National Labor Relations Board v. Hopwood Retinning Co.
| Decision Date | 06 June 1939 |
| Citation | 104 F.2d 302 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. HOPWOOD RETINNING CO., Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles Fahy, Gen. Counsel, of Washington, D. C., for National Labor Relations Board.
Daniel J. Byrne, of Ridgewood, N. Y., for respondents Hopwood Retinning Co., Inc., and John A. Hopwood.
Milton M. Siegel, of New York City (Kotzen, Mann & Siegel, of New York City, of counsel), for respondent Monarch Retinning Co., Inc.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
This is a motion by the National Labor Relations Board that the respondents be adjudged in contempt of this court for their failure to comply with its order dated July 26, 1938, wherein enforcement of an order of the Labor Board made with respect to the parties hereto was directed, pursuant to an opinion rendered July 12, 1938. The opinion is reported in National Labor Relations Board v. Hopwood Retinning Co., Inc., et al., 2 Cir., 98 F.2d 97.
The order of the Labor Board, made on January 15, 1938, directed the Hopwood Retinning Co., Inc., and the Monarch Retinning Co., Inc., to cease and desist from unfair labor practices and affirmatively to reinstate employees locked out on March 31, 1937, and to pay them for wages lost, to bargain collectively with two unions representing separate units of employees, to notify the employees that individual contracts with them would be discontinued and not enforced, and to post appropriate notices. The order of this court sustained the Board's findings and incorporated in it the Board's order so far as the Hopwood Company was concerned. With respect to the Monarch Company, which was a company organized on April 15, 1937, after this labor dispute had arisen, to take over and carry on the Hopwood Company's business of collecting, reconditioning, and distributing milk and ice cream containers, this court sustained the Board's finding that its establishment "was an attempt on the part of Hopwood to evade its duty of collective bargaining," and that it was "but the alter ego of the Hopwood Co., operated for its benefit, and controlled by it." Since, however, the Monarch Company was not named in the original complaint issued by the Regional Director of the Board, but was only brought into the proceedings by amendment allowed by the trial examiner during the course of the hearings, it was ruled that this company could not be a party against whom the order should be entered, for lack of proper initiation of the complaint against it, as required by the National Labor Relations Act and the rules of the Board. The court did hold, however, that it could and would regard the Monarch "as an agency or instrumentality used to further the purposes of Hopwood's lock-out"; and, while vacating the order as against Monarch, it specifically provided in its order against the Hopwood Company that it, "its officers, agents, successors, and assigns, abide by and perform each and all of the directions contained in said order as so modified, and that said respondent, where necessary to accomplish the carrying out of the provisions thereof, shall secure the cooperation of its agent, Monarch Retinning Company, Inc."
Respondents attempted to obtain a resettlement of this order, but their motion to this end was denied.
In this proceeding the Board asserts that the order of this court has been in no manner complied with and asks that adjudications of contempt be made against the Hopwood Company, and against its officers and agents, and particularly John A. Hopwood, its president and controlling stock owner. It likewise asks such an adjudication against the Monarch Company, its officers and agents. Supporting affidavits are presented from officials and attorneys of the Board's Second Region located in New York, from officials of the unions involved, and from twelve production employees, drivers, and helpers, all of which are to the effect that except for certain negotiations for settlement terminating on December 20, 1938, on the rejection of an inconsequential offer of settlement from respondents, there has been no compliance by respondents with the court's order. The offer was to pay $1,500 in full settlement of the wages ordered paid, although a sum in excess of $200,000 is asserted to be due, and to reinstate ten production employees and three truck drivers and helpers, although of these two classes of employees, 191 and 17 respectively were originally discharged and thus entitled to reinstatement and approximately 100 and 12 respectively are desirous of such action.
In opposition to this motion, respondents have filed certain formal denials, as well as their motions to dismiss the proceedings because of claimed defects of form and substance in them. They present the supporting affidavits of John A. Hopwood, president of the Hopwood Company; of Daniel J. Byrne, president of the Monarch Company, as well as attorney for the Hopwood Company and for John A. Hopwood; and of Milton M. Siegel, attorney for the Monarch Company. On their face these affidavits show that the adjudication of contempt must be made. Interspersed in these lengthy and verbose documents among argumentative, if not contemptuous, attacks upon the underlying law, the Board, and even this court (in assault upon the "intricacies" and the "ambiguities" of the order, which they assert the Board in some way forced upon this court), there are admissions which show that no real compliance with the order has been attempted or is now contemplated by the respondents. In the affidavits of Byrne and Siegel it is admitted that an offer of only $1,500 was made for wages due, and in the affidavit by Byrne, in the course of an attempt to excuse John A. Hopwood from having failed to secure the coöperation of the Monarch Company as required by the order, it is stated that, in response to his entreaties for their action, "we proffered such assistance as we could render in the matter, but only to the extent that the business of the Monarch Company be not affected to its detriment." A studied attempt is made to excuse the default by claimed ambiguities in the order or defects in the manner in which this proceeding was...
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