UNITED STATES COURT OF APPEALS, SECOND CIRCUIT (NEW YORK)
September 2, 1980
NATIONAL LABOR RELATIONS BOARD
VANGUARD OIL AND SERVICE, INC., ET AL.
CHREIN, Magistrate: -- By order dated April 6, 1979 the United States Court of Appeals in and for the Second Circuit, upon consideration of a motion made by counsel for the petitioner, National Labor Relations Board, to adjudge the respondents, Vanguard Oil and Service, Inc., Vanco Heating, Plumbing and Welding Co., Ken Butler and Carl Willacy in civil contempt referred that motion to the United States District Court for the Eastern District of New York for the designation of a Judge or Magistrate to make findings of fact and conclusions of law and report to the Court of Appeals with recommendations.
By order dated April 11, 1979 the Honorable Jacob Mishler designated the undersigned to make the finding of fact and conclusions of law and to make the report contemplated in the Court of Appeals order of April 6, 1979.
Testimony was taken before the undersigned on October 22, 1979 and October 23, 1979. I have considered the testimony as well as the exhibits received in evidence at the time of that hearing. I have also examined the proposed findings of fact submitte by the parties between December 11, 1979 and February 15, 1980 and make the following findings and recommendations.
On or about December 19, 1978 the National Labor Relations Board (hereinafter the NLRB) instituted the instant proceedings for adjudication in civil contempt against respondents Vanguard Oil and Service Inc., (hereinafter "Vanguard"), Vanco Heating and Plumbing and Welding Co., (hereinafter "Vanco"), at the same time joining as additional respondents in contempt the principal two officers of the respective corporate entitities, Ken Butler and Carl Willacy, officers of the respondent Vanguard as additional respondents in contempt. The notice of motion for adjudication in civil contempt is based upon two judgments entered in the United States Court of Appeals for the Second Circuit bearing numbers 75-4222 and 77-4114. Judgment 75-4222 entered on February 23, 1976 in pertinent part directs the company, its officers, agents, successors and assigns, to cease and desist from:
(a) Discouraging membership in, or activities on behalf of [Local 553] or in any other labor organization of its employees, by discriminatorily discharging, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment.
(b) Promising employees new or improved fringe benefits, such as life and health insurance, pensions and profit-sharing, and the possibility of increased wages and promotions, while [Local 553] was engaged in organizing or representing them.
(c) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization, to join or assist [Local 553] or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of mutual aid and protection as guaranteed in Section 7 of the National Labor Relations Act, or to refrain from any or all such activities.
Judgment 77-4114 was entered on June 16, 1977 and, in pertinent part, directs the Company, its officers, agents, successors and assigns to cease and desist from;
(a) Threatening employees with discharge and the termination of its business if the employees remain members of or continue to support Local 553... or any other labor organization;
(b) Coercively interrogating employees about their Union sympathies and interests;
(c) Telling employees that Respondents will not recognize and bargain in good faith with Local 553, the exclusive representative of its employees in an appropriate bargaining unit;
(d) Discouraging membership in Local 553 or in any other labor organization by assigning employees more arduous and less desirable job tasks and unsafe motor vehicles or by discriminatorily discharging employees or by otherwise discriminating against employees in regard to their hire and tenure of employment or in regard to any other term or condition of employment;
(e) Failing and refusing, upon request, to bargain collectively concerning rates of pay, wages, hours or employment, or other terms and conditions of employment with Local 553, as the exclusive representative of its employees in the following appropriate unit:
All drivers, servicemen and mechanics employed by the Employer at its Brooklyn, New York location, excluding office clerical employees, guards and supervisors defined in the Act;
(f) In any other manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act....
As amended on October 11, 1979, the Board's motion presented the following issues:
(1) Whether respondents violated the Court's judgments by coercively interrogating employees, making coercive threats and promises to discourage unionization, and unlawfully soliciting employee withdrawal from the Union;
(2) Whether respondents violated the Court's judgments by discriminatorily changing James Howard's working conditions in retaliation for his support of the Union;
(3) Whether respondents violated the Court's judgments by discharging strikers for engaging in protected strike activity and thereafter refusing to properly reinstate strikers upon their request; and
(4) Whether respondents violated their bargaining obligations under the Court's 1977 judgment by dealing directly and individually with the employees over terms and conditions of employment rather than through their bargaining representative, and by unilaterally instituting changes in terms and conditions of employment without prior notice to or bargaining with the Union.
