N.L.R.B. v. Sequoia Dist. Council of Carpenters, AFL-CIO

• Decision Date: 14 December 1977
• Docket Number: No. 73-3365,R,AFL-CI,73-3365
• Citation: 568 F.2d 628
• Parties: 97 L.R.R.M. (BNA) 2897, 83 Lab.Cas. P 10,384 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEQUOIA DISTRICT COUNCIL OF CARPENTERS,espondent, and John Horn and Larry Null, Additional Respondents In Contempt.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 628

568 F.2d 628

97 L.R.R.M. (BNA) 2897, 83 Lab.Cas. P 10,384

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEQUOIA DISTRICT COUNCIL OF CARPENTERS, AFL-CIO, Respondent and John Horn and Larry Null, Additional Respondents In Contempt.

No. 73-3365.

United States Court of Appeals Ninth Circuit.

Dec. 14, 1977.

Paul Elkind, Washington, D. C., for petitioner.

Victor J. Van Bourg, San Francisco, Cal., for respondent.

On Petition to Review Exceptions to the Findings of Fact and Conclusions of Law and Recommendations of The Special Master.

Before KOELSCH, WRIGHT and TRASK, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

I.

BACKGROUND

This matter comes before us on respondents' ¹ exceptions to findings of fact and conclusions of law of a Special Master appointed by this court. We appointed the Master pursuant to the National Labor Relation Board's (hereafter NLRB or Board) petition for an adjudication of contempt ² against Sequoia District Council of Carpenters (hereinafter Sequoia or Union) and its officers. ³

In an earlier proceeding we enforced a Board order prohibiting Sequoia from engaging in illegal secondary activities. ⁴ NLRB v. Sequoia District Council of Carpenters, 499 F.2d 129 (9th Cir. 1974). That judgment ordered that Sequoia

1. Cease and desist from:

(a) Picketing or encouragement of any individual employed by Headliner Plumbing Company or by any other person engaged in commerce . . . to engage in a strike or refusal, in the course of his (b) Threats, coercion or restraint directed against Headliner Plumbing Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Headliner . . . or any other person, to cease . . . dealing in the products or services made available by Lattanzio Enterprises, or to cease doing business with that business enterprise or any other person. (Emphasis added.) ⁵

employment, to use, manufacture, process, transport or otherwise handle or work on any goods . . . or to refuse to perform any other services, where an object thereof is to force or require Headliner Plumbing Company, or any other person, . . . to cease doing business with that business enterprise or any other person.

In addition, the judgment required that "to effectuate the policies of the (National Labor Relations) Act" Sequoia post notices embodying the terms of the judgment in its offices, meeting halls or hiring halls for a period of 60 days. Copies of the notice were to be supplied by the NLRB's Regional Director in San Francisco. The judgment was served on the attorney for Sequoia. The NLRB supplied notices which lacked language indicating the breadth of the judgment's prohibitions. ⁶

II.

SCOPE OF REVIEW

We must accept the Special Master's factual findings unless they are " clearly erroneous." Oil, Chemical, and Atomic Workers Int'l Union v. NLRB,178 U.S.App.D.C. 278, 547 F.2d 575 (1976), cert. denied, Angle v. N. L. R. B., 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977). This standard of review has been described as follows:

. . . the same standard as that governing appellate review of District Court findings of fact, see Fed.R.Civ.P. 52(a); 9 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2614, at 809-10 (1971). The party excepting to the master's findings carries the burden of proving them to be clearly erroneous . . . and the court must uphold a finding, even if it is thought to go against the weight of the evidence, unless the error is clear . . . . (T)he mere fact that a finding is supported by substantial evidence does not prevent its being overturned if the reviewing court, with due regard for the master's opportunity to judge credibility, "is left with the definite and firm conviction that a mistake has been committed. . . ." However, a master's conclusions of law are entitled to no special deference . . . and will be overturned whenever they are believed to be erroneous.

Id. at 580 (citations and footnotes omitted). Respondents here challenge findings of fact and conclusions of law in the Special Master's report.

We shall proceed to apply this standard, being mindful that the Board's allegations of contempt must be supported by clear and convincing evidence. NLRB v. J. P. Stevens Co., Inc., 464 F.2d 1326, 1328 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973).

III.

