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UNITED STATES v. GREYHOUND CORPORATION

June 27, 1973

UNITED STATES OF AMERICA, AND INTERSTATE COMMERCE COMMISSION, PETITIONERS,
v.
THE GREYHOUND CORPORATION ET AL., RESPONDENTS. UNITED STATES OF AMERICA, AND INTERSTATE COMMERCE COMMISSION, PETITIONERS, V. THE GREYHOUND CORPORATION, AND GREYHOUND LINES, INC., RESPONDENTS.



The opinion of the court was delivered by: Robson, Chief Judge.

            MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

The United States and the Interstate Commerce Commission (ICC) filed two petitions seeking orders to show cause why the Respondents should not be held in contempt for failing to comply with an order of a three-judge panel of this court, entered February 5, 1970, reported at 308 F. Supp. 1033.*fn1 The civil contempt petition named as respondents: The Greyhound Corporation, Greyhound Lines, Inc., R.F. Shaffer, J.L. Kerrigan and F.L. Nageotte. The criminal contempt petition was directed only at The Greyhound Corporation and Greyhound Lines, Inc. Pursuant to these petitions this court issued orders for the respondents to show cause why they should not be held in civil and criminal contempt. There was a response to the Orders to Show Cause and the case proceeded.

In accordance with a Pre-Trial Order of March 8, 1972, the two petitions were consolidated for all purposes and there was no evidentiary hearing. The trial record of this case included:

a) The record of the prior proceedings in this case both before the Interstate Commerce Commission and before this Court;

b) The pleadings, interrogatories and supporting affidavits and exhibits on file herein and in Mt. Hood Stages, Inc. v. The Greyhound Corporation, No. 68,374, in the United States District Court, District of Oregon;

c) The testimony taken and exhibits identified in the depositions in this case and in Mt. Hood Stages, Inc. v. The Greyhound Corporation, supra;

d) The documents produced by either party in this proceeding and in Mt. Hood Stages, Inc. v. The Greyhound Corporation, supra, as well as correspondence between Mt. Hood Stages, Inc. and Greyhound relating to the subject matter of this action.

Because of the large number of individuals who are mentioned in the opinion and to whom reference was made, the court shall identify these persons here and finds:

  1.  Mr. R.F. Shaffer is President of The
      Greyhound Corporation. He is a resident of
      Arizona.
  2.  Mr. J.L. Kerrigan is President of Greyhound
      Lines, Inc. He is a resident of Arizona.
  3.  Mr. F.L. Nageotte, President of Greyhound
      Lines-West, an operating division of
      Greyhound Lines, Inc., with its principal
      place of business in San Francisco,
      California. Mr. Nageotte is a resident of
      California.
  4.  Mr. Gerald H. Trautman, Chairman of the Board
      and Chief Executive Officer of The Greyhound
      Corporation.
  5.  Mr. Bart Cook, Vice-President of Traffic for
      Greyhound Lines-West.
  6.  Mr. R.N. Dick, Vice-President of
      Transportation for Greyhound Lines-West.
  7.  Mr. William E. Hastings, Staff Vice-President
      of Greyhound Lines, Inc.
  8.  Mr. Bernard Gould, Director of the ICC's
      Bureau of Enforcement. He is responsible for
      enforcement by court action of administrative
      proceedings of all violations of the
      Interstate Commerce Act.
  9.  Mr. Fredrick J. Carson, an ICC Rate and
      Tariff Examiner 1970-1971.
  10. Mr. William Niskanen, President of Mt. Hood
      Stages, Inc., which does business as Pacific
      Trailways. Throughout this opinion this
      company shall be referred to as "Mt. Hood".
      It should also be noted that Mt. Hood was
      permitted to intervene in this action for the
      limited purpose of submitting a statement in
      support of the government's civil contempt
      petition and to appear at any hearing held on
      the issue of civil relief.
  11. Mr. George A. Warrington, Vice-President and
      General Manager of Pacific Trailways.
  12. Mr. Thomas E. Donohue, Traffic Manager of
      Pacific Trailways.

