National Labor Relations Bd. v. RETAIL CLERKS INT. ASS'N

• Decision Date: 31 March 1953
• Docket Number: No. 12434.,12434.
• Citation: 203 F.2d 165
• Parties: NATIONAL LABOR RELATIONS BOARD v. RETAIL CLERKS INTERNATIONAL ASS'N, A.F.L., RETAIL CLERKS UNION LOCAL 648, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

203 F.2d 165 (1953)

NATIONAL LABOR RELATIONS BOARD v. RETAIL CLERKS INTERNATIONAL ASS'N, A.F.L., RETAIL CLERKS UNION LOCAL 648, et al.

No. 12434.

United States Court of Appeals Ninth Circuit.

March 31, 1953.

George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, National Labor Relations Board, Washington, D. C., Frederick U. Reel and Robert G. Johnson, Attorneys, N. L. R. B., Washington, D. C., for petitioner.

Roland C. Davis, J. D. Burdick and Carroll & Davis, San Francisco, Cal., for respondent Retail Clerks Int. Ass'n.

Elisha Hanson, Washington, D. C., Willard S. Johnston, and Orrick, Dahlquist, Neff & Herrington, San Francisco, Cal., for Safeway Stores, Inc., amicus curiæ.

Before BONE, ORR and POPE, Circuit Judges.

BONE, Circuit Judge.

On January 14, 1950, this court entered a consent decree enforcing an order of the National Labor Relations Board directing, among other things, that Retail Clerks International Association, AFL (hereinafter called "International") and Retail Clerks Union, Local 648 (hereinafter called "Local") shall not "(b) Refuse to bargain collectively with Safeway Stores, Incorporated for the employees in the unit described in paragraph IV of the stipulation in case No. 20-CB-43 by insisting or demanding that Safeway bargain collectively for supervisory employees of Safeway within the meaning of Section 2(11) of the Act." The "employees in the unit described in paragraph IV" were "all employees in the grocery departments of the 71 Safeway stores in San Francisco County, excluding location managers and other supervisory employees * * *." In the same proceeding this court entered consent decrees enforcing similar Board orders against several other Local Retail Clerks Unions affiliated with International.

Subsequently the Board filed a petition in this court to have International, Local, and certain named officials of those organizations adjudged in civil contempt for refusing to bargain collectively with Safeway except on the condition that Safeway would agree to bargain for "location managers" employed by Safeway.

The primary question in the contempt proceeding was whether location managers were supervisory employees within the meaning of the enforcement decree. While the stipulation above referred to reflected an agreement that, for the purpose of determining the appropriate bargaining unit location managers should be considered supervisory employees, such agreement was not carried into and made a part of the decree. The decree, therefore, while it prohibited demands that Safeway bargain for supervisory employees as a condition of respondents' bargaining for clerks, did not specifically proscribe demands that Safeway bargain separately for location managers. Thus the question arose whether, at the time of the alleged violations of this Court's decree, location managers were "supervisory employees" within the meaning of the decree.

Since the order of the Board and the enforcement decree of this court had been entered by consent, there was nothing in the record and no findings of the Board to indicate whether location managers were supervisory employees within the meaning of the decree. This court was unwilling to resolve that question upon the basis of the affidavits submitted in the contempt proceeding. Accordingly, we returned the case to the Board to take testimony and make appropriate findings on this single question, prior to any further proceedings for enforcement. See our opinion 186 F.2d 371.

The Board took the position that we had returned the case for further hearings with a view to clarification and modification of our decree. After a hearing with all parties represented the Trial Examiner issued an intermediate report in which he made a finding of fact that location managers were "supervisory employees" of Safeway within the meaning of § 2(11) of the National Labor Relations Act, 29 U.S.C.A. § 152, as amended. No exceptions were taken to this finding of fact in the intermediate report. The Board adopted the findings of the Trial Examiner and issued an amended order specifically including "location managers" within the term "supervisory employees."¹

At the said hearing the other local unions, which were respondents in the proceeding for enforcement of the Board's original order but not involved in the later contempt proceeding, stipulated that the evidence introduced was applicable to location managers employed by Safeway in each of their respective jurisdictions. No objection having been made to the finding that location managers were supervisory employees, the Board entered amended orders similar to that quoted above as to each of the locals involved in the original proceeding.

The Board now petitions this court for summary enforcement of its amended orders and for dismissal of the contempt proceedings. However, the Board contends that if enforcement of its amended orders is denied, then we should proceed to dispose of the contempt matter.

At the outset we must erase certain misunderstandings arising out of our return of the case to the Board for further proceedings. In taking this action we merely gave leave to take testimony and make findings on the primary and controlling fact issue raised on the contempt proceeding. We did not contemplate that the Board would undertake to amend its original orders and petition this court for enforcement thereof.

The present enforcement decree of this court issued on January 14, 1950, is valid and effectual. There is no reason to clarify or supplement it in the manner proposed by the Board. Nothing would be gained thereby.

The Board concedes that in any future proceedings to adjudge respondents in contempt for violation of such a proposed amended decree, the question would still arise whether "location managers" are "supervisory employees" within the meaning of § 2(11) of the Act. For it goes without saying that Safeway could not place respondents in contempt of such amended decree by the expedient of naming any number of its employees "location managers." And it should be just as obvious that if the duties of location managers are so modified as to make them lose their status as supervisory employees under the Act, respondents would not be in contempt of the proposed amended decree. The decree of this court could not be so expanded as to proscribe demands that Safeway bargain for non-supervisory personnel. Such a decree could only be founded upon an entirely new Board proceeding.

Further, to modify our decree as the Board suggests would be to commit the error condemned in McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 500, 93 L.Ed. 596, where the Supreme Court said, at pp. 192-193, with reference to the District Court's treating a contempt proceeding as an action for broadening of the Court's previous decree:

"The instant case is an excellent illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not specifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught."

As we stated in our opinion returning the case to the Board, we might have decided the contempt charge on the basis of affidavits submitted in the contempt proceeding. We might also have referred the cause to a special master. Instead we committed determination of the primary issue of fact, in the first instance, to the Board.

Such reference is not usual in a contempt proceeding. In several cases it has been said to be improper. See N. L. R. B. v. New York Merchandise Co., 2 Cir., 134 F.2d 949; Wallace Corporation v. N. L. R. B., 4 Cir., 159 F.2d 952; N. L. R. B. v. Bird Mach. Co., 1 Cir., 174 F.2d 404. However, there is reason for taking such a course where, as here, the single fact question involved is one with which the Board is eminently equipped and qualified to deal. The fact question, briefly, was whether (at the time of the alleged violation of our enforcement decree) the location managers therein involved were "supervisors," despite having certain duties of food clerks. To resolve this one fact question we determined to utilize the machinery of the Board to procure a record and finding thereon.

In the New York Merchandise, Bird Mach. Co., and Wallace Corp. cases, supra, the courts took the position that general decrees enforcing reinstatement and back pay orders of the Board were only interlocutory, and that further proceedings by the Board looking toward particularization of the decrees were necessary prior to contempt proceedings. The difference between such a proceeding and the contempt proceeding here, the primary purpose of which is not punishment but ascertainment of the effect of this court's decree upon a certain state of facts, is principally one of form and not of substance. The courts in the above-cited cases committed the question of modification of their decrees to the Board because the questions involved were such as to fall within the Board's province. The same consideration is present here. However, greater particularization of...