Association of Flight Attendants, AFL-CIO v. Horizon Air Industries, Inc.

• Decision Date: 01 October 1992
• Docket Number: 91-35246,Nos. 90-35807,AFL-CI,P,s. 90-35807
• Citation: 976 F.2d 541
• Parties: 141 L.R.R.M. (BNA) 2430, 123 Lab.Cas. P 10,385 ASSOCIATION of FLIGHT ATTENDANTS,laintiff-Appellee, v. HORIZON AIR INDUSTRIES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 541

976 F.2d 541

141 L.R.R.M. (BNA) 2430, 123 Lab.Cas. P 10,385

ASSOCIATION of FLIGHT ATTENDANTS, AFL-CIO, Plaintiff-Appellee, v. HORIZON AIR INDUSTRIES, INC., Defendant-Appellant.

Nos. 90-35807, 91-35246.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1992.

Decided Oct. 1, 1992.

Louis D. Peterson and Michael R. Scott, Hillis, Clark Martin & Peterson, Seattle, Wash., Calvin L. Keith and Benjamin J. Brownfain, Perkins Coie, Portland, Or., Paul D. Jones, Ford & Harrison, Atlanta, Ga., for defendant-appellant.

Deborah Greenfield and Edward J. Gilmartin, Ass'n of Flight Attendants, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: BROWNING, D.W. NELSON and CANBY, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

On August 7, 1987, following a difficult organizing campaign, the National Mediation Board certified the Association of Flight Attendants, AFL-CIO as the representative of the flight attendants of Horizon Air Industries, Inc. After more than a year of sporadic negotiations over an initial contract, the union requested the intervention of the National Mediation Board in November 1988. Negotiations remained largely unproductive, and on April 28, 1989 the union filed suit against Horizon under the Railway Labor Act (RLA), alleging Horizon had violated its duty under 45 U.S.C. § 152 First to "exert every reasonable effort" to reach agreement with the union.

After a four-day bench trial, the district court ruled in favor of the union and ordered Horizon to "cease and desist from engaging in any conduct that is designed to forestall an agreement." The court also awarded the union $250,713.50 in attorney's fees and $23,767.38 in costs. Horizon appeals each of these rulings. ¹

We affirm the district court's ruling that Horizon violated § 152 First and affirm a portion of the award of costs. We reverse the remaining portion of the cost award and reverse the award of attorney's fees.

I.

The RLA imposes a general duty on rail and air carriers and their employees to

exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.

45 U.S.C. § 152 First. ²

The duty to "exert every reasonable effort" to reach an agreement is "a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis." Chicago & North Western Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 91 S.Ct. 1731, 1735, 29 L.Ed.2d 187 (1971); see also Air Line Pilots Ass'n v. Transamerica Airlines, Inc., 817 F.2d 510, 513-14 (9th Cir.1987) (federal courts have jurisdiction to enforce 45 U.S.C. § 152 First through Fourth even if the parties are contemporaneously engaged in mediation).

A.

Horizon contends the district court's citation of cases decided under the National Labor Relations Act (NLRA) indicates it erroneously measured Horizon's conduct against the NLRA's requirement that parties bargain in good faith rather than against the RLA's requirement that they exert every reasonable effort to reach an agreement. ³

Although the RLA and NLRA do not establish identical bargaining obligations, Pacific Fruit Express v. Union Pacific, 826 F.2d 920, 922 (9th Cir.1987), courts may consult NLRA cases "for assistance in construing the Railway Labor Act." Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969). In Jacksonville Terminal, the Supreme Court described the NLRA as "the only existing congressional expression as to the permissible bounds of economic combat," and relied upon it in defining the preemptive effect of the RLA on state law. Id. However, the Court also cautioned that the NLRA "cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly, with due regard for the many differences between the statutory schemes." Id.