The court, having studied the testimony and exhibits submitted in this cause, and having examined the written briefs of counsel, and being fully advised of the premises, further finds as follows:

The jurisdiction of the court is not disputed.

The Greyhound Corporation is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Phoenix, Arizona.

Greyhound Lines, Inc., is a corporation organized and existing under the laws of the State of California with its principal place of business in Phoenix, Arizona. It is a wholly owned subsidiary of The Greyhound Corporation. Greyhound Lines, Inc., was a plaintiff in civil action 69-C-1148 and was subject to the order of this court entered February 5, 1970.*fn2

The geographic setting for these contempt proceedings is Oregon, Idaho, Washington, and California. The several small cities mentioned regularly in the opinion are: Klamath Falls, The Dalles, Biggs, and Bend, Oregon; Redding, California; Pasco and Yakima, Washington.

The respondents Shaffer, Kerrigan, and Nageotte are actively engaged in the management, direction and control of Greyhound's affairs and are responsible for Greyhound's compliance with the order of this court entered in civil action 69-C-1148 on February 5, 1970.

Since the order was entered in this case, Greyhound has engaged in a course of conduct which evidences a willful failure to comply with several of its paragraphs. Gradually, the pressure of this contempt litigation forced Greyhound to bring its conduct into conformity with many aspects of the order. This conclusion is supported by examining Greyhound's eleventh hour remedial action.*fn3 While these belated corrective actions may eliminate the need for further civil sanctions, they will not erase the record of past contempt, nor obviate the appropriateness of criminal sanctions. A criminal contempt proceeding is punitive in nature. It serves to vindicate the authority of the court where a defendant has willfully disobeyed a lawful court order, Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Furthermore, a criminal contempt cannot be ended by any act of the contemnor, In re Curtis' Petition, 240 F. Supp. 475 (E.D.Mo. 1965).

The evidence presented in this case compels the court to conclude that Greyhound willfully violated Paragraphs 1, 3, 4, 5, and 6 of this court's order and that such willful violations were established beyond a reasonable doubt. The court further finds that there was no criminal contempt as to Paragraphs 2, 8, and 9.

As to Paragraphs 1, 3, 4, 5, and 6 the Court finds that Greyhound had notice of the order and that it willfully failed to embark on a program of compliance that would meet the requirements of the order. With respect to some paragraphs, Greyhound failed to take any steps toward compliance. With respect to others, Greyhound interpreted the order in such a way as to render it meaningless. Yet the law is clear that a party who makes his own determination as to the meaning of a decree, acts at his peril. If Greyhound had doubts as to its obligations under the order, it could have petitioned this court for a clarification or construction of that order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 192, 69 S.Ct. 497, 93 L.Ed. 599 (1949). The law is equally clear that even where there is "no open and direct defiance," a company which acts under a "twisted interpretation" that would render a decree ineffective may be found guilty of civil and criminal contempt. United States v. Gamewell Co., 95 F. Supp. 9, 13 (D.C.Mass. 1951). So in this case Greyhound acted under twisted interpretations of parts of the court's order which lead it to violate that order.

To illustrate and support the court's conclusion, it is necessary to review the conduct of the respondents in light of the plain language of the order.

II. CRIMINAL CONTEMPT CHARGES

VIOLATIONS OF PARAGRAPH 1

The evidence shows beyond a reasonable doubt that Greyhound did not treat Mt. Hood on an equal basis with other non-Greyhound lines. For example, in January, 1970, Greyhound table 603A failed to show Mt. Hood's connecting service between Portland, Bend, and Salt Lake City. In July, 1970, five months after the court's order, Greyhound added Mt. Hood's connecting service between Boise and Salt Lake City, but still omitted Mt. Hood's service originating in Portland destined for Madras, Bend, and Salt Lake City. The fastest route between Portland and Bend, Oregon is via Mt. Hood. Since Greyhound does not serve Bend, this route via Mt. Hood is a connecting schedule with Greyhound at Portland. Greyhound shows schedules of other carriers which connect Greyhound service with points that Greyhound does not serve. For example, in table 585 Citizen Auto Stage Company's service between Tucson, Arizona (which Greyhound serves) and Nogales, Arizona (which Greyhound does not serve) is shown. In this table, Greyhound shows all of Citizen's service between these points. Thus, Greyhound's omission of Mt. Hood's service between Portland and Bend was discriminatory against Mt. Hood as opposed to its treatment of other non-Greyhound carriers. It is significant that in October, 1971, four months after the contempt petitions were filed Greyhound, in an effort to expiate its sins, saw fit to include Mt. Hood's service from Portland to Bend in table 603A.

