Full opinion text
REVISED OPINION SACHS, District Judge. This lawsuit was filed two years ago by the union representing some 6,000 flight attendants (IFFA) then employed 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 implementation by TWA of proposed wage reductions and adverse changes in work rules. TWA was presumptively authorized 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 uncommon; in this instance, however, there were apparently unbridgeable 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, 1986. 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. Practically 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. 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 motion to dismiss at the end of plaintiffs proof extended into September 1987. Although Count I contains some allegations serving a dual purpose, and seeks some relief beyond 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 National 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.Giv.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 Industries v. Cessna Aircraft Co., 657 F.Supp. 687, 694 (W.D.Mo.1986). For reasons stated below, TWA’s motion will be granted. IFFA’s claim for general reinstatement 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 narrative statements and arguments concerning the facts, emphasizing 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 depositions 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 useful as a guide or index to the evidence. It is this court’s view that the great bulk of the materials would be most pertinent to an “interest arbitration” proceeding, in which a neutral party would make a determination from all material supplied what appropriate changes should have been made in wages, fringe benefits and work rules. While not irrelevant to a decision 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 develop 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 contract, referred to in litigation as the “Red Book,” is the 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 million 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 lifestyle” for its flight attendants; it also initially sought salary concessions. IFFA counsel Jolley prepared a memorandum to his clients suggesting 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 willingness 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 relevant information.” IFFA’s president, Victoria Frankovich, is the only member of the negotiating committee who seems to have personally reviewed the Jolley memorandum. 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 supposed 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 immediate 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 opposition to such changes. In the early negotiations IFFA continuously sought detailed explanations of the proposed changes and generally received responsive replies in operational terms but frequent resistance from Hoar to questions seeking financial and economic estimates and details. 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 exchange typical of the early negotiations, Hoar said, “Xcept IAM, whom we intend to ask, all other groups have given.” Frankovich asked, “By 25%?” Hoar replied, “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 information 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 employee 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 conceding 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, reporting 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 provided by then-executive vice president Richard D. Pearson who became president later in 1985 but began losing 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 annually without considering fringe benefits) and deleted some 17 proposals for work rule, fringe benefit and contract 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 representatives could agree to and obtain membership approval. IFFA did not react favorably to the greatly moderated demands by TWA. During the final month of negotiations in the spring of 1985, IFFA representatives made minimal requests for further information. The last specific 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.” Id., 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. Responding to one of the more important proposals, regarding “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.” Id., p. 060460. Previously the statement was made, “We think Inti is fine the way it is. Inti FAs like it.” Id. 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. Despite the apparent deadlock, Pearson believed the parties had reached “manageable” differences where persuasion by the mediator might bring about an agreement, presumably 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 possibility 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 Franko-vich in March. In May 1985, IFFA sought and received from its members “overwhelming authorization to strike.” Simultaneously with the request for a release from negotiations, IFFA prepared and sent to TWA a lengthy request for detailed financial information about TWA’s proposals. Exh. 131. The negotiation record of the previous 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 pressures or legal worries during a countdown. This finding does not deal with the legitimacy of the various requests, 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 inadvisable, 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 conferences with Carl Icahn, a private individual, for whose conduct from June through September 1985, TWA is not legally responsible. The course of negotiations is important, 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 attempts were made by Icahn and Frank Lorenzo of Texas Air, whose takeover of Continental Airlines and subsequent avoidance of collective bargaining agreements through use of the bankruptcy laws had made him notorious with airline unions. After some false starts, the three major unions, ALP A, 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 approaching $1.5 billion, in order to attract lenders needed for his acquisition of stock; he also urged a speedy resolution (apparently so that his plans would not be endangered by stock market fluctuations). Icahn asked a 20% reduction from each of the unions. While initially speaking 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. ALP A, representing pilots, agreed immediately, and was later persuaded to accept a 26% reduction. The average pilot wages amounted to $90,000. The wage sacrifice by pilots would thus have averaged some $23,000. In order to obtain ALPA agreement, Icahn agreed contractually to use his “best efforts” to obtain 20-22% concessions 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 Fran-kovich 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 complete stock purchases assuring him of control of TWA. Frankovich had remained in New York on several occasions in July without being invited into negotiations (except for one evening session of informal visiting which she declined because she would be “outnumbered”). She 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 bargaining meeting between Icahn and IFFA representatives. Icahn asked IFFA to agree to the 20% reduction previously 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 departs 