’s role as “second incomes”’.

oi 5

complished in October, 1985) and the introduction of a

new more onereus proposal seeking greater concessions.

The new proposal, made in December, 1985, “effectively

restarted negotiations by demanding concessions that

more than doubled the demands made . . . by TWA in

May” (20a).

The December, 1985 TWA bargaining proposals [which

were in fact later implemented on March 7, 1986 and

described by TWA as “fewer people [jobs lost] perform-

ing more work for less pay”] were valued by TWA’s

chief negotiator as representing the airline’s desired sav-

ings of $88 Million annually. Icahn valued the demanded

concessions at $110 Million annually (2la).5 These

later-to-be implemented demands were “predictably un-

acceptable to IFFA and its members” (54-55a). Undis-

puted record evidence is that a 22% salary reduction rep-

resented $44 Million of the total Concessions sought; nu-

merous work rule changes (fewer employees performing

more work) represented the remainder.

Between TWA’s introduction of the new and more

onerous bargaining demands in December and the ex-

piration of the 30-day countdown on March 7, 1986,

IFFA requested information and data. IFFA sought,

both verbally and in writing, the value or savings TWA

placed on each of its proposals (including numerous in-

dependent proposals included within some 22 generally

numbered proposals), TWA’s method of calculation of

such values, and also the nature and extent of conces-

sions made by other employees.* But those requests fell

on deaf ears. TWA “generally” supplied “basic” esti-

mates as to its generally numbered proposals; requested

5 Thus, the December TWA proposal, ultimately implemented by

TWA, represented concessions of twice as much ($88-110 Million)

from roughly half as many (6,000) Flight Attendants as compared

to the $49 Million accepted from 10,000 IAM employees.

6 In addition to the concessions accepted from ALPA and IAM,

supra, undisputed record evidence establishes that TWA imposed

concessions, in salary only, on its non-union employees, of between

14% and 15%.

details, calculations and breakdowns on the proposals were

available but not supplied (25a). There were “many

instances .. . in which TWA failed or refused to supply

information or to answer IFFA’s questions” (48a).

Though not specifically related in the district court

decision, uncontroverted evidence’ revealed other TWA

misconduct between December, 1985 and the March 7,

1986 exercise of self-help. This misconduct included

threats to liquidate the airline if IFFA prevailed; written

comments, to all TWA employees, disparaging IFFA and

its leadership; and, in advance of the self-help date, is-

suance of directives and instructions to departmental per-

sonnel to implement TWA’s demands on the self-help

dates.

Upon the failure to reach agreement by midnight,

March 6, 1986, TWA implemented its December proposals

(34a). IFFA commenced a strike in response. The strike

ended with IFFA’s unconditional offer to return to work

on May 17, 1986 (TWA II, 109 S.Ct. at 1228). In the

interim TWA made other changes in employment terms,

and insisted on additional demands, not previously raised

in the RLA bargaining process (34-35a). TWA’s post-

strike conduct included “altering adversely work rules

that were never in negotiation” and “further stiffening

of demands” as a condition of agreement (47a). In addi-

tion, TWA implemented further changes which were not

the subject of negotiation with IFFA, but instead the

result of direct discussion with rank-and-file employees

represented by IFFA.*

The painstakingly slow process of reinstatement of

some 5,000 full-term striking Flight Attendants, assumed

thus far to be “economic” strikers, is recited in this

™This evidence consisted of written documents authored by

TWA, TV’A bargaining notes, videotape recordings of public state-

ments by Car! Icahn, and the generally credited testimony of IFFA

witnesses.

8 Although this also was not specifically noted by the district

court, it is amply demonstrated by undisputed record evidence

consisting of TWA-authored memoranda.

Court’s decision in TWA II. Suffice it to say that 197

of the strikers were returned to their jobs at the conclu-

sion of the strike. All others remained subject to recall

as vacancies later arose. It would be more than three

years before the last striker was offered the opportunity

to regain her job.

The District Court Decision

IFFA commenced this action by filing a complaint on

March 4, 1986 in the district court claiming that TWA

had breached its duty under § 2, First of the Act,® and

seeking to enjoin the threatened March 7 unilateral im-

plementation of changed terms and conditions. However,

IFFA’s request for preliminary injunction was denied,

the changes were implemented, and the strike commenced.

Through subsequent amendments to the complaint, IFFA

requested, inter alia, a declaration that full-term strikers

were “unfair labor practice” strikers entitled to full

reinstatement retroactive to IFFA’s unconditional offer

to return to work on May 17, 1986, backpay from that

date forward, and restoration to all Flight Attendants

(strikers and non-strikers) of pre-self-help employment

terms.

The district court found that this was a case of first

impression, noting that: “Never before this case has a

court been asked to examine... a scenario of bargaining

sessions, for the purpose of finding an employer violation

[of the RLA] . .. imposing . . . severe sanctions...

applicable to an ‘unfair labor practice strike’ under the

NLRA” (37a).

IFFA presented its evidence over 31 trial days, con-

cluding in mid-March, 1987. At that point the court

recessed the trial, having invited TWA to file a motion to

dismiss under Rule 41(b) F.R.Civ.P. Nearly one year

® The jurisdiction of the district court was invoked pursuant

to 28 U.S.C. §§ 1331, 1837, and 2201, as the case arose under a law

of the United States regulating commerce, the Railway Labor

Act, 45 U.S.C. §$ 151, et seq.

later, after lengthy briefs and oral argument, the court

granted TWA’s motion on March 3, 1988 and revised its

decision on March 9, 1988. TWA had presented no live

testimony and virtually no evidence, other than portions

of deposition transcript designated after IFFA had com-

pleted its case.

The court rejected IFFA’s claims that a carrier’s vio-

lation of § 2, First may be established by proof of individ-

ual acts of misconduct, themselves constituting per se

violations '° of that Section’s mandate. The court held,

“(I]t is clear ... that the RLA is to be construed as

forbidding ‘surface bargaining’ and little, if anything,

further”, citing Chicago & N.W. Rwy. Co. v. United

Transportation Union, 402 U.S. 570 (1971), (41a).

As to IFFA’s allegation that TWA breached its § 2,

First obligation by insisting on disproportionately greater

and more onerous concessions from Flight Attendants

than from male work groups, because they were perceived

as “second incomes” rather than “breadwinners”’, the dis-

trict court found virtually all facts as alleged by IFFA.

Thus it found that (1) Icahn made the statements at-

tributed to him (18a and 62a); (2) Icahn’s statements

“tend to disclose his thinking” and “may well reflect the

basis of TWA’s position . . . through the strike” (61a) ;

and (3) if the breadwinner reference were “truly a basis

of decision, IFFA would doubtless be right” because

“(I]f a private employer were to establish a wage scale

favoring men because of such a theory, it would doubtless

violate Title VII of the Civil Rights Act of 1964” ™ (62a,

emphasis supplied). The court nonetheless rejected

IFFA’s claim of unlawful motivation on its own initia-

tive and without any requisite showing by TWA that it

10 E.g., bargaining with the motivation or intent to discriminate

on the basis of sex; persistent refusal to provide relevant and

necessary information in bargaining; establishing Flight Attendant

terms of employment through dealings with other than IFFA rep-

resentatives.

11 Citing Frontiero v. Richardson, 411 U.S. 677, 681 (1973) and

Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir. 1982).

would have taken the same action absent such considera-

tions. Instead, it simply concluded that the “second in-

come” and “breadwinner” remarks constituted “mere ra-

tionalization” (63a) or “a diabolical alternative” (20a,

emphasis supplied). Also without proof by TWA, the dis-

trict court further concluded that the “real reasons for

the IAM differential . . . must have been” (1) the IAM’s

ability to inflict greater strike damage“ and (2) a per-

ception of greater skill of those in the IAM as compared

with newly hired Flight Attendants (64a, emphasis sup-

plied). The district court went on to summarize its rea-

soning and its basis for decision by stating:

IFFA’s theory, that the breadwinner reference re-

veals Icahn’s motivation would signify that he is a

devotee of the Marxist or utopian distribution sys-

tem, “to each according to his needs.” While even

normally doctrinaire capitalists may be influenced by

such motivations occasionally ... , it is entirely im-

plausible that a hard-boiled “corporate raider” (to

use the label of the Court of Appeals) would sub-

scribe to that method of setting wages for middle in-

come personal (65a, emphasis supplied) ."

Thus the district court neither imposed nor shifted any

burden of proof upon TWA to show, by preponderance of

evidence or otherwise, that it would have taken the same

action in the absence of the “second income” considera-

tion. The court simply concluded, instead, that: “There

has been no persuasive showing that sex stereotyping gov-

erned or influenced Icahn’s economic demands...” (65a).

12In support of this finding the district court cited, not testi-

mony or proof adduced by TWA, but only (1) a trial concession

by an IFFA witness and (2) testimony heard in another case,

between TWA and the 1AM, that the latter was capable of crippling

the airline (64a). While both tended to establish IAM power,

neither provided proof that Icahn and TWA took their action

against Flight Attendants because of IAM power or that they

would have taken such action irrespective of the expressed “second

income” perceptions.

13 Not surprisingly, this Marxist-capitalist speculation was not

based on any facts or argument advanced by TWA.

As to IFFA’s other claims concerning TWA’s breach of

its § 2, First obligation to exert every reasonable effort

to make agreement, the court similarly found facts as ai-

leged by IFFA. Thus, the “many instances” .. . “in

which TWA failed or refused to supply information or

to answer IFFA’s questions” were “unjustified” (48a,

emphasis supplied). Nevertheless—the district court con-

cluded that IFFA had not proven that TWA acted in bad

faith, reasoning that “the potential [of undisclosed infor-

mation] for shaping an agreement between the parties

has not been demonstrated . . . except in the abstract”

(25a), and that no information sought “would have filled

the chasm” between TWA demands and IFFA offers

(27a). The court reached this conclusion despite:

(a) “generally credited” testimony concerning the im-

pact of the denial of information on IFFA’s ability to

understand the effects of the proposals or to present coun-

terproposals less offensive to its members;

(b) the fact that the information requests dealt with

mandatory subjects of bargaining, including salaries,

hours and working conditions; and

desire for savings of $88 Million annually and those de-

mands which (by Icahn’s assessments) were worth $110

Million.

Likewise, the court found that Icahn had in fact agreed

with ALPA as to the level of concessions to be obtained

from IFFA. Although noting that the ALPA-Icahn

agreement was against public policy “in that it tended

to create rigidity in TWA’s bargaining stance [with

IFFA]” (5la), the court nonetheless rejected the argu-

ment that this action established a breach of the bargain-

ing obligation under § 2, First.

As to the other “various claims of misconduct in bar-

gaining by. TWA prior to the strike’, the court concluded

that they “may . .. be generally accepted” (28a, empha-

sis supplied). Again, however, the court determined that

these facts did not demonstrate that TWA had failed to

exert “every reasonable effort” to reach agreement. The

court felt there was no bad faith because, “[e] ven assum-

ing there were numerous instances of bullying and occa-

sional devious behavior by TWA bargainers and support-

ing staff, such misconduct would [only] have been di-

rected toward tricking or coercing IFFA into making a

bad bargain” (28a, emphasis supplied). Apparently it

did not matter what TWA had done.

The court held it “cannot conclude from the evidence

presented that TWA’s bargaining was in bad faith .. .”

(54a). Noting with approval Seattle-First National Bank

v. NLRB, 638 F.2d 1221 (9th Cir. 1981), the court

stated its belief that it was prohibited from “sitting in

judgment upon the substantive terms of a proposed col-

lective bargaining agreement” (55a). In spite of that

stated belief, however, the court determined that “the

sole cause of the impasse was the wide divergence” be-

tween TWA demands and IFFA concessionary offers

| (28a, emphasis supplied) and, that being the case, “the

) basic factual issues are whether TWA’s ultimate de-

mands have been shown to be beyond the range of reason-

ableness . . .” (29a)—an issue resolved by the court in

TWA’s favor (30a).

The Court of Appeals Decision

The Court of Appeals assumed that NLRA concepts

may be applied to claims of relief for unfair labor prac-

tice strikers in RLA proceedings (5a). Beyond that, how-

ever, the Eighth Circuit did not specifically address the

issues raised. Instead, despite the district court findings

of fact, the Eighth Circuit affirmed, in a short per curiam

opinion, stating that the district court’s decision “rests on

findings of fact that are not clearly erroneous” (5a).

REASONS FOR GRANTING THE WRIT

IFFA files this petition not merely to correct error

below, although the decision is clearly in error. IFFA

files this petition not merely to correct manifest injustice,

although manifest injustice has been done to 5,000 em-

| cae nneemeeeieille

ployees, predominantly female, who exercised their statu-

tory right to strike in order to oppose the imposition of

massive adverse changes maintained in bargaining

through the course of conduct detailed herein and, indeed,

found by the district court. Instead IFFA files this peti-

tion so that this Court may exercise its supervisory power

over lower federal courts and pass upon questions, having

wide impact under the employment laws of the United

States regulating collective bargaining and prohibiting

discrimination. The resolution of these questions will

have immediate importance and impact upon unionized

employees—female and male alike—in a deregulated air-

line industry, where airlines are targeted for corporate

takeover and their employees targeted for recoupment of

the debt incurred in the financing of those takeovers.

IFFA, as it did in the Court of Appeals, embraces the

facts as found by the district court. Those facts, coupled

with the conclusions reached by the courts below, stand

for propositions wholly untenable and_unprecedented un-

der what has been, until now, a harmonious scheme of

federal labor legislation. The decisions below establish,

in the Eighth Circuit at least, that:

(1) An employer, which establishes adverse terms of

employment on an individual basis, at least inter

alia on gender-related stereotyped considerations,

may not escape a finding of violation without

proof that it would have taken the same action

in any event (Price-Waterhouse, infra)—while

an airline employer, which establishes adverse

employment terms through RLA collective bar-

gaining and which asserts at the time it decided

to take such action that it did so at least inter

alia on the basis of gender-related stereotype,

may nonetheless escape a finding of violation

without any proof that it would have taken the

same action in any event;

(2) The obligations imposed upon an employer under

$2, First of the RLA requiring exertion of

“every reasonable effort to make agreement” rep-

resents a lesser burden than that imposed by the

NLRA prohibition of refusal “to bargain collec-

tively with the representatives of his [the em-

ployer’s}] employees.”

I. DOES A FACTUAL FINDING THAT THE CAR-

RIER ESTABLISHED AND MAINTAINED A

BARGAINING POSITION ADVERSE TO ITS

FEMALE EMPLOYEES, FOR REASONS AS-

SERTEDLY INCLUDING THE PERCEPTION OF

SUCH FEMALE EMPLOYEES AS “SECOND IN-

COMES”, COMPEL A CONCLUSION THAT THE

CARRIER VIOLATED § 2, FIRST OF THE RLA, UN-

LESS THE CARRIER PROVES THAT IT WOULD

HAVE TAKEN THE SAME ACTION IN THE AB-

SENCE OF SUCH CONSIDERATION?

A. The Decisions Below Are In Conflict With This

Court’s Decision In Price-Waterhouse.

The elimination of employment discrimination based

upon sex is central to this nation’s employment policy as

embodied in Title VII of the Civil Rights Act of 1964.

Section 2000e-2(a) makes unlawful (1) discrimination

“against any individual with respect to his compensation,

terms, conditions or privileges of employment, because of

such individual’s . . . sex” and (2) limitation, segregation

or classification of employees “in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

an employee, because of such individual’s . . . sex”.