Greyhound argues that it was not obligated to show this particular route because it was directly competitive with an all Greyhound route, and that the government has not shown that the failure to show this particular route constituted unequal treatment of Mt. Hood. These arguments are not convincing. Greyhound was under an ICC order since December, 1968, to show the route in question.*fn5 Furthermore, the government did show that the omission of the Mt. Hood route in question did constitute unequal treatment by reference to Greyhound table 585 above.

If Greyhound was of the opinion that it was not required to show directly competitive service it should have asked this court for an interpretation or modification of the order. As the Supreme Court stated in McComb v. Jacksonville Paper Co., 336 U.S. 187, 192, 69 S.Ct. 497, 500, 93 L.Ed. 599 (1949):

  "Yet if there were extenuating circumstances or
  if the decree was too burdensome in operation,
  there was a method of relief apart from an
  appeal. Respondents could have petitioned the
  District Court for a modification, clarification
  or construction of the order. . . . But
  respondents did not take that course either. They
  undertook to make their own determination of what
  the decree meant. They knew that they acted at
  their peril."

So in the present case, Greyhound could have sought guidance from this court if it was of the opinion that directly competitive service need not be shown.

Finally, Greyhound was under a court order to show Mt. Hood's services on an equal basis with other non-Greyhound lines. While it may be true that Greyhound cannot, or physically could not, show all connecting service from each city it serves, Greyhound should have taken special care in this case to include Mt. Hood's service in its folders. This is especially true since Greyhound had been constantly reminded by Mt. Hood and the ICC that its efforts to comply with Paragraph 1 were not up to standard.*fn6

Additional evidence of unequal treatment is found in table 603. The basic problem with this table was that it showed many off-route points, thus failing to indicate that the Greyhound-Mt. Hood through-bus service via Klamath Falls was direct between Klamath Falls and The Dalles. The table also failed to show the departure time from The Dalles and the interchange point of Smithsville for the connecting Mt. Hood-Greyhound service to Yakima and Ellensburg.

Furthermore, table 603 shows schedules 821 and 822, the through-bus. The presence of these schedules in table 603 made it appear as if these Mt. Hood schedules (jointly with Greyhound) were being run through Portland, when actually the runs were direct between The Dalles and Klamath Falls. Greyhound also continued to show in table 603, labeled "San Francisco-Spokane", the all Greyhound service via Portland.

That Mt. Hood was not being treated by Greyhound on an equal basis is evident from Greyhound's showing of other lines on analogous tables. For example, table 117, in a comparable situation, Greyhound shows the through and connecting service with Bonanza Bus Lines, Inc., without including intermediate off-line points which would make the table unclear.*fn7

In October, 1971, twenty months after this court's order and four months after the contempt petitions were filed, Greyhound corrected table 603 so as to eliminate the confusion generated by the showing of off-route points. This correction also brought the presentation of Mt. Hood's schedules by Greyhound more into conformity with Greyhound's treatment of other non-Greyhound lines.

Further evidence of unequal treatment is found in Greyhound table 31C, which presented some of Mt. Hood's routes in a distorted and confusing manner. Prior to the court order, Greyhound's through-bus service between San Francisco and Spokane via Portland was shown. Five months after the court order this table was revised to show Greyhound-Mt. Hood through-bus service between San Francisco and Spokane via Klamath Falls. However, the table also showed several off route points creating the impression that the service went through these points when in fact it did not. The July, 1970, version of this table failed to show Greyhound-Mt. Hood connecting service.*fn8

In July, 1971, Greyhound began to show the connecting times for several of the off-route points. But Greyhound still failed to show the Greyhound-Mt. Hood connecting service.