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 increases, 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 Frankovich’s statement that janitors were in the IAM bargaining 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 inexpensively and he did not believe the flight attendants were capable of stopping airline operations and thereby 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 conventional economic terms. The rhetoric that miscarried was a clumsy effort to persuade that degenerated into wise-cracks. A calculating businessman is quite unlikely to adjust middle income wages to the “needs” of his workers, although he may try to persuade them to accept his proposals 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 controversial, weeks and months before the strike, he was well aware that many or most flight attendants were primary breadwinners. An agreement with IAM was completed over the weekend 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 unable to reach agreement although they were tantalizingly 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 reluctance at that time by Icahn, if such a proposal had been pushed by IFFA. After Icahn’s stock ownership gave him effective control 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 bargaining, he directed that the pending proposal be withdrawn, as it was in October, and that a new proposal be made which would contain both a reduction in wages and work rules changes. The new proposal, made in December, effectively restarted negotiations by demanding concessions 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 IFFA would be (1) a personality and experience difference tending to produce bold, nearly reckless moves by Icahn and more moderate, accommodating 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 purchase offer to minority stockholders and probably caused new concerns about TWA’s future and the value of his investment; and (3) awareness that IFFA had become contractually isolated from potential allies and was perceived 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 discussed 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. Everything that hit the industry was hitting it. I was looking at the numbers 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 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 expected 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 December. 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 certain major airlines (Pan Am, Northwest, Eastern, United — Pearson Depo. 126), Continental and People Express 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 generally show comparable valuations. See Exh. 529, with a few different estimated values, proposing $90 million in flight attendant savings, and Exh. FFF, the apparent source of the negotiation estimates. Frankovich in a February pre-strike “road show” presentation, said it is “pretty obvious” where the differences yielding $110 million 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 13-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 overtime 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 ticket lift. Another internal document (Exh. FFF) estimates only $80,000, however. TWA official 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 current 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 attendants to less valuable rest seats* was variously estimated at $1 million and $3.5 million in internal documents. 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 discovery 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 Federal 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. Frankovich 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 ... STEADFAST 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 estimated by IFFA that a satellite program would be worth $4-5 million. Exh. 22, p. 060553, Tr. 2046. IFFA’s commissioned study of satellites (accommodations to residential 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 obtain an agreement. Franko-vich expressed interest in that figure (3% more than her highest offer to Icahn in August), and Pearson may have said he had “half a mind” to see what he could do with the TWA board of directors. 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 representatives 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-scale (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 bargaining, 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 negotiations on December 4, 1985, almost eight weeks earlier, and requested data on the flight attendant, mechanic and pilot work forces, concessions made by the IAM and ALP A, and detailed cost information on each TWA proposal, 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 responses 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, calculations and breakdowns on the proposals and coun-terproposals were available and were not supplied, such materials 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., pp. 611, 615-6. Apparently Jolley was referring to the details, not the general parameters of an agreement. While Jolley had no 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 memorandum, 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 February 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 assisting parties to reach agreement would normally be to obtain appropriate information that may lead to agreements. 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. Trial testimony confirms that no informational disclosures 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 structured. No information sought from TWA could likely result in flight attendants accepting the work rules concessions 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) and 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 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 between the two major IFFA theories, lack of information (including misinformation) and exces-siveness 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 ultimate 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 excessive 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 impressions 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 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 reasonableness 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 million,” his recollection of his valuation of IFFA’s best offer, 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 million. Tr. 4058. The principal move on the last day of negotiation was Icahn’s. He stated willingness to reduce the pay concession by 5%, to 17% (the figure Frankovich had reached in August), to drop a demand to eliminate company 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. Franko-vich has the most detailed version of discussions on the latter point, and recollects that she asked if Icahn was proposing 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 contained 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 proposed 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 “priceless” 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 acceptance 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. Disregarding 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 compensation increases had considerably outstripped those of a stronger union, IAM (at least during the period referred to in the Meyer presentation). The IFFA members have a right to pride in their long service to TWA and their professionalism, which is probably not appreciated by the public. They view their responsibilities for passenger safety as their prime function. 