N.L.R.B. v. Union Nacional De Trabajadores

• Decision Date: 28 December 1979
• Docket Number: Nos. 75-1372,s. 75-1372
• Citation: 611 F.2d 926
• Parties: 103 L.R.R.M. (BNA) 2176, 87 Lab.Cas. P 11,752 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL DE TRABAJADORES and its Agent, Arturo Grant, Respondents. to 75-1376.
• Court: U.S. Court of Appeals — First Circuit

Page 926

611 F.2d 926

103 L.R.R.M. (BNA) 2176, 87 Lab.Cas. P 11,752

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL DE TRABAJADORES and its Agent, Arturo Grant Respondents.

Nos. 75-1372 to 75-1376.

United States Court of Appeals First Circuit.

Submitted Sept. 14, 1979.

Decided Dec. 28, 1979.

John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert

E. Allen, Acting Association Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Paul Elkind, Asst. Gen. Counsel, Stanley R. Zirkin, Deputy Asst. Gen. Counsel, Washington, D. C., for contempt litigation, and Christopher Katzenbach, Atty., Washington, D. C., on brief, for petitioner.

Pedro J. Varela and Escribano, Carreras, Acevedo, Perez & Varela, Hato Rey, P. R., on brief, for respondents.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

In 1976, this court granted enforcement of orders issued by the National Labor Relations Board against appellant here, Union Nacional de Trabajadores (Union), and various of its agents, including Union president Arturo Grant, in four separate unfair labor practices proceedings. N.L.R.B. v. Union Nacional de Trabajadores, 540 F.2d 1 (1st Cir. 1976). In March 1978, the Board petitioned the court to find that the Union and Grant had not complied with the judgment and were in contempt of the orders. We appointed a special master to conduct a hearing and recommend findings of fact and conclusions of law. After conducting an evidentiary hearing and receiving briefs from both sides, the master found the Union and Grant in contempt and recommended various remedies. After carefully reviewing the special master's report and the record he developed, we conclude that the Union and President Grant are in civil contempt of our orders.

The underlying orders were the result of findings by the NLRB and this court that the Union had violated §§ 8(b)(1)(A), 8(b)(4)(i) and 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(1)(A), 158(b)(4)(i) and 158(b)(4)(ii)(B). The behavior held to constitute such violations included: threatening employees on numerous occasions with physical injury and death if they continued to work during Union-sponsored strikes; assaulting and threatening to kill a worker who opposed the Union as the collective-bargaining representative at his plant; threatening an employee to persuade him not to testify at an unfair labor practices hearing; and, assaulting, and in one instance brutally beating, members of management. Because the court agreed with the Board that the Union had demonstrated a marked proclivity for violating the rights of employees secured by § 7 of the Act, 29 U.S.C. § 157, we upheld relatively broad orders against the Union and Grant, which enjoined them from threatening violence against employees of any employer in Puerto Rico, and also from in any manner restraining or coercing employees in the exercise of rights guaranteed by § 7 of the Act. 540 F.2d at 11. The advisability of such an order was made manifest by the Union's intransigence and denial of authority of the court, the Board and the labor laws of the United States. Id. We also ordered the Union to publish in newspapers of general circulation and mail to affected employees notices prepared by the Board. We thought the publication and mailing requirements warranted not only because they would give notice to interested parties, but because they would "ha(ve) the salutary effect of neutralizing the frustrating effects of persistent illegal activity by letting in 'a warming wind of information and, more important, reassurance'." 540 F.2d at 12, Quoting J. P. Stevens & Co. v. N. L. R. B., 417 F.2d 533, 540 (5th Cir. 1969).

The special master received evidence on two instances of allegedly contumacious conduct. ¹ First, the Board alleges that the Union violated the decree by publishing a side notice adjacent to the notice required by the Board in the general circulation newspaper El Nuovo Dia. Second, the Union is accused of having threatened violence and other reprisals against two employees if they continued to work as strike replacements during a Union-sponsored strike at a service station.

The Publication of the Side Notice

The facts concerning the Union's publication of a notice addressed "To All Workers" alongside the Board's required notice are not in dispute. The difficulty is in determining whether the side notice merely expressed political opinion protected by the First Amendment or whether its publication at the particular time and place contemptuously eviscerated the Board's lawful publication requirement.