In October, 1971, Greyhound eliminated some of the off-route points. The connecting service to Sacramento and Los Angeles was shown in a clear and satisfactory manner. In addition, Greyhound revised the table to include Greyhound-Mt. Hood connecting service. However, this was shown incompletely as Greyhound's service from Spokane to The Dalles was omitted. Consequently, passengers and agents would not be aware that one could transfer to a Mt. Hood bus at The Dalles. It was not until January, 1972, that Greyhound's connecting schedule from Spokane to The Dalles was added.*fn9

That Greyhound was not treating Mt. Hood on an equal basis becomes clear when table 31C is compared with Greyhound table 31B, which immediately precedes table 31C. Greyhound's table 31B shows schedules between Seattle, Portland, Reno, Las Vegas and Phoeniz. This table not only shows the through-bus service via Greyhound, Las Vegas-Tonapah-Reno Stage Lines, and Sun Valley Bus Lines, but also shows the connecting service for the same carriers. Connecting services via Greyhound and Mt. Hood, however, were not shown for the succeeding table 31C. It is thus clear that Greyhound did not treat Mt. Hood's schedules at least as well as it treated other non-Greyhound carriers' schedules.

Greyhound stated that upon filing of the contempt petitions it revised several schedules, including table 31C so as to remove the alleged distortions and omissions. However, as indicated above, table 31C did not completely and accurately show Mt. Hood's service until six-months after the contempt petitions were filed.

The government also charged that Greyhound's omission of table 31C from Greyhound Lines-West Timetable and Greyhound time folders was an act of discrimination against Mt. Hood. That Greyhound did not treat Mt. Hood on an equal basis with other non-Greyhound carriers is readily apparent from examples such as Greyhound's inclusion of table 12A in its Systems Timetable. Table 12A shows through service between Dallas, (Texas) Albuquerque, and California via Orange Belt Stages, Texas, New Mexico, and Oklahoma Coaches, and New Mexico Transportation Co. Table 31C, showing service from California to Washington is an analogous table and under the order should have been included in the Systems Timetable along with table 12A.

Greyhound contends that table 31C is one of a special group of tables which are designed to show through service, not connecting service, between major points. However, the court is of the opinion that if Greyhound did not think it should be required to show Mt. Hood's connecting service on table 31C it should have sought a modification, clarification, or construction of the order. See McComb v. Jacksonville Paper Co., supra.

In light of the foregoing, the court must conclude that Greyhound willfully failed to treat Mt. Hood on an equal basis with other non-Greyhound carriers in that tables 603, 603A, and 31C failed to depict Mt. Hood's service at least as well as Greyhound depicted the service of other non-Greyhound lines.*fn10 Also, the failure to include table 31C in the Systems Timetable was discriminatory as against Mt. Hood.

The element of willfulness required to support a finding of criminal contempt is established by the fact that Greyhound unreasonably delayed in complying, with the mandate of Paragraph 1.*fn11 As shown above, many of the required changes in tables were not made until after the contempt petitions were filed (eighteen months after the order was entered). Greyhound's failure to effect corrections for this length of time hardly evinces an attitude of good faith or cooperation. It appears that Greyhound was playing fast and loose with the court, the ICC, and Mt. Hood. Greyhound chose to delay compliance rather than promptly and fully complying with the order at the time it was entered. Greyhound either claimed it did not think the order required it to do things which are now charged as contempt, or Greyhound acted under strained interpretations of the order that tended to make Paragraph 1 meaningless. Once the criminal contempt petitions were filed, however, Greyhound moved with great speed in fulfilling the mandate of Paragraph 1. Yet Greyhound never indicated to this court that compliance would not be possible, nor did Greyhound ever seek a clarification or construction of the order, as it had the right to do, Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 15, 65 S.Ct. 478, 89 L.Ed. 661 (1945). Instead Greyhound chose to act upon its own interpretation of the order, but in doing so it acted at its peril, McComb v. Jacksonville Paper Co., supra. Greyhound had been warned on numerous occasions by Mt. Hood and the ICC that they did not think its conduct was in conformity with the requirements of the order.*fn12 Greyhound had ample opportunity to either: (1) comply with the suggestions of those parties or, (2) seek the guidance of this court if it was of the opinion that the demands of the ICC and Mt. Hood were unreasonable. But Greyhound chose to do neither until after the contempt petitions were filed thus displaying a total lack of concern for compliance with Paragraph 1 of the order. Under these circumstances, the court must conclude that there was a willful failure to comply with Paragraph 1, and accordingly, the court hereby finds Greyhound in criminal contempt.