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 considerably beyond the marketplace value of their services, when viewed in economic terms of the cost of an adequately trained substitute. Considering the hazards of the deregulated industry and of international travel on which TWA’s success was dependent, it was reasonable for TWA in purely economic terms to exercise hard bargaining to achieve major payroll savings and to demand from IFFA, the most feasible available source, a productivity cushion for possible economic turbulence ahead. The work rules or “lifestyle” changes seem most naturally comparable to the other members of the flight crew, the pilots. IFFA has not demonstrated that TWA was seeking from flight attendants generally more rigorous 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 responsibilities. 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 comparisons it does not show flaws in Bryner’s analysis or conclusions. 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 reviewing 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 sides on that question since it is unnecessary to a decision. 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 regulators of wages and working conditions. The remaining fact issue for the pre-strike period is whether TWA was engaged in sham or surface bargaining, 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 bargaining conduct. While Hoar’s behavior at the bargaining table was occasionally 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 experienced 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 argument he could think of (including a few that were inappropriate) 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, evidence sham bargaining. There were changed conditions 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 evidencing 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 credibility 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 committee recognized that he became “crazy ... very excited.” 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 considerable alarm at the possibility of strike losses and his concern that the IAM might support IFFA. He accurately characterizes his plea to IFFA as “impassioned.” Icahn Depo., pp. 371-2, 397-8. As the IFFA representatives 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 possibly other litigation), plaintiffs proof falls considerably short of supporting a conclusion that Icahn planned it 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 example) 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, insofar as it 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 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 bargaining 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. IFFA, supra, cited in n. 1. The question has caused an even division in the United States Supreme Court. Although 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 bargaining had been conducted in good faith. In negotiations to end the strike and in post-strike negotiations, 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 demands. 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 demands were reasonable and not designed to force a confrontation. 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 language, at least since NLRB v. American National Ins. Co., 343 U.S. 395, 402 n. 8, 408, 72 S.Ct. 824, 828 n. 8, 831, 96 L.Ed. 1027 (1952). The Supreme Court in Chicago & N. W. Rwy. Co. v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (C & NW), recognized non-statutory, judicial remedies for violation of the bargaining duty to “exert every reasonable effort to make ... agreements.” The case which opens the courthouse doors here, Chicago & N. W. Ry., 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187, held that a railroad company might seek to enjoin a strike, even after release of the parties by the National Mediation Board, on an allegation that the union had violated its statutory obligation 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, 91 S.Ct. at 1746. 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 characterization 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, 91 S.Ct. at 1736. The majority volunteered, however, “two caveats.” 402 U.S. at 579, n. 11, 91 S.Ct. at 1736 n. 11. “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 full 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, 91 S.Ct. at 1738. There should be no “freewheeling judicial interference in labor relations of the sort that called forth the Norris-LaGuardia Act ...” Id. 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.” Id., n. 19, 91 S.Ct. 1738 n. 19. The lesson of C & NW has been well learned or anticipated, and judicial restraint has been sufficiently exercised 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 purpose 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 number 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 Airlines, Inc. 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, 101 S.Ct. 919, 66 L.Ed.2d 839 (1981); REA Express, Inc. v. Bhd. of Rwy. Clerks, 358 F.Supp. 760, 771, 774-5 (S.D.N.Y.1973); Atlantic Coast Line 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 225, cert. den., 389 U.S. 1047, 88 S.Ct. 790, 19 L.Ed.2d 839 (1968). 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 TIA 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 conditions (a merger). He quoted Judge Peckham’s ruling that mere “exorbitant size” of demands does not demonstrate a refusal to make reasonable efforts to reach an agreement, 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 TIA ruling. 650 F.2d at 959. In the Atlantic Coast Line case, Judge Holtzoff refused an injunction after a full trial, simply noting his conclusion that “the negotiations were genuine” and that “the reasonableness of a proposal contained in a Section 6 notice [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 favorable consideration” by the other party. Id. 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. 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.” Id. 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 economic 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 negotiation proposals of the parties. Implicit and sometimes explicit in the cases is adherence to an admonition of Judge Bryan, given almost thirty years ago, in a decision denying 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 unsound, 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 certainly 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, 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 bargaining 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 agreement.” 169 F.Supp. at 793-5. The C & NW majority decision 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, 74 S.Ct. 139, 98 L.Ed. 391. Until last September, the general procedural standards for surveillance of bargaining under the RLA have been generally equated with those under the NLRA, with emphasis, however, on the precautions announced in C & NW. A survey of such standards is contained in Judge La