464 F.2d 1326 (2nd Cir. 1972), 654-657, N. L. R. B. v. J. P. Stevens & Co., Inc.

Docket Nº:654-657, 30914, 30391, 31164, 31245.
Citation:464 F.2d 1326
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. P. STEVENS & CO., INC., et al., Respondents.
Case Date:July 13, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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464 F.2d 1326 (2nd Cir. 1972)



J. P. STEVENS & CO., INC., et al., Respondents.

Nos. 654-657, 30914, 30391, 31164, 31245.

United States Court of Appeals, Second Circuit.

July 13, 1972

Argued April 19, 1972.

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Jerome N. Weinstein, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul Elkind, Chief, Contempt Litigation, on brief), for petitioner.

Whiteford S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for respondents.

Before FRIENDLY, Chief Judge, and WATERMAN and FEINBERG, Circuit Judges.


The National Labor Relations Board has moved in this court for an order adjudging respondents J. P. Stevens & Co., Inc., Mason Lee, Edna Parrish, Marshall Cox, Tommy Gardner, Pete Rawlings and Max Bowers 1 in civil contempt for failing to comply with this court's decrees entered pursuant to our decisions in J. P. Stevens & Co. v. N. L. R. B., 380 F.2d 292 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967), and Textile Workers Union of America v. NLRB, 388 F.2d 896 (2d Cir. 1967), cert. denied sub nom. J. P. Stevens & Co. v. N. L. R. B., 393 U.S. 836, 89 S.Ct. 112, 21 L.Ed.2d 107 (1968). In those decisions we upheld the Board's determination that the Company had engaged in "massive violations" of sections

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8(a) (1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (3) and (4), and we enforced with minor modifications the Board's orders requiring Stevens to comply with the Act. We are now faced with the charge that in many instances respondents have ignored or refused to comply with our earlier orders.

To help us adjudicate these charges we originally appointed the late Edwin M. Stanley, Chief Judge of the United States District Court for the Middle District of North Carolina, as Special Master to hear testimony and take evidence and to make determinations of fact and law on the issues raised. During March 1971, Judge Stanley held extensive hearings at which numerous witnesses testified, resulting in nearly 2,500 pages of transcript. Before the parties had completed the filing of briefs Judge Stanley died suddenly on December 23, 1971. We take this occasion to mourn the loss of a distinguished member of the federal bench.

With the death of Judge Stanley and in view of the long period of time that had elapsed since our prior orders, we decided that, rather than referring the case to a new master, the better course was for this court to resolve the issues on the present record after hearing oral argument from the parties. In reaching our decision, we have proceeded with caution because of the seriousness of the charges involved. We have carefully studied the Board's proposed findings and the briefs of the parties, and we have heard oral argument from them. After making an independent examination of the entire record, we have adopted only those findings suggested by the Board where we found that the Board had produced clear and convincing evidence in support of its allegations of contemptuous conduct. Conversely, we have rejected many proposed findings when we found that standard of proof had not been met or when we thought the alleged misconduct too trivial or insignificant to constitute contempt of our orders. While an effort was made to resolve questions of fact by independent evidence, we were, at times, forced to resolve inevitable conflicts in testimony, i. e., the credibility of witnesses. In doing so, we have not considered that mere numerical superiority of witnesses advancing a particular version of the facts forced us to accept their account if we found the opposition's version more internally consistent, externally verifiable, or, on the whole, a far more plausible account of the events in question. Finally, more than might ordinarily be our practice we have adhered to the language of those proposed Board findings that we approve. We have done so not only because of the unusual posture of this case, already alluded to, but also to save time. Protection of the rights of the employees affected by respondents' continued unlawful conduct and the need for speedy vindication of this court's prior orders outweigh any considerations of style.

Our findings of fact and conclusions of law are attached as an appendix. As they make clear, respondents have flouted our prior decrees in many ways. In a continued attempt to dissuade employees from joining the Textile Workers Union of America, the Company and its management personnel in various plants, despite our prior orders, have continued to resort to such unlawful tactics as engaging in surveillance of organizing activities, interrogating employees about their union inclinations, threatening pro-union employees with discharge and other reprisals, discriminatorily altering their working conditions and discharging them because of their union sympathies. 2 In fact, one of the employees so discharged had been illegally

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terminated before, was reinstated by our prior order, but was then illegally discharged again. We regard this pattern of flagrantly contemptuous conduct most seriously. Our system of justice cannot survive if litigants are seized with the notion that they can ignore the lawful orders of a court simply because they may disagree with them. In addition, the record here strongly justifies the inference that these respondents deliberately took their chances in ignoring our decrees because they thought it profitable for them to do so. Finally, while conflicting testimony about a specific event may sometimes have been attributable to difference in perception or recollection, we cannot escape the impression that many conscious and deliberate falsehoods were given by company witnesses. We cannot express too sharply our condemnation and dismay for this apparent disregard of the legal and moral obligations which the testimonial oath imports.

Accordingly, we direct that an order be entered adjudging respondents in civil contempt of this court and requiring them to purge themselves as set forth in the Board's prayer for relief consistent with the attached findings and conclusions, including offering immediate and full reinstatement with back pay to those employees who have been unlawfully discharged, posting a notice in respondents' plants in North and South Carolina for 60 days notifying the employees of this decision, and paying to the Board all costs and expenses, including counsel fees and salaries, incurred by the Board as a result of these proceedings.

The Board shall submit a proposed order within 15 days after the filing of this opinion. Respondents may submit a counter-order within a like period thereafter.



A. The Underlying Decrees

1. On September 1, 1967, this court entered its decree in Nos. 30,914 and 30,391 (J. P. Stevens & Co. v. NLRB, 380 F.2d 292 (2d Cir.)) enforcing an order of the Board issued on March 22, 1966. By our decree, this court ordered, inter alia, that J. P. Stevens & Company, Inc., its officers, agents, successors and assigns:

Cease and desist from:

(a) Discharging, forcing the termination of, refusing overtime work to, or otherwise discriminating against employees in order to discourage membership in Textile Workers Union of America, AFL-CIO ["Union"] or any other labor organization.

(b) Discharging or otherwise discriminating against employees for giving testimony under the Act.

(c) Engaging in surveillance of employees' activity in respect to union organization.

(d) Interrogating any employee concerning such union activity by him or other employees.

(e) Threatening its employees with discharge or other reprisals if they become or remain members of the Union or give any assistance or support to it.

(f) Altering its working conditions for the purpose of defeating the organizational efforts of its employees or of [the Union], or the efforts of any other labor organization of its employees.

(g) Encouraging or permitting employees to engage in anti-union activity while prohibiting employees from engaging in activity on behalf of the Union.

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(h) Interrogating and intimidating employees concerning statements the employees gave to Board agents.

(i) Encouraging and assisting employees in withdrawing from the Union.

(j) Instructing employees to watch for and report to the Company the union activities of other employees.

(k) Requiring its employees to remove and prohibiting its employees from wearing Union insignia or threatening its employees with discharge for wearing Union insignia in its plants.

(l) Intimidating and coercing employees into withdrawing from the Union.

(m) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist [the Union], or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such activities.

  1. This decree, entered September 1, 1967, was stayed by this court on October 7, 1967, pending the Supreme Court's disposition of the Company's petition for certiorari, which was denied on December 11, 1967. J. P. Stevens & Co. v. NLRB, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600. At all other times said decree has been in full force and effect since its entry. At all material times herein the Company and the other named respondents had notice and knowledge of its terms.

    3. On March 26, 1968, this court entered its decree in...

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