NOTICE AND KNOWLEDGE OF THE PRIOR COURT DECREES
In December 1973, a majority of the drivers, servicemen and mechanics of Vanguard signed authorization cards for union representation by Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as "the Union"). On March 8, 1974 the Union was elected by these employees as their bargaining representative. Prior to the election, however, several compulsory meetings were held between Vanguard and the employees at which certain benefits were promised to the employees in order to induce them not to join the Union. Prior to the election, Vanguard also discharged an employee in an attempt to halt the unionization. On March 14, 1974, the Union was certified as the bargaining representative. In August of 1974, Vanguard discharged another employee (Howard), who first contacted the Union, because of his Union activities.
On July 16, 1975 the NLRB ordered the two discharged employees reinstated and found that the pre-election promises between Vanguard and the employees and the discriminatory discharges of the two employees were unfair labor practices, violating sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (hereinafter referred to as "the Act") respectively.The order of the NLRB was enforced by the Court of Appeals on February 23, 1976.
Contract negotiations between Vanguard and the Union began in April 1974 and continued on and off for a period of a year and a half with no positive result.In the fall of 1975, an employee (Williams) was threatened with discharge if he supported the Union. This employee was then assigned to a more difficult work assignment when he refused to aid Vanguard's plan to get the Union decertified.In December of 1975, Vanguard withdrew recognition from the Union on the basis of an alleged good faith doubt.
On August 9, 1976, the NLRB found violations of section 8(a)(1) of the Act due to the coercive interrogation of Williams, section 8(a)(3), by the imposition of different work assignments and the discharge of Williams because of his refusal to support the decertification move, and sections 8(a)(5) and 8(a)(1) due to the withdrawal of recognition of the Union by Vanguard. The NLRB ordered that Williams be reinstated with backpay and that Vanguard cease and desist its anti-union activities. The Court of Appeals enforced this order on June 16, 1977.
Bargaining between Vanguard and the Union resumed in October of 1977, after the Court of Appeals judgment, and continued until March 3, 1978, when the Union went on strike.
I find that at all material times the Court's February 23, 1976 and June 16, 1977 judgments have been in full force and effect and the Company through its officers and agents has had notice and knowledge of their terms. I further find that Carl Willacy has been and is the Vice President of the Company and that at all material times Willacy has had notice and knowledge of the Court's judgments. I also find that Ken Butler has been and is the President of the Company and that at all material times Butler has had notice and knowledge of the Court's judgments.
The respondent takes the position that the petitioner has not established knowledge of the Court's judgments on the part of the respondents Willacy and Butler. In answers to interrogatories filed by the respondent and received in evidence as petitioner's exhibit 2 it was admitted by the respondents that Mr. Willacy had knowledge of the entry of the Court's judgment of February 23, 1976 having obtained such knowledge through the corporate counsel Daniel Eisenberg. The same admission was made in interrogatory 2 in regard to the Court's judgment of June 16, 1977. These interrogatories also ascribed the same knowledge to Mr. Butler and stated the source of that knowledge to be Daniel Eisenberg, Esq. who was corporate counsel during the period involved in the issuance of the Court's judgment. Respondent maintains that the interrogatory responses merely acquiesed to the fact that the corporate counsel did convey knowledge of the issuance of the Court's judgment but did not admit to the actual receipt of and knowledge concerning the terms and conditions incorporated in the Court's decrees. The undersigned finds that in view of the active participation of both Messrs. Willacy and Butler in the events that ultimately matured into the judgments sought to be enforced and in view of the responsibilities of both Messrs Willacy and Butler in regard to labor management relations. (268, 471)*fn1 Also see NLRB v. Sequoia District Council of Carpenters, 568 F.2nd 628, 633-634, 97 LRRM 2897 (9th Cir. 1977). The undersigned is of the view that the knowledge of the Court's decrees was proven to be had by both individual respondents by clear and convincing evidence as required in law.
THE CONDUCT OCCURRING PRIOR TO THE STRIKE
1. It is undisputed that bargaining between the Company and the Union resumed in or about October 1977 and continued until March 3, 1978 when the union went on strike against the company.
2. James Howard testified that in or about October 1977 he had a conversation with the respondent Willacy concerning the Union (12-13). This conversation took place in the garage with no one else present (14). Howard testified that Willacy said that even if we have to pay union scale we will have no union here. Willacy is reported to have made this statement in a loud voice interlaced with curse words (15). Sometime in November of 1977, as per Howard's testimony, Willacy, Howard and another employee named Eli Marino, had a discussion in Mr. Willacy's office. As per Howard, Willacy stated, "if it wasn't for you two guys I can give my package and I wouldn't have this problem with the union" He further said "Ain't no union going to come in here". This conversation purportedly took place during ongoing collective bargaining negotiations between the Union and the company. (17).