THE SPECIAL MASTER'S FINDINGS

1. Sequoia's Conduct.

The Special Master found that respondents, by the following actions, violated our decree at the Big Yellow House restaurant construction site in Fresno, California:

a. With the intention of forcing Workmen's Construction Company (Workmen's) to cease doing business with Construction Design and Consulting, Inc. (CDCI), ⁷ they induced or encouraged Workmen's employees to refuse to work by filing union charges against them for crossing a Building Trades Council picket line on May 12, 1975.

b. With the intention of forcing Interior Contractors (Incon) to cease doing business with CDCI, Sequoia and its agents checked union cards of, and filed charges against, Incon employees working behind the Building Trades Council picket line on July 7, 1975.

c. With the same intention, Sequoia's agent warned Incon employees during a union meeting that they could be fined for working at the site. ⁸

d. They further encouraged Incon employees to stop work by checking union cards of, and filing charges against, other Incon workers at the CDCI project on July 8, 1975. ⁹

Additionally, the Special Master found that in a separate incident Sequoia communicated threats to Tone Construction Co. (Tone) and its job superintendent at Tone's Vista Del Norte project with the illegal intention of inducing Tone to cease dealing with Fresno Insulation, a non-union subcontractor. ¹⁰

The Master's factual findings are supported by the record and are not clearly erroneous. We recognize the superior position of the Master insofar as he was better able to consider credibility and to draw inferences from the testimonial evidence. We adopt his findings of fact. Oil, Chemical, and Atomic Workers Int'l Union v. NLRB, supra.

Sequoia's actions, and the actions of respondents Null and Horn as officers of Sequoia, evidence precisely that species of secondary activity that we sought to prevent by our 1974 judgment. Although respondents had the right to directly pressure CDCI and Fresno Insulation, their invocation of additional pressure through neutral employers constituted activity proscribed by our judgment and by the National Labor Relations Act.

Threatening to fine or to bring union charges against employees of neutral employers pressured them to withhold their services and exerted indirect pressure on the union's primary target. Such tactics are illegal. E. g., NLRB v. Local 252, Sheet Metal Workers, 429 F.2d 1244 (9th Cir. 1970). So, too, are threats to pull union workers from a job if the general contractor were to deal with a non-union subcontractor and threats to assess benefit costs against him in this context. E. g., NLRB v. Plumbers Union of Nassau County, Local 457, 299 F.2d 497 (2d Cir. 1962); Associated General Contractors v. NLRB, 514 F.2d 433, 437 (9th Cir. 1975) (actions against one employer, but tactically calculated to satisfy union objectives regarding another are outlawed by the statute).

Sequoia's justifications for its actions are unconvincing. Federal law requires that intra-union charges be processed with procedural safeguards. 29 U.S.C. § 411(a)(5). That statute, however, does not protect a union or its officers who file such charges as part of a campaign of illegal secondary activity.

Sequoia's threats against Tone would not be lawful even were we to assume that Tone's contract contained a "hot cargo" clause legal under 29 U.S.C. § 158(e)'s construction industry proviso. Such clauses may not be enforced by resort to tactics outlawed by 29 U.S.C. § 158(b)(4). Associated Gen. Contractors of Cal., Inc. v. NLRB, 514 F.2d 433, 438-39 (9th Cir. 1975); NLRB v. International Bro. of Electrical Workers, 405 F.2d 159, 163 (9th Cir. 1968), cert. denied, 395 U.S. 921, 89 S.Ct. 1772, 23 L.Ed.2d 237 (1969).

2. Notice.

Null and Horn claim that service on Sequoia's attorney was inadequate to bind them personally to the judgment's terms. They also contend that the judgment called for the NLRB to serve notice and that they were bound only by its defective notices.

They concede knowledge that the order had been issued and served on the union attorney. In fact, Null and Horn, on instructions from the attorney, signed a check to pay costs assessed against Sequoia in that judgment. However, because the Board could not prove personal service on them, Null and Horn assert that the notice was insufficient to support a contempt citation against them.

In "our system of representative litigation . . . each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' " Link v. Wabash Railroad Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 citing Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1879). Cf. Fed.R.App.P. 45(c). When the order was served on Sequoia's attorney, the union was clearly bound to abide by it.

Federal Rule of Civil Procedure 65(d) is explicit:

Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. . . . (Emphasis added.)

Generally, "(t)o be held liable in contempt, it is necessary that a non-party respondent 'must either abet the defendant or must be legally identified with him' . . . ." Backo v. Local 281, United Bro. of Carpenters & Joiners, 438 F.2d 176, 180-81 (2d Cir. 1970), cert. denied, ...