N.L.R.B. v. Maine Caterers, Inc.

• Citation: 732 F.2d 689
• Decision Date: 10 April 1984
• Docket Number: No. 80-1778,80-1778
• Parties: 116 L.R.R.M. (BNA) 2977, 101 Lab.Cas. P 11,027 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAINE CATERERS, INC., et al., Respondents. Brotherhood of Industrial Caterers, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 689

732 F.2d 689

116 L.R.R.M. (BNA) 2977, 101 Lab.Cas. P 11,027

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAINE CATERERS, INC., et al., Respondents Brotherhood of Industrial Caterers, Intervenor.

No. 80-1778.

United States Court of Appeals First Circuit.

April 10, 1984.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Peter Ames Eveleth, Asst. Gen. Counsel for Contempt Litigation, Peter Winkler, and Michael David Fox, Attys., N.L.R.B., Washington, D.C., on brief for petitioner.

Amato A. DeLuca, and Revens & DeLuca Ltd., Warwick, R.I., on brief for respondents.

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

BREYER, Circuit Judge.

On February 10, 1982, the National Labor Relations Board asked us to adjudge Maine Caterers, Inc., W.H. Maine, Inc., and W.H. Maine (individually), to be in civil contempt of this court's decree enforcing a Labor Board order against them. NLRB v. Maine Caterers, Inc., 654 F.2d 131 (1st Cir.1981), enforcing Maine Caterers, Inc., 251 N.L.R.B. 505 (1980), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982). We referred the matter to a special master, who has held hearings, taken evidence, and has recommended a finding of contempt. The Board wishes us to adopt the Master's recommendations, the respondents object. On the basis of the papers before us, we find nothing "clearly erroneous" about the Master's findings of fact; nor do we find any error of law. United States v. Volpe, 359 F.2d 132, 134 (1st Cir.1966); Oil, Chemical and Atomic Workers International Union v. NLRB, 547 F.2d 575, 580 (D.C.Cir.1976), cert. denied, 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977). We adopt the findings and recommendations.

The objections that respondents make here are basically the same as those made before the Master. Because his report deals with them correctly and in detail, we need only briefly discuss our reasons for rejecting respondents' arguments.

1. Respondents admit that they did not post the notice required by the court's July 16, 1981 decree until February 18, 1982. Respondents' defense of good faith is beside the point in this civil contempt proceeding. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Fortin v. Commissioner of the Massachusetts Department of Public Welfare, 692 F.2d 790, 796 (1st Cir.1982).

2. The court's order requires the respondents to bargain in good faith with the Union. Whether respondents' February 15, 1982, unilateral increase in charges and fees assessed their employees violated this bargaining obligation is primarily a question of fact. The unilateral nature of the changes, the absence of an effort to bargain, and the other circumstances to which the Master points are more than sufficient to support his conclusion of violation.

3. Whether or not respondents' unilateral reinstitution of fees and charges in June and July 1982 violated the court's order depends on whether the parties had first bargained to an impasse. NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). Again, this is basically a factual question. The circumstances to which the Master points, including apparent summary employer rejection of a significant union compromise effort, are more than sufficient to support the conclusion of violation. See American Federation of Television & Radio Artists v. NLRB, 395 F.2d 622, 628 (D.C.Cir.1968).

4. The Master found that the employer bypassed the Union and negotiated directly with the employees about one minor matter--the right to make coffee on the drivers' catering trucks. This matter affected the drivers' compensation. And, the Master could reasonably have found that the Union did not waive its right to bargain on the issue. (Indeed, the Union complained to the Board about the 'bypass'). The Master's finding is adequately supported. Medo Corp. v. NLRB, 321 U.S. 678, 683-84, 64 S.Ct. 830, 832-33, 88 L.Ed. 1007 (1944); NLRB v. General Electric Co., 418 F.2d 736, 755 (2d Cir.1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970).

5. The Master found that the respondents violated the order by unilaterally raising the price of milk and cream, and by changing certain work practices concerning rolls, sandwiches, and so forth. Respondents essentially claim these changes were too minor to have significantly affected the wages of the drivers or their working conditions. The Master pointed out, however, that the drivers' compensation amounted to the difference between what they paid for food items and what they collected on resale. Thus, all these changes would seem to affect either compensation or working conditions. And, respondents have pointed to no factual evidence demonstrating the contrary. We find, on this basically factual matter, no clear error.

6. William H. Maine argues that he should not be held personally liable and that, to do so, ignores "the corporate entity." It is well established, however, that an officer, responsible for the corporation's affairs and for its disobedience, may be held liable for contempt. Wilson v. United States, 221 U.S. 361, 376, 31 S.Ct. 538, 542, 55 L.Ed. 771 (1911); NLRB v. International Shoe Corp. of Puerto Rico, 423 F.2d 503, 505 (1st Cir.1970). Moreover, the Board here points out in its brief that it "did not seek nor did the Special Master impose, liability on William H. Maine for the Company's financial obligations." It adds that the "Special Master's proposed order, like standard Board orders, runs against 'the Company, its officers, agents, successors and assigns.' " The contempt order does not impose adverse personal financial consequences upon William H. Maine except to the extent it is fair and lawful to do so. We find no error.

7. Respondents argue that the entire proceeding is moot because they have dissolved their business and no longer employ the union members. It is well established, however, that termination of an employer's business does not necessarily render a Labor Act proceeding moot. NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567-68, 70 S.Ct. 826, 828-29, 94 L.Ed. 1067 (1950). The adjudication of contempt in this case may...