VIOLATIONS OF PARAGRAPH 2

Paragraph 2 required Greyhound: (1) to restore the through-bus service which Greyhound operated until September 8, 1964, in connection with Mt. Hood via Klamath Falls and The Dalles, Oregon; and (2) discontinue the bus service Greyhound has operated in substitution therefor since then via Portland, Oregon.

The government charged in the criminal contempt petition that Greyhound willfully disobeyed Paragraph 2 in that Greyhound did not discontinue its practice of routing passengers over its route via Portland, in substitution of the Greyhound-Mt. Hood joint through-route. The court, having carefully considered the petition, response, and the briefs, is of the opinion that the government has failed to prove beyond a reasonable doubt that Greyhound violated Paragraph 2. The government's own admissions that Greyhound has fulfilled both requirements of Paragraph 2 eliminates any basis for a finding of either civil or criminal contempt.*fn13

It appears from the government's petition and brief that the gist of the complaint against Greyhound is that it has failed to take affirmative measure to stop the practice of routing passengers over its Portland route, thus diverting traffic from the Greyhound-Mt. Hood joint through-bus.*fn14 However, nothing in the order required Greyhound to promote traffic over the Greyhound-Mt. Hood joint through-bus. Furthermore, the order did not prohibit Greyhound from providing alternative routes through Portland to points in Washington. In fact, such competitive service has long existed in the California, Oregon, and Washington area.*fn15 And it should be no surprise that the all-Greyhound route from California through Portland to Washington will attract many passengers away from the Greyhound-Mt. Hood joint through route. Mr. Donohue of Mt. Hood stated:

  "In all cases these very fast [Greyhound]
  schedules compete with service via the
  joint-route (Spokane and Yakima). . . . I don't
  know what it is worth but it does show that the
  all

  Greyhound schedules are very competitive with
  joint service routes."*fn16

The final government charge relating to alleged violations of Paragraph 2 is based upon the fact that Greyhound altered schedule 1622, the San Francisco-Seattle express. The government contends that this change was made in order to divert passengers from the joint through-bus, thereby injuring Mt. Hood. However, the government also admitted that Greyhound may have had proper reasons for making the schedule change:

  "[i]t is arguable that there were proper reasons
  for improving the connection of schedule 1622 with
  busses to points in Washington, such as to enable
  passengers from the Willamette Valley in Western
  Oregon to make good connections to points in
  Washington, . . ." (Emphasis added)*fn17

Thus, the government itself has indicated that the reasons for the change in schedule 1622 may or may not have been to divert traffic from the joint through-bus. The fact that this schedule change may have diverted some passengers from the joint through-bus is not conclusive that Greyhound violated Paragraph 2, for that paragraph did not require that a certain percentage of traffic travel by way of the through-bus. The order merely required that Greyhound restore the San Francisco-Spokane joint through-bus via Mt. Hood's route between Klamath Falls and The Dalles (Biggs) and to discontinue its own substitute service via Portland.

The court, having found that Greyhound has done that which was required of it, hereby finds Greyhound not guilty of either civil or criminal contempt for alleged violations of Paragraph 2.

VIOLATIONS OF PARAGRAPH 3

Paragraph 3 ordered Greyhound to revise its interline schedules in connection with Mt. Hood so as to eliminate the presently existing delay of approximately three hours for passengers seeking to travel between California and Spokane via Mt. Hood's route. Paragraph 3 also required Greyhound to negotiate in good faith with Mt. Hood on the establishment of bus schedules most advantageous to the traveling public.

