Madden v. GRAIN ELEVATOR, FLOUR & FEED MILL WKRS., ETC.

• Decision Date: 20 August 1964
• Docket Number: No. 14361-14363,14429.,14361-14363
• Parties: Ross M. MADDEN, Regional Director of the Thirteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. GRAIN ELEVATOR, FLOUR AND FEED MILL WORKERS, INTERNATIONAL LONGSHOREMEN ASSOCIATION, LOCAL 418, AFL-CIO, and Seafarers' International Union of North America, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

334 F.2d 1014 (1964)

Ross M. MADDEN, Regional Director of the Thirteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. GRAIN ELEVATOR, FLOUR AND FEED MILL WORKERS, INTERNATIONAL LONGSHOREMEN ASSOCIATION, LOCAL 418, AFL-CIO, and Seafarers' International Union of North America, Respondents-Appellants.

Nos. 14361-14363, 14429.

United States Court of Appeals Seventh Circuit.

July 15, 1964.

Rehearing Denied August 20, 1964.

COPYRIGHT MATERIAL OMITTED

Irving M. Friedman, Harry G. Fins, Harold A. Katz, Chicago, Ill., for respondents-appellants.

Julius G. Serot, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., William J. Cavers, Chicago, Ill., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, James T. Youngblood, Marvin Roth and Frank H. Itkin, Attys., N. L. R. B., Washington, D. C., for petitioner-appellee.

Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.

Rehearing Denied August 20, 1964 en Banc.

SCHNACKENBERG, Circuit Judge.

Consolidated in this court are four appeals from the district court brought by the Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Association, Local 418, AFL-CIO, herein designated as the Local, and Seafarers' International Union of North America, herein designated as SIU, respondents, who were also respondents below as named in several petitions filed by Ross M. Madden, Regional Director of the National Labor Relations Board, for and on behalf of said Board, petitioner, for injunctive and other relief. Jurisdiction is based on Section 10(l) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 160(l), as amended, alleging violations of the secondary boycott provisions of § 8(b) (4) (i) and (ii) (B) of the Act, by SIU and the Local. Respondents filed an answer which denied that the Board or the district court had jurisdiction and denied various other material allegations of the petition.

On May 29, 1963, the court issued a temporary restraining order, which in substance enjoined respondents and all members acting in active concert with them from in any manner or by any means including picketing, orders, directions, instructions, requests or appeals inducing or encouraging any employee of Continental Grain Company (hereinafter called Continental) to refuse to handle any goods at the port of Chicago, where the object thereof was to force Continental to cease doing business with Upper Lakes Shipping, Ltd., a Canadian corporation (hereinafter called Upper Lakes).

The same day copies of the order were served upon Jack E. Connor, the president and business agent of the Local, and upon the employees of Continental, which then ordered several employees to load the Howard L. Shaw, a Canadian flag vessel owned by Upper Lakes. Continental had about 33 employees working that day who were all members of the Local¹ and 28 were present at a meeting in the lunchroom. While there Connor addressed the group, read the court's order, except the last paragraph, which was, however, read by the United States marshal who noticed the omission.

Upon the suggestion of Connor that the men might want to talk among themselves, the marshal and other non-members left the lunchroom and the meeting proceeded there. In a few minutes Connor came out of the meeting room and said that the men were going to vote. Connor returned to the meeting room and then came out and said that the men were not going to load the ship.

Thereafter the men refused to load the ship and the Shaw vacated the berth to let another steamer, the Allendale (not an Upper Lakes ship), in to load.

On May 31, 1963, the Board filed a petition in civil contempt against the Local and the court entered an order directing it to show cause why it should not be held in contempt of court. The Local answered the petition and demanded a trial by jury, which was denied. Following a bench trial, the court on June 4, 1963 entered findings of fact, conclusions of law and an order, which found the Local in civil contempt of court by reason of its disobedience and refusal to comply with the temporary restraining order. The Local was ordered to purge itself of contempt by obeying the order of May 29, 1963 and paying the sum of $1,000 by check or money order payable to the Treasurer of the United States.²

