N.L.R.B. v. Howard Baer, Inc.
| Decision Date | 27 August 1996 |
| Docket Number | No. 94-6260,94-6260 |
| Citation | 99 F.3d 1139 |
| Parties | 153 L.R.R.M. (BNA) 2800 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWARD BAER, INC. and Crystal Carriers, Inc., Joint Employers, Respondents, Gregory Baer, Additional Respondent in Contempt. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: ENGEL, MARTIN, and BOGGS, Circuit Judges.
The National Labor Relations Board (the "Board") petitions for an adjudication in civil contempt of Respondents Howard Baer, Inc., Crystal Carriers, Inc., and Gregory Baer for failing to comply with the November 22, 1994, judgment of the court. The Respondents move to amend the judgment, and the Board opposes the motion to amend. On November 14, 1995, the court referred these matters to United States District Judge Thomas A. Wiseman, as a special master, for a report and recommendation as to findings of facts and conclusions of law. The special master's Report and Recommendation (the "Report") has been submitted to the court and served on the parties. Neither the Board nor the Respondents have any objections to the Report.
The court hereby adopts the Report in its entirety. The court concludes that the Respondents' motion to amend the November 22, 1994, judgment must be denied. The court finds the Respondents in civil contempt of this court's November 22, 1994, judgment by failing to take the following actions ordered by the court: 1) failing to offer reinstatement to Thomas Paulson and by discharging him for a second time in March of 1994; and 2) failing to sign and to post at their facilities in Romulus, Michigan and Cincinnati, Ohio, copies of the Notice to Employees attached as an appendix to the judgment. The court finds that the Board has failed to prove by clear and convincing evidence that the Respondents are in civil contempt for failing to offer reinstatement to Leonard Moody or by failing to expunge the personnel files of Thomas Paulson and Leonard Moody.
It therefore is ORDERED that Respondents Howard Baer, Inc., Crystal Carriers, Inc., and Gregory Baer shall purge themselves of their civil contempt of court by:
1. offering Thomas Paulson immediate reinstatement to his former job or to a substantially equivalent position, without prejudice to his seniority rights or other rights and privileges and permitting him to supplement his employment application to include his omitted employers;
2. to post at their facilities in Romulus, Michigan and Cincinnati, Ohio, copies of the Notice to Employees attached as an appendix to the judgment of November 22, 1994, except that the final paragraph of the notice shall be amended to delete any references to Leonard Moody. Copies of the notice, on forms provided by the Regional Director for Region 7 of the National Labor Relations Board (Detroit, Michigan), after being duly signed by the Respondents' authorized representative, shall be posted by the Respondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material;
3. at the close of this case, to expunge all references to the unlawful transfer or reassignment of Leonard Moody and Thomas Paulson and to their unlawful constructive discharges of April 1993, from the documents located in the litigation and junk files of Jack Preston, the Romulus Terminal Manager; and,
4. filing sworn statements with the Clerk of the Sixth Circuit, with copies to the Board, within 21 days of the entry of this order, showing what steps have been taken by Respondents to fully comply with the provisions of this order.
In order to ensure the Respondents' compliance, the Respondents are required to post a $25,000 bond in the registry of the United States District Court for the Eastern District of Michigan, to be remitted to the Respondents upon their compliance with all of the affirmative requirements of this order. Any dispute arising as to the form or sufficiency of the bond should be addressed to the special master.
A controversy has arisen with respect to the request by the Board for an award of costs, fees, and expenses. The Board is directed to file with the court a separate motion for such an award, specify in detail the amounts requested, and the basis for such an award. The Respondents may file a response to the Board's motion within fourteen days of its service upon them. The court will address the matter in a subsequent order.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
This case is before this Court under a November 14, 1995 order issued by the United States Court of Appeals for the Sixth Circuit designating this Court to determine whether Respondents are in civil contempt for failing to comply with the Sixth Circuit's November 22, 1994 judgment. At the outset, this Court points out, as it did on the last day of testimony, that this case should have been settled long ago; it should have never gotten this far.
Howard Baer, Inc. and Crystal Carriers, Inc. ("Respondents") 1 are for-hire motor carriers engaged in interstate commerce. Respondent Gregory Baer, Secretary-Treasurer of Respondents Howard Baer, Inc. and Crystal Carriers, Inc., is responsible on behalf of Respondents of dealing with corporate legal issues. He is not an attorney.
This case originated with allegations by the National Labor Relations Board (the "Board") that Respondents constructively discharged Thomas Paulson and Leonard Moody, two of their semi-truck drivers, in April 1993 by changing their job assignments from straight runs to routes requiring bread delivery to stores. 2
In November 1993, Administrative Law Judge Robert W. Leiner ("ALJ") conducted an unfair labor practice hearing, and on April 12, 1994, the ALJ issued his decision finding that Respondents had unlawfully discriminated against both Paulson and Moody. More specifically, the ALJ found that Respondents' unlawful actions transpired in response to Paulson's and Moody's activities in support of the Union's 3 organizational campaign in violation of Section 8(a)(3) of the National Labor Relations Act ("the Act").
In addition to this finding, the ALJ ordered, in pertinent part, that Respondents 1.) take affirmative action to offer reinstatement to Paulson and Moody, 2.) expunge from Respondents' records any references of Paulson's and Moody's unlawful transfer and reassignment, and 3.) post notices concerning remedial actions as to the unlawful discharges. In greater detail, the order stated that Respondents Howard Baer, Inc. and Crystal Carriers, their officers, agents, successors, and assigns were to:
(a) Offer their employees, Thomas Paulson and Leonard Moody, immediate reinstatement to their former jobs as Columbus-Romulus drivers, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges....
(b) Expunge from their records any references to the unlawful transfer or reassignments of Leonard Moody and Thomas Paulson and to their unlawful constructive discharge of April, [sic] 1993, and notify each of them, in writing, that this has been done and that any evidence in the records relating to the unlawful transfers, reassignments and constructive discharges will not be used hereafter in personnel action against them.
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(d) Post at its facilities ... copies of the attached notice ... signed by [Respondent's authorized representative] ... [to be] maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that the notices are not altered, defaced, or covered by any other material.
Crystal Carriers, Inc. and Howard Baer, Inc. did not seek review of the ALJ's decision.
On March 18, 1994, prior to the issuance of the ALJ's decision, Respondents discharged Paulson, allegedly for falsifying his employment application. Paulson was not employed by Crystal Carriers at this time. This discharge occurred four months after the hearing before the ALJ, at which Paulson first revealed that he had omitted a prior employer from his application.
On May 24, 1994, Respondents made an offer of reinstatement to Moody, effective May 28, 1994. Asserting that the offer was not what the ALJ had ordered in the original hearing, Moody rejected the offer.
The Board issued an order dated May 27, 1994, summarily adopting the ALJ's order. Before the Board's May 27, 1994 order, Respondent Gregory Baer ("Mr. Baer"), Respondents' Secretary-Treasurer, contacted Amy Bachelder, an attorney with Region 7 of the NLRB who litigated the underlying case before the ALJ, to resolve primarily the issue of backpay. Several discussions took place between the two; however, this matter was not resolved.
On July 19, 1994, Paulson filed an unfair labor practice charge, Case No. 7-CA-36165, alleging that his subsequent discharge by Respondents was unlawful. Caroline Van Ness, a supervisor for Region 7, solicited Respondents to present evidence on their reason for discharging Paulson. Respondents answered with evidence supporting its position that the discharge was lawful because Paulson had omitted part of his employment history on his employment application. As a result, Respondents asserted he was disqualified from operating a commercial vehicle. On September 6, 1994, Regional Director William C....
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