National Labor Relations Bd. v. Reed & Prince Mfg. Co.

• Decision Date: 21 March 1952
• Docket Number: No. 3549.,3549.
• Citation: 196 F.2d 755
• Parties: NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO.
• Court: U.S. Court of Appeals — First Circuit

196 F.2d 755 (1952)

NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO.

No. 3549.

United States Court of Appeals First Circuit.

March 21, 1952.

Winthrop A. Johns, Asst. Gen. Counsel, George J. Bott, General Counsel, David P. Findling, Associate General Counsel, and Julius G. Serot and Walter N. Moldawer, Attorneys, all of Washington, D. C., on brief, for petitioner.

Gerard D. Reilly, Washington, D. C., Julius Kirle and Reilly, Rhetts & Ruckelshaus, Washington, D. C., on brief, for respondents.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

We have before us a petition by the National Labor Relations Board asking this court to issue an order requiring Reed & Prince Manufacturing Company, Chester T. Reed, the company president, Ernest C. Boyd, vice-president, and Alden Reed, treasurer, to appear before this court, at a specified time and place, and show cause, if any there be, why they, and each of them, "should not be adjudged in civil contempt" for having failed and refused, and for continuing to fail and refuse, to comply with an enforcement decree which we entered more than ten years ago. N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 1941, 118 F.2d 874, certiorari denied 1941, 313 U.S. 595, 61 S.Ct. 1119, 85 L.Ed. 1549. We refrained from entering an ex parte showcause order because the petition presented a serious question as to the appropriate procedure, which this court had hitherto never had occasion to consider. Rather, on January 16, 1952, we entered an order directing respondents to file sworn answers to the allegations of the petition for adjudication in civil contempt; and further we directed the Board to file a brief setting forth arguments and authorities in support of proceeding by way of civil contempt as opposed to the statutory procedure of an administrative hearing culminating in a Board order and a petition for enforcement, respondents being directed to file an answering brief. Oral argument was heard on the Board's petition on March 5, 1952.

The original proceeding was instituted by the Board in the latter part of 1937 by the filing of its complaint against Reed & Prince charging the company with various unfair labor practices. After the usual proceedings, the Board, on May 15, 1939, found the company to have committed certain unfair labor practices and issued its order against respondent in terms which it deemed appropriate.

Thereafter the Board petitioned this court to enforce the said order. We sustained the Board's findings that the company had failed and refused to bargain collectively in good faith with the Steel Workers Organizing Committee, the accredited representative of its employees, in violation of § 8(5), and also § 8(1), of the Act, 29 U.S.C.A. § 158(1, 5); that the company had discriminatorily discharged four named employees, in violation of § 8(3) of the Act; and that the company had also violated the more general prohibition of § 8(1) of the Act by signing up the employees under individual contracts which imposed a restraint upon them in the exercise of their right to bargain collectively in the future as a result of provisions in the contracts which forestalled future collective bargaining upon matters which are frequent subject of negotiation between employers and employees.

Our decree, entered April 2, 1941, directed the company to take certain affirmative action, including (a) upon request to bargain collectively with Steel Workers Organizing Committee as the exclusive representative of its employees in the indicated unit; (b) to offer full and immediate reinstatement to the four employees who had been discriminatorily discharged, and (c) to make said employees whole for any loss of pay they might have suffered by reason of the discriminatory discharges. Our decree also directed respondent to cease and desist (a) from discouraging membership in Steel Workers Organizing Committee or in any other labor organization of its employees, by discriminating in regard to their hire and tenure of employment or in any other term or condition of employment; (b) from in any manner giving effect to the aforesaid individual contracts entered into by the respondent with its employees in violation of the Act; and (c) from refusing to bargain collectively with Steel Workers Organizing Committee as the exclusive representative of its employees. Finally, we approved and enforced a sweeping catch-all order of the Board, which directed that respondent cease and desist from "In any other manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the National Labor Relations Act 29 U.S.C.A. § 157." We considered the propriety of this broad form of order at some length, 118 F.2d at pages 890-891, in the light of N. L. R. B. v. Express Publishing Co., 1941, 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, and concluded that a cease and desist order of this breadth was not inappropriate, in view of the multiple unfair labor practices established against respondent. Cf. May Department Stores Co. v. N.L.R.B., 1945, 326 U.S. 376, 386, 393, 66 S.Ct. 203, 90 L.Ed. 145; McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 192, 69 S.Ct. 497, 93 L.Ed. 599.

Back in 1942 we entertained an earlier petition by the Board to adjudge Reed & Prince and certain of its officers in civil contempt for failure to comply with our decree of April 2, 1941. N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 1942, 130 F.2d 765. That proceeding arose out of a dispute between the parties as to the amount of back pay due to the four employees in accordance with the formula laid down in one of the affirmative terms of our enforcement decree. It did not involve any new and independent unfair labor practice alleged to have been in violation of the all-inclusive clause of our cease and desist order.

In support of its present petition the Board alleges the following facts: After entry of this court's enforcement decree of April 2, 1941, respondent company proceeded to bargain collectively, as directed, with Steel Workers Organizing Committee. In May, 1942, Steel Workers Organizing Committee became known as United Steel-workers of America, C. I. O. Thereafter the company continued to bargain with and recognize Steel Workers Organizing Committee under its new name, United Steel-workers of America, C. I. O., as the representative of its employees "until about October 1944, after which date there was a lapse in the bargaining relations". The cause of this lapse is unexplained; and it may perhaps be inferred that the union lost its majority status at that time. At any rate it is not suggested that the company was in violation of our decree for failure to bargain with the said union on and after October, 1944, up to July 20, 1950, when, it is alleged, the Board, pursuant to the provisions of § 9 of the Act, 29 U.S. C.A. § 159, certified United Steelworkers of America, C. I. O., "as the collective bargaining representative once more for the employees for whom respondent Company had previously recognized and bargained with Steelworkers pursuant to the decree of this Court."

The Board's petition goes on to allege that, after the new certification of the union in July, 1950, the company, though it has gone through the motions of protracted negotiations with representatives of the union and has engaged in various subterfuges intended to obscure its non-compliance with our decree, has in fact failed and refused to bargain collectively in good faith with the certified union. As a result of such refusal to bargain, approximately all of the employees of respondent company went on strike; and said strike was still in effect at the date of the filing of the petition. Certain other acts of interference and coercion are alleged as violations of § 8(a)(1) of the Act.

In the face of these alleged unfair labor practices, the Board at first elected to proceed in the usual way, by the issuance of a complaint against Reed & Prince on April 13, 1951. A hearing was held before a trial examiner of the Board from April 30 through May 4, 1951, in a proceeding known as Reed & Prince Manufacturing Company and United Steelworkers of America, C. I. O., Case No. 1-CA-865. The complaint was actively contested by respondent at all stages of the proceeding. Voluminous testimony was taken and, in accordance with recommendations of the trial examiner's intermediate report, the Board, in a decision entered October 16, 1951 (one member dissenting), found that respondent had failed and refused to bargain with United Steelworkers of America, C. I. O., in violation of § 8(a)(5) of the Act and that a letter by respondent threatening the striking employees with loss of their jobs was in itself an independent...