Title VII's reflection of the all-important policy of

eliminating employment discrimination does not exist in

isolation. In unionized work environments, where employ-

ment terms are established collectively under the NLRA

or the RLA, the elimination of and protection from em-

ployment discrimination, on grounds enumerated in Title

VII, is no less a national priority. Section 2, First re-

quires that an air carrier “exert every reasonable effort”

to make agreement. The establishment of employment

terms, out of gender-based stereotype or other discrimina-

tory motivation, through a § 2, First collective bargaining

process, is no less at odds with national policy than in an

| tatiana

- ee

individual, non-collective employment relationship. Cer-

tainly this is what the district court meant in saying that

if the “breadwinner” reference reflected motivation,

“IFFA would doubtless be right” (62a)."* Yet, in a Title

VII case, an employer shown to have based adverse em-

ployment action, at least inter alia, on invidious percep-

tions of gender stereotype has the burden to prove that

it would have taken the same adverse action in any event.

Under the holdings below, on the other hand, an air car-

rier operating under the obligations imposed by § 2, First

and likewise shown to have based adverse action on in-

vidious stereotype perception will have been immunized

from any such burden.

At the time when Icahn announced that he would insist

on more onerous and disproportionate concessions from

Flight Attendants, he was directly asked why. Icahn ex-

plained that Flight Attendants were “second incomes”

rather than “breadwinners”; he repeated like remarks

until the time for self-help came. The district court spe-

cifically determined that if Jcahn’s second income /bread-

winner reference were “truly a basis of decision, IFFA

would doubtless be right” (supra, p. 8); but nonetheless

dismissed Icahn’s own, asserted reason as a “diabolical

alternative” and “mere rationalization” (supra, p. 9),

concluding instead that the “real reasons” for the dis-

parate treatment “must have been” a male workforce’s

(IAM’s) ability to inflict greater damage and a percep-

tion of its greater skill (supra, p. 9). The court went on

to explain that this must be so because a contrary reason,

Icahn’s own reason, would signify acceptance of the

“Marzist or utopian distribution system” on the part of

a ‘hard-boiled corporate raider’’—something that would

be entirely “implausible” (supra, p. 9).

Needless to say, the record is devoid of evidence that

sex-biased discrimination signifies acceptance of Marxist

14 Denial of benefits to women because of their perceived status

as second incomes, rather than breadwinners, is, of course, dis-

crimination on the basis of sex. Frontiero v. Richardson, 411 U.S.

677 (1973).

principles, or that such acceptance is implausible on the

part of a capitalist.

That Icahn may [and if put to proof, might], in addi-

tion to the “second income” perception, have taken into

account factors based on skill and economic power should

not lessen the direct admission that sex-biased considera-

tions were a substantial motivating factor in the deci-

sion. As this Court noted in Price-Waterhouse v. Hopkins,

—— US. ——, 109 S.Ct. 1775 (1989), a Title VII case:

It is difficult for us to imagine that, in the simple

words “because of,” Congress meant to obligate a

plaintiff to identify the precise causal role played by

legitimate and illegitimate motivations in the em-

ployment decision she challenges. We conclude, in-

stead, that Congress meant to obligate her to prove

that the employer relied upon sex-based considera-

tions in coming to its decision. (109 S.Ct. at 1786,

emphasis supplied. )

Assuming, arguendo, that the action taken may have been

“the product of a mixture of legitimate and illegitimate

motives”, “it simply makes no sense to ask whether the

legitimate reason was ‘the’ ‘true reason’ for the decision”’.

(Id. at 1788). Upon a showing that gender played a

motivating part in the decision, the employer—

... may avoid a finding of liability only by proving

that it would have made the same decision even if

it had not allowed gender to play such a role. This

balance of burden is the direct result of Title VII's

balance of rights. (/d. at 1787-88, emphasis sup-

plied. )

As this Court made clear:

In saying that gender played a motivating part in an

employment decision, we mean that, if we asked the

employer at the moment of the decision what its rea-

sons were and if we received a truthful response, one

of those reasons would be that the applicant or em-

ployee was a woman, In the specific context of sex

stereotyping, an employer who acts on the basis of a

belief that a woman cannot be aggressive, or that

she must not be, has acted on the basis of gender.

(Id. at 1790-91, emphasis supplied. )

This employer was asked, at the moment of decision, what

its reasons were; the employer responded that women

were not breadwinners, but were second incomes. In

such circumstances this Court determined, in Price-

Waterhouse, that while plaintiff retains the burden of

persuasion on the issue of whether gender played a part

in the employment decision, “the employer’s burden is

most appropriately deemed an affirmative defense: the

plaintiff must persuade the fact finder on one point, and

then the employer, if it wishes to prevail, must persuade

it on another” (Jd. at 1788.)

The decisions below cannot be harmonized with Price-

Waterhouse.’® Section 2, First requires that a carrier

“exert every reasonable effort” to reach agreement. It is

inconceivable that establishing, maintaining and imple-

menting adverse employment terms out of the invidious

and unlawful perception of women as “second incomes”

is consistent with this duty. Certainly an admission by

the decision-maker that he was acting (at least in part)

on the basis of such an invidious perception is prima facie

proof that the carrier did not “exert every reasonable ef-

fort” to reach agreement. Surely under such circum-

stances the employer, as it would in a Title VII case,

should shoulder the burden of proving that its efforts were

“reasonable” despite the admitted discriminatory animus,

and that its actions would have been the same in the

absence of a discriminatory attitude and motivation.

15 Citing NLRB v. Transportation Management Corp., 462 U.S.

393, 400 (1983).

16 This case was argued before the Court of Appeals on April 12,

1989; this Court’s decision in Price-Waterhouse was issued on

May 1, 1989. We did, however, bring Price-Waterhouse to the

attention of the Eighth Circuit Panel, by letter dated May 18, 1989

and prior to the Panel decision on June 28, 1989. Moreover, Price-

Waterhouse was the principal focus of our Petition for Rehearing,

which apparently garnered some (but not enough) votes.

Indeed, if anything, the words “exert every reasonable

effort” in § 2, First are even more demanding than the

words “because of” which are used in Title VII. Under

the RLA, the focus is not on causation but rather on the

duty which both the carrier and union bear. The issue

is not so much what caused what, as it is whether TWA

could possibly have exerted every reasonable effort when

its principal owner said he was acting for sexually dis-

criminatory reasons. Accordingly, if anything, the em-

ployer should be held to a more stringent burden under

the RLA, not a lesser one.

This case, like Price-Waterhouse, involves “smoking

gun” rather than indirect or circumstantial evidence. If

anything, the situation here is even more compelling. The

evidence consists of statements directly attributed to the

decision-maker himself, Carl Icahn. In Price-Waterhouse

the evidence was based upon statements made by partners

favorable to plaintiff's cause. To be consistent with

Price-Waterhouse, TWA should have had imposed upon

it the burden, by way of affirmative defense, to prove that

it would have made the same decision and taken the

same action even in the absence of the clearly asserted,

unlawful gender-based stereotype as to second incomes.

Accordingly, the RLA should require the employer to

meet a standard at least as high as that in Title VII, and

the facts showing unlawful motivation here are stronger

than those which produced the Price-Waterhouse ruling.

Under these circumstances it makes no sense to say that

an employer—shown to have been acting at least in part

due to a discriminatory animus—should be held to one

standard under Title VII and a much different (and

lesser) one under the RLA. This Court should therefore

grant this Petition in order to harmonize the law under

these two important federal labor statutes.

Moreover, the decisions below establish a principle that

turns on its ear this Court’s decision in McDonnell-Douglas

v. Green, 411 U.S. 792 (1973). McDonnell-Douglas estab-

lishes that in a pretext case, (a) a federal court may

look beyond spoken or asserted lawful motivation to (b)

determine the existence of unasserted unlawful motiva-

tion. In this case, on the other hand, the courts have

established that in a direct evidence case, (a) federal

courts may look beyond spoken or asserted unlawful

motivation in order to (b) find the existence of wnas-

serted, lawful motivation—and indeed even in the absence

of proof. &

B. The Decisions Below Upset The Harmony Between

Title VII And The Federal Labor Laws.

The establishment of less beneficial or more onerous

working conditions and benefits for women, because of

the perception of their status as “second incomes” rather

than “breadwinners” is discrimination on the basis of sex.

Frontiero v. Richardson, supra. Federal labor policy pro-

hibits this discrimination. 42 U.S.C. § 2000e, et seg.

“Title VII was designed to supplement, rather than sup-

plant, existing laws... relating to employment discrimi-

nation.” Alexander v. Gardner-Denver Co., 415 U.S. 36

at 48-49 (1974). The various statutes comprising fed-

eral labor policy need be interpreted, not in isolation, but

in harmony. Textile Workers v. Lincoln Mills, 353 U.S.

448 (1957).

TWA’s imposition of adverse employment terms for

reasons explained as a “second income” perception, though

clearly contrary to the national labor policy eradicating

sex discrimination as expressed in Title VII, arose in the

context of collective bargaining under § 2, First of the

RLA. Quite clearly, had TWA’s actions been taken in

an individual context with one unrepresented employee,

prohibited sex discrimination would have been shown;

and the court would have placed, upon TWA, the burden

to prove that such adverse action would have been taken

in any event. Price-Waterhouse, supra. The decisions of

the court below, however, stand for the proposition that

no such burden exists in a like case arising in a collective

bargaining context and brought under § 2, First.’”

17 As the district court noted—citing United Packinghouse Union

v. NLRB, 416 F.2d 1126, 1133 and n.11 (D.C. Cir.), cert. den.,

Congress '* and this Court have consistently recognized,

in the development of the remedial scheme of Title VII,

the unique status of collective bargaining as being at the

core of our national labor policy. TWA v. Hardison, 432

U.S. 63, 78-79 (1977). This Court has consistently recog-

nized the primary role of the collective bargaining repre-

sentative in decisions involving the interaction between

Title VII and federal labor laws. Emporium Capwell Co.

v. Western Addition Community Organization, 420 U.S.

50 (1975); Teamsters v. United States, infra n.18;

United Air Lines v. Evans, 481 U.S. 553 (1977); and

TWA v. Hardison, supra. The district court decision, as

affirmed by the Court of Appeals, ignores the primary

role of collective bargaining and subjugates rights of col-

lectively-represented employees to those whose tenure and

terms are established on an individual basis. Collectively-

represented employees, as a result of the decisions below,

have lesser protection against invidious sex-motivated em-

ployment conditions; at the same time air carriers, using

§ 2, First as a sword rather than a shield, enjoy a lesser

burden of proof (indeed a non-existent burden) in im-

munizing themselves from a finding of employment dis-

crimination.

396 U.S. 903 (1969)—exclusive primary jurisdiction of IFFA’s

claim does not lie with the EEOC (60a). Indeed, IFFA’s claim

that TWA violated the bargaining obligation by insisting on em-

ployment_ terms illegal under Title VII—and seeking a declara-

tion that TWA’s bargaining conduct caused or prompted the strike,

entitling striking Flight Attendants not only to reinstatement

and backpay, but restoration of the terms and conditions of em-

ployment as they existed prior to the strike and TWA’s imple-

mentation of adversely changed terms—can be resolved only under

§2, First. Simply put, a district judge sitting in a Title VII

action filed by individuals is not going to reform unilateral changes

in employment terms that were made pursuant to the RLA bar-

gaining process.

18 See discussion of Congressional record in Teamsters v. United

States, 431 U.S. 324, 350-352 (1977); and Franks v. Bowman

Transportation Co., Inc., 424 U.S. 747, 759-762 (1976).

II. DO FACTUAL FINDINGS—THAT A CARRIER

(TWA) UNDER THE RLA ENGAGED IN MISCON-

DUCT, IDENTICAL TO THAT HELD UNDER THE

NLRA TO BE BAD FAITH BARGAINING—COM-

PEL THE CONCLUSION THAT THE CARRIER’S

MISCONDUCT BREACHED §2, FIRST, CAUSED

THE IMPASSE AND PROMPTED THE STRIKE, IN -

THE ABSENCE OF PROOF INTRODUCED BY THE

CARRIER TO THE CONTRARY?

As the district court noted, this is a case of first im-

pression (37a). By ruling that § 2, First forbids surface

bargaining and little else (41a) the district court made

an unprecedented determination, with far-reaching con-

sequences, that the RLA imposes a lesser bargaining ob-

ligation than that required by the NLRA.

A. The Lower Courts’ Holdings, That The RLA For-

bids “Surface Bargaining” And “Little Else”, Con-

strues § 2, First As Imposing A Lesser Bargaining

Obligation Than The NLRA: This Holding Mis-

applies The Statute And Presents A Cenflict With

The Second Circuit.

_ The NLRA and the RLA reflect consistent national

policies as expressed by Congress in similar legislative

language. Compare the NLRA, 29 U.S.C. §151 and

LMRA, 29 U.S.C. §141(b) with RLA, 45 U.S.C.

§151(a). Like the NLRA, the RLA was enacted to

encourage collective bargaining and to prevent costly

strikes. Detroit & Toledo Shoreline R.R. v. United Trans-

portation Union, 396 U.S. 142, 148 (1969). Agreements

under the RLA are the “product of years of struggle and

negotiation”; any power to change or revise them must

be clearly confined and supervised. BRAC v. Florida East

Coast Railway Co., 384 U.S. 238, 246 (1966).

Thus, one of the statute’s primary commands, judi-

cially enforceable, is found in the repeated declara-

tion of a duty upon all parties to a dispute to nego-

tiated for its settlement. This duty is not merely

perfunctory. Good faith exhaustion of the possibility

of agreement is required to fulfill it. (Elgin, Joliet

& Eastern R.R. v. Burley, 325 U.S. 711, 721, n.12

(1945), emphasis supplied).

The § 2, First obligation is “the heart of the Railway

Labor Act.” Railroad Trainmen v. Jacksonville Terminal

Co., 394 U.S. 369, 378 (1969). Strictest formal compli-

ance is meaningless if one party goes through the motions

with a desire not to reach agreement. Chi. & N.W. Ry.

Co. v. UTU, 402 U.S. 570, 578-579 (1971). The duty

imposed by § 2, First is judicially enforceable. Elgin,

supra; Chi. & N.W. Ry. Co., supra.

The statutory language of § 2, First, imposing the obli-

gation “to exert every reasonable effort” to reach agree-

ment, is expressed in far more forceful language than

that adopted by Congress in enacting 29 U.S.C. § 158

(a) (5), which merely prohibits an employer from refus-

ing “to bargain collectively with the representatives of

his employees.” Collective bargaining and prevention of

strikes in a national airline or rail system have never

been held to be of lesser national interest than in indus-

tries regulated by the NLRA. No court has, until now,

held that § 2, First imposes a lesser obligation than that

imposed by the NLRA. In this case however, after

lengthy consideration (36-4la), the district court con-

cluded, “It is clear from C & NW that the RLA is to be

construed as forbidding ‘surface bargaining’ and little, if

anything, further” (41a). On the contrary this Court’s

decision in Chi. & N.W. Ry. Co., supra (including n.11

thereof, given special emphasis by the district court at

36-37a) provides no support for the court’s determina-

tion. Indeed, this Court stated:

While we have no occasion to determine whether

§ 2, First requires more of the parties than avoid-

ance of “bad faith” as defined by Judge Magruder in

Reed & Prince, supra, we note two caveats... [Slec-

ond, great circumspection should be used in going

beyond cases involving “desire not to reach an agree-

ment” .... See n.19, infra. (Chi. & N.W. Ry. Co.

v. UTU, at 579, emphasis supplied).

