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National Labor Relations Board v. Local 825

decided: August 25, 1970.


Hastie, Chief Judge, and Freedman and Van Dusen, Circuit Judges.

Author: Hastie


The present proceeding was initiated by a petition of the National Labor Relations Board praying, inter alia, that Local 825, International Union of Operating Engineers, be adjudged in civil contempt by reason of alleged secondary boycotting in violation of decrees of this court entered on October 22, 1963 at Docket No. 14,318 and on August 5, 1966 at Docket No. 15,928, that required the union to cease and desist from coercing neutral employers or inducing their employees to stop working with an objective of causing any neutral employer to cease doing business with a party to a labor dispute.

After an answer had been filed and certain motions had been adjudicated, this court appointed Honorable Albert B. Maris, a Senior Circuit Judge, as special master to summon witnesses and to conduct hearings on the matters in dispute, to report findings of fact and conclusions of law and to recommend to this court appropriate dispositive action. Judge Maris conducted hearings for eight days and heard 42 witnesses. After fully hearing the parties on the facts and applicable law, he filed an elaborate report in which he summarized and evaluated the evidence concerning the several occurrences alleged to constitute contempt of the orders of this court, made detailed findings of fact, set out conclusions of law predicated on his fact-finding and recommended that this court adjudge the union in contempt of its decrees and impose specified sanctions. After a hearing at which the union presented its objections to the special master's report, the court is now in position to take dispositive action.

Preliminarily, the union has argued that the alleged wrongs cannot constitute civil contempt because the episodes in question occurred and were concluded some time ago, so that only a punitive criminal proceeding, as distinguished from a remedial civil one, can be appropriate.

Whether this contention might have merit where a single act of contumacy has been charged, we need not and do not decide. In this case unlawful secondary boycotting of the kind prohibited by our decrees is said to have occurred on four occasions involving different neutral employers and employees. Indeed, two of these episodes are alleged to have occurred after a rule to show cause had issued on the present contempt citation and were added to the wrongs charged in this proceeding on petition of the Board. If such repeated violations of particular prohibitory decrees of this court have occurred, a civil proceeding is appropriate to determine whether the misconduct amounted to contempt and, if so, what civil sanctions are appropriate and reasonably calculated to cause the union to abandon a course of intermittent flouting of our decrees whenever such misconduct may seem to serve its purposes.

The charge of contempt is based upon alleged occurrences at different times on four different construction sites. In each case, there was a "primary" employer with whom the union allegedly had a dispute. Each occurrence involved alleged union misconduct in relation to a different "neutral" employer or his employees. Like the special master, we have considered each occurrence separately.

Office Building Construction at South Bound Brook

The special master's conclusion was that the union had induced employees of United Crane & Shovel Service Co. and Allan Bros. & O'Hara, neutral employers, to refuse to work for their employers and had coerced those employers with an object of forcing them to cease doing business with Morin Erection Co., a primary disputant.

The union contends, as it did before the special master, that the employees of United who were induced to stop work were also employees of Morin so that there was no secondary boycott. However, the evidence concerning the status of these employees and the role of United as the employer who hired them and retained the right to control them justified the special master's finding that the employees in question were employees of the neutral United, and of United alone. Separately, the union characterizes as mere "conjecture" the special master's finding that the work stoppage by these employees was induced by remarks of a union agent. All of the circumstances considered we think the special master's finding as to the cause of the work stoppage represented a clearly reasonable inference from the evidence as to the attendant circumstances, including the things said and done shortly before the work stoppage.

The union also argues that the evidence shows that it did not "threaten" or "coerce" the neutral employers but rather that it merely advised them of its dispute with Morin and solicited their help in achieving a fair settlement. While no threatening words were used we find sufficient evidence of coercive pressure upon neutrals to support the special master's conclusion that prohibited coercion occurred. In this connection we observe that though Morin was conducting a small operation at one end of a large job site with two entrances, the entire site was picketed beginning early in the morning before Morin's men began work.

Essex County Courthouse Construction at Newark

The special master has found that, with an object of forcing Petillo Bros., a neutral employer, to cease doing business with S. S. Silberblatt, Inc., an employer engaged in a primary dispute with the union, the union coerced Petillo Bros. and induced its employees to refuse to work.

The union urges that the present record does not provide adequate evidentiary support for the special master's finding that the union member, a lead engineer, who told the neutral employer to stop work acted as agent for the union. However, on conflicting evidence the special master reasonably found that the lead engineer acted in representative capacity with the knowledge and assent of the union. It is relevant in this connection that after a work stoppage had begun a higher and unquestionably ...

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