N.L.R.B. v. Alterman Transport Lines, Inc.

• Decision Date: 08 January 1979
• Docket Number: No. 71-2548,71-2548
• Citation: 587 F.2d 212
• Parties: 100 L.R.R.M. (BNA) 2269, 85 Lab.Cas. P 11,009 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALTERMAN TRANSPORT LINES, INC., Respondent, and Sidney Alterman, Additional Respondent in Contempt.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 212

587 F.2d 212

100 L.R.R.M. (BNA) 2269, 85 Lab.Cas. P 11,009

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALTERMAN TRANSPORT LINES, INC., Respondent and Sidney Alterman, Additional Respondent in Contempt.

No. 71-2548.

United States Court of Appeals, Fifth Circuit.

Jan. 8, 1979.

Paul Elkind, Asst. Gen. Counsel for Contempt Litigation, Peter Ames Eveleth, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D.C., Harold A. Boire, Director, Region 12, N. L. R. B., Tampa, Fla., Vivian Asplund Miller, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Elliott Moore, Deputy Assoc. Gen. Counsel, N. L. R. B., Washington, D.C., for petitioner.

Granville M. Alley, Jr., Tampa, Fla., William R. Radford, Miami, Fla., Sidney Alterman, Pres., Alterman Transport Lines, Inc., Opa Locka, Fla., Willis S. Ryza, Matthew R. McArthur, Marc A. Dorenfeld, Chicago, Ill., Thomas C. Garwood, Jr., Orlando, Fla., for respondent.

ON PETITION FOR ADJUDICATION IN CIVIL CONTEMPT AND FOR OTHER CIVIL RELIEF.

Before BROWN, Chief Judge, AINSWORTH and VANCE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

On October 4, 1972, this Court ordered Alterman Transport Lines (the Company) to bargain with Teamsters Local 390 (the Union) as the representative of certain of the Company's Miami terminal employees. NLRB v. Alterman Transport Lines, Inc., 5 Cir., 1972, 465 F.2d 950. On July 25, 1975, the National Labor Relations Board petitioned this Court for an adjudication that the Company and its President, Sidney Alterman, had committed a contempt of that judgment. The Board's petition alleged that the respondents had not bargained with a good faith intent to reach an agreement as evidenced by Alterman's withdrawal of previously agreed-to contract proposals, substitution of new and more onerous proposals, and disavowal of the authority of the Company's negotiators to conclude an agreement and that the respondents had unlawfully withdrawn recognition from and refused to bargain further with the Union. We referred the case to a Special Master to hear evidence and make recommended findings of fact and conclusions of law. After extensive hearings, the Special Master concluded that the NLRB had not demonstrated by clear and convincing evidence that the respondents had disobeyed our 1972 order in any respect and recommended that the Board's petition for adjudication in civil contempt be denied. We reject the recommendations of the Special Master, adjudicate the respondents in civil contempt, and retain jurisdiction for the purpose of defining the remedy and for such other and further orders as may be proper.

I. The Appropriateness Of The Forum

The respondents argue that the facts alleged in the Board's petition do not "legally warrant" the institution of contempt proceedings because the conduct involved is not fairly related to that involved in the unfair labor practice which inspired the issuance of our 1972 order. The prior proceedings in this Court arose out of a so-called "technical" refusal to bargain an 8(a)(5) refusal to bargain charge invited by the employer as his only means of obtaining judicial review of the Board's ruling in a representation case. See Magnesium Casting Company v. NLRB, 1971, 401 U.S. 137, 139, 91 S.Ct. 599, 27 L.Ed.2d 735. The crucial issue in the present proceedings, on the other hand, is whether the respondents bargained with the required good faith intent to reach an agreement. Since intent was wholly irrelevant in the prior proceedings, the respondents contend, "the conduct here alleged (is not) within the scope of the prior decree." They rely principally on NLRB v. Reed & Prince Mfg. Co., 1 Cir., 1952, 196 F.2d 755.

In Reed & Prince, the NLRB petitioned the First Circuit for an adjudication that the respondent employer had violated a 1941 decree of that Court directing the employer to bargain collectively with the Steelworkers Organizing Committee. The Steelworkers Organizing Committee had become the United Steelworkers of America in 1942, and the employer had bargained with the Steelworkers until sometime in 1944. At that time bargaining relations lapsed, apparently because the Union had lost its majority status. In 1950, however, the Board again certified the Steelworkers as the bargaining representative of the respondent's employees. The bargaining conduct of the employer following the 1950 certification formed the basis of the NLRB's contempt charge. Before the filing of the contempt petition, the NLRB had proceeded against the employer in unfair labor practice proceedings, which had resulted in 1951 in a Board order to bargain, but the NLRB chose not to petition for enforcement.

