N.L.R.B. v. Ironworkers Local 118, Intern. Ass'n of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO
| Citation | 908 F.2d 977 |
| Decision Date | 26 July 1990 |
| Docket Number | AFL-CI,No. 87-7222,R,87-7222 |
| Parties | 136 L.R.R.M. (BNA) 2342, 136 L.R.R.M. (BNA) 2392 Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IRONWORKERS LOCAL 118, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMENTAL IRONWORKERS,espondent, and Walt Turner, Additional Respondent in Contempt. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before BEEZER and KOZINSKI, Circuit Judges, and ROBERT C. BONNER, District Judge *.
Petitioner, National Labor Relations Board ("NLRB"), objects to the Special Master's report concluding that respondents, Ironworkers Local 118, International Association of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO ("Local 118") and its business agent, Walt Turner ("Turner"), were not in contempt of our October 29, 1987 Order prohibiting Local 118 and its agents from engaging in secondary boycott activities. For the reasons explained below, we conclude that Local 118 and Turner violated our Order and accordingly hold them in contempt.
NLRB does not contest the Special Master's factual findings. The special master found in pertinent part as follows:
In July 1986, Local 118 picketed a California state prison construction project in Jamestown, California. On October 29, 1987, we enforced an NLRB order prohibiting Local 118, its officers, and its agents from
picketing at or near entrances to construction jobsites established and reserved for the use of neutral persons, their personnel, visitors, and suppliers, or in any other manner, or by any other means, inducing or encouraging any individual employed by any person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any articles, materials, or commodities, or to refuse to perform any other services, or coerce or restrain ... any ... person engged [sic ] in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require ... any ... person, to cease doing business with ... any other person.
F & H Construction, Inc. ("F & H") contracted with the State of California to build the prison facility. F & H subcontracted with Ron Regan Construction Company ("Regan") whereby Regan agreed to supply and erect six pre-fabricated metal buildings.
Regan subcontracted that steel erection work to Walker Construction Company ("Walker"). Neither Regan nor Walker had a collective bargaining agreement with Local 118.
Shortly after we issued our October 29, 1987 Order, Turner told Regan that there would be labor problems because Walker was non-union. Local 118 knew that its dispute was with Walker, not with Regan. On or about February 5, 1988, F & H set up a reserved, dual-gate system outside the prison walls. 1 Regan's name was included on the sign identifying the reserve gate, Gate No. 1, and the telegrams to Local 118 also stated that Regan would be using Gate No. 1.
Turner sought and obtained sanction from the Building Trades Council to picket Walker because Walker did not have an agreement with Union and was not hiring apprentices. On February 5, 1988, Local 118 began picketing the neutral gate, Gate No. 2. The picket signs read, "Ron Regan Unfair to Ironworkers."
No picketing occurred between February 6-22. On February 23, 24, 25, and 26, Local 118 picketed Gate No. 2 with signs that read, "Ron Regan Unfair to Ironworkers."
We had jurisdiction under 29 U.S.C. Sec. 160(e) to issue our October 29, 1987 Order. We have jurisdiction in this contempt proceeding under our inherent authority to coerce compliance with our orders. McComb v. Jacksonville Paper Co., 336 U.S. 187, 194-95 (1949); Vuitton Et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 779 (9th Cir.1981). The Special Master's report finally disposes of all the issues between the parties, and NLRB's objections to her report were timely filed.
Scope of review
A Special Master's findings of fact will not be disturbed unless clearly erroneous. Fed.R.Civ.P. 53(e)(2); Swoboda v. Pala Mining, Inc., 844 F.2d 654, 656 (9th Cir.1988). Findings are not clearly erroneous unless the " 'reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted); United States ex rel Leno v. Summit Construction Co., 892 F.2d 788, 791 (9th Cir.1989).
A Special Master's conclusions of law receive "no deference," and are subject to de novo review. Swoboda, 844 F.2d at 656; NLRB v. FMG Industries, 820 F.2d 289, 291 (9th Cir.1987).