On June 14, 1963, the district court, after hearing evidence on the Board's petition, entered findings of fact and conclusions of law and an order granting a temporary injunction prohibiting SIU and the Local from encouraging or inducing employees to refuse to perform services, or from coercing Continental, if an object thereof was to force Continental to cease doing business with Upper Lakes, and directing the Local, its officers and agents, to withdraw all requests or appeals previously made to Continental employees to refrain from loading grain on ships of Upper Lakes and to advise the employees that they were free to perform any and all services for Continental.³

Following a hearing on a petition filed August 6, 1963 by the Board, the court on August 14, 1963, made findings of fact and conclusions of law, and entered an order adjudging the Local in contempt, and fining it $100 a day retroactively from June 17, 1963. The order provided that the fine would be remitted if the Local within 30 days purged itself, otherwise the fine would be $200 a day beginning August 14 for each day that it failed to comply.⁴

On August 20, 1963, the Local filed a motion to remit the fine on the ground that Connor, its president, had, by letter dated August 16, 1963, notified each member that all requests or appeals, if any, to employees of Continental to refrain from loading grain on Upper Lakes ships were withdrawn and that each was free to perform any and all services for Continental. This letter was read by Connor to the members at a special meeting.

On September 23, 1963, the Local filed a notice of appeal from the contempt order which had been entered on August 14.

On September 17, 1963, a hearing was held on the Local's August 20 motion. The court heard evidence and argument and entered its opinion, remarking that Connor's action did not purge the Local and that it did not constitute union action. Thereupon, on September 24, 1963, the court denied the motion to remit the fine, and it did not grant a trial by jury. It also entered an order nunc pro tunc as of September 17, 1963, which inter alia decreed that the daily fine of $200 imposed by the order of August 14, 1963 be increased to $500 a day from September 17, 1963, and that in all other respects the order of August 14, 1963 should remain in full force and effect.

The court also ordered on September 24, 1963 a suspension of the daily fines starting September 20, 1963, the date upon which the Shaw sailed from Chicago. The court on September 24 stated that the injunction order was still in effect and that fines thereinafter to be set would be measured at $3,000 a day when opportunity to demonstrate obedience to the court's order should present itself and "such opportunity is not carried forward. This is prospective."

On October 16, 1963, the Board's motion called the court's attention to the fact that the Local had been guilty of refusal by the employees to load the S. S. Erickson, another Upper Lakes vessel. The Local answered and again demanded a trial by jury, which was denied. The court heard evidence and, on October 31, 1963, ordered the Local to purge itself by complying with the order of June 14, 1963, and on refusal ordered reinstated the fine of $500 a day beginning October 29, 1962 and imposed a fine of $3,000 a day for October 4, 7, 11 and 26, 1963 (when the Erickson docked and Local 418 had not complied with the prior order of the court in regard to loading). The order further provided for the Local to file within 30 days from October 29, 1963 an appeal bond of $27,300 plus $500 for each day from the date of the order until the bond was posted, and lacking a bond all fines accrued should be due and payable.

The Local made a motion that the part of this order relating to the appeal bond be vacated, which motion was, on November 27, 1963, denied.

On December 2, 1963, the Local's notice of appeal from the order entered October 31, 1963 and the order entered November 27, 1963, was filed.

1. Respondents contend that the district court failed to comply with 28 U.S.C.A. rule 52(a), inasmuch as, according to respondents, the court made no findings of fact and conclusions of law when it entered the orders of September 24 and October 31. We disagree. The record is replete in this respect.⁵

(a) For instance we refer to parts of the record relating to the order of September 24, 1963. The stenographic transcript reveals a detailed analysis of the evidence and the court's findings of fact. It specifically found, as the result of a review of the testimony of various witnesses, that, on August 19, 1963, "nevertheless the men refused" to load the Shaw.

The court stated that in June 1963 it had found that there was in fact a secondary unlawful boycott, as a consequence of which an injunction issued, and subsequently thereto the court held the Local in contempt of court. The court then referred to the letter of Connor to the members of the union advising them that they were free to perform all services for Continental, but it did not hold that this letter was sufficient to purge each union member as an employee of Continental. It did hold that, in order for the fine to be remitted, each employee member must purge himself of contempt, and that the union, under its constitution and bylaws, would not be purged by the action of the president alone. The court found and held that Connor's conduct constituted an act of purging on his part, but that it did not constitute union action. Moreover, finding no organizational action by the union, the court said that it must find that...