Roberto Pagan testified that he was present during a meeting that Willacy called in November of 1977 in which he addressed the truck drivers stating that he did not want the Union in Vanguard and that the company had a better pension plan that the Union for which the employees would not have to pay dues (187). Willacy denied having these discussions (387-389). Willacy testified that he tried to stay away from Mr. Howard and have as little conversation with Mr. Howard as possible (388) because Mr. Howard was "very seditious as far as the work in the company was concerned" (388) Willacy further testified that he felt himself to be at liberty to discuss Union matters only with the Union (389) and denied having any discussions concerning the Union with Mr. Marino (389). The undersigned finds that these allegations were not substantiated by a sufficient quantum of proof. The statement of Mr. Howard concerning these two conversations with Willacy are uncorroborated.The petitioner did not produce testimony from Marino and in regard to the testimony of the meeting held in November of 1977 the only testimony substantiating that meeting is that of the witness Pagan. Pagan alleged that this meeting took place in the office and was attended by "the drivers" (187). Howard did not testify to the November 1977 meeting though presumably if he was one of the drivers and in attendance he could have done so. Mindful that the history of the relationship between Willacy and Howard as is substantiated in the record of prior proceedings indicate that Howard was the employee who instituted the organizational campaign resulting in the introduction of the union into Vanguard. (See decision of the Honorable Frank H. Itkin, Administrative Law Judge, dated June 30, 1976, page 3) and the testimony at the hearing before me in which Mr. Howard was characterized as a "seditious" employee. It appears illogical that the respondent Willacy would in view of Howard's perceived hostility towards the company so jeopardize himself by making such a remark to Howard and Howard alone or in the company of but one other employee. I have also considered in evaluating the testimony of Mr. Pagan that he was separated from the employ of Vanguard after the strike and rebuffed as per his testimony in his efforts to obtain reemployment (205-208). After carefully evaluating the testimony in connection with this proposed finding of fact I find that the petitioner has not established these proposed facts by clear and convincing evidence.
3. In or about November of 1977 Fred DeSouza, Vanguard's general manager and controller conducted a meeting of the drivers. DeSouza stated that the company had a "problem" with the union which he suggested the drivers resolve. He said that the company had its own medical and pension plans but that the company was enabled to give it to the workers because of problems with the union. Desouza asked the drivers to get together and decide whether they want to accept the company's benefits or still want to stay with the union. This proposed finding of fact has been adequately proven. The testimony of Howard (17-20, 72-73) and Pagan (188, 232) adequately establish this fact. Mr. DeSouza, who is no longer in the employ of Vanguard, relationship with the company was established as that of general manager and comptroller with authority under some circumstances to hire and fire employees (268) grant time off (268-269) and assign work (269).
4. The witnesses Howard, Pagan and another employee witness, Henry Valecillo all testified in substance that on February 22, 1978 Willacy called a meeting of drivers in his office. In attendance at that meeting were general manager DeSouza and company president Butler. Willacy again told the drivers that the company was having a problem with the union and that the company had submitted its proposals but the union had not decided whether to accept them. He claimed that he had his own pension and medical plans and asked the drivers to "sit down and give us a fair shake" adding that he would not permit the union to come in.One of the drivers, Raphael Cotto, said that when he came to work he was told that the company had a medical plan but when his son needed an operation he found out that he was not covered. Willacy said "He wasn't covered by it because we had been represented by the union." Cotto asked what the employees had to do to get such coverage and Willacy replied that the employees should go down to the National Labor Relations Board and tell them that they don't wish to be represented by a union any longer. Towards the end of that meeting Williacy said that he heard rumors that there was going to be a strike and stated that if such a strike occurred he would close the shop and move to New Jersey. (21-22, 76-77, 78-79, 189-191, 119-120). At the end of the meeting the witness Howard asked the other drivers to meet him outside and was met with a response by Willacy that it was "illegal for him to hold meetings on company time." Howard then said he would talk to the men on the way to the trucks. On the way to the trucks Howard told the drivers that Willacy was not supposed to be negotiating with them but had to negotiate with the union.It is then alleged that Willacy again appeared and told Howard that it was not permissible for him to talk to other drivers on company time. The drivers then proceeded to their trucks to begin the days work (22-23, 79-81, 82-83, 191-192, 243-244, 120, 139-141).