Note 19, in turn, refers to § 8(d), 29 U.S.C. § 158(d) of

the NLRA [prohibition against compelling agreement to

a proposal or the making of a concession]—absent from

the RLA *—and § 8(d)’s reflection of concern that the

NLRB had intruded too deeply into collective bargaining

under the guise of enforcement of the duty to bargain in

good faith. Jd. at 583.

Both before and after Chi. & N.W. Ry. Co., the Second

Circuit has interpreted § 2, First as imposing a greater

duty to endeavor to reach agreement than that required

by the NLRA. Chi., RJ. & P. R.R. v. Switchmen’s Union,

292 F.2d 61, 70 (2d Cir. 1961), cert. den., 370 USS.

936 (1962) ; Japan Airlines v. IAM, 538 F.2d 46 (1976),

affg 389 F. Supp. 27 (1975). In this case, the courts

below did not read § 2, First as imposing a greater or

even an equal burden; they interpreted it as imposing

a lesser standard of bargaining, subject to lesser scru-

tiny. The NLRA has consistently been construed as pro-

hibiting at least two types of misconduct: (1) per se

violations—refusals to bargain in fact which, considered

alone and irrespective of other bargaining conduct are

inherently destructive of the bargaining process; and (2)

“surface bargaining” requiring an analysis of various

conduct or actions which, though not considered unlawful

in and of themselves and on an individual basis, demon-

strate a state of mind evidencing lack of good faith in

bargaining, when considered together.” The decisions be-

low failed to recognize the inherently destructive effect on

the bargaining process and IFFA’s ability to reach agree-

ment arising from conduct consistently held by This and

19 Whether 8(d) can be imported wholesale into the RLA is

debatable, but immaterial. IFFA does not base its claimed § 2,

First violation on TWA’s failure to either agree to a proposal or

to make a concession. Its absence from the RLA, however, rein-

forces the already clear determination that the RLA does not

impose a lesser standard of bargining than the NLRA.

20 See, e.g., Cox, The Duty to Bargain in Good Faith, 71 Harv.

L.Rev. 1401, 1418-26 (1958).

other courts as per se violations of the duty to bargain

under the NLRA. Moreover, they:

(1) relegated § 2, First to an impermissibly low

standard of bargaining;

(2) reflected an erroneous view of the law upon

which critical and erroneous findings (that TWA

did not engage in bad faith, that the impasse

was caused by the divergence of position, and

that TWA did not cause the strike) were based;

and

(3) formed the underpinnings for the court’s failure

to require proof by TWA that its misconduct

(found by the court) did not cause the im-

passe and the strike.

B. The Decisions Below On The Issue Of Denial Of

Requested Information Are In Conflict With This

Court’s Decision In 7'ruitt And With Decisions Of

Virtually Every Circuit, Including The Eighth Cir-

cuit; On The Issue Of Dealing With Other Than

The Exclusive Representative, They Are In Conflict

With This Court’s Decision In Virginia Railway.

The district court ruling that § 2, First forbids surface

bargaining and little else (41a) constitutes a clear legal

conclusion, unprecedented, that there is no such thing as

a per se violation of § 2, First.

1. TWA’s Refusal To Provide Information.

The failure of the courts below to conclude that the

numerous instances of “unjustified” refusal to provide

requested information constituted a violation of TWA’s

bargaining obligation—a refusal in fact to exert every

reasonable effort—is contrary to decisions of this Court

and those of virtually every circuit having occasion to

pass upon the issue. Over 30 years ago, this Court stated,

in NLRB v. Truitt Mfg. Co. 351 U.S. 149, 152-53

(1956) :

Good-faith bargaining necessarily requires that

claims made by either bargainer should be honest

claims... [i] f such an argument is important enough

to present in the give and take of bargaining, it is

important enough to require some sort of proof of its

accuracy.

Truitt itself has been said to have established the denial

of information as a per se violation, as noted in Justice

Frankfurter’s separate opinion, at 157. This Court has

since said, “There can be no question of the general ob-

ligation of an employer to provide information that is

needed by the bargaining representative for the proper

performance of its duties.” NLRB v. Acme Industrial,

385 U.S. 432, 435-36 (1966) (citing Truitt).

Various circuit courts have likewise held a refusal to

provide relevant information a per se violation, or have

otherwise defined such a refusal to be a violation, of the

NLRA. “Once relevance is determined, an employer’s

refusal to honor a request is a per se violation of the Act.”

Curtiss-Wright v. NLRB, 347 F.2d 61, 67 (3rd Cir. 1965).

See also Boston Herald-Traveler v. NLRB, 223 F.2d 58

(lst Cir. 1955); NLRB v. Yawman and Erbe, 187 F.2d

947, 949 (2nd Cir. 1951); NLRB v. Whitin Machine, 217

F.2d 593, 594 (4th Cir. 1954), cert. den. 349 U.S. 905

(1955); General Electric Co. v.. NLRB, 466 F.2d 1177

(6th Cir. 1972); and Newspaper Guild v. NLRB, 548

F.2d 863 (9th Cir. 1977).

Even the Eighth Circuit has previously held that re-

fusal to provide information is a per se violation of the

statutory duty to bargain. “Once relevance is established,

a refusal to furnish the requested information is per se

a violation of the Act.” Proctor & Gamble Mfg. Co. v.

NLRB, 603 F.2d 1310, 1315 (8th Cir. 1979).

Relating as it did to TWA’s demands for changes in

wages, hours and working conditions, the information

sought by IFFA was indeed relevant. The district court,

in concluding TWA’s refusal to be “unjustified”, appar-

ently so found. The court refused to find TWA’s refusal

a violation of its statutory duty not because the informa-

tion sought was irrelevant, but because it would not have

helped in shaping an agreement (25a).

Universally established, in the Eighth Circuit and vir-

tually all other circuits, is the principle that information

pertaining to wages, hours and conditions of empioyment

is presumptively relevant. Proctor & Gamble, supra, at

1315; Curtiss-Wright, supra, at 69; NLRB v. Whitin Ma-

chine, supra, at 594; and Newspaper Guild, supra, at

867. The standard for relevance is a “liberal, discovery-

type standard.” NLRB v. Acme Industrial Co., supra,

385 U.S. at 437.

IFFA’s denied requests for information dealt with the

issues in bargaining. They dealt with TWA’s own de-

manded changes. Those demands—for salary cuts and

work rule changes resulting in reduced headcount (job

loss) *'—were said by TWA’s chief negotiator to repre-

sent desired savings of $88 Million annually. But Icahn

had valued the demands at $110 Million annually (21a).

The demands rendered the requested information as ab-

solutely essential. Without it, IFFA was denied the op-

portunity to understand the impact of the demands; the

opportunity to ferret out $22 Million in “fluff” ($110

Million in savings as opposed to a desired objective of

$88 Million; the opportunity to bargain away those de-

mands having little dollar or job-loss impact, but viewed

adverse to IFFA’s membership; the opportunity to meet

TWA’s stated goal of $88 Million without agreeing to all

demands; the opportunity to agree to some but not all of

TWA’s demands; the opportunity, in fact, to bargain.

Providing information is bargaining; its refusal is a

refusal to bargain in fact. The furnishing of requested

information relevant to the issues presented in bargaining

21 Prior to TWA’s implementation of changed work rules, the

Flight Attendant workforce numbered approximately 6,000. Though

not recited by the district court, but based upon unrefuted trial

testimony, Icahn told IFFA that with the new work rules, TWA

could operate with 3500 Flight Attendants. The “basic financial

estimates” supplied by TWA to IFFA revealed reduction in head-

count (lost jobs) resulting from its proposals. IFFA’s requests

were designed to reveal how many jobs could be lost from each of

TWA’s demands and each of their sub-proposals.

> Ce

is essential to make the mandated bargaining process

work—or to give it a chance to work by enabling the union

to understand the proposals, as well as their effects upon

represented employees.

In this case TWA’s refusal to provide relevant infor-

mation was held not violative of § 2, First, because the

information would not have yielded agreement (27a, 50a).

Until now, no court has so held! Until now, no court has

determined that “good faith” bargaining and “every rea-

sonable effort” will not work, if given the chance. Worse

yet the decisions below allow such a result without em-

ployer proof! “In those cases [where presumptively rele-

vant information has been denied], the employer has the

burden to prove a lack of relevance” or otherwise justify

its action. Newspaper Guild, supra at 867.

The courts’ misapprehension of these judicial prin-

ciples led them to conclude that TWA had not breached

its § 2, First obligation and did not cause the strike. The

district court reasoned, “[t]he potential [of undisclosed

information] for shaping an agreement between the par-

ties has not been demonstrated . . ., except in the ab-

stract” (25a); “[n]o information sought . . . could likely

result in . . . accepting the work rules concessions that

would have filled the chasm .. .” (27a); and, therefore

the court reached the “confident conclusion that informa-

tion concealment (and claimed misinformation) did not

cause or prolong the strike...” (50a).

The decisions below impermissibly put the courts into

the bargaining process, thereby alleviating TWA’s re-

quired burden of proof. As this Court has noted:

It is contended that when an employer can effect cost

savings... there is no need to... provide...an op-

portunity to negotiate a mutually acceptable alterna-

tive. ... The short answer is that . . . national labor

policy is founded upon the congressional determina-

tion that the chances are good enough to warrant sub-

jecting such issues to the process of collective negotia-

tion. Fibreboard Paper Products v. NLRB, 379 U.S.

203, 214 (1964).

National labor policy is founded on the assumption that

the bargaining process can work if allowed to do so. Good

faith exhaustion of the possibility of agreement is required

by § 2, First. Elgin, supra, 325 U.S. 721, n. 12. The

decisions below establish, for the first time: (1) the as-

sumption that, even if allowed to work, the collective bar-

gaining process will not work; and (2) that the union has

the burden to prove the information, if provided, would

have yielded an agreement.

2. TWA’s Dealings With Other Than IF FA.

Read together, the decisions below establish a legal

principle, at least in the Eighth Circuit, contrary to this

Court’s decision in Virginia Railway v. System Fed. No.

40, 300 U.S. 515 (1937). Therein, this Court noted that

§ 2, First, aided by the amendment of the RLA adding

$2, Ninth (300 U.S. at 544), “imposes the affirmative

duty to treat with only the true representative, and hence

the negative duty to treat with no other”. (Id. at 548,

emphasis supplied.) The decision of the district court, as

affirmed, that Icahn’s written agreement with ALPA to

use “best efforts to achieve ... savings . . . [of] 20-to

22%” from IFFA (17a) did not breach its RLA obliga-

tion isa clear departure from Virginia Railway. The lower

court’s conclusion was reached despite its finding that the

ALPA-Icahn agreement was arguably against public pol-

icy by creating rigidity in TWA’s bargaining stance

[with IFFA] (5la). This rigidity, created by agreement

with others, is precisely what is condemned by the RLA.

Icahn committed to ALPA his best efforts to extract from

IFFA terms established in the ALPA-Icahn agreement.

TWA could hardly be said to have exerted “every rea-

sonable effort to reach agreement” with JF FA.

C. The Decisions Below Are Inconsistent With This

Court’s Decision In NLRB v. Transportation Man-

agement Corp. The Courts Below Failed To Im-

pose Upon TWA A Burden To Prove That, Despite

Its Proven Misconduct, It Did Not Breach § 2, First,

An Impasse Would Have Been Reached And A

Strike Would Have Occurred.

The courts’ failure to require TWA, by way of affirma-

tive defense, to prove that it would have taken its same

action in the absence of reasons unlawful under Title VII

has been sufficiently addressed. In addition, however, the

courts below failed to impose upon TWA a like burden in

connection with all the other numerous incidents of mis-

conduct found by the district court. The decisions below,

in the face of the court’s own findings of such misconduct

and TWA’s failure to prove otherwise, represent an un-

precedented departure from “burden of proof” principles

previously enunciated by this Court.

IFFA maintains that: the § 2, First requirement of

“every reasonable effort” is indeed higher than an obliga-

tion to “bargain collectively” or “bargain in good faith”;

the many instances of misconduct found by the district

court are, in and of themselves, definitionally inconsistent

with “every reasonable effort”; a violation of § 2, First

has therefore been established; and TWA has the burden,

by way of affirmative defense, to prove otherwise. At the

very least, however, “every reasonable effort” is a ques-

tion of intent, animus, or state of mind—as is “bargain-

ing collectively” or “bargaining in good faith” under the

NLRA. Even under this interpretation of “every reason-

able effort” as required by § 2, First, the lower court de-

cisions impermissibly immunize TWA from its required

burden of proof. In NLRB v. Transportation Manage-

ment Corp., supra, this Court held that where “a discharge

or other adverse action” (462 U.S. at 401, emphasis sup-

plied) has been shown to have been based in whole or in

part on anti-union animus, the employer bears the bur-

den, by way of affirmative defense, to show that it would

have acted in the same manner for wholly legitimate rea-

sons. Citing with approval the NLRB’s decision in Wright

Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899 (1st

Cir. 1981), cert. den., 455 U.S. 989 (1982):

It thus became clear, if it was not clear before, that

proof that the discharge would have occurred in any

event and for valid reasons amounted to an affirma-

tive defense on which the employer carried the burden

of proof by a preponderance of the evidence (462

U.S. at 400, emphasis supplied).

The failure to require TWA proof that its misconduct

did not cause impasse * and did not prompt the strike

formed the impermissible underpinnings for numerous

principles never before enunciated: e.g., bargaining mis-

conduct, bullying and devious behavior do not breach the

bargaining obligation because it is designed only toward

tricking or coercing the union into a bad bargain (28a) ;

and relevant information need not be provided in the ab-

sence of proof by the union that it would have yielded an

agreement (25a, 27a and 50a). Worse yet, assuming § 2,

First prohibits only surface bargaining, the failure to re-

quire TWA proof has resulted in a first-time departure

from universal precedent as to proof in a surface bargain-

ing case. It has long been accepted that, in contrast with

a per se case, surface bargaining requires consideration

of the totality of conduct in assessing the question of re-

quisite intent. See NLRB v. Billion Oldsmobile-Toyota,

700 F.2d 454 (8th Cir. 1983); NLRB v. Montgomery

Ward, 133 F.2d 676, 687 (9th Cir. 1943); NLRB v, Her-

man Sausage, 275 F.2d 229 (5th Cir. 1960). Surface

bargaining cannot be resolved on consideration of a single

factor. This is why analysis of the employer’s proposals

themselves cannot be considered as indicia of bad faith in

the absence of other factors and circumstances evidencing

bad faith. E.g., Queen Mary Restaurants v. NLRB, 560

F.2d 403, 411 (9th Cir. 1977); Wal-Lite Div. of US.

*2 As to the issue of strike causation, no lawful impasse can be

said to occur when the deadlock is caused, as obviously the case

herein, by one party's bad faith bargaining. United Packinghouse

Union v. NLRB, supra at 1131.

Gypsum v. NLRB, 484 F.2d 108, 111 (8th Cir. 1973).

Judicial authority on surface bargaining has been turned

inside out by the single-issue resolution of what is a

multi-issue “totality of conduct” case.

