NLRB v. Ralph Printing & Lithographing Company

• Decision Date: 29 October 1970
• Docket Number: No. 18570.,18570.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RALPH PRINTING & LITHOGRAPHING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

433 F.2d 1058 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RALPH PRINTING & LITHOGRAPHING COMPANY, Respondent.

No. 18570.

United States Court of Appeals, Eighth Circuit.

September 25, 1970.

Rehearing Denied October 29, 1970.

COPYRIGHT MATERIAL OMITTED

Paul Elkind, Atty., National Labor Relations Board, Washington, D. C., for petitioner, and filed brief; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William H. Carder, Washington, D. C., Atty., on the brief.

William A. Harding, Lincoln, Neb., for respondent, and filed brief; Mr. Charles J. Kimball, Lincoln, Neb., on the brief.

Before BLACKMUN,^* MEHAFFY and BRIGHT, Circuit Judges.

MEHAFFY, Circuit Judge.

The National Labor Relations Board has petitioned this court to adjudicate respondent, Ralph Printing & Lithographing Company, in civil contempt for allegedly failing and refusing to comply with the decree of the court entered July 6, 1967 in NLRB v. Ralph Printing & Lithographing Co., 379 F.2d 687 (8th Cir. 1967), which granted enforcement of the Board's order in Ralph Printing & Lithographing Co., 158 NLRB No. 128, 62 LRRM 1233, as modified. The Company was ordered to recognize and bargain collectively with the Lithographers and Photoengravers International Union, AFL-CIO, and to cease and desist from interfering with the employees' self-organizational rights.

When the petition was filed alleging that the Company had not complied with the decree and asking that it be adjudged in contempt, the matter was referred to a Special Master, The Honorable Robert Van Pelt, to conduct a hearing and report to this court his findings of fact, conclusions of law and recommendations. On October 2, 1969 the Special Master issued his report stating that it was his recommended conclusion that the Company has violated both the letter and intent of the decree in that it bargained in bad faith, refused to execute the contract when agreement had been reached even though the Company's negotiator had the authority to do so, and granted wage increases to certain employees during a period when the Union was the collective bargaining agent and when contract negotiations were in progress, all in violation of the decree. We adopt the findings and recommended conclusion of the Special Master as summarized below.

On October 3, 1967 the parties commenced bargaining. The Company was represented throughout the negotiations solely by attorney John E. Tate, and the Union was represented by various Union officials and employees including Mel Galbraith, a representative of the International Union, and Dale Bahn, President of the Local Union. At all times during the negotiations the Company fully co-operated with the Union with respect to fixing times and places for negotiation and furnishing information desired by the Union. On March 5, 1968, while negotiations were in progress, the Union caused an unfair labor practice charge to be filed against the Company alleging that it had improperly granted pay raises and had refused to bargain over job classification. On March 6, 1968 a bargaining session was held after which only three issues were left in dispute, the vacations clause, holidays clause and job classification. Immediately after the meeting the employees voted to drop their demands on these items and accept the contract.

The following morning, March 7, 1968, the Union negotiator obtained authority from International to accept the contract without these clauses and to sign the contract without further International approval. On the same date the Union's negotiator called Tate's office and asked his secretary to inform Tate that the Union was ready to sign a final contract incorporating only those provisions already agreed upon. He wrote Tate to the same effect on March 12, 1968 and, in Tate's reply, he complained about the unfair labor practice charge and stated that he had no idea what the Union's negotiator was talking about. On March 20, 1968 Tate was again contacted and responded that he would draft a completed contract embodying the agreed-upon terms by March 28, 1968. This was done and a copy was sent by Tate's office to the Union and also to the President of the Company, Joe Peer, advising that it was a final agreement. Tate also talked with Clifton Batchelder, the owner of the Company, concerning it.

On April 2, 1968 the Union negotiators met with Tate for the agreed purpose of executing the contract. They went through it and made a number of minor changes in the wording and initialed these changes. Thereafter the Union negotiators signed the contract and presented it to Tate who informed them for the first time that he did not have the authority to sign it but would submit it to Batchelder and give the Union an answer in forty-eight hours. The Company subsequently refused to sign the agreement as written and an attempt was made to bargain further. After several meetings Tate sent the Union a proposal on April 16, 1968, to which the Union never responded.

The Special Master found that a final agreement had been reached and that Tate had the authority to bind the Company. Although Batchelder testified that he never gave Tate the authority to enter into a binding agreement without prior Company approval, the Master found that this was not borne out by other relevant evidence. The Company's counterproposal on October 18, 1967 contained the statement that "if the word of the Union representatives here is final then so is that of the Company negotiator." The Company contended, however, that it did not know that the word of the Union representative would be final and that the subsequent approval of International would not have to be sought. Additionally, Tate clearly indicated on several occasions, during negotiations that he had authority to bind the Company.

The Master further found that even if actual authority were found to be lacking, Tate had apparent authority since he indicated that he had authority and did not advise otherwise. See Teamsters, Chauffeurs, Warehousemen & Helpers Local Union 524 v. Billington, 402 F.2d 510 (9th Cir. 1968); United Steelworkers of America v. CCI Corp., 395 F.2d 529 (10th Cir. 1968), cert. denied, 393 U.S. 1019, 89 S.Ct. 627, 21 L.Ed.2d 564 (1969). After the Union negotiators signed the contract, Tate was under a duty to sign also upon the Company's prior representation that "if the word of the Union representatives is final then so is that of the Company negotiator."

While a collective bargaining contract need not be written to be enforceable, Warrior Constructors, Inc. v. International Union of Operating Engineers, Local Union 926 AFL-CIO, 383 F.2d 700 (5th Cir. 1967), refusal to execute an agreement incorporating the terms of a negotiated contract when requested is an unfair labor practice. See H. J. Heinz Co. v. NLRB, 311 U.S. 514, 526, 61 S.Ct. 320, 85 L.Ed. 309 (1941); NLRB v. Ogle Protection Serv., Inc., 375 F.2d 497, 500 (6th Cir. 1967), cert. denied, 389 U.S. 843, 88 S.Ct. 84, 19 L.Ed.2d 108 (1967); NLRB v. Ohio Car & Truck Leasing, Inc., 361 F.2d 404, 406 (6th Cir. 1966). Cf. NLRB v. Strong, 393 U.S. 357, 361, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969).

Judge Van Pelt also found that the Company violated this court's order by granting pay raises to certain employees. Mr. Tate had advised Company officials that they were precluded from continuing their merit increases after the order to bargain but this was disregarded. The Union was not apprised of any of the raises prior to the time they were given nor was it given an opportunity to bargain over them. We agree with the Special Master's recommendation that the Company should be held in contempt.

The question of the intent with which the claimed acts were done is not material unless the acts are equivocal and resort to the intent with which they are done is necessary to make their meaning clear. NLRB v. Whittier Mills Co., 123 F.2d 725, 727 (5th Cir. 1941). If the acts done are clearly in contravention of the court's decree, the intention is of no consequence. The absence of wilfulness does not relieve an individual from civil contempt since it is a sanction to enforce compliance with an order of the court and is not dependent on the state of mind of the respondent. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1948). The Board, nevertheless, has the burden of proving the alleged contempt and demonstrating it by clear and convincing evidence. W. B. Johnston Grain Co. v. NLRB, 411 F.2d 1215, 1217 (10th Cir. 1969); NLRB v. Alamo Express, Inc., 395 F.2d 481, 482 (5th Cir. 1968). W...