On the evidence presented, the court is of the opinion that Greyhound willfully violated Paragraph 3 in that it did not eliminate the three hour delay until eighteen (18) months after the entry of the order, and did not negotiate in good faith.

A. The Three Hour Delay

The contempt petition charged that Greyhound failed to revise its interline schedules in connection with Mt. Hood so as to eliminate a three-hour delay for passengers seeking to travel between California and Spokane via Mt. Hood's route. Greyhound's schedule 2933 from Spokane arrived at The Dalles more than three hours before the departure of Mt. Hood schedule 16 which travels south and connects at Klamath Falls with a Greyhound schedule traveling to California.

Greyhound took the position that Paragraph 3 of the order overlapped with Paragraph 2, and that by complying with Paragraph 2 (restoring the joint through-bus), compliance with Paragraph 3 was achieved. See Respondent's Brief 65, 68-69. The court cannot agree with this interpretation, for if the requirements of Paragraph 3 were incorporated in Paragraph 2, then there would have been no purpose in having Paragraph 3. The very language of the order demonstrates that there is a difference between the "through-bus service" referred to in Paragraph 2, and the "interline service" in Paragraph 3. Interline service involves an exchange of passengers from a Greyhound bus to one of Mt. Hood's, whereas through-bus service involves utilization of the same equipment (bus) over one or more routes. A Greyhound officer even acknowledged the difference. See Nageotte Deposition 113. The court must conclude that the requirements of Paragraph 3 are separate and distinct from those of Paragraph 2 and that compliance with Paragraph 2 (restoration of the joint through-bus) did not result in compliance with Paragraph 3 (revision of interline schedules to eliminate the three-hour delay).*fn18

The court further finds that the condition that Paragraph 3 was designed to remedy, i. e., the elimination of the three-hour delay, was exclusively within Greyhound's control. It alone had the power and ability to effect the schedule changes required by Paragraph 3. Yet the record shows that Greyhound failed to make those changes until November 10, 1971, eighteen months after the entry of the order and three months after the amended contempt petitions were filed. Notwithstanding the respondent's protests, it appears clear that the impetus for making the changes in November, 1971 was the filing of the contempt petitions. The court further finds that there was no plausible excuse for Greyhound's failure to comply promptly with the mandate of Paragraph 3. Its delay in complying with this paragraph constituted willful disobedience of the order. Accordingly, the court finds Greyhound in criminal contempt for failing to eliminate the three hour delay in a timely and expeditious manner.

B.  Violations Regarding Greyhound's Failure to Negotiate
        in Good Faith.

Paragraph 3 of the order required Greyhound to ". . . negotiate in good faith with Mt. Hood on the establishment of bus schedules most advantageous to the traveling public . . . ." The Amended Contempt Petition charged that Greyhound failed to negotiate in good faith to provide convenient connections between its service from Coos Bay, to Eugene, Oregon and Mt. Hood's service from Eugene to Bend, Oregon and also for service in the opposite direction. The government also charged that Greyhound failed to provide good connections between its services from Twin Falls to Pocatello, Idaho, via Burley, Idaho and Mt. Hood's service from Portland, Oregon, to Salt Lake City, Utah and for service in the opposite direction.

Greyhound denied that it refused to negotiate in good faith with Mt. Hood on the establishment of bus schedules most advantageous to the traveling public. It further stated that it has revised its schedule from Coos Bay, Oregon and points south to make a 30 minute connection at Eugene with Mt. Hood's run 6E eastbound. This revision, claims Greyhound, eliminates the basis for the charge that Greyhound refused to negotiate in good faith about the connection at Eugene. However, the context in which the changes were made is more important, for criminal contempt purposes, than the fact that changes were eventually made. The manner in which the negotiations were conducted must be examined to determine whether Greyhound negotiated in good faith.