Until now, no court has rejected a surface bargaining

claim, in the face of numerous findings of bargaining mis-

conduct, on the basis of its analysis of the employer’s pro-

posals themselves. Ignoring its numerous findings of

TWA’s misconduct, the district court determined “the sole

cause of the impasse” to be the wide divergence in posi-

tions (28a); it therefore defined as “the basic factual

issues .. . whether TWA’s ultimate demands have [ez-

ceeded] reasonableness” (29a). It effectively disposed of

the case by resolving that issue in TWA’s favor (30a). If

let stand, this case represents a radical departure from

consistently applied judicial authority not only on the na-

ture of proof, but the very definition, of surface bar-

gaining.

CONCLUSION

The question is whether bad faith bargaining exists un-

der the RLA. If it does, it exists in this case. The writ of

certiorart should be granted to review the decision of the

Eighth Circuit.

Respectfully submitted,

WILLIAM A. JOLLEY

(Counsel of Record)

STEVEN A. FEHR

JOLLEY, WALSH, HAGER & GORDON

204 West Linwood Boulevard

Kansas City, Missouri 64111

On the Brief (816) 561-3755

Scott A. RAISHER Attorneys for Petitioner

JANAE L. SCHAEFFER Independent Federation

DALE L. INGRAM of Flight Attendants

APPENDICES

APPENDIX A

Opinion and Judgment of the

U.S. Court of Appeals for the Eighth Circuit

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-1984

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

an unincorporated labor organization; VALERIE COL-

LINS-COADY, MARGARET A. HARTZ, Cuky P. HARVEY,

BRUCE KENNETH PALMER, BEONCA ES LANDA RIST,

NANCY WRIGHT, individually and as a class; ELIZA-

BETH RICH-LOUKLELIS, individually and as a class;

and MICHAEL ALEX MCDERMOTT, individually and as a

class, Appellants,

TRANS WORLD AIRLINES, INC.; and THE TWA GROUP

BENEFITS PLAN for FLIGHT ATTENDANTS: CONNECTI-

CUT GENERAL LIFE INS. Co.; TOTAL HEALTH CARE:

N.J. STAFFORD, WILMA RIGHTER, CRAIG MUDGE,

Appellees.

Appeal from the United States District Court

for the Western District of Missouri

Submitted: April 12, 1989

Filed: June 28, 1989

Before FAGG, Circuit Judge, FLOYD R. GIBSON, and

TIMBERS,”* Senior Circuit Judges.

PER CURIAM.

The Independent Federation of Flight Attendants

(IFFA) brought this class action on behalf of its mem-

bers against Trans World Airlines, Inc. (TWA) seeking,

among other things, reinstatement, backpay, and other

benefits for former strikers. After lengthy proceedings on

this aspect of IFFA’s complaint, the district court issued

a comprehensive decision granting TWA’s motion under

Federal Rule of Civil Procedure 41(b) to dismiss this

claim at the close of IFFA’s evidence. See Independent

Fed’n of Flight Attendants v. Trans World Airlines, Inc.,

682 F. Supp. 1003, 1006 (W.D. Mo. 1988). IFFA ap-

peals, and we affirm.

Since 1978, IFFA has been the collective bargaining rep-

resentative for approximately 6000 TWA flight attend-

ants. Renegotiation of the parties’ collective bargaining

agreement began in 1981 and eventually proceeded under

supervision by the National Mediation Board (NMB).

The NMB released the parties from formal bargaining

in February 1986. IFFA filed this action seeking an in-

junction under the Railway Labor Act (RLA), 45 U.S.C.

§§ 151-188 (1982), to prevent TWA from implementing

its proposed wage and work rule changes. Continued ne-

gotiations eventually failed, and the flight attendants

went on strike. TWA operated in the interim with re-

placement workers. Two months later, IFFA offered to

return to work, unconditionally accepting TWA’s pro-

posals. TWA reinstated some, but not all, of the former

strikers.

*The HONORABLE WILLIAM H. TIMBERS, Senior United

States Circuit Judge for the Second Circuit Court of Appeals, sit-

ting by designation.

Legal questions in this case have twice before reached

our court and the United States Supreme Court. See

Independent Fed’n of Flight Attendants v. Trans World

Airlines, Inc., 819 F.2d 839 (8th Cir. 1987), rev’d, 109

S. Ct. 1225 (1989) (Court reviewing only effect of senior-

ity on striker reinstatement); Trans World Airlines,

Inc. v. Independent Fed’n of Flight Attendants, 809 F.2d

483 (8th Cir. 1987) (effect of strike on union security

clause), aff'd by an equally divided Court, 108 S. Ct. 1101

(1988) (per curiam). The present appeal comes to us

following thirty-one days of trial in which IFFA pre-

sented its evidence.

In broad terms, IFFA’s theory in the district court

was that TWA bargained in bad faith. IFFA claimed

TWA consequently failed to carry out its obligation un-

der the Railway Labor Act “to exert every reasonable

effort to make and maintain agreements concerning rates

of pay, rules, and working conditions, and to settle all

disputes,” 45 U.S.C. § 152 First. See Chicago & N.W.

Ry. v. United Transp. Union, 402 U.S. 570, 577, 581

(1971). IFFA made a number of specific allegations of

TWA’s bad-faith bargaining, including: failing to pro-

vide requested information concerning bargaining pro-

posals; dealing with a union other than the flight attend-

ants’ authorized bargaining representative; making im-

permissible agreements with flight attendant trainees be-

fore the strike; bargaining to impasse on a nonmandatory

subject of bargaining; adopting a negotiating posture

that showed bad faith, intent not to reach agreement,

and sexual discrimination; and maintaining that nego-

tiating posture in a manner that prolonged the strike.

IFFA further asserted that because TWA’s prohibited

conduct caused and ultimately prolonged the strike, IFFA

members were unfair labor practice—rather than eco-

nomic—strikers. See Mastro Plastics Corp. v. NLRB,

350 U.S. 270 (1956). On this basis, IFFA contended the

flight attendants were entitled to relief analogous to that

on a

available for unfair labor practice strikers under the

National Labor Relations Act (NLRA), 29 U.S.C. §§ 141-

188 (1982). TWA defended its negotiating conduct and,

in addition, argued that NLRA concepts relating to un-

fair labor practice strikes did not provide a source of

relief under the RLA.

After “attentively listen[ing] to the evidence and ora!

arguments * * * comprising some 7,000 pages of tran-

script and * * * immers[ing] itself in documents and

designations from depositions not read into evidence,”

Independent Fed’n of Flight Attendants, 682 F. Supp. at

1006, the district court rejected all of IFFA’s contentions.

In doing so, the court assumed without deciding that

NLRA principles concerning unfair labor practice strikes

applied to IFFA’s claim. See id. at 1022.

The district court’s decision contains several key de-

terminations. First, the court held the disparity between

the parties’ bargaining positions, and not missing or

misstated information, was the real barrier to agreement

and the sole cause of the strike. See id. at 1013-16, 1024-

25. In addition, the court ruled that economic considera-

tions, rather than sexual discrimination, were the cause

of the bargaining positions TWA took. See id. at 1010-

11, 1029-32. The court also held TWA did not engage in

sham or surface bargaining. See id. at 1016, 1029. Fi-

nally, the district court determined TWA’s general bar-

gaining tactics were not in bad faith, see id. at 1025-27,

and that its poststrike conduct did not prolong the strike,

id. at 1017. Based on these determinations, the district

court granted TWA’s rule 41(b) motion to dismiss and

denied IFFA’s claim for general reinstatement. Jd. at

1006.

IFFA’s arguments on appeal essentially express its

dissatisfaction with the district court’s decision to evalu-

ate the evidence in a manner that does not coincide with

its own. In considering a rule 41(b) motion in a bench

trial, however, the district court is entitled “to assess the

credibility of witnesses and the evidence and to determine

that the plaintiff has not made out a case.” Continental

Casualty Co. v. DLH Servs., Inc., 752 F.2d 358, 356 (8th

Cir. 1985). On review of a decision to grant the motion,

we “may not try the case de novo or pass on the credi-

bility of witnesses, but may only reverse the trial court’s

findings of fact if they are clearly erroneous.” Jd. (ital-

ics omitted).

Initially, we decline in this case to express a definitive

view of TWA’s contention that NLRA principles of relief

for unfair labor practice strikers are not available in

RLA proceedings. Like the district court, we instead as-

sume for purposes of reviewing this case that NLRA

concepts may be applied in these circumstances. On that

basis, we have carefully reviewed IFFA’s contentions in

light of the district court’s thorough decision, the record,

and the parties’ arguments. Having done so, we conclude

the district court’s decision rests on findings of fact that

are not clearly erroneous, and no reversible error other-

wise appears.

Thus, we affirm the district court’s decision granting

TWA’s rule 41(b) motion. We also deny TWA’s motion

to strike portions of the appendix IFFA filed in connec-

tion with this appeal.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

APPENDIX B

Order of the U.S. Court of Appeals for the

Eighth Circuit Denying Petition for Rehearing

and Suggestions for Rehearing En Banc

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-1984-WM

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS

an Unincorporated Labor Organization, et al.,

Appellants,

. vs.

TRANS WORLD AIRLINES, INC., et al.,

Appellees.

ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

Appellant, Independent Federation of Flight Atten-

dants’ suggestion for rehearing en banc has been con-

sidered by the court and is denied by reason of the lack

of a majority of the active judges voting to rehear the

case en banc.

Petition for rehearing by the panel is also denied.

August 16, 1989

Order Entered at the Direction of the Court:

/s/ Robert D. St. Vrain

Clerk, United States Court of Appeals, Eighth Circuit.

APPENDIX C

Revised Opinion and Judgment of the U.S. District Court

for the Western District of Missouri

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

ST. JOSEPH DIVISION

No. 86-6030-CV-SJ-6

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

an Unincorporated Labor Organization,

Plaixti ff,

Vv.

TRANS WORLD AIRLINES, INC., et al.,

Defendants.

REVISED OPINION*

[Filed Mar. 9, 1988)

This lawsuit was filed two years ago by the union rep-

resenting some 6,000 flight attendants (IFFA) then em-

ployed by the defendant airline (TWA). It sought an

injunction under the status quo provisions of the Railway

Labor Act (45 U.S.C. § 152, Seventh) against implemen-

tation by TWA of proposed wage reductions and adverse

changes in work rules. TWA was presumptively author-

* This opinion supersedes the memorandum filed March 3, 1988,

and contains minor revisions and corrections. The prior order

denying general reinstatement of full-term strikers remains in

effect, for purposes of determining appeal time.

ized to implement the changes, however, after March 6,

1986, the end of a cooling-off period scheduled by the

National Mediation Board at the conclusion of contract

negotiations. 45 U.S.C. § 155, First.

The court denied a temporary restraining order after

hearing presentations from counsel for the parties, and

urged the parties to attempt to resolve their differences

on the remaining day before the parties were planning

self-help. Such last minute settlements are not uncom-

mon; in this instance, however, there were apparently un-

bridgeable differences between the parties, particularly

regarding work rules governing the lifestyle of flight

attendants. Further attempts to negotiate an agreement

failed, and implementation by TWA, accompanied by a

flight attendants’ strike, occurred on March 7, 19886.

After a brief reduction in service, TWA was able to

maintain full operations by hiring an adequate number

of substitute flight attendants as permanent replacements

and by using crossover flight attendants. IFFA offered

unconditionally in mid-May to return to work under the

new conditions imposed by TWA. Fewer than 200 of

the full-term strikers were accepted back by TWA. Prac-

tically all of the pre-strike work force was displaced.'

Wages have been reduced by 22% (some $44 million),

and the total saving achieved by TWA may be roughly

estimated at $100 million annually.

1 TWA advises, however, that some 743 full-term strikers were

rehired from April-July 1987. This court has, moreover, ordered

TWA to reinstate some 463 full-term strikers, whose places were

filled by employees still in training school at the end of the strike.

The Court of Appeals has directed reinstatement of perhaps double

that number of full-term strikers having seniority over “junior

crossovers.” Persons interested in a full review of the background

of this case and related litigation should examine TWA v. JAM,

629 F.Supp. 1554 (W. D. Mo. 1986); TWA v. IF FA, 640 F.Supp.

1108 (W. D. Mo. 1986), affirmed 809 F.2d 483, cert. granted 107

S.Ct. 3183, affirmed by equally divided vote, March 2, 1988; and

IFFA v. TWA, 643 F.Supp. 470 (W. D. Mo. 1986), affirmed in

part, reversed in part ,819 F.2d 839, cert. pending.

The present case has been tried sporadically, as soon

as the parties were ready, from November 1986 to March

1987, on Count I of the Third Amended Complaint, filed

in mid-July 1986. Briefing and argument on TWA’s mo-

tion to dismiss at the end of plaintiff's proof extended into

September 1987. Although Count I contains some allega-

tions serving a dual purpose, and seeks some relief be-

yond a general reinstatement of full-term strikers, the

main thrust of the Count and of the trial deals with a

contention that the strikers were “unfair labor practice

strikers” who are entitled to return to their jobs after

the strike, displacing all replacements, and enjoying back

pay entitlement (at a rate that might be estimated at

perhaps $2 million per week) from the offer to return in

May 1986, by analogy to rules established under the Na-

tional Labor Relations Act. Bad faith in bargaining is

the general allegation.

At the conclusion of plaintiff IFFA’s presentation of its

evidence, defendant TWA moved for dismissal of the

claim, pursuant to Rule 41(b), Fed. R. Civ. P. Unlike

the appraisal made at that stage in a jury case, the

court’s duty is to evaluate the evidence presented with

the same critical analysis that would be made by the

ultimate trier of fact at the conclusion of the case. Lang

v. Cone, 542 F.2d 751 (8th Cir. 1976); Palmentere v.

Campbell, 344 F.2d 234, 237 (8th Cir. 1965); White In-

dustries v. Cessna Aircraft Co., 657 F.Supp. 687, 694

(W.D. Mo. 1986). For reasons stated below, TWA’s mo-

tion will be granted. IFFA’s claim for general reinstate-

ment will be denied.

I. FACTS

A. A general statement of factual findings, from the

evidence already adduced, will be set forth in this section

of the opinion, with the understanding, however, that

other factual statements made throughout the opinion are

deemed pertinent to the conclusions. The parties have

supplied over 800 pages of proposed findings and marra-

10a

tive statements and arguments concerning the facts, em-

phasizing their conflicting conclusions. This court has

attentively listened to the evidence and oral arguments

now comprising some 7,000 pages of transcript and has

immersed itself in documents and designations from dep-

ositions not read into evidence. It is deemed unnecessary

and inexpedient to further delay a ruling by articulating

comparable detailed discussions largely directed toward

rehearsing the negotiating postures and contentions of the

parties. To the extent the Court of Appeals may wish

to probe deeper into certain factual issues, the materials

supplied by the parties as proposed findings will be use-

ful as a guide or index to the evidence.

It is this court’s view that the great bulk of the ma-

terials would be most pertinent to an “interest arbitra-

tion” proceeding, in which a neutral party would make

a determination from all material supplied what appro-

priate changes should have been made in wages, fringe

benefits and work rules. While not irrelevant to a deci-

sion on the reasonableness of bargaining positions and

tactics and the ultimate issue of intent_to enter into a

new collective bargaining agreement, it is believed that

a summary review will suffice for present purposes.

While there were of course different ways to try this case

I am not critical of the parties for presenting so much

detail, given the importance of the result. Another month

of trial time could be foreseen, if TWA were to fully de-

velop its defenses.

