N.L.R.B. v. Trailways, Inc.

• Decision Date: 16 April 1984
• Docket Number: No. 78-3056,78-3056
• Citation: 729 F.2d 1013
• Parties: 116 L.R.R.M. (BNA) 2054, 100 Lab.Cas. P 10,978 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRAILWAYS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1013

729 F.2d 1013

116 L.R.R.M. (BNA) 2054, 100 Lab.Cas. P 10,978

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRAILWAYS, INC., Respondent.

No. 78-3056.

United States Court of Appeals, Fifth Circuit.

April 16, 1984.

Young & Perl, P.C., Arnold E. Perl, Jay W. Kiesewetter, Memphis, Tenn., Jay C. Counts, Hewett, Johnson, Swanson & Barbee, John E. McFall, Dallas, Tex., for respondent.

Elliott Moore, Deputy Assoc., Gen. Counsel, N.L.R.B., Washington, D.C., Stanley R. Zirkin, Deputy Asst. Gen. Counsel, N.L.R.B., for petitioner.

Petition for Adjudication in Civil Contempt and for Other Civil Relief.

Before WISDOM, REAVLEY and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

The National Labor Relations Board (the Board) petitioned this Court for an adjudication of civil contempt against Trailways (the Company) for violating an extant order of this Court ¹ which prohibited the Company from, inter alia, "[d]ischarging or otherwise discriminating against employees because of their interest in or activity on behalf of the Union" in violation of Sec. 8(a)(3) of the National Labor Relations Act (the Act) and from "[i]n any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act" ² in violation of Sec. 8(a)(1). The Company's allegedly contemptuous conduct consists of the following activities: maintaining an overly-broad rule prohibiting employee solicitation and distribution of materials, including union campaign materials, even while the employees are on their own, nonworking time; discriminatorily enforcing its no-distribution rules to prohibit only distribution of union campaign materials; unlawfully interrogating an employee about the materials she was distributing on behalf of the Union; threatening to discharge or otherwise discipline employees for distributing union campaign materials; unlawfully preventing an employee from displaying union campaign materials at the employee's work station; penalizing an employee for attending a Board hearing. After an evidentiary hearing, the Special Master appointed by this Court ³ concluded that the Company had committed "some instances of unlawful conduct" but that the violations were "technical in nature, de minimis, or excusable in the heat of a long and arduous campaign." Accordingly, he recommended that the Board's allegations of civil contempt be dismissed in their entirety. The Board here brings exception to a limited number of the Special Master's recommendations. ⁴ This Court concludes that the Company's violations constituted contumacious conduct. Accordingly, we reverse two of the Special Master's recommendations

to which the Board brings exception and find the Company in civil contempt. ⁵

Facts

Approximately four months after this Court enforced the Board's order which found Secs. 8(a)(1) and (3) violations, Paula Wells, the employee ordered reinstated by the judgment, contacted the Amalgamated Transit Union (the Union) about the possibility of organizing the Company. The Company's employees signed authorization cards designating the Union as their representative. On May 29, 1980, the Union filed an election petition with the Board's Regional Office; an election was scheduled for September 16, 1980. The Board's charges in the instant case stem from the Union's campaign leading up to the September election.

On September 23, 1980, the Union filed objections to the September election results ⁶ on the grounds of employer misconduct during the election. ⁷ On October 14, 1980, the Board filed the petition for adjudication in contempt now before this Court.

Standard of Proof

Where the Board seeks an adjudication of civil contempt, it bears the burden of producing clear and convincing evidence that the Company engaged in contumacious conduct. The Special Master concluded that the Board had failed to meet this burden of proof. We disagree.

Since this is a proceeding in civil, not criminal, contempt, the only issue is the Company's actual compliance with this Court's orders; any absence of willfulness is irrelevant. McComb v. Jacksonville Paper Company, 336 U.S. 187, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Florida Steel Corp. v. N.L.R.B., 648 F.2d 233, 236 (5th Cir.1981); N.L.R.B. v. Crown Laundry and Dry Cleaners, Inc., 437 F.2d 290, 293 (5th Cir.1971). In McComb the Supreme Court stated:

Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently.