In an effort to secure compliance with the requirement of Paragraph 3, Mt. Hood's officials met and corresponded several times with Greyhound's officials.*fn19 During these meetings, Mt. Hood made specific proposals toward improving connections at Eugene, Oregon. Greyhound's standard response to these proposals was that it would consider and work on them. Greyhound took no affirmative action until October 6, 1971, (3 months after the contempt petitions were filed) when it announced that effective November 10, 1971, the Eugene connection was being improved. The change was basically that which Mt. Hood had suggested eighteen months earlier. A Greyhound official admitted that there was no reason why it would have been more difficult to implement the change when it was first suggested by Mt. Hood in March, 1970, than it was in November, 1971.*fn20 This admission corroborates the court's conclusion that Greyhound was dragging its feet during these negotiations and that Greyhound's course of conduct was not in good faith.

As for negotiation pertaining to the Burley, Idaho connections, the government asserts that Greyhound did nothing to solve this problem until more than four months after the amended contempt petitions were filed. However, the government also admitted that the solution to the Burley problem was more difficult to arrange. The change of the Burley connection would require schedule changes by Mt. Hood, which Mt. Hood conceded would be difficult to change because its schedules were tied to the system schedules of Continental Trailways. Under these circumstances, it is difficult to state with absolute certainty that Greyhound refused to negotiate in good faith about the Burley connection. Nevertheless, the order merely required Greyhound to negotiate with Mt. Hood, not necessarily agree. It is true that Mt. Hood never made a specific proposal with regard to the Burley problem, but having had its proposals for the Eugene problem repeatedly ignored, it would appear to have been a useless act for Mt. Hood to have drawn up a detailed proposal with regard to the Burley connection. Furthermore, although Greyhound was aware of the Burley problem, it took no action to solve this problem until four months aft-the contempt petitions were filed. In light of these facts, the court must conclude that Greyhound willfully failed to negotiate in good faith with Mt. Hood. The record is silent as to any attempt by Greyhound to reach an accord with Mt. Hood on their mutual problems.

The duty to negotiate in good faith means at least that the parties have an obligation to participate actively in deliberations so as to indicate a present intention to find a basis for agreement. N.L.R.B. v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th Cir. 1943). There must also be a sincere effort to overcome obstacles or differences between the parties, N.L.R.B. v. Wonder State Mfg. Co., 344 F.2d 210, 215 (8th Cir. 1965). The record before the court fails to indicate that Greyhound ever negotiated with a present intention to find a basis for agreement, or that it ever sincerely endeavored to overcome obstacles that existed between it and Mt. Hood.

Greyhound's principal defense to the charges relating to Paragraph 3 is that the government based its complaint on the fact that Greyhound failed to reach an agreement with Mt. Hood on the various changes, not on a failure to negotiate in good faith. Greyhound states that it is settled that the duty to negotiate in good faith does not include a duty to agree. See N.L.R.B. v. Taormina, 244 F.2d 197, 198 (5th Cir. 1957); N.L.R.B. v. Whittier Mills Co., 123 F.2d 725, 728 (5th Cir. 1941). Greyhound points to the government's characterizations of the meetings between Greyhound and Mt. Hood as "friendly" in support of its position that there was no refusal to bargain in good faith, only a failure to agree.

Greyhound's contentions are without merit. First, the Warrington and Niskanen affidavits make it clear that the matter of improved bus connections at the various points was discussed on more than one occasion. During the meeting of March 24, 1970, Warrington made specific proposals to bring about compliance with Paragraph 3. At the same time he offered to alter Mt. Hood's schedules to facilitate compliance with Paragraph 3. Furthermore, once Warrington made his proposals to Greyhound the matter of achieving compliance with the order was in Greyhound's hands. At that point it had to either implement the proposals of Mt. Hood or develop some of their own which could then be considered by Mt. Hood. But Greyhound chose to take the matter under advisement for some eighteen months; then it implemented a plan similar to the one Warrington suggested in March, 1970. Greyhound then has the audacity to state that by implementing the changes the basis for the contempt charge was removed. While the duty to negotiate in good faith does not necessarily include the duty to agree, it certainly imposes a duty to respond to a good faith proposal put forth by your adversary. Rapid Roller Co. v. N.L.R.B., 126 F.2d 452, 459 (7th Cir. 1942). The record of the present case fails to indicate that Greyhound made any response or counter-offer to any of Mt. Hood's suggestions. The standard refrain appears to be that it would consider Mt. Hood's proposals or alternative solutions, but no action was taken by Greyhound until after the contempt petitions were filed.