IFFA has been the exclusive bargaining representative

of TWA flight attendants since April 1977. Other unions

represented the flight attendants since the 1940s. The

first IFFA-TWA contract was signed in October 1978.

The first agreement was subject to amendment beginning

in 1981, but negotiations continued into 1983, when the

parties agreed on a 31% wage increase over three years,

retroactive for two years. The printed replacement con-

tract, referred to in litigation as the “Red Book,” is the

lla

latest completed contract between the parties. It was

scheduled to remain in effect at least until July 31, 1984

(generally referred to by the parties as the ‘“amendable

date’’).

TWA sought mid-term concessions valued at $33 mil-

lion but the parties were unable to reach agreement.

Bargaining on Red Book changes began after TWA

served a notice of intended changes in February 1984.

From the beginning of negotiations TWA made known

that it was seeking work rules changes that would create

a “new life-style” for its flight attendants; it also initi-

ally sought salary concessions.

IFFA counsel Jolley prepared a memorandum to his

clients sugesting negotiating strategy, acknowledging that

concessionary bargaining by IFFA would be the major

subject matter of negotiations and stating that IFFA’s

posture should be one of “close and cautious scrutiny.”

He urged IFFA to adopt a stance of “cautious willing-

ness to listen and entertain, but which places the burden

of persuasion on TWA.” He noted the possibility that

“at some point [IFFA may] be forced to file a lawsuit to

compel TWA to provide us with . . . necessary and rele-

vant information.” IFFA’s president, Victoria Franko-

vich, is the only member of the negotiating committee who

seems to have personally reviewed the Jolley memoran-

dum.

IFFA’s general goal was to postpone adverse changes

in the contract for as long as possible, and to obtain some

improvements in the agreement. It was generally sup-

posed that “time is on our side” (Exh. 22, p. 060337)

since the contract was considered to be favorable and

TWA’s economic prospects were believed by IFFA to be

improving.

Having failed to obtain mid-term concessions, TWA’s

initial bargaining technique in early 1984, under the im-

12a

mediate direction of its chief negotiator, J. W. Hoar, was

designed to hurry the process toward agreement by July

31, 1984. TWA at that time had a maximum objective

or ‘wish list” of changes in work rules and wages that

would result in a 25% reduction in flight attendant costs

for an annual saving of some $64 million.

During April 1984, IFFA sent a questionnaire to its

members itemizing TWA proposals for work rules

changes and obtained results showing widespread opposi-

tion to such changes. In the early negotiations IFFA con-

tinuously sought detailed explanations of the proposed

changes and generally received responsive replies in oper-

ational terms but frequent resistance from Hoar to ques-

tions seeking financial and economic estimates and de-

tails. For example, on one occasion the candid notes of

TWA negotiating team member Murphy (acknowledged

to be careful and legible, Doc. 218, n.29) reflect Hoar’s

statement: “I do not intend to get into what relationship

one proposal has on the other, or what each individual

proposal will yield what $ savings or headcount. Recall

in the past, this exercise led to wrong conclusions. These

approx. figures are subject to changes. We will give you

no more figures than that [referring to an $8 million

insurance cost].” Exh. 22, pp. 060046-7. In another ex-

change typical of the early negotiations, Hoar said,

“Xcept IAM, whom we intend to ask, all other groups

have given.” Frankovich asked, “By 25%?” Hoar re-

plied, ‘“U are seeking an issue for PR to F/As.” Id., pp.

060058-9.

On May 8, 1984, Hoar stated that because the positions

of the parties were so divergent, TWA had applied for

mediation. A mediator was appointed in July.

In June 1984, TWA’s president C.E. Meyer, Jr., made

a presentation to the negotiating committee, tending to

show that TWA had suffered an operating loss of $72

million in the first quarter of 1984, placing it ‘dead

last” among major carriers. He also presented informa-

13a

tion tending to show that TWA’s flight attendant costs

were the highest in the industry and over 23% above the

industry average for the major airlines, a dollar value

of some $44.2 million annually. While IFFA continues

to question this and other economic data supplied by TWA

(Exh. 78, a handout on 7/19/84) it has not presented

contrary materials on these points or anything to dispute

TWA’s good faith belief in the Meyer presentation.’

Meyer also stated that between 1978 and 1984 TWA’s

total flight attendant pay and benefits annual cost per em-

ployee increased from about $20,000 to $44,000, or 120%,

during a period when pilot costs had increased by 49%

and mechanic costs had increased by 79%. Without con-

ceding or disproving the accuracy of these points, IFFA

contends that the comparisons are irrelevant in that

flight attendant benefits lagged behind the other groups

prior to 1978. A TWA publication in April 1984, re-

porting these figures (not shown to have been protested

by IFFA) acknowledged that “it might be said with

some justification that some have moved faster because

they felt they had farther to go.” Exh. 69.

There was no significant progress in negotiations until

early 1985. Based in part upon TWA’s profit of $30

million for 1984 a management decision was made to “go

for a deal” by significantly reducing demands. A new

comprehensive proposal was presented on February 22,

1985. Apparent leadership in this major move was pro-

vided by then-executive vice presiden’ Richard D. Pear-

son who became president later in 1985 but began losing

2 An IFFA consultant reported to it in August 1984, that avail-

able comparative figures showed TWA’s international flight at-

tendant costs were 349% above the industry average and domestic

costs were 21% higher. Exh. K at 2. The figures disregard People

Express and Southwest. Jd. at 4. While there are reasons to ques-

tion the industry figures, nothing better is available.

14a

influence as Carl Icahn’s ownership interest strengthened

during 1985,.*-

The proposal by TWA in February 1985 reduced the

value of its demands by approximately one-half. The

new proposal completely eliminated a demand for a 16%

wage reduction (worth approximately $32 million an-

nually without considering fringe benefits) and deleted

some 17 proposals for work rule, fringe benefit and con-

tract changes. Pearson “felt” that the proposal went

“about as far as we can go” and told Frankovich it should

serve as a “framework” for an agreement. Some TWA

officials believed the reduction in its demands went too

far; Pearson defends the reduction and characterizes

some of the withdrawn demands as “very harsh” and

probably beyond the range of demands that IFFA repre-

sentatives could agree to and obtain membership ap-

proval.

IFFA did not react favorably to the greatly moderated

demands by TWA. During the final month of negotia-

tions in the spring of 1985, IFFA representatives made

minimal requests for further information. The last spe-

3 Pearson is a significant actor in this litigation. Evaluation of

his testimony is elusive. IFFA introduced his post-employment

deposition and apparently relies on some of his appraising com-

ments as admissions. He left TWA’s employ some months after

the Icahn takeover and seems to have had no significant role during

the critical period in 1986. Differences of opinion and judgment

within TWA’s management are obvious, and Pearson now has at

least a psychological incentive to defend the comparatively generous

position of TWA negotiators in early 1985. TWA questions his

experience in flight attendant work rule issues. While there is no

reason to doubt the general credibility of his testimony, some self-

serving emotional bias doubtless affects his commentary during the

deposition testimony. Comments during his tenure with TWA in

private discussions with IFFA representatives should also be some-

what discounted in that there was apparent role-playing between

Hoar as the hard-liner and Pearson as a moderator. Pearson’s gen-

eral moderation in 1985 seems to have had some influence in causing

IFFA to miscalculate TWA’s “bottom line” demand in 1986.

15a

cific and generalized requests seem to have been on April

11. Exh. 22, pp. 060442, 060447-455. Instead, IFFA stood

firm in resisting TWA’s proposals. Revealing statements

made during this period included the following: ‘The

changes you are demanding will not be accepted by our

work force.” Exh. 22, p. 060474. “We like what we have

and we want to keep it.” Jd., p. 060461. “As TWA rises

in the industry, the need to grant concessions will become

more difficult. You have previously rejected, by design/

miscalculation our previous offers.” Id., p. 060465. Re-

sponding to one of the more important proposals, regard-

ing “Flex Cap” (scheduling and overtime flexibility),

when TWA argued that an IFFA counter-proposal was

addressed to domestic flights only, whereas TWA claimed

it had demonstrated inefficiencies in international flights,

IFFA responded, “We did not want to move at all. We

moved on Domestic even though we did not want to do

so. Those are our answers.” I/d., p. 060460. Previously

the statement was made, “We think Intl is fine the way it

is. Int] FAs like it.” Jd.

The negotiating stance of IFFA during the last month

of bargaining in early 1985 is reminiscent of Hoar’s

brusque disregard of IFFA’s concerns in early 1984. De-

spite the apparent deadlock, Pearson believed the parties

had reached “manageable” differences where persuasion

by the mediator might bring about an agreement, pre-

sumably within the “framework” of TWA’s February

proposals.

IFFA sought release from further negotiations in May

1985. Such a release by the National Mediation Board

would have started a 30-day countdown and the possibil-

ity of a strike during the summer season of 1985, the

“best possible time” to exert pressure on TWA because

of its dependence on profitable overseas travel. Such a

contingency had been forecast by Frankovich in March.

In May 1985, IFFA sought and received from its mem-

bers “overwhelming authorization to strike.”

16a

Simultaneously with the request for a release from ne-

gotiations, IFFA prepared and sent to TWA a lengthy

request for detailed financial information about TWA’s

proposals. Exh, 131. The negotiation record of the pre-

vious month makes it entirely unlikely that IFFA was

urgently or primarily concerned in late May 1985 with

obtaining information. There is no specific evidence that

IFFA had been communicating with Meyer or Pearson

or the mediator to make good on earlier pledges that

Hoar would provide requested information. At least one

_major motivation for the blanket request seems to have

been the creation of a record for possible litigation (if

the release was not timely granted) or exertion of some

presures or legal worries during a countdown. This find-

ing does not deal with the legitimacy of the various re-

quests, but has a bearing on the issue of causation of the

March 1986 strike.

In May 1985 United Airlines pilots struck. In the same

month, Carl Icahn made a bid for TWA. Apparently

recognizing that those events rendered a release inadvis-

able, the NMB merely recessed talks. Talks were not

resumed until December. One of the three best prospects

for settlement was thereby missed.*

B. The next period of negotiations began with confer-

ences with Carl Ichan, a private individual, for whose

conduct from June through September 1985, TWA is not

legally responsible. The course of negotiations is impor-

tant, however, in appraising the renewed sessions with

TWA officials in December 1985 and thereafter, after

Icahn became the controlling stockholder in TWA.

Takeover attempts began in May 1985. Separate at-

tempts were made by Icahn and Frank Lorenzo of Texas

Air, whose takeover of Continental Airlines and subse-

4 As will appear, in retrospect the other opportunities were in

August 1985 (negotiations with Icahn) and December 1985 (using

Pearson’s remaining influence).

ae tl Odes

17a

quent avoidance of collective bargaining agreements

through use of the bankruptcy laws had made him notor-

ious with airline unions. After some false starts, the

three major unions, ALPA, IAM and IFFA, began to

deal with, Icahn as a prospective “white knight.” At a

meeting in June, Icahn told the unions that he needed a

20% reduction in labor costs, then considered to be ap-

proaching $1.5 billion, in order to attract lenders needed

for his acquisition of stock; he also urged a speedy reso-

lution (apparently so that his plans would not be endan-

gered by stock market fluctuations). Icahn asked a 20%

reduction from each of the unions. While initially speak-

ing of labor costs comprehensively, to achieve a saving of

$300 million, he clarified his request to concessions in

wages and benefits, saying he did not understand work

rules and productivity issues.

ALPA, representing pilots, agreed immediately, and

was later persuaded to accept a 26% reduction. The

average pilot wages amounted to $90,000. The wage sac-

rifice by pilots would thus have averaged some $23,000.

In order to obtain ALPA agreement, Icahn agreed con-

tractually to use his “best efforts” to obtain 20-22% con-

cessions from others.

IAM was initially opposed to any concessions, but after

negotiations with IAM representative Peterpaul, Icahn

came to believe on Friday, August 2, 1985, that he could

reach agreement on a 15% concession that weekend.

IFFA negotiations were scheduled to occur last. Icahn

called Frankovich on August 2, however, and urged that

she remain available for weekend negotiations that he

hoped would complete contract commitments from the

three unions and permit him to move immediately to com-

plete stock purchases assuring him of control of TWA.

Frankovich had remained in New York on several oc-

casions in July without being invited into negotiations

(except for one evening session of informal] visiting which

she declined because she would be “outnumbered’’). She

18a

was scheduled to be hostess at a class reunion party in

California on Saturday night, the 3rd, but told Icahn she

or other IFFA representatives could be available during

the weekend. The matter was not thereafter pursued

by either party. A meeting later Friday with Icahn was

scheduled and held; this was the first individual bargain-

ing meeting between Icahn and IFFA representatives.

Icahn asked IFFA to agree to the 20% reduction pre-

viously sought; IFFA insisted it would not go beyond the

15% that Icahn expected from IAM. Arguments turned

bitter over the question whether IFFA was entitled to

parity with IAM. Generally accepting for this ruling

the firm trial testimony of Frankovich, insofar as it de-

parts from the deposition testimony of Icahn, which seems

somewhat unsure as to exact dates and statements, and

at one point in phrasing seems calculated, Icahn made

various arguments: (1) the mechanics were a “skilled

work force”; (2) the mechanics’ pay was “competitive

with the industry”; (3) IFFA had enjoyed disparate in-

creases, as compared with IAM; (4) Frankovich was

“missing the point” in that Icahn was talking about the

marketplace and “I can get people to do your job for a

lot less than you want. . . See that girl on the street out

there? That is a stewardess”; (5) responding to Frank-

ovich’s statement that janitors were in the IAM bargain-

ing unit, “A janitor is a breadwinner [who] probably

has got a family at home to support [while] you girls

are second incomes and you don’t need the money”; and

(6) after vehement argument, “Well, what are you to do

about it? Are you going to blow up the airplanes? Are

you going to burn down the airline?” Tr. 3943-8.

Accepting for this motion the essential soundness of the

Frankovich testimony, it is concluded that Icahn’s basic

points were that “the marketplace” put flight attendants

in a weak position because they could be replaced in-

expensively and he did not believe the flight attendants

were capable of stopping airline operations and thereby

19a

imposing noncompetitive salaries. In discussing the legal

issues additional factual observations will be made but it

is concluded that points (4) and- (6) were reasons or

suppositions that would be and were controlling in con-

ventional economic terms. The rhetoric that miscarried

was a clumsy effort to persuade that degenerated into

wise-cracks.

A calculating businesman is quite unlikely to adjust

middle income wages to the “needs” of his workers, al-

though he may try to persuade them to accept his pro-

posals by contending they do not need any more than is

proposed. Icahn’s subsequent inquiries and comments

about the “breadwinner” issue during the months ahead

simply show he was brooding over the debating point

that boomeranged. When his terminology became con-

troversial, weeks and months before the strike, he was

well aware that many or most flight attendarts were pri-

mary breadwinners.

An agreement with IAM was completed over the week-

end and Icahn bought stock on Monday, in reliance on the

two agreements. This is a further indication that Icahn

concluded he could afford to gamble with IFFA but that

the pilots and mechanics were necessary to his prospects.