69 S.Ct. at 499. In reviewing the Special Master's findings of fact, this Court is, of course, bound by the clearly erroneous standard. Fed.R.Civ.P. 53(e)(2); Florida Steel, 648 F.2d at 236. We are not so constrained, however, in reviewing the Special Master's conclusion of law that the The Contempt Allegations

Board did not meet its burden of proof in establishing contemptuous conduct; this Court may independently review whether the Special Master's findings clearly and convincingly demonstrate contemptuous conduct. Id. at 236 n. 9 citing Crown Laundry, 437 F.2d at 293; N.L.R.B. v. J.P. Stevens and Co., 538 F.2d 1152, 1160-61 (5th Circuit 1976).

The No-Solicitation Rule

The Company's employee handbook contained the following unlawful statement regarding solicitation and distribution of written materials:

All solicitation and/or distribution of written materials is strictly forbidden during working hours. Posting of any materials on company premises is strictly prohibited unless approval has been secured from the Personnel Department.

The statement was unlawful because it used the term "working hours" rather than "working time." ⁸ The handbook containing this statement was distributed to Company employees up until May or June 1980.

In March 1977 the Company posted a notice on the bulletin board which contained a lawful statement on the solicitation and distribution of materials. The notice read:

Solicitation on Company premises shall be prohibited in working and nonworking areas during an employee's working time or the working time of the employee solicited. Distribution on Company premises of literature shall be prohibited during working and nonworking time in working areas and in nonworking areas during an employee's working time.... (emphasis in original)

The Company had posted the notice in March 1977 and it remained posted at all times during the 1980 campaign.

The Board argues that the simultaneous existence of the handbook and bulletin board statements on solicitation created an ambiguity which had a reasonable tendency to inhibit lawful union activity. The Special Master concluded that the statement in the employee handbook was not a rule but merely part of an educational pamphlet distributed to new employees. Clear and convincing evidence supports his conclusion. After June 1980 the handbook was no longer distributed to new employees; the bulletin board rule was posted at all pertinent times and was later modified in accordance with the Board's changed views on solicitation and distribution. See ante note 8. In addition, the record indicates that any references made by supervisors to employees regarding the Company's solicitation/distribution policy were references to the posted bulletin board notice. No evidence was introduced by the Board demonstrating that Company employees were confused as to which statement represented Company policy, that they interpreted the two statements differently, or that they interpreted the handbook statement in a manner which would inhibit lawful union activity. ⁹ The Special Master correctly concluded that the Company's solicitation/distribution rule was lawful and that the Company did not violate this Court's order by

maintaining an ambiguous policy regarding solicitation.

Disparate Enforcement of the No-Solicitation/Distribution Rule

The Special Master concluded that the Company disparately applied and enforced the no-solicitation/distribution rule with regard to union materials as opposed to nonunion items such as Avon, Tupperware, and football pools. He refused, however, to equate these violations of this Court's order with contumacious conduct. The following activities are involved in the allegation of disparate enforcement: supervisor Rice's August 14, 1980, warning and threat of discharge to employee Wells if she continued to distribute union keychains and pens; manager Thimesch's and supervisor Mody's August 14, 1980, orders to employee Myers to stop passing out union keychains, pencils and pens; supervisor Clark's and supervisor Anderson's August 14, 1980, threats to discharge Myers if she continued to pass out union materials; supervisor Mody's August 15, 1980, order to Myers to take down the union pocket protector from her in-basket and remove the ATU keychain from her keys.

When supervisor Rice warned Wells against solicitation of union materials and threatened to fire her if she continued to pass out union materials, he made no distinction between solicitation in working versus nonworking areas. The Special Master discounted supervisor Rice's unlawful threat to discharge Wells because the following day Rice apologized to her, saying he should have used the word "discipline" rather than "fire." ¹⁰

Myers was told by supervisor Thimesch not to distribute union materials on Company premises and was told by supervisor Mody not to distribute union materials in the Accounts Payable Department. The warning by supervisor Thimesch was unlawful because an employee may lawfully make distributions in the nonworking areas during nonworking time. The Special Master discounted supervisor Thimesch's warning because Myers was not fired or even...