NLRB v. Lynair, Inc., 15957.
| Decision Date | 14 June 1967 |
| Docket Number | No. 15957.,15957. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LYNAIR, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Paul Elkind, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Thomas Canafax, Atty., N. L. R. B., Washington, D. C., on memorandum in support of proposed adjudication of contempt), for petitioner.
Allison K. Thomas, Lansing, Mich., (Hubbard, Fox, Thomas & Born, Lansing, Mich., on memorandum in reply to memorandum of N. L. R. B. re proposed adjudication of contempt), for respondent.
Before PHILLIPS and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.
The National Labor Relations Board filed a petition praying that Lynair, Inc., respondent, be adjudged to be in civil contempt of this court because of its failure to comply with a consent decree of enforcement entered by this court on June 2, 1964, in which enforcement was granted of the order of the Board issued May 14, 1964.
The Board averred that respondent has failed to comply with that part of the decree which directs that respondent shall:
In its answer respondent denied that it had disobeyed the decree of this court. As an affirmative defense to the petition respondent averred that it resumed bargaining in good faith with the union on April 29, 1964, and that seven bargaining conferences were held with representatives of the union between that date and July 27, 1964; that an impasse was reached on July 27, 1964; and that further bargaining would be fruitless.
The Board contended that on August 1, following the filing by the union of an unfair labor practice charge, respondent cancelled a bargaining conference scheduled for August 5, 1964, and from that time forward has refused to bargain in accordance with the decree of this court. The Board disputed respondent's contention that an impasse was reached on July 27, 1964.
This court first heard oral arguments on the petition and answer on October 13, 1965. Under date of October 22, 1965, an order of reference was entered appointing the Honorable Raymond W. Starr, Senior United States District Judge for the Western District of Michigan, as Special Master to hear evidence and report on the issues of fact presented by the petition and answer.
Because of the illness of Senior District Judge Starr, an order was issued under date of July 25, 1966, appointing the Honorable Frank L. Kloeb, Senior United States District Judge for the Northern District of Ohio, as Special Master.
Under date of January 23, 1967, Judge Kloeb filed a comprehensive report as Special Master, stating that hearings had been held before him on September 26 and September 27, 1966, followed by oral argument of counsel.
Pertinent parts of the report of the Special Master are attached as an appendix to this opinion.
Accompanying the report of the Special Master were detailed findings of fact and the following recommended conclusion of law:
"By failing and refusing to bargain in good faith with the International Union, Allied Industrial Workers of America, AFL-CIO as the exclusive bargaining representative of the Company\'s production and maintenance employees with respect to wages, hours and working conditions, respondent Lynair, Inc. has violated and continues to violate paragraphs 1(a) and (d) and 2(a) of the Order of the National Labor Relations Board, enforced by and incorporated in the decree of the United States Court of Appeals for the Sixth Circuit, entered June 2, 1964."
Lynair filed objections to the report of the Special Master and a brief in support of its objections. The Board filed a memorandum brief in support of the report of the Special Master. Oral arguments again were heard before the court on April 11, 1967.
From a review of the entire record, including the objections and exceptions to the report of the Special Master and the briefs filed in support of and in opposition to said report, we have concluded that the findings of fact of the Special Master and his recommended conclusions of law are correct. Said report and recommendations are approved, adopted and confirmed by the court. The court finds that the allegations of the petition of the Board averring that Lynair has been guilty of civil contempt have been sustained by clear and convincing evidence, and that at the time and in the manner set forth in the Master's report, Lynair has been and is guilty of civil contempt of this court in that this company has failed and refused to obey the order of this court enforcing the order of the Board.
It is well settled that a certification by the Board of a Union as bargaining agent for employees must be honored for a reasonable period, ordinarily one year, in the absence of unusual circumstances. This rule applies even though the Union may have lost its majority status prior to the expiration of the one year period. 29 U.S.C. § 159(c) (3); Brooks v. N.L.R.B., 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125, 42 A.L.R.2d 1405; McLean v. N.L.R.B., 333 F.2d 84, 88 (C.A.6).
In the present case the Union was certified by the Board as bargaining agent on October 18, 1963, and, in the absence of unusual circumstances (which we do not find to be present here), is entitled to be recognized as bargaining representative of Lynair's employees for a minimum period of one year. The Special Master found that the parties conducted bargaining negotiations from October 30, 1963, promptly following certification, until December 18, 1963, and again from April 29, 1964, to July 27, 1964.
One of the objections filed by Lynair is that the consent decree of enforcement originally entered by this court was void for uncertainty in that the decree failed to spell out the length of time that Lynair was required to bargain. It is well settled that a bargaining order enforced by the court requires an employer to bargain for a reasonable period of time with the Union, whether or not the Union maintains its majority support. N.L.R.B. v. Warren Co., Inc., 350 U.S. 107, 76 S.Ct. 185, 100 L.Ed. 96; Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020. Ordinarily a reasonable period of time will be until the parties either are able to reach an agreement or until they arrive at a genuine impasse in negotiations. N.L.R.B. v. Satilla Rural Electric Membership Corp., 322 F.2d 251 (C.A.5).
We therefore overrule Lynair's objection that the decree is void for uncertainty. It is not necessary that a decree of enforcement specify the period of time that the employer is required to bargain. The employer is required to bargain in good faith for a reasonable period of time, ordinarily until an agreement is reached or until a genuine impasse occurs in the negotiations.
The final question to be discussed is the amount of costs to be assessed against Lynair. It is well settled that costs may be awarded as a compensatory fine, that is, as a part of the remedy to which the complainant is entitled in successfully prosecuting a civil contempt proceeding. United States v. United Mine Workers, 330 U.S. 258, 303-304, 67 S.Ct. 677, 91 L.Ed. 884; Gompers v. Buck Stove & Range Co., 221 U.S. 418, 447; N.L.R.B. v. Local 5881, United Mine Workers, 323 F.2d 853 (C.A.6).
In the present case the Board has asked that Lynair be assessed with costs of $2,792.76, consisting of (1) $897.56 in actual costs incurred for court reporter and for travel expenses and per diem of board personnel; plus (2) $1895.20 in pro rata costs of the compensation of Board counsel and personnel during the time actually devoted to the case. In the discretion of the court, such pro rata costs and counsel fees may be assessed against a respondent adjudged to be in civil contempt. N.L.R.B. v. Local 254, Building Service Employees International Union, 376 F.2d 131 (C.A.1); Lance v. Plummer, 353 F.2d 585, 582 (C.A.5), cert. denied, 384 U.S. 929, 86 S.Ct. 1380, 16 L.Ed.2d 532, rehearing denied, 384 U.S. 994, 86 S.Ct. 1885, 16 L.Ed.2d 1011; Federal Facilities Realty Trust v. Kulp, 227 F.2d 657 (C.A.7). Such fees apparently were assessed by this court in its unreported order issued January 3, 1964, in N.L.R.B. v. United Mine Workers (No. 14,637).
Although recognizing that such costs and attorneys fees may be assessed in appropriate cases, this court in the exercise of its discretion in the present case has decided to assess costs against Lynair only for out-of-pocket expenses incurred by the Board, totaling $897.56, and not to assess Lynair with counsel fees or a pro rata part of the compensation of Board personnel.
The following order will be entered:
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