On Tuesday he met with Frankovich and again was un-

able to reach agreement although they were tantilizingly

close. Frankovich offered a 17% concession at a time

when Icahn was still willing to agree on 20%, and Icahn

testified credibly that he thought perhaps on Sunday IAM

might have agreed to 17%, thus making the IFFA offer

compatible with his perceived needs that day. In light

of the pilots’ offer of 26%, he could afford to yield 3% to

both IAM and IFFA and still achieve his goal. It is

speculative, however, what would have occurred if there

had been joint or concurrent sessions on Sunday, just as

it is speculative (looking forward to December) whether

Pearson could have struck a bargain at 20%, despite re-

luctance at that time by Ichan, if such a proposal had

been pushed by IFFA.

20a

After Icahn’s stock ownership gave him effective con-

trol over labor contracts, he learned that TWA still had

a pending proposal for work rules changes but a pay

pause. This being inconsistent with his individual bar-

gaining, he directed that the pending proposal be with-

drawn, as it was in October, and that new proposal be

made which would contain both a reduction in wages and

work rules changes. The new proposal, made in Decem-

ber, effectively restarted negotiations by demanding con-

cessions that more than doubled the demands made by

Icahn in June and by TWA in May.

My best appraisal of the causes of the major increase

in TWA demands from IF FA would be (1) a personality

and experience difference tending to produce bold, nearly

reckless moves by Icahn and more moderate, accommodat-

ing and conventional proposals by Pearson, (2) sharply

adverse business conditions at TWA, personally felt by

Icahn in his financing opportunities, which allowed him

to assert material adverse changes to renegotiate his pur-

chase offer to minority stockholders and probably caused

new concerns about TWA’s future and the value of his

investment; and (3) awarenes that IFFA had become

contractually isolated from potential allies and was per-

ceived to have little economic clout. The more diabolical

alternatives of Icahn’s sexist bias or his desire for a

confrontation and strike seem quite unlikely, as a matter

of common experience and in the factual context dis-

cussed here and subsequently.

According to Icahn deposition testimony, designated

and not contradicted (pp. 262-3), “the projections were

coming in way, way off what we thought and we weren't

able to raise the money through Paine Webber. Every-

thing that hit the industry was hitting it. I was looking

at the number and saying, my God, I should have asked

for a lot more from the pilots and IAM, but I had deals

with them ... When I got into the company we had the

bombing at the airport, the fare wars were going on, the

2la

projections were coming in eight or ten times over. The

loss was eight or ten times over what we thought it was

going to be.” Projections for the fourth quarter loss in

1985 increased from $12 million to $120 million. Dep.

pp. 222-3, 262. The anticipated profit for the year ($50

million—Exh, 22, p. 060477) had turned into a loss ex-

pected to exceed $125 million. A later calculation of the

1985 loss was $193 million. Exh. 288. Cash reserves fell

from $400 million in April 1985 to $50 million by De-

cember. While many of the losses were not likely to

recur in 1986 and later years, terrorism and fare wars

could easily be recurring problems. Presumably without

taking into account such unpredictable factors, a 1986

profit of $225 million was forecast. This assumed $200

million in increased revenues.

While TWA had traditionally compared itself with cer-

tain major airlines (Pan Am, Northwest, Eastern,

United—Pearson Depo. 126), Continental and People Ex-

press were becoming formidable competition for TWA.

Tr. 2226, 1646-7. There is no reason to believe that Icahn

expected that high cost, high fare routes would be safe

from low cost discounters, or that he desired to keep

TWA in its traditional mode.

The December 2, 1985, comprehensive proposal by

TWA (Exh. 48) sought a 22% reduction in pay, major

changes in work rules and other cost-reduction items.

Most of the work rule proposals of February 1984 were

reintroduced, but there were some modifications, including

several IFFA proposals. Hoar valued the changes at $88

million annually; Icahn made an estimate of $110 million.

TWA told the negotiators that Icahn had achieved $200-

220 million out of a $300 million objective in reduced

labor costs from all sources. Exh. 22, pp. 060478-9. That

calculation would require picking up an additional $80-

100 million from IFFA. TWA internal documents gen-

erally show comparable valuations. See Exh. 529, with a

few different estimated values, proposing $90 million in

22a

flight attendant savings, and Exh. FFF, the apparent

source of the negotiation estimates. Frankovich in a Feb-

ruary pre-strike “road show” presentation, said it is

“pretty obvious” where the differences yielding $110 mil-

lion come from, correctly noting that a crew complement

proposal was not given a bargaining table value by TWA.

Exh. 512, p. 5. Her trial testimony suggested that Icahn

may have treated the unvalued B-scale provision as a

source of predictable savings.

Hoar supplied a breakdown per item of the company

proposal. Exh. 22, pp. 060495-6. He failed to mention

two overtime savings estimates on Flex Cap and Bidding;

adding the disclosed items together would show omissions

and apparent error in that the totals would not reach $88

million otherwise. IFFA was aware that significant over-

time savings were anticipated from the two proposals in

question. Tr. 3658-9.

Frankovich also told flight attendants that there was

more than the disclosed $80,000 saving in having them

“doing ticket agent job in terminal.” Exh. 512, p. 5.

Exh. 529, an internal document, does show a saving of

$2.5 million for tieket lift. Another internal document

(Exh. FFF) estimates only $80,000, however, TWA offi-

cial Borden testified that the larger sum did not represent

a saving, but an avoidance of additional cost of hiring

more passenger agents. Borden Depo., pp. 161-2. While

it might be expected that TWA would give some credit

for additional flight attendant work likely to avoid some

future expenses, it would not misrepresent the facts to

say that TWA did not expect the proposal to reduce cur-

rent costs. This was similar to the TWA handling of B-

scale salaries for new hires, potentially probably a more

significant matter.

The saving on TWA’s proposal to move flight attend-

ants to less valuable rest seats was variously estimated

at $1 million and $3.5 million in internal documents.

ee. a

23a

Exhs. FFF, 529. While it might be supposed that TWA

could have made more accurate and consistent estimates,

such a conclusion is a supposition only and pretrial dis-

covery has not established lack of good faith in making

these estimates. It is apparent from inconsistencies in

TWA’s own internal figures that placing dollar values on

predictions is an inexact science, as those who follow Fed-

eral deficit predictions should already be aware.

From early December until March, after release of the

parties from formal bargaining, there was no dramatic

change in bargaining positions of either side. Most of

the significant activity was in private sessions. Franko-

vich did not appear at the bargaining table during this

period, but was engaged in several private discussions

with Pearson and Icahn and, in February, in addressing

flight attendants to rally them for an anticipated strike.

IFFA’s posture with its members and at the bargaining

table was to show “anger and determination . . . STEAD-

FAST RESISTANCE.” Its spokesperson at the table did

acknowledge that “IFFA, recognizes TWA’s difficulties.

We see satellites as a significant area where you can be

helped.” Exh. 22, p. 060500. At a later date it was esti-

mated by IFFA that a statellite program would be worth

$4-5 million. Exh. 22, p. 060553, Tr. 2046. IFFA’s com-

missioned study of satellites (accommodations to residen-

tial disbursement of crew members) had already shown

they would provide little economic relief to TWA. Exhs.

WW, XX. Hoar’s conduct at the bargaining table was

at least equally unhelpful, and apparently often abrasive.

Frankovich and attorney Jolley met with Pearson, still

TWA’s president, in December, before and after meeting

with Icahn. Pearson suggested that IFFA would have to

grant TWA concessions of at least 20% in order to ob-

tain an agreement. Frankovich expressed interest in that

figure (3% more than her highest offer to Icahn in Au-

gust), and Pearson may have said he had “half a mind”

to see what he could do with the TWA board of directors.

24a

Vol. II, Pearson Depo., p. 37. Neither side made a definite

offer, and Pearson implicitly acknowledged he might not

be able to persuade Icahn or a majority of the Board that

such a settlement should occur. He told the IFFA repre-

sentatives that he had a “limited life expectancy” with

TWA. Neither party pursued the concept. It is unclear

whether the discussion related to a percentage of wages

or total costs.

After a preliminary meeting in January between Jolley

and Hoar at which it appeared that the parties were very

far apart,® Frankovich and Icahn met under the auspices

of the NMB on January 22 and 23, 1986, at a time when

the NMB was considering releasing the parties for self-

help. IFFA made another proposal for a temporary 15%

reduction in wages and a B-scaie (new hire) proposal

somewhat above the rate TWA proposed to use.® This

was rejected by TWA, and the NMB notified the parties

on February 4, 1986, of their release from formal bar-

gaining, thus beginning a 30-day countdown before self-

help would be authorized. Exh. 151.

By letter dated January 30, 1986, IFFA asserted that

it had received inadequate information from TWA in ne-

gotiations on December 4, 1985, almost eight weeks ear-

lier, and requested data on the flight attendant, mechanic

and pilot work forces, concessions made by the IAM and

5 Hoar confirmed his pessimism in an internal note dated Febru-

ary 10, 1986, stating he had agreed to a bargaining committee

meeting “for political/lezal reasons” but that “it is too early in

the cooling off period” to have “high expectations.” The letter does

implicitly indicate some hope for a settlement later in the count-

down. Exh. 292.

6It may be noted, however, that although the “average head

cost” of experienced flight attendants was calculated at $41,785

annually (Exh. 529) IFFA had no serious quarrel with a B-scale

for new hires at about $1,000 per month. Exh. 49, p. 3. Frankovich

recognized that figure as the market rate at which people could be

hired. Tr. 4634. The starting monthly salary under a 1985 Pan Am

contract was $784. Exh. Z, p. 18.

25a

ALPA, and detailed cost information on each TWA pro-

posal, separately presented by subpart. It also asked for

an explanation of all calculations made in valuing the

proposed savings. Exh. 50. A preliminary response was

made by TWA on February 4. Exh. 151. Further re-

sponses were made at a meeting on February 13. Exh.

22, pp. 060523-7. An additional written response was

made on February 24, 1986. Exh. 140.

TWA declined at that time to supply information about

other work groups. This was unreasonable, as the parties

had continuously discussed issues relating to other work

groups, either as an accommodation or to advance some

argument. While no such argument is controlling, some

are of considerable significance; for example, TWA’s trial

contention that it was generally seeking work rules no

more onerous than had been agreed to by the pilots, the

other members of a flight crew.’

Basic financial estimates regarding the TWA proposals

have generally been supplied. To the extent details, cal-

culations and breakdowns on the proposals and counter-

proposals were available and were not supplied, such ma-

terials and theories have been explored after filing of

litigation in March 1986. Such information has led to

some further quarrels between the parties, but their

potential for shaping an agreement between the parties

has not been demonstrated or asserted by IFFA, except

in the abstract.

Hoar testified in designated portions of his deposition

that Jolley told him, in their meeting in January 1986,

not to be “concerned about the numbers.” Hoar Depo.,

7 There is no reason to believe, however, that IF FA lacked access

to ALPA agreements or could not learn from pilots the work rules

under which they operated and the success of such operations.

Frankovich viewed such an argument as degrading to flight at-

tendants, because of other pilot benefits, but stated that at one

time IFFA did not resist arguments for conforming to the pilots’

work rules. Tr. 5198.

26a

pp. 611, 615-6. Apparently Jolley was referring to the

details, not the general parameters of an agreement.

While Jolley had not known authority to waive IFFA

demands for information, the testimony tends to confirm

that the issue of missing information was not the real

impediment to agreement. —

While Frankovich was aware, from the Jolley memo-

randum, that a claim of denial of information could lead

to litigation, and would thus be helpful to IFFA, and she

referred to such denial in her February 1986 “road show”

presentation (Exh. 512, p. 1), the reference was confined

to the first period of negotiations ending in May of 1985

and not to the period after valuations were given for the

December 1985 proposals. The 15 page outline of her

presentation contains a considerable array of knowledge

and contentions about the pertinent numbers, as of Feb-

ruary 1986.

A mediator designated by the NMB attended almost

every bargaining session where requests for information

were made. A primary function of a mediator in assist-

ing parties to reach agreement would normally be to ob-

tain appropriate information that may lead to agree-

ments. Tr. 4378. Unless TWA simply did not wish to

reach an agreement (a matter considered below) and thus

rejected appeals from the mediator in the confidential

sessions, any failure to supply information would indicate

(1) nonexistence of hard figures or (2) lack of insistence

from the mediator, on the theory that the parties were

too far apart in their concepts to make economic details

meaningful.®

8 On March 1, 1986, the mediator stated that “The Co. has pro-

vided answers (numbers) to Union Qs. I suggest any outstanding/

follow-up Qs be dealt with now. Does the Union have Qs.” Franko-

vich responded thai she would like to “start at the beginning.” The

mediator urged her to “keep to the substantial ones.” Exh. 22,

p. 060534. After an hour’s recess, IFFA listed and the parties

summarily discussed 21 topics. /bid., pp. 060534-44. After a brief

SN ence

27a

Trial testimony confirms that no informational dis-

closures obtained through discovery could have materially

affected the negotiations, if known earlier. There was no

convincing response to questions from the bench seeking

identification of problem areas where more information

could have broken the deadlock. See, e.g., Tr. 4458, et seq.,

4758-9. A list of TWA priorities, for example, seems not

to have existed. Dollar values assigned by TWA would

show how concessions tempting to TWA might be struc-

tured. No information sought from TWA could likely

result in flight attendants accepting the work rules con-

cessions that would have filled the chasm between TWA’s

evaluation of IFFA’s best offer on March 6, and the

minimum sought by Icahn. No financial information or

calculations could have persuaded the flight attendants to

increase their offer by $20, $30 or 40 million. Tr. 4338-

40.

One of the matters that aggravated relations between

the parties in February 1986 was a statement in a widely

publicized letter to employees signed by both Icahn and

Pearson asserting that flight attendants had received

grossly disproportionate increases from 1981-1986 (40.1%

for IFFA as against 11.6% for IAM). Exh. 279-A. This

serious miscalculation was privately acknowledged (Exh.

140 and 302), but there was no public retraction. This

blunder permitted Frankovich to call TWA’s “lie” (Exh.

512, p. 10) ard to assert at IFFA rallies, “you know both

the IAM and IFFA got the same increases in the last

negotiations.” Icahn was depicted in an IFFA pamphlet

with a Pinocchio nose. Apparently TWA could, in good

meeting with the parties the mediator simply asked for new pro-

posals. Ibid., p. 060545. While a review of the discussion does not

show it to be a model of good bargaining it is quite unlikely that

substantial follow-up questions that could make ocr break the suc-

cess of negotiations would have been allowed, either by the mediator

or IFFA, to drift unanswered into the final hours of the count-

down. It is further noted that there is no record of post-strike

requests for financial information in bargaining sessions, and no

such requests have been made to the court.

28a

faith, have used the Meyer material, covering a longer

period, or referred to its earlier publication (Exh. 69),

to contend without denial that IFFA had indeed obtained

increases exceeding IAM’s rising costs by some 50%,

albeit IFFA was then coming up from a lower base.

There is an inherent tension betwen the two major

IFFA theories, lack of information (including misinfor-

mation) and excessiveness of TWA’s demands. If TWA

~ simply wanted too much, the details of what it wanted

would not have much significance. The trial testimony

comes considerably closer to establishing the assertion of

excessive demands than the theory that failure to supply

information possessed by TWA was a cause of the ulti-

mate impasse. One of the credibility strengths of the _

Frankovich testimony, for example, was her method of

resolving this tension. In tonality throughout, and also

in words, she spoke much more forcefully in charging ex-

cessive demands rather than lack of information as the

ultimate cause of the strike. Tr. 4514.