The party asserting contempt must prove contempt by clear and convincing evidence. Balla v. Idaho State Board of Corrections, 869 F.2d 461, 466 (9th Cir.1989); NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 631 (9th Cir.1977). In civil contempt proceedings the contempt need not be willful. McComb, 336 U.S. at 191; United States v. Laurins, 857 F.2d 529, 534 (9th Cir.1988), cert. denied, 109 S.Ct. 3215 (1989). Nor must the contempt be willful in order to award fees and expenses. Perry v. O'Donnell, 759 F.2d 702, 704 (9th Cir.1985).
The Special Master specifically found: that Local 118's dispute was with Walker, M.R. at 4, and that Local 118 and Turner knew of our October 1987 Order, M.R. at 2; 2 that on February 5, and again on February 23-26, 1988, Local 118 picketed the jobsite with picket signs identifying Regan as the company with which Local 118 had a labor dispute, M.R. at 4, 6-7; and that Turner was in charge of the daily picketing, M.R. at The central issue--viz., whether Local 118 and Turner violated our Order by pressuring a neutral employer--was, in the proceeding before the Special Master, overshadowed by the questions whether Local 118 and Turner violated the Order by picketing a properly established neutral gate and whether certain statements by Turner and a picketer were threats of action against neutral employers. We need not reach those issues, because if the picketing was directed at a neutral employer for the purpose of pressuring that employer, the picketing violated our Order whether or not separate primary and neutral gates existed or were properly established or maintained.
5. Implicit in these findings is the fact that Turner, and hence Local 118, knew the picket signs identified Regan, a neutral employer. Moreover, the Special Master found that Turner and Local 118's object was to put pressure on Regan, a neutral employer, and rejected Union's claims to the contrary as not credible. M.R. at 5-6, 16-17.
As the Special Master found, the only purpose in picketing Regan was to pressure it to cease using a non-union company (Walker) to which Regan had subcontracted the labor for steel erection work at the jobsite. The Special Master made no conclusion regarding whether this specific conduct violated our Order. Rather, the Special Master concluded that because the general contractor, F & H, had named Regan in its gate sign for the primary gate and in the telegrams to Local 118, NLRB could not complain of picketing directed at Regan. M.R. at 17. The Special Master's findings make no suggestion that Local 118 was confused on this point. Rather, the Special Master specifically found that Local 118 knew its dispute was with Walker, and the evidence supports that finding. Indeed, Turner sought from the Building Trades Council authority to picket Walker, not Regan, and the Special Master found "not credible" Local 118's testimony that it thought its dispute was with Regan.
Given the fact that Local 118 knew Regan was a neutral employer before and during its picketing, there is no factual or legal support for the Special Master's conclusion that NLRB is estopped from asserting that Local 118's conduct violated our Order. Her conclusion in this regard is unsupported by law or logic, and we reject it. 3
For these reasons, we conclude that Local 118 and Turner violated our Order, and we hold them in contempt.
The Special Master did not consider proposed remedies. However, proposed remedies are purely questions of law, and we can resolve them. E.g., Nixon v. Fitzgerald, 457 U.S. 731, 743 n. 23 (1982). The following remedies are appropriate, and we, therefore, order Local 118, its officers, agents, employees, and representatives, including Turner, to: 4
1. Fully comply with and obey our October 29, 1987 Order and the provisions of the NLRB's order thereby enforced, and not in any way, by action or inaction, engage in, induce, or encourage any violation of those orders.
2. Refrain from inducing or encouraging, by picketing or any other acts or conduct, F & H, Regan, or any other individual employed by any person engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to refuse to perform any services, or sanction, support, or promote any such conduct, where an object thereof is to force or require, directly or indirectly, those persons to cease doing business with Walker or with any other person.
3. Immediately duplicate at their own expense and post in conspicuous places where notices to employees and member are customarily posted, for a period of sixty consecutive days, copies of this Order and of an appropriate notice ("Notice") in the form prescribed by...
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