Willacy testified that the meeting was called for the purpose of discussing the problems with a contract that Vanguard had with New York City and the manner in which work was being done on that contract (390). He testified that he only felt at liberty to discuss union matters with the union (389). It was stipulated that various city agencies complained to Vanguard concerning the quality of the work done by Vanguard's employees (395). Willacy testified that he never, at that meeting or any other time, indicated that he would move his business to another location (396-397) and that he did not discuss the forthcoming strike at that meeting as he had no intimation that a strike was contemplated (397). The undersigned credits the corroborated testimony of the witnesses Howard, Pagan and Valecillo. The testimony of Mr. Willacy that the primary purpose of the February 22 meeting was to discuss the problems the city had been having with deliveries by Vanguard is credible. This primary purpose, though credited by the undersigned, does not exclude the possibility that other matters were discussed such as the company's relationship with the union which was then engaged in collective bargaining concerning a new contract. Willacy testified that between October of 1977 and March 2, 1978 he had attended negotiating sessions with representatives of the union (371). In view of the fact that contract negotiations were pending on February 22, 1978 it is not unreasonable to conclude that the remarks attributed to Mr. Willacy at the meeting were made in anticipation of a possible breakdown in negotiations whether or not Mr. Willacy had advance notice of the strike. There is no substantial dispute concerning the attempt made by Howard to address the employees and Mr. Willacy's intervention that forestalled that address. Mr. Willacy himself corroborated the testimony of the three witnesses called by the petitioner on that matter (396, 431-433).
Received in evidence at the hearing was a letter dated February 27, 1978 from Willacy to Howard. This letter stated inter alia.
"Although you are speadheading a drive to organize Vanguard's drivers, you have no right to call a meeting as you attempted to do on the morning of February 22, 1978....
Another point I would like to make in reference to your work, is your timesheet of February 23, 1978. On that day you were given 23 stops to make deliveries.Your time shows 17 stops within 8 hours.... Although your time was excessive at that point I cannot understand why it took an additional four hours to do eight more stops (again locally). As I have informed you we are attempting to develope proper guidelines as to the amount of work expected from Vanguard drivers. We have selected your work sheets as well as one of the models...In the future please insure that Vanguard gets a days work for a days pay."
There is no dispute as to the fact that this letter was sent. The parties do, however, dispute the purpose of this letter. It is argued by the petitioner that this letter is further evidence of the company's selection of Howard, who in the terms of the letter, was "spearheading a drive to organized Vanguard's workers" for sterner discipline. It is the respondent's position that the review of Howard's records referred to in this letter was part of an ongoing review of records of Howard as well as other employees. The respondent further argues that Howard had demonstrated a work attitude that required such monitoring. The incident spoken of in the letter concerning Howard's performance on February 28, 1978 is not in substantial dispute. Howard testified that while making deliveries he ran out of oil and was compelled to refill his truck necessitating overtime (28-29). Willacy's testimony is in agreement on this point (436-437). As for the need to establish or develop proper guidelines it was testified by Willacy that guidelines had already been in effect, had been in effect for a number of years and were set forth in writing indicating that 18 stops were required per 8 hour day (437-438). Considering the letter as a unit and in the context within which it was written, it is clear to the undersigned that the letter was prompted more by Howard's attempt to address his fellow employees than by an alleged deficiency in his work on February 28. It is also clear that there was no need to conduct a review of Howard's work sheet in particular for the purpose of establishing guidelines and the interpretation that I make of this letter is that it was written as an expression of dissatisfaction with Howard's role in "spearheading a drive to organize Vanguard's drivers."
THE CONDUCT OCCURRING DURING THE STRIKE
1. Howard testified that on the night before the strike union delegate Pat DiCosmo spoke to him on the telephone. Howard testified that DiCosmo told him that in his view the company had not been negotiating in good faith and asked if the men were ready to walk out. Howard further testified that he expressed apprehension that the meeting that Willacy had been holding about the union were dividing the men and felt that those meetings combined with the company's posture at the negotiations necessitated a strike. The following morning, March 3, 1978 the employees began picketing the company's premises. Howard was the only witness who testified concerning that telephone conversation. His testimony is accepted to the extent that I find that the conversation took place and that the statements that were testified to were part of that conversation. I make no finding from this testimony on the good faith posture of the company's bargaining nor do I make any finding in connection with this particular segment of the testimony that the strike was occassioned by the meetings that Willacy had been having with the employees.