The various claims of misconduct in bargaining by

TWA prior to the strike, apart from the issue of excessive

demands, may, for purposes of ruling TWA’s motion, be

generally accepted; they fall short, however, of even

plausibly being a cause of the impasse. Even assuming

there were numerous instances of bullying and occasional

devious behavior by TWA bargainers and supporting

staff, such misconduct would have been directed toward

tricking or coercing IFFA into making a bad bargain.

It must be emphasized, in fairness, that the court has

not heard a developed defense by TWA and any impres-

sions would necessarily be formed from hearing only part

of the story. But taking matters at their worst, IFFA

was not in fact trapped or pushed into making a bad

bargain, and did not strike because of frustration at the

bargaining table. It plainly appears from the record that

the sole cause of the impasse was the wide divergence

between the demands of TWA (Icahn) and the more

29a

modest concessions proposed by IFFA. This being the

case, the basic factual issues are whether TWA’s ultimate

demands have been shown to be beyond the range of rea-

sonableness and/or designed to force a strike rather than

to reach agreement.

Again it seems unprofitable to detail each move in the

final days of the countdown. Icahn concluded that IFFA

had moved toward his objectives only marginally, and

Bryner, upon whom he was relying for details in the

final hours of negotiations, placed a value of $39 or $40

million on IFFA’s best offer. Bryner Depo., p. 71. This

was some $33 million less than Bryner’s understanding

of Icahn’s bottom line demand. Bryner Depo., p. 74.

Icahn’s estimate of the gap was from “about $50 mil-

lion,” his recollection of his valuation of IFFA’s best of-

fer, and “maybe even $78 million,” his estimate of what

it would take for a settlement. Icahn Depo., pp. 360, 365.

Thus Icahn thought the parties would have been at least

$28 million apart, if he had reached his minimum figure.

Hoar said the gap in actual negotiations was $40 mil-

lion. Tr. 4058.

The principal move on the last day of negotiation was

Ieahn’s. He stated willingness to reduce the pay con-

cession by 5%, to 17% (the figure Frankovich had

reached in August), to drop a demand to eliminate com-

pany payments to union representatives, and he made a

general proposal, in exchange for Flex Cap, that “we

won’t slash anyone.” Tr. 2078-9, 4030. Frankovich has

the most detailed version of discussions on the latter

point, and recollects that she asked if Icahn was pro-

posing a no-furlough agreement, to which he replied,

“not the kind you mean.” Tr. 4030-1. TWA contends

that if Frankovich is believed the reference by Icahn

would have been to IFFA’s “scope” proposal, which con-

tained the most current “job security” reference, but also

other provisions. Exh. 49 at 4. IFFA contends Icahn

did not mean a “no furlough” provision, such as it pro-

30a

posed later in the day. But rejection of the later package

does not show disagreement with some variety of ‘no

furlough” provision in exchange for agreement on Flex

Cap. The parties did not pursue the matter. While it

cannot be concluded that Icahn casually made a “price-

less” proposal, as TWA contends, it will not be inferred

that the statement lacked substance.

It cannot be concluded that TWA’s bargaining demands

were so grossly excessive that they exceeded the wide

range of reasonableness, unless, as will be discussed in

the legal portion of the brief, unlikelihood of IFFA’s ac-

ceptance means that TWA was legally obligated to trim

its demand. While the wage concession sought on March

6 was several points more than IAM had yielded, the

reasons for this differential have been discussed. Dis-

regarding Icahn’s rhetorical flourishes on August 2, he

had a right to believe and apparently did believe that the

marketplace would supply substitutes for IFFA members

at much less cost, that IFFA did not have the power to

force noncompetitive wages on TWA, and that IFFA com-

pensation increases had considerably outstripped those of

a stronger union, IAM (at least during the period re-

ferred to in the Meyer presentation).

The IFFA members have a right to pride in their long

service to TWA and their professionalism, which is prob-

ably not appreciated by the public. They view their re-

sponsibilities for passenger safety as their prime func-

tion. This mandates their presence on the aircraft and

allows them to perform incidental duties that are more

familiar to passengers. Tr. 4411. It was within the

range of reason, however, for TWA and particularly

Icahn to consider an average head cost of $41,785 as con-

siderably beyond the marketplace value of their services,

when viewed in economic terms of the cost of an ade-

quately trained substitute. Considering the hazards of

the deregulated industry and of international travel on

which TWA’s success was dependent, it was reasonable

3la

for TWA in purely economic terms to exercise hard bar-

gaining to achieve major payroll savings and to demand

from IFFA, the most feasible available source, a produc-

tivity cushion for possible economic turbulence ahead.

The work rules or “lifestyle” changes seem most na-

turally comparable to the other members of the flight

crew, the pilots. IFFA has not demonstrated that TWA

was seeking from flight attendants generally more rigor-

ous time commitments than were made by pilots. If it

would be considered “degrading” to conform to pilot work

rules (Tr. 5198), such rules must be deemed by IFFA

to be more demanding. Of course pilots receive much

higher pay and perhaps benefits (Bryner Depo. at 380),

presumably attributable to higher skills and responsibili-

ties. Nothing presented, however, tends to show flight

attendant entitlement to a less demanding or different

lifestyle. ‘TWA has made some showing, by contrast, that

items 2 through 11 on the TWA list of demands (Exh.

FFF, 529) were generally comparable to what ALPA had

agreed to. Exh. 502. While IFFA disclaims the compari-

sons it does not show flaws in Bryner’s analysis or con-

clusions. Depo. pp. 374-9, Exh. O. IFFA fails to show

that what TWA sought was unreasonable (and arguably

sexist) in that it would impose on flight attendants time

and scheduling responsibilities more onerous than the

lifestyle obligations of pilots.

The total of the wage concessions ultimately sought in

bargaining and the work rule demands listed in items 2

through 11 is approximately $69 million. Without re-

viewing the intrinsic reasonableness of other requested

concessions in specifics, this roughly indicates that the

range of reasonableness in making proposals is sufficiently

broad to include what Icahn was seeking.

The court does not mean to suggest that it would have

prescribed, in interest arbitration, anything like the

TWA minimum demand, nor does it suggest that IFFA’s

position was unreasonable. It is inappropriate to take

32a

sides on that question since it is unnecessary to a deci-

sion. I do emphasize the very wide range that the concept

of reasonableness encompasses, and must encompass if

courts and administrative agencies are not to be the regu-

lators of wages and working conditions.

The remaining fact issue for the pre-strike period is

whether TWA was engaged in sham or surface bargain-

ing, concealing an intent or wish not to reach agreement.

The evidence is clearly to the contrary, apart from the

legal issue of whether failure to withdraw allegedly harsh

demands, individually or collectively, because there is a

likelihood of a strike, can be treated as unlawful bar-

gaining conduct.

While Hoar’s behavior at the bargaining table was oc-

casionally arrogant, this is consistent with putting on a

convincing show of a proper intent to insist upon much

more dramatic concessions than IFFA was _ proposing.

There is no evidence that Hoar sought to place TWA in

the risky and inevitably burdensome financial position

that a strike would create. In any event, he was an

agent for others.

It is not contended that Pearson or Meyer was seeking

a strike or was insistent on managerial dictation of terms

as a matter of principle or antiunion animus. On the

contrary, Pearson was notably well-disposed towards

IFFA and there was a tradition of dealing with unions.

The evidence presented does not permit a conclusion

that Icahn sought a strike or was unwilling to negotiate.

While his techniques may not have been those of an ex-

perienced labor negotiator, his entry on the scene led to

agreements with ALPA and the IAM in record time, at

least in Railway Labor Act terms. He used every argu-

ment he could think of (including a few that were inap-

propriate) in seeking agreement with IFFA in August

1985. TWA’s greatly increased bargaining demands in

December and thereafter do not, as is often the case,

33a

evidence sham bargaining. There were changed condi-

tions from both the spring and the summer months, and

Icahn was simply a different person from those earlier

in charge. If a union election occurs during bargaining,

and more militant officers are elected, a drastic change

in bargaining positions would be anticipated, without evi-

dencing any bad faith in bargaining.

Neither IFFA nor TWA showed much flexibility from

December until the strike, in the sense that neither side

moved into the range of a probable settlement. Taking a

“hard line” is, however, quite consistent with a desire to

reach agreement. A tendency to yield may weaken cred-

ibility and start a pattern of continuous retreat. Hoar’s

note in February indicates an expectation of last minute

movement, which did occur, although not nearly enough

to bring agreement.

Icahn’s reluctance to attend the final sessions is not

revealing. He had become an object of antagonism and

would apparently have preferred to leave Hoar at the

table, a common technique. His behavior on March 6

shows an intense desire for agreement, although one very

close to his reduced terms. The IFFA bargaining com-

mittee recognized that he became “crazy . .. very ex-

cited.” Tr. 3555-6. He appealed to IFFA representatives

not to take their members “over the cliff.” He warned of

great danger. His deposition credibly expresses consid-

erable alarm at the possibility of strike losses and his

concern that the IAM might support IFFA. He accur-

ately characterizes his plea to IFFA as “impassioned.”

Icahn Depo., pp. 371-2, 397-8. As the IFFA representa-

tives left the room on March 6, he said “there goes $50

million or $60 million” (Tr. 3513), apparently referring

to strike losses as a waste of money. While the strike

may ultimately have been beneficial to TWA, outweighing

strike losses (at least if TWA prevails in this and pos-

sibly other litigation), plaintiff’s proof falls considerably

short of supporting a conclusion that Icahn planned it

34a

that way, hoped for such a result or happily saw his

hopes realized on March 6 and 7, 1986.

C. After the “cooling off” period expired on March 6,

1986, TWA implemented virtually all, or a vast majority,

of its demands (going back to a 22% wage cut, for ex-

ample) and IFFA struck.°*

IFFA has contended that TWA’s post-strike conduct

prolonged the strike, and thereby converted the strike into

an “unfair labor practice strike,” if it could not initially

be so characterized. Responding to an inquiry from the

court at oral argument, IFFA does not suggest any date

for any unlawful event that so antagonized the strikers

as to convert what was hypothetically an economic strike

into a more protected strike. Doc. 244, pp. 1, 8-9. This

confirms the court’s conclusion that the evidence does not

show striker reaction to any post-strike event that caused

the strike to become prolonged. The strike ended in mid-

May 1986, and was not prolonged by the conduct now

complained of. That conduct is summarized, however, in-

sofar as ic may have a bearing on the question of TWA’s

prior good faith in bargaining.

There is evidence that flight attendants on sick leave

when the strike began were treated as strikers. In some

instances such persons could not fairly be so characterized,

for example, if an illness or other incapacity that began

on or before March 6 continued unabated into mid-May.

TWA contends there was such a high level of sick leave

claims that it could be reasonably inferred there were

strikers asserting sick leave for protection. There is an

® The ability to implement work rules changes tends to show their

feasibility (which IFFA challenged) and lays to rest any doubt

that TWA really sought the changes (and was not just making

demands to force confrontation). IFFA does not develop any con-

tention that the limited number of unimplemented demands were

demonstrably lacking in feasibility or otherwise known to be un-

sound when made.

35a

IFFA contention, however, that the decision was made as

early as February 28, 1986 (Doc. 219, p. 155). It may

be that TWA made a serious mistake of fact or law in

many individual cases. Any such violation of individual

rights can be remedied, to the extent remedies have not

already occurred (Exh. 406), and the conduct in question

sheds no material light on the claim of bad faith bargain-

ing or prolongation of the strike.

TWA took several actions based on the belief that the

entire 1983 contract was at an end. It stopped complying

with the union security clause. It stopped contributing

to insurance premiums although it apparently gave IFFA

and the individuals an opportunity to pay such premiums.

After the strike ended, and before this court ruled in

August 1986 that portions of the contract remained in

effect, further instances of self-help, inconsistent with the

Red Book, occurred. As this court’s ruling in August

acknowledged, however, an appellate case that seemed

most directly in point lent support to the view that Red

Book obligations {and in particular a union security

clause) did not survive into the self-help period. See TWA

v. IF FA, supra, cited in n.1. The question has caused an

even division in the United States Supreme Court. Al-

though it can now be said that TWA was legally in error,

this would not suggest that the actions were not taken in

good faith reliance on legal advice and would thus have

no bearing on determining whether the earlier bargain-

ing had been conducted in good faith.

In negotiations to end the strike and in post-strike ne-

gotiations, TWA made additional demands. As economic

power grows it is normal for a party to seek to use it and

to seek reparation for damages. No adverse inference

will be drawn from post-strike heightening of TWA’s de-

mands. If the matter has significance, it can as easily

be argued that it tends to show that TWA withheld some

“wish list” matters in its pre-strike demands, thereby

strengthening the TWA contention that its earlier de-

36a

mands were reasonable and not designed to force a con-

frontation. On balance, the matter will be disregarded.

II. LEGAL ISSUES

A. General Statement

Collective bargaining obligations under the Railway

Labor Act (45 U.S.C. § 152, First) and the National

Labor Relations Act have been treated as somewhat

parallel, despite minor differences in the statutory lan-

guage, at least since NLRB v. American National Ins.

Co., 343 U.S. 395, 402 n.8, 408 (1952). The Supreme

Court in Chicago & N.W. Rwy. Co. v. United Transporta-

tion Union, 402 U.S. 570 (1971) (C&NW), recognized

non-statutory, judicial remedies for violation of the bar-

gaining duty to “exert every reasonable effort to make

... agreements.”

The case which opens the courthouse doors here, Chi-

cago & N.W. Ry., 402 U.S. 570, held that a railroad com-

pany might seek to enjoin a strike, even after release of

the parties by the National Mediation Board, on an alle-

gation that the union had violated its statutory obliga-

tion to bargain on the issue in question. The courts were

thus brought into the bargaining process, but with strict

caveats by the majority and a strong dissent by Justice

Brennan.

Four members of the Court, in a dissenting opinion by

Justice Brennan, were of the view that the Railway Labor

Act “excludes any role for the judiciary to oversee the

relative efforts of the parties in their mutual attempt to

reach settlement.” 402 U.S. at 599. Five members, in an

opinion by Justice Harlan, concluded there was a judicial

role beyond simply ordering the parties “to recognize one

another and sit down to bargain” (the Brennan charac-

terization of the duty) and that the courts have a duty,

on complaint, to determine at least if there has been bad

faith in negotiations. 402 U.S. at 578-9. The majority

volunteered, however, “two caveats.” 402 U.S. at 579,

37a

n.ll. “First, parallels between the duty to bargain in good

faith and the duty to exert every reasonable effort, like

all parallels between the NLRA and the Railway Labor

Act, should be drawn with the utmost care and with fuli

awareness of the differences between the statutory schemes

. . . Second, great circumspection should be used in going

beyond cases involving ‘desire not to reach an agreement,’

for doing so risks infringement on the strong federal

labor policy against governmental interference with the

substantive terms of collective bargaining agreements.”

The majority joined the minority in counseling judicial

“restraint in the issuance of strike injunctions based on

violations of Sec. 2 First.” 402 U.S. at 583. There should

be no “freewheeling judicial interference in labor rela-

tions of the sort that called forth the Norris-LaGuardia

Act...” Jd. The majority further noted that Congress

had amended the NLRA when it perceived that “the

NLRB had intruded too deeply into the collective-

bargaining process under the guise of enforcing the duty

to bargain in good faith.” Jd., n.19.