The court therefore finds beyond a reasonable doubt that Greyhound willfully failed to comply with the good faith negotiation provision of Paragraph 3, and finds Greyhound in criminal contempt.

VIOLATIONS OF PARAGRAPHS 4 and 5

Paragraph 4 of the order required Greyhound to voluntarily and accurately quote joint through routes in connection with Mt. Hood, without geographical limitations, in a manner fully responsive to inquiries from the traveling public. Paragraph 5 required Greyhound to cease and desist from quoting Mt. Hood's service unfavorably or inaccurately in response to inquiries from the traveling public and from not quoting Mt. Hood's service at all in response to specific requests from the traveling public.*fn21

The criminal contempt petition charges that the respondents and their agents knowingly and willfully disobeyed Paragraphs 4 and 5 in that Greyhound and its agents (1) were not voluntarily and accurately quoting joint through routes in connection with Mt. Hood and (2) were not quoting Mt. Hood's services at all in response to requests from the traveling public as to the shortest, fastest, and least expensive and/or most convenient service available.

Specifically, the government charged Greyhound as follows:

(1) In June and July, 1970, the ICC conducted a survey to determine the extent to which Greyhound was quoting Mt. Hood's service in accordance with the order. The survey revealed that out of 80 inquiries, 47 of the responses, or 58%, received were incorrect, in that they did not voluntarily and accurately quote Mt. Hood's service when that service was the shortest, fastest, least expensive and/or most convenient.

(2) In July, 1971, the ICC conducted an additional survey to measure Greyhound's compliance. This survey revealed that 58 of the responses, or 51%, received were incorrect in that the agent did not voluntarily and accurately quote Mt. Hood's service when the service was the shortest, fastest, least expensive and/or most convenient.

(3) From February 5, 1970, to August, 1971, Mt. Hood conducted its own survey to determine the extent to which Greyhound was complying with the order. Mr. Donohue, Mt. Hood's traffic manager, conducted this survey at Greyhound terminals in the western United States. This survey showed that out of 316 telephone inquiries, 239 of the responses or 75%, received were incorrect, in that the joint service was not voluntarily and accurately quoted where joint service was faster, shorter, least expensive and/or more convenient.

(4) On May 26, 1970, Donohue gave Greyhound a report of 84 incorrect responses he had received from 39 different terminals subsequent to February 5, 1970. Later results of Mt. Hood's survey showed 118 additional incorrect responses were received at 24 of the same terminals about which Mt. Hood had previously complained to Greyhound.

(5) Finally, it was charged that Greyhound violated Paragraphs 4 and 5 of the order by issuing directives to its agents which were grossly inadequate to assure that they would be able to quote Mt. Hood's service in the manner contemplated by the order.*fn22

It was contended that Greyhound, by the acts of its agents, by refusing to take affirmative measures to cause its agents to comply with the order, and by taking action which was grossly inadequate to achieve full and accurate quotation of Mt. Hood's service, was willful disobedience of a lawful order of this court.

After carefully reviewing the evidence in support of these charges the court has come to the conclusion that Greyhound willfully violated Paragraphs 4 and 5. The evidence establishes beyond a reasonable doubt that Greyhound did not voluntarily and accurately quote joint through routes in connection with Mt. Hood and that Greyhound did not cease quoting Mt. Hood's service unfavorably or inaccurately in response to inquiries from the traveling public.

The principle evidence of violations of these provisions of the order is found in Exhibits B and E, attached to the affidavit of Bernard Gould, and in the Mt. Hood surveys, summarized in PX 20 (Donohue Exhibit A).*fn23 In the course of preparing surveys the ICC and Mt. Hood had to make certain judgments as to whether a particular quotation of service was or was not in compliance with the order. To evaluate ...


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