2. According to the witness Howard, Willacy on the first morning of the strike, Friday, March 3, 1978 appeared at the picket line accompanied by president Butler and stated that the strike was illegal, the doors of Vanguard are open and that any employee who wanted his job can come back in. Howard further testified that Willacy added that any employee who does not come back in now would be out and would be viewed as fired (33-34, 97-98, 100). Pagan's testimony concerning that incident varies slightly. It was Mr. Pagan's testimony that Willacy came out and said that the gates are open, questioned the employees as to whether they were going to come in to work or stay out and upon receiving no answer stated that "You know this is your last chance, either you come in or you stay out". Mr. Pagan testified that again receiving no response, Mr. Willacy closed the gate (192, 193, 244). On cross examination Mr. Pagan stated that Mr. Willacy did not use the term "fired" nor did he use the term "terminated" (245) but that he understood Mr. Willacy to be saying that any employee who did not come in t that point would be fired (244). Messrs. Willacy and Butler both testified concerning that incident. Willacy testified that he did not use the words "terminate", "fired" or "finished" (401-402). He further testified that he did not use the word "illegal" in connection with the strike on that occassion though he acknowledged in an affidavit dated September 12, 1978 having told the men "about a week or two after the strike began" that the strike was illegal (442). On cross examination Mr. Willacy further stated that the only occasion that he spoke to the strikers was on the first day of the strike (443). Kenneth Butler testified that on the first day of the strike, March 3, 1978 he accompanied Mr. Willacy to the gate and heard Mr. Willacy requet that the employees come back to work (469). Butler testified that he said nothing on that occasion (469-470). He further stated that Mr. Willacy did not mention at the time that the strike as an illegal strike (470) and never heard such a statement made at any time (470). Interrogatory answers signed by both Messrs. Willacy and Butler were admitted into evidence for these proceedings (Petitioner's Exhibit 2). The respondents' version of the events of March 3, 1978 in the interrogatory answers indicated that Willacy addressed the truck drivers in the employ of the company, advised them that the company was bargaining with the union in good faith and if the workers should come in the company doors were open and if they didn't come back to work that the company could replace them. It was stipulated between the parties that the unemployment insurance questionnaire submitted by Vanguard to the New York State Department of Labor in regard to Dennis I. Simmons was similar to the response sent on behalf of Vanguard in regard to other striking employees. In that questionnaire filed by Vanguard and signed by Mr. DeSouza in his capacity as comptroller it was stated (Respondent's Exhibit RR) "Claimant walked off job 3/3/78 and went on strike illegally as we were negotiating with IBT Local 553" Respondent argues that inasmuch as it was DeSouza who signed this form that this in no way corroborates Willacy's use of the term "illegal" in connection with the strike. The witness Howard's testimony concerning the use of the term "illegal" is corroborated by the language used in the unemployment insurance questionnaires which, though signed by comptroller DeSouza, are found to be the very expression admitted in an affidavit by Willacy though denied at the evidentiary hearing. I further credit Howard's testimony that Willacy indicated to the pickets that they were fired even though this is not directly corroborated in Pagan's testimony Pagan nonetheless testified that as far as he was concerned he understood Mr. Willacy to be saying that they were fired (244).
3. The petitioner proposes a finding of fact that on Monday, March 6, 1978 the company, through president Butler made a final effort to induce the employees to abandon the strike and return to work stating that if the strikers want to make a settlement "we can talk and make an agreement". The petitioner's version of the facts is that one of the union delegates, Pat DiCosmo, attempted to say something but Butler pushed him aside saying "I'll talk to you later". The petitioner further proposes a finding of fact that employee Howard told Butler to negotiate with the delegate and the union rather than with the individual employees. Butler's efforts having met with rebuff, Willacy repeated to the strikers what he had said on the first day of the strike that adding that "we've got some good lawyers this time and we know how to work with the Labor Board" and that the strikers were "finished". The petitioner also proposes a finding of fact that on another occasion during the first complete week of the strike Willacy told the strikers that they were wasting their time, that the strike was illegal and that employee Pagan replied that he would stay out and fight to get his job back but Willacy responded that "I don't want any or you guys back... and nobody is going to make me take you back". He reiterated that the union would not get in and that he would prefer to close the place before he would let the union come in. While I am unable to find that the conversations alleged to have taken place on March 6, 1978 took place on that particular date I find that the content