The lesson of C&NW has been well learned or antici-

pated, and judicial restraint has been sufficiently exer-

cised to avoid further Congressional action. Never before

this case has a court been asked to examine, at the behest

of a union, a scenario of bargaining sessions, for the pur-

pose of finding an employer violation of the bargaining

law and imposing on the employer the severe sanctions

rather frequently applicable to an “unfair labor practice

strike” under the NLRA. There have been a limited num-

ber of cases, however, in which employers charged unions

with making excessive demands at the bargaining table.

In all such cases, the courts have rejected the invitation

to declare demands excessive. Trans International Air-

lines, Ine. v. Intern. Bhd. of Teamsters, 650 F.2d 949,

958-9 (9th Cir. 1980) (Kennedy, J., affirming a decision

by Peckham, C.J.), cert. denied, 449 U.S. 1110 (1981);

REA Exvpress, Ine. v. Bhd. of Rwy. Clerks, 358 F. Supp.

760, 771, 774-5 (S.D. N.Y. 1973); Atlantic Coast Line

38a

R.R. v. Bhd. of Rwy. Trainmen, 262 F. Supp. 177, 183-5

(D. D.C. 1967), rev’d. on other grounds, 383 F.2d 2285,

cert. den., 389 U.S. 1047. See also Rwy. Labor Exec.

Ass’n. v. Boston & Maine Corp., 664 F. Supp. 605 (D. Me.

1987); Erie Lackawanna Ry. Co. v. Lighter Captains

Union, 338 F. Supp. 955 (D. N.J. 1972).

In the TJA case, Judge Kennedy approved a ruling that

the union’s increase in bargaining proposals from 61 to

over 200 was a “reasonable response” to changed condi-

tions (a merger). He quoted Judge Peckham’s ruling that

mere “exhorbitant size” of demands does not demonstrate

a refusal to make reasonable efforts to reach an agree-

ment, further quoting the comment that “ ‘the court can

find no previous decision under the RLA, nor can TIA

suggest one, which has inferred lack of reasonable effort

solely from the size of the proposals put forth by the

parties.’”’ Two reductions in the union proposals were

noted on appeal, although it was said that the union’s

bargaining was “ ‘obstinate and unyielding.’” 650 F.2d

at 958. While stating the precaution that the court was

not holding that allegedly excessive proposals could never

be the basis for a finding that a party did not comply

with its bargaining obligations, Judge Kennedy cited the

REA and Atlantic Coast Line cases for comparison with

the TJA ruling. 650 F.2d at 959.

In the Atlantic Coast Line case, Judge Holtzoff refused

an injunction after a full trial, simply noting his conclu-

sion that “the negotiations were genuine” and that “the

reasonableness of a proposal contained in a Section 6 no-

tice [and apparently insisted upon through negotiations]

should not be subject to judicial review.” 262 F. Supp.

at 184-5. Judge Holtzoff declined to examine critically

the contention that proposals “must be within a debatable

range and not so extreme as necessarily to preclude favor-

able consideration” by the other part. Jd. In Rwy. Labor

Exec, Ass’n., supra, the same ruling was made last year

as in Atlantic Coast Line, and for essentially the same

reason.

39a

In REA Express, supra, Judge Weinfeld observed that

the cases demonstrate a primary concern under the RLA

that the attitude of parties not amount to a “refusal to

bargain.” 358 F. Supp. at 771, n.43. Adoption “at all

times” of a “ ‘take it or leave it’” attitude is condemned,

but this does not forbid choosing “to be adamant in its

position.” Jd. at 772. The case precludes use of the

courts to coerce employees to yield to employer offers that

the employees deem inadequate, even though the employer

may assert that a strike for the wages sought by the

union may result in bankruptcy. The decision to force the

railroad into bankruptcy was said to be the union’s to

make; “it is not management’s; it is not the Court’s.”

358 F. Supp. at 774-5. If a union having a strategic

position of power may lawfully bring an employer to eco-

nomic ruin, a similarly placed employer may presumably

insist lawfully on employee conditions that the union may

consider devastating.

The above cases illustrate how the courts have been

giving application to the RLA bargaining requirement,

as they are obligated to under C&NW. The precautions

of C&NW have been honored and in particular the courts

have refrained from evaluating the substantive negotia-

tion proposals of the parties. Implicit and sometimes ex-

plicit in the cases is adherence to an admonition of Judge

Bryan, given almost thirty years ago, in a decision deny-

ing a preliminary injunction against a strike by the

pilots’ union:

Whether the pilots’ [negotiating] position was right

or wrong, wise or unwise, economically sound or un-

sound, are questions with which this court is not

concerned. If the processes of the Railway Labor Act

could not resolve these questions, this court can cer-

tainly not resolve them, nor is it its function to do so.

American Airlines, Inc. v. ALPA, 169 F. Supp. 777, 797

(S.D. N.Y. 1958). The courts are a safeguard against

“merely perfunctory” compliance with bargaining duties,

40a

and serve, with the National Mediation Board, to give

assurance that there has been “ ‘good faith exhaustion of

the possibility of agreement.’” 169 F. Supp. at 793.

The ruling of Judge Bryan draws on an NLRA judicial

source characterizing the requirement of good faith bar-

gaining as “really a requirement of absence of bad

faith.” The question of subjective intent may be ruled

from evidence presented, including any “conduct clearly

showing a wish to defeat rather than to reach agree-

ment.” 169 F. Supp. at 793-5. The C&NW majority de-

cision is entirely consistent with Judge Bryan’s ruling,

and the Supreme Court relied on the same standard,

articulated by Chief Judge Magruder in the leading case

of NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, cert.

den. 346 U.S. 887."

Until last September, the general procedural standards

for surveillance of bargaining under the RLA have been

generally equated with those under the NLRA, with em-

phasis, however, on the precautions announced in C&NW.

10 As a practical matter it must be supposed that Congress could

not have intended to authorize or require an in-depth review of the

substantive negotiating positions of the parties or other similarly

intrusive procedures to enforce the bargaining requirements of

the RLA. Almost identical language, requiring exhaustion of “every

reasonable effort to settle” a dispute, is contained in the Norris-

LaGuardia Act as a prerequisite to injunctive relief. 29 U.S.C.

§ 108. The Congressional! concern to avoid improvident exercise of

federal judictatpower in labor disputes surely was not carried to

the extremes illustrated by this case, which would require litigation

of 18 months or two years simply to determine whether a com-

plainant had standing to seek injunctive relief. The parallel to the

language used in the “clean hands” requirement is a powerful

caution against engaging in the deeply probing form of litigation

that IFFA advocates as necessary to a sound ruling and that may

occasionally occur in the NLRA cases. A requirement of “blow-

by-blow” fact-finding, as sometimes mandated in NLRA cases

(Pease Co. v. NLRB, 666 F.2d 1044, 1046 n.2 (6th Cir. 1981) )

could easily impose pre-trial, trial and fact-finding requirements

that might consume three years in a massive case like this, where

there are incentives to probe every minute detail.

4la

A survey of such standards is contained in Judge Lacey’s

ruling in Erie Lackawanna Ry. Co. v. Lighter Captains

Union, 338 F. Supp. 955 (D. N.J. 1972). That survey

emphasizes then-current case law, particularly C&NW,

for the proposition, governing that case, that courts should

proceed with great caution in attempting to supervise

bargaining efforts, particularly where there is an effort

to interfere with self-help after exhaustion of mediation.

It is worth noting, however, in light of one of IFFA’s

arguments, that the case quotes a decision by Judge

Friendly in which the Second Circuit assumed arguendo

that the Railway Labor Act imposes a somewhat greater

duty to endeavor to reach agreement than does the Na-

tional Labor Relations Act. Chicago, Rock Island & Pac.

R.R. Co. v. Switchmen’s Union, 292 F.2d 61, 70 (2d Cir.

1961), cert. den., 370 U.S. 9386 (1962). That hypothetical

assumption was made in the course of denying relief. It

pre-dated the more cautionary language of C&NW. While

a similar assumption is referred to in a district court

decision subsequent to C@NW (Japan AirLines Co. v.

IAM, 389 F. Supp. 27, 34 (S.D. N.Y. 1975)), affirmed,

538 F.2d 46 (2d Cir. 1976), the district court also con-

cluded that the ultimate question is “whether the party

charged with violation of its duty has merely gone

through the motions of compliance . . . without a desire

to reach an agreement.” It is clear from C&NW that the

RLA is to be construed as forbidding “surface bargain-

ing” and little, if anything, further.

A further restriction on RLA bargaining duties and

judicial supervision was announced by a panel of the

Ninth Circuit in September. Pacific Fruit Express and

Union Pacific Fruit Express Joint Protective Bd., Bhd.

Rwy. Carmen v. Union Pacific, 826 F.2d 920 (9th Cir.

1987). Pacific Fruit decided that courts are not author-

ized to compel prearbitration fact discovery in a “minor

dispute.” The court’s reasoning, however, is clearly ap-

plicable to the duties of parties and authority of courts

42a

in a bargaining case and the court relied for its decision

on C&NW and other bargaining case decisions. Moreover,

the NLRA duty to provide information in aid of an

arbitral process parallels the duty to provide information

in bargaining. NLRB v. Acme Industrial Co., 385 U.S.

432 (1967). The Ninth Circuit rejected an analogy to

NLRA duties and the enforcement thereof, saying the

courts should be “wary of drawing parallels” between the

procedures under the two acts. 826 F.2d at 922. The

court stated that “the extensive judicial intervention that

court-ordered disclosure would require is inconsistent with

the history and principles of the Railway Labor Act...

Congress intended the parties to work out disputes them-

selves, with a minimum of judicial intervention .. .

Pacific Fruit’s interpretation of Section 2 First would

place the courts at the heart of the bargaining process

whenever either side in a railway labor dispute sought

information about the other. We think Congress intended

otherwise.” 826 F.2d at 923.

Pacific Fruit, if followed, would deprive the courts of

duties under what this court perceived to be the major

contention that IFFA relied on in filing this suit. I do

not think it safe to rely on Pacific Fruit, however, as the

sole basis for rejecting IFFA’s deprivation of information

claim. It may be sufficient for the Court of Appeals, but

I believe alternate reasoning is appropriate. My present

inclination is against following Pacific Fruit.

It is my understanding that TWA’s experienced labor

counsel shared the court’s view that if IFFA concluded,

during negotiations, or indeed today, that it had been

deprived of relevant information having a likely impact

on bargaining judicial relief could be sought. The court

believed and is not inclined to retract the view that dis-

covery during negotiations could be handled much as dis-

covery in litigation is handled, and that liberal require-

ments would prevail. While not welcoming the task, it

43a

seems minimally intrusive under C&NW. It would be

far less intrusive, for example, than post-impasse analysis

which may require not only an appraisal of the right to

information during bargaining but also an appraisal of

the causal connection, if any, between the lack of infor-

mation and the breakdown in negotiations. Ruling a dis-

covery request also seems less intrusive than even a lim-

ited survey of negotiations to determine whether there

has been good faith bargaining and what remedies should

be supplied, if bad faith has resulted in an impasse and

self-help. If Pacific Fruit is given broad application, con-

sistent with its language, it would essentially take the

courts completely -out of the bargaining process, rather

more in the spirit of Justice Brennan’s dissent in CQNW

than in accordance with the majority opinion. That may

of course occur, given changes on the Court, but this

court may not act in anticipation of an adoption of the

Brennan dissent.

B. Statute of Limitations

Two courts of appeals have ruled that claims of bar-

gaining violations under the Railway Labor Act become

stale after six months. Bhd. of Loco. Eng. v. A.T. & S.F.

Tec. Rwy. Co., 768 F.2d 914, 919 (7th Cir. 1985); JAM

v. Aloha Airlines, 790 F.2d 727, 735 (9th Cir. 1986),

cert, denied, 107 S.Ct. 400 (1986). Because I find the

reasoning unexceptionable and given the weight of the

authorities, I accept this contention of TWA’s.

Occurrences before September of 1985 may well have

important probative values in this case. The focus, how-

ever, should be on TWA after acquisition of ownership

and control by Carl Icahn. This was well within the six

month period, so the limitation period announced by the

appellate courts coincides with the period of greatest

importance to the determination of the cause of impasse

on March 6, 1986.

44a

C. The Test of “Unfair Labor Practice” Causation

IFFA acknowledges that it cannot obtain relief for

full term strikers in this action if they are classified as

“economic strikers,” that is, persons who struck TWA

because (1) they were unwilling to accept lawful wages

and lawful working conditions imposed by TWA when

TWA became free to implement its proposals on March 7,

1986, and (2) they remained on strike until May 17 sim-

ply because they continued to resist the terms being im-

posed by TWA. IFFA contends, however, that the

strikers were or became “unfair labor practice strikers”

who should receive relief by application of principles used

by the National Labor Relations Board. The NLRA dis-

tinction was adopted by the Supreme Court more than

thirty years ago. Mastro Plastics Corp. v. NLRB, 350

U.S. 270 (1956). For purposes of this case it will be as-

sumed that NLRA principles should be applied to this

question, although they have never been so applied in any

previous litigation.

In Mastro Plastics the Court concluded that employees

appropriately have and should be protected in the “free-

dom to strike against unfair labor practices” and should

not be relegated to “filing charges under a procedure too

slow to be effective.” 350 U.S. at 286-7. In a dissent

based on statutory language enacted in 1947, Justice

Frankfurter acknowledged that under the original

Wagner Act “the results would be clear” in that the

employer violated the Act and thereby “unleashed the

strike.” 350 U.S. at 294. This causation language depicts

the distinction between an economic strike and an unfair

labor practice strike.

There has been a development in Labor Board doctrine,

accepted by the courts, that an unfair labor practice need

only be a “factor” in triggering or prolonging a strike,

and need not be shown to have been the sole cause of such

triggering or prolongation. See, e.g., NLRB v. Columbia

45a

Tribune Publishing Co., 495 F.2d 1384, 1392 (8th Cir.

1974). In Columbia Tribune there was held to be an un-

fair labor practice strike when an employer insisted on

the right to use employees from outside the bargaining

unit to do the work of covered employees, and then re-

fused to discuss wages unless the union agreed to its

proposal. The refusal to discuss basic terms of a collec-

tive bargaining agreement was an unfair labor practice

and a causal connection with the strike was readily estab-

lished.

While the Columbia Tribune analysis is accepted, in

this circuit and others, claims of alleged unfair labor

practice strikers have occasionally failed when there was

an insufficiency of proof that the violation in question was

in fact a contributing cause of the occurrence or pro-

longation of a strike. NLRB v. Proler Intern. Corp., 635

F.2d 351, 353-4 (5th Cir. 1981); Soule Glass and Glazing

Co. v. NLRB, 652 F.2d 1055, 1089 (1st Cir. 1981) (“im-

permissible speculation and surmise” in finding causa-

tion). In both cases the ALJ and the NLRB were re-

versed, despite the usual reliance on administrative ex-

pertise. This suggests that in Labor Board practice there

are occasional classifications of strikers as unfair labor

practice strikers as a punitive matter, to carry out the

policies of the Act, even though strictly remedial measures

would be unwarranted. While this court would not quar-

rel with any such NLRB policy (except in some cases

where the punishment may far exceed the “crime’’) it

seems clear to me that in the RLA context there should be

no such uncontrollable punitive practice but rather firm

insistence on proof of true causation (an “unleashing”

effect) before what appears to be an economic strike

should be reclassified as an unfair l

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