NLRB v. Crown Laundry & Dry Cleaners, Inc.

• Decision Date: 22 January 1971
• Docket Number: No. 24535.,24535.
• Citation: 437 F.2d 290
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CROWN LAUNDRY & DRY CLEANERS, INC., and Gulf Linen Service, Inc., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 290 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CROWN LAUNDRY & DRY CLEANERS, INC., and Gulf Linen Service, Inc., Respondents.

No. 24535.

United States Court of Appeals, Fifth Circuit.

January 22, 1971.

Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Paul Elkind, Atty., NLRB, Washington, D. C., for petitioner.

Richard C. Keenan, New Orleans, La., for respondents.

Before JOHN R. BROWN, Chief Judge, and WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

This case comes to us on a petition filed by the National Labor Relations Board to adjudge the respondents, Crown Laundry & Dry Cleaners, Inc. and Gulf Linen Service, Inc.,¹ in civil contempt of this Court for having failed and refused to comply with an order of this Court entered on November 10, 1967.

On July 14, 1965, the Board conducted an election to determine whether the Laundry, Dry Cleaning & Die House Workers' International Union, Local 218, would act as the bargaining representative for the employees of the Company. After losing the election, the Union filed objections with the Board. On August 26, 1966, the Board entered an order requiring the Company to cease and desist depriving its employees of the right to vote, free of any employer interference or coercion, in a Board election. The Board's order also set aside the first election and directed that a second election be held at an appropriate time. See 160 NLRB 746 (1966). On November 10, 1967, this Court entered its decision enforcing the Board's order. On May 29, 1968, the Board conducted the re-run election. The instant petition to adjudge the Company in civil contempt grew out of its conduct during the Union's organizational campaign just before the second election. In its petition the Board charged that the Company had once again "subverted the employees' freedom of choice by threatening, coercively interrogating, and promising benefits to employees and otherwise interfering with, restraining, and coercing them in the exercise of their statutory rights to self-organization." A panel of this Court then entered an order appointing a Special Master to conduct hearings and file a report with the Court.

On January 26, 1970, the Special Master issued his report. He concluded that most of the specific acts complained of had indeed occurred and that they constituted violations of the Court's decree of November 10, 1967. In one important particular, however, the Special Master concluded that the evidence did not establish that the Company had discharged an employee, Hazel Bingham, because of her Union attitudes or activity. Based on these findings and conclusions, the Special Master recommended that the Court enter an order requiring the Company to purge itself of contempt by

(1) Fully complying with and obeying the Board\'s order as enforced by the Court, by ceasing and desisting from threatening, interrogating, making promises of benefits to employees or in any other manner interfering with, restraining or coercing employees in the exercise of their rights to self-organization.

(2) Mailing to each of its employees a notice to be furnished by the Board\'s Regional Office, and signed by an official of the Respondents, stating that the Respondents have been adjudged in civil contempt of this Court for disobeying its order and that they will not henceforth threaten, interrogate, make promises of benefits to employees or otherwise interfere with, restrain or coerce employees in the exercise of their protected activities; and further, posting copies of such notices together with the purgation order, in conspicuous places where notices to employees customarily are posted, for a period of 10 days before such new election as the Board may order, and maintaining such, in clearly legible condition throughout such posting periods and assuring that they are not altered, defaced or covered by any other material.

(3) Instructing their supervisors to comply with the provisions of the Court\'s order prohibiting threats, interrogation, promises of benefit and other conduct interfering with the employees\' statutory right to self-organization; and taking reasonable steps to assure compliance with the Court\'s order.

(4) Upon request by the Union affording the Union reasonable access to the respondents\' premises and appropriate facilities to deliver a 15 minute speech to employees on working time, the date thereof to be within 10 working days before, but not within 48 hours prior to, such new election as may be ordered by the Board.

(5) Upon request of the Union, immediately furnishing it with a list of the names and addresses of all of Respondents\' employees.

(6) Filing a sworn statement with the Clerk of this Court and a copy thereof with the Director of the Fifteenth Region of the Board, within ten (10) days after the entry of adjudication in contempt, showing what steps have been taken by the Respondents to comply with the Court\'s directions, and filing further periodic sworn statements upon the scheduling of a new election, and again within five days after the election, specifying what steps have been taken to insure compliance by all supervisors with the terms of the Court\'s order.

(7) Paying to the Board fees and all costs and expenditures, including counsel fees, incurred by the Board in the investigation, preparation, presentation and final disposition of this proceeding.

(8) Reimbursing the Board for all costs incurred in the preparation and conduct of such new election as may be scheduled.

I.

The Company does not contest the Special Master's findings of fact. It does, however, object to the Special Master's conclusion that the Company's pre-election conduct constituted violations of § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), and this Court's order of November 10, 1967. The Company argues that it has not refused to comply with the Court's order; instead, it took substantial steps to insure that its supervisory personnel would not violate the Act or the Court's order and it should not be penalized for a low-ranking supervisor (Baxter) getting out of hand. Since the Company has not intentionally and wilfully violated the Court's order, it argues, it should not be adjudged in contempt.

The Special Master based his conclusions upon findings that on several occasions Baxter, the Company's Plant Superintendent, threatened or coerced employees in connection with the second representation election. Seeking to prevent an adjudication of contempt, the Company points out that "Baxter was the lowest ranking supervisor in this very small plant (about 20 employees), the violations were not extensive, and Baxter had been explicitly instructed by President Belleau not to engage in such discussions with employees." Nevertheless, even accepting these allegations as true, the Company acted in contempt of this Court's order.

In a contempt proceeding the Board "must meet a heavier burden of proof than in the ordinary unfair practice case. In a contempt proceeding the charges that the company has violated the decree must be established by clear and convincing proof." N. L. R. B. v. Laney & Duke Storage Warehouse Co., 5 Cir. 1970, 424 F.2d 109, 112. There can be no doubt that Baxter's repeated threats, questions, statements, and warnings constituted violations of § 8(a) (1) of the Act and this Court's decree. See, e. g., N. L. R. B. v. Borden Co., 5 Cir. 1968, 392 F.2d 412, 414 n. 4; N. L. R. B. v. Camco, Inc., 5 Cir. 1964, 340 F.2d 803, 804-807. Similarly, there can be no doubt that Baxter filled a responsible management position in the plant. Thus, unless the Company had effectively repudiated Baxter as a spokesman for management, it is responsible for his actions despite any explicit contrary instructions to him. N. L. R. B. v. American Mfg. Co. of Texas, 5 Cir. 1965, 351 F.2d 74, 78; cf. In re Winn-Dixie Stores, Inc., 5 Cir. 1967, 386 F.2d 309, 313; Hendrix Mfg. Co. v. N. L. R. B., 5 Cir. 1963, 321 F.2d 100, 104.

The absence of wilfulness on the part of the Company's top management cannot relieve the Company from civil contempt. The crucial issue in civil contempt proceedings, as distinguished from criminal contempt, is not the employer's state of mind but simply whether the Court's order was in fact violated. McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599, 604; N. L. R. B. v. Lawley, 5 Cir. 1950, 182 F.2d 798, 800. Since clear and convincing evidence supports the Special Master's conclusion that the Company, through its agent Baxter, has violated the Act and this Court's earlier order, we have no choice but to adjudge the Company in civil...