In considering the meaning of 45 U.S.C. § 152 First's command to "exert every reasonable effort" to reach an agreement, the Court in Chicago & North Western Ry. cited cases and commentary interpreting the NLRA's duty to bargain in good faith. See 402 U.S. at 574-75, 578, 91 S.Ct. at 1734, 1735. Quoting NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir.1953), an NLRA case, the Court stated that "the obligation [to exert every reasonable effort] is central to the effective working of the [RLA]. The strictest compliance with the formal procedures of the Act is meaningless if one party goes through the motions with 'a desire not to reach an agreement.' " 402 U.S. at 578, 91 S.Ct. at 1736. The Court noted, "we have no occasion to determine whether [45 U.S.C. § 152 First] requires more of the parties than the avoidance of 'bad faith' as defined by Judge Magruder in Reed & Prince." Id. at 579 n. 11, 91 S.Ct. at 1736 n. 11 (emphasis added). ⁴ Thus the Court clearly held the duty to "exert every reasonable effort" imposed by the RLA requires at least "the avoidance of 'bad faith' as defined" under the NLRA, that is, "go[ing] through the motions with 'a desire not to reach an agreement.' "

In the present case the district court repeatedly stated the standard to be applied in these terms, and referred to NLRA cases for examples of conduct constituting evidence of bad faith defined in this same way. Thus, the court relied upon NLRA cases solely to impose the duty upon Horizon that the Supreme Court has held to be common to both statutes. Significantly, the court's decree prohibited Horizon only from "engaging in any conduct that is designed to forestall an agreement" with the union. The district court ordered Horizon to perform only its existing duty under the RLA and did not impose upon it any duties derived from the NLRA.

B.

Horizon argues the district court improperly intruded into the negotiations between Horizon and the union by considering Horizon's substantive bargaining positions as evidence of the company's desire not to reach an agreement.

As the Supreme Court has warned, "great circumspection should be used in going beyond cases involving 'desire not to reach an agreement,' for doing so risks infringement with the substantive terms of collective bargaining agreements." Chicago & North Western Ry., 402 U.S. at 579 n. 11, 91 S.Ct. at 1736 n. 11; see also Regional Airline Pilots Ass'n v. Wings West Airlines, Inc., 915 F.2d 1399, 1402 (9th Cir.1990) ("the federal courts' obligation is to oversee the broad structure of the process and prevent major deviations, not to be involved in particulars of the bargaining process").

Courts must resist finding violations of the RLA based solely on evidence of hard bargaining, inability to reach agreement, or intransigent positions. At the same time, the duty imposed by the RLA to exert every reasonable effort to reach an agreement "at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences." Virginian Ry. Co. v. Sys. Fed'n No. 40, Ry. Employees Dep't, AFL, 300 U.S. 515, 548, 57 S.Ct. 592, 599, 81 L.Ed. 789 (1937). " 'It was not enough for the law to compel the parties to meet and treat without passing judgment upon the quality of the negotiations. The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition.' " Chicago & North Western Ry., 402 U.S. at 575, 91 S.Ct. at 1734 (quoting Archibald Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1412-13 (1958)). Although the initial inquiry is whether the parties have complied "with the formal procedures" of the RLA by meeting and exchanging proposals, a court must also determine whether "one party [has gone] through the motions with a desire not to reach an agreement." Id. at 578, 91 S.Ct. at 1736 (internal quotation marks omitted). To determine whether the parties have engaged in reasonable efforts to reach an agreement or merely gone through the motions, some inquiry into the substance of the negotiations is inescapable, not to weigh the reasonableness of the proposals but only to determine whether they were of such a nature as to indicate an intention not to reach an agreement at all.

The district court was aware of the circumscribed nature of its inquiry and resisted efforts of both parties to focus on the substance of bargaining proposals. During the trial, counsel for Horizon and the Court engaged in the following exchange:

COUNSEL FOR HORIZON: .... [The union] is arguing ... that our bargaining proposals aren't acceptable, that they're patently unacceptable. But yet when you look at the agreements that are reached, that the parties reached together, you see ... that they're not patently unacceptable.

THE COURT: .... I'm not sure that's the base issue. I think the base issue is whether or not one party or the other really went to the bargaining table with the idea that they weren't going to agree, so they were not going to make the good faith or every reasonable effort to reach an agreement.... [I]f once I see that, then I've got to remedy it.

In its opinion, the district court referred to Horizon's proposals only as evidence of the company's unwillingness to bargain.

C.

We review for clear error the district court's finding that Horizon violated 45 U.S.C. § 152 First by failing to exert every reasonable effort to reach an agreement. Trans Int'l Airlines v. Int'l Bhd. of Teamsters, 650 F.2d 949, 958-59 (9th Cir.1980). ⁵

The district court found Horizon "engaged in the mere pretense of negotiation" and adopted "evasive and dilatory tactics"...