The notice required by the Board and by this court essentially repeated the terms of the injunction. The notices proclaimed that the Union would refrain from violence and threats against any employees and from other violations of the protected rights of employees. As mentioned above, an important purpose of the notices was to reassure workers that they need no longer fear violence and threats from Union Nacional.

The side notice was published after warnings by Board officials that its appearance next to the required notice would be considered noncompliance with the orders. The side notice, which is set out in full in the appendix to this opinion, states that publication of the order is being made only because the Board and this court have required it. The government's motivation is ascribed to involvement in an "anti-labor conspiracy". The Union asserts that the Board and the court have no jurisdiction to "dictate such orders", and that the orders violate the constitutional rights of the workers to organize and strike. The Union then proclaims its "unyielding commitment" to the defense of these rights. Finally, the Union's broadside calls on workers "to repudiate" what amounts to the labor laws of the United States.

In evaluating the character of the side notice we begin with the wise observation of the Supreme Court that expressions of opinion in a labor context must be comprehended in light of the natural tendency of employees "to pick up intended implications . . . that might be more readily dismissed by a more disinterested ear." N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). Bearing this admonition in mind, we ask what are the "rights" to which the Union avows its "unyielding commitment". Because the context clearly implies that these "rights" are those impinged by the adjacent order forbidding the use of violence, threats and coercion, we think it plain, even after discounting the proclamation for a certain amount of face-saving bravado, that the Union is telling workers that it will continue to use these illegal means to further what the Union perceives to be the interest of the workers. This interpretation is reinforced by the Union's concluding call for "repudiation" of American labor laws. In short, the side notice tells workers that the orders of the Board and of the court are illegitimate and will not be obeyed.

Participants in labor disputes have a clear right to express opinions on Board orders, Board supervised settlements and labor affairs generally. See e. g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The Board's requirement that a party publish a dictated order does not deprive the party of the right contemporaneously to express opinions on issues addressed by the required notice. Thus, in N. L. R. B. v. Teamsters and Chauffeurs Union, Local 627, 241 F.2d 428 (7th Cir. 1957), a union was held not in contempt of a decree when contemporaneous with posting and mailing a notice required by a court-approved consent decree stating that the union would cease and desist from certain practices, the union posted and mailed a letter denying that the practices were illegal, claiming to accept the settlement only because it was favorable to the union, and promising to exercise full rights allowed by the Taft-Hartley Act. The court, referring to the union's privileges under the First Amendment and the labor laws themselves, wrote, "(A) limitation upon the privilege can be tolerated only where such speech or expression is intended or calculated to produce some result illegal under the Act, such as restraint or coercion." 241 F.2d at 432. See also Edward G. Budd Manufacturing Co. v. N. L. R. B., 142 F.2d 922, 926-27 (3d Cir. 1944). Despite the court's broad protection of side notices, it should be noted that the union's letter in no way contradicted the notice.

Despite the Seventh Circuit's formulation, courts have not found it easy to maintain a bright line between privileged and contemptuous side notices. In News-Texan, Inc. v. N. L. R. B., 422 F.2d 381 (5th Cir. 1970), the court found noncompliance with a settlement agreement when the side notice "was calculated to decimate the crucial terms of the settlement." 422 F.2d at 385. There, the required notice was intended to reassure employees, and the court felt that the employer's statement that the settlement agreement was meaningless had "destroyed (the notice's) substance and purpose." Id. While we are concerned about the vagueness of the standard used by the News-Texan court and express no opinion on the propriety of that decision on its own facts, we read the case as standing for the salutary principle that publication of a side notice may so contradict the terms of the Board's required notice as to cancel the legitimate purpose of the required notice and amount to noncompliance with the notice order. Such a side notice, although not calculated to produce a result illegal under the Act, is itself unlawful under the order. ²

From the foregoing, we think it is clear that Union Nacional's side notice destroyed the substance and purpose of the required notice. The side notice here expressed the Union's intention to threaten and use violence in the future, even if it did not...