The First Circuit, in an opinion by Chief Judge Magruder, declined to entertain the petition for adjudication in civil contempt. Judge Magruder expressed concern that, in view of the common issuance of broad decrees in labor cases, permitting the Board generally to proceed by a contempt petition would result in the courts of appeals "gradually supplant(ing) the Board as the primary trier of facts when future unfair labor practices are alleged." 196 F.2d at 759. The Court decided that, on the facts presented, it would be more appropriate for the Board to proceed by petitioning for enforcement of its 1951 order. Judge Magruder stated:

Where the alleged contempt is the failure of the employer to take affirmative steps directed in our decree with a view to redressing the specific unfair labor practices, such, for example, as a reinstatement order or an order for the posting of notices, we would certainly entertain a petition by the Board for adjudication in civil contempt, . . . Also, there may be circumstances in which we would deem it appropriate to entertain such a petition where alleged conduct of the employer, which would constitute a new unfair labor practice, would also be in violation of our all-inclusive cease and desist order. We shall not undertake now to define what those circumstances might be. We content ourselves with saying that the balance of considerations is against a proceeding by way of contempt at this time, under the circumstances now before us, particularly in view of the fact that the Board has already instituted and completed a new unfair labor practice proceeding against the company under § 10 of the Act culminating in a new order, which the Board could ask us to enforce. The present petition, as the Board concedes, is addressed to our discretion.

196 F.2d at 760.

It is apparent from Judge Magruder's discussion that the First Circuit did not hold in Reed & Prince that it lacked jurisdiction over the contempt petition. To the extent that the respondents are arguing that we are without power to hold them to the terms of our 1972 order, Reed & Prince is therefore of no help to them. The controlling precedent on this point is NLRB v. American Mfg. Co., 5 Cir., 1943, 132 F.2d 740. In that case, the respondent contended that the conduct alleged to be contumacious bore no connection with, and no relation or similarity to, the conduct which brought about the former decree. We replied succinctly:

(The argument) that the scope of the decree, consented to by them, and long since become final, may now be limited short of its terms, is wholly without merit, for a decree entered with jurisdiction must be obeyed as entered. It may not be defied or disobeyed. Its terms are clear and comprehensive and if they read more broadly than respondent intended that they should, the time and manner of avoiding that breadth was by objections to the decree before its entry and not by disobedience of it afterwards.

Id. at 742. See also McComb v. Jacksonville Paper Co., 1941, 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599; NLRB v. Schill Steel Products, Inc., 5 Cir., 1973, 480 F.2d 586. If the respondents failed to bargain in good faith, they have violated the express terms of our 1972 order. And, while the Board's petition "is addressed to our discretion," see Reed & Prince, supra, we see no reason to decline to entertain it. ¹

II. The Facts, Briefly

Many of the facts involved in this case are undisputed, and the Master made specific findings on many of the significant factual disputes. ² After review of the Master's findings, we have concluded that, to the extent that they concern credibility choices and evidentiary facts, those findings are not clearly erroneous and are therefore entitled to acceptance by this Court. See NLRB v. J. P. Stevens & Co., 5 Cir., 1976, 538 F.2d 1152, 1160-62; NLRB v. Crown Laundry & Dry Cleaners, Inc., 5 Cir., 1971, 437 F.2d 290, 293; NLRB v. Alamo Express, Inc., 5 Cir., 1968, 395 F.2d 481, 482; F.R.Civ.P. 53(e). ³ The statement of the facts that follows reflects facts as agreed and facts as found by the Master.

Alterman Transport Lines is an interstate trucking company engaged primarily in the shipment of perishable commodities ("wet freight"), with authority to handle some nonperishable commodities ("dry freight"). The Company operates a number of terminals in several states, and its principal terminal and headquarters are in Miami, Florida. Collective bargaining contracts with a union are in force only at the Chicago and New Jersey terminals.

Sidney Alterman is President and chief operating officer of the Company. He and his blood relatives own 98% Of the Company's stock. As the Master found, Sidney Alterman, "from the inception of the Company's business, has been active in all phases of its operation, and the fact that Sidney Alterman is known to make almost all of the Company's decisions is undisputed."

After entry of the bargaining order by this Court, the Union requested the Company to commence bargaining. The Company agreed to meet, and the first meeting was held on November 20, 1972. Between that date and December 30, 1974, the date that negotiations ceased, representatives of the parties met 25 times. Bargaining sessions were held...