Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO v. N.L.R.B., AFL-CI

Citation547 F.2d 575
Decision Date04 January 1977
Docket Number23750 and 23751,23300,P,AFL-CI,Nos. 23295,s. 23295
Parties92 L.R.R.M. (BNA) 3059, 178 U.S.App.D.C. 278, 78 Lab.Cas. P 11,455, 81 Lab.Cas. P 13,151 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. George ANGLE, d/b/a Kansas Refined Helium Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Robert Martin, Wichita, Kan., of the bar of the Supreme Court of Kansas, pro hac vice by special leave of court, for George A. Angle. W. Stanley Churchill, Wichita, Kan., was on the brief, for George A. Angle.

Before McGOWAN and TAMM, Circuit Judges and BURNITA SHELTON MATTHEWS, * United States Senior District Judge for the United States District Court for the District of Columbia.

McGOWAN, Circuit Judge:

This petition for an adjudication of civil contempt is the latest chapter in lengthy proceedings involving labor relations at the Kansas Refined Helium Company (KRH), a highly mechanized helium extraction plant located near Otis, Kansas, of which respondent Angle is the sole proprietor. Charges of unfair labor practices at KRH, first raised in 1966, resulted in issuance of a complaint by the General Counsel of petitioner National Labor Relations Board. 1

On June 25, 1969, the Board found that unfair labor practices had been committed. 176 N.L.R.B. 1032 (1969). The Board also found that one of the six employees who had been reinstated pursuant to a district court order, see note 1 supra, was subsequently suspended and discharged in violation of the Act. 176 N.L.R.B. 1037 (1969). The Board's orders were granted enforcement in all respects by this court. Oil, Chemical & Atomic Workers v. NLRB, 144 U.S.App.D.C. 167, 445 F.2d 237 (1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 713, 30 L.Ed.2d 730 (1972).

On July 12, 1972, the Board first petitioned this court to hold respondent in civil contempt. We appointed a Special Master pursuant to Fed.R.Civ.P. 53 to hear evidence and make findings respecting the alleged contumacy. Twice during the pendency of the contempt proceedings we ordered Angle to rescind the suspension or discharge of employees. 2 The Master conducted lengthy hearings on the petition, as amended, and on March 14, 1975, issued a report with recommended findings of fact and conclusions of law, which found all allegations of contemptuous conduct to be without merit. The matter is before us on petitioner's exceptions to that report.

I. PRELIMINARY ISSUES.

We confront two questions which are unrelated but which impinge upon our consideration of every allegation of contumacy. They are (1) what is the scope of review of findings by a Special Master, and (2) must an alleged contemnor have acted with wilfulness in order to be found in civil contempt.

A. Scope of Review.

Under rule 53(e)(2) of the Federal Rules of Civil Procedure, a court must accept the findings of fact of a master unless "clearly erroneous." This is the same standard as that governing appellate review of District Court findings of fact, see Fed.R.Civ.P. 52(a); 9 C. Wright & A. Miller, Federal Practice and Procedure, Civil, § 2614, at 809-10 (1971). 3 The party excepting to the master's findings carries the burden of proving them to be clearly erroneous, e. g., Case v. Morrisette, 155 U.S.App.D.C. 31, 475 F.2d 1300, 1307 (1973), and the court must uphold a finding, even if it is thought to go against the weight of the evidence, unless the error is clear, e. g., Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. National Ass'n of Real Estate Boards, 339 U.S. 485, 495-96, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). At the same time, the mere fact that a finding is supported by substantial evidence does not prevent its being overturned if the reviewing court, with due regard for the master's opportunity to judge credibility, "is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 95 L.Ed. 746 (1948); accord, e. g., Zenith Radio Corp. v. Hazeltine Rsch. Inc., supra, 395 U.S. at 123, 89 S.Ct. 1562 and cases cited; W.R.B. Corp. v. Geer, 313 F.2d 750 (5th Cir. 1963). In this circuit, the clearly erroneous standard applies even to findings based on documentary evidence or inferences from undisputed facts. Case v. Morrisette, supra, at 1307; see 9 C. Wright & A. Miller, supra, § 2587. However, a master's conclusions of law are entitled to no special deference from the reviewing court, and will be overturned whenever they are believed to be erroneous. 4 E. g., Case v. Morrisette, supra, at 1308, and cases cited note 39.

While findings of fact need not be in any special form, they must disclose to the reviewing court the basis of the decision. E. g., Russo v. Central School Dist. No. 1, 469 F.2d 623, 628-29 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973); Alpha Distributing Co. v. Jack Daniel Distillery, 454 F.2d 442, 453 (9th Cir. 1972). Moreover, in the instant case there are some issues presented as to which the Master made no findings of fact. Many of these involve evidence not controverted in the record and not challenged by respondent in his brief. In considering such issues, we adhere to the rule announced in Hurwitz v. Hurwitz, 78 U.S.App.D.C. 61, 136 F.2d 796, 799 (1943), that "(i)n cases where the record is so clear that the court does not need the aid of findings it may waive such a defect on the ground that the error is not substantial in the particular case."

B. Is Wilfulness Required?

Respondent has suggested that good faith or lack of wilfulness prevents an adjudication of contempt, conceding that he could provide no authority for this novel proposition, even as respects (1) alleged unilateral changes in wages, hours or conditions or (2) questions of Angle's liability in contempt for conduct of his subordinates, in which contexts the proposition was pressed most forcefully. We are not dealing here with criminal contempt. Nor are we dealing with the last stage in so-called three-stage civil contempt, consisting of (1) issuance of an order; (2) following disobedience of that order, issuance of a conditional order finding respondent in contempt and threatening to impose a specified penalty unless respondent purges himself of contempt by complying with prescribed purgation conditions; and (3) exaction of the threatened penalty if the purgation conditions are not fulfilled.

We are, rather, dealing with the second stage of this three-stage process, in which the court offers the respondent an opportunity to purge himself of contempt. In this context, the longstanding rule is that good faith or lack of wilfulness is not a defense that the petitioner must negate. 5 The rule is a salutary one, for the purpose of a motion for civil contempt, at least at this second stage, "is not to punish intentional misconduct, but rather to enforce compliance with an order of the court and to remedy any harm inflicted on one party by the other party's failure to comply." Doe v. General Hospital, 140 U.S.App.D.C. 149, 434 F.2d 427, 431 (1970).

II. ALLEGED VIOLATIONS INVOLVING THE DUTY TO BARGAIN.

We consider first the allegations that respondent unilaterally changed the terms and conditions of employment.

A. Alleged Unilateral Changes in Insurance Coverage.

The Master's findings on this issue were, in their entirety, as follows: The Group Health Insurance Policy covering the KRH employees also covered all other employees of the various Angle companies, approximately 150 in all. It was economically beneficial to both Angle and the KRH employees to provide coverage through one large group insurance policy rather than through a separate policy covering only the KRH employees. Tp. 413-16, 1456-57, Board Exhibit 53, Respondent Exhibit P. The change in insurance coverage for the year 1972 was required by the insurance carrier and was not initiated by Angle. Tp. 1457-60; Board Exhibit 53; Respondent Exhibits L, M, and N. Angle was attempting to maintain the same insurance coverage at the lowest possible premium rate and that made a change in insurance carriers advisable. Tp. 1458-59; Board Exhibit 53; Respondent Exhibit O.

Master's Report at 20.

In its exceptions, the Board raises two principal objections to these findings. First, although not generally disputing the facts as found by the Master, it objects to the implicit legal conclusion that Angle's good faith justifies a failure to bargain. 6 We believe this exception must be sustained. The Master's findings on this issue appear to rest upon an erroneous conception of the law that the employer's duty to bargain arises only when he is not acting in good faith which we are duty-bound to correct. The applicable principle is stated in NLRB v. Katz, 369 U.S. 736, 743, 747, 82 S.Ct. 1107, 1111, 1114, 8 L.Ed.2d 230 (1962):

Clearly, the duty thus defined (by section 8(d)) may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact . . ..

Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment . . . and must of necessity obstruct bargaining, contrary to the congressional policy. It will often disclose an unwillingness to agree with the union. It will rarely be justified by any reason of substance. It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of § 8(a)(5), without also finding the employer guilty of over-all subjective bad faith.

Thus it is clear that Angle's action was in contempt of the judgment of this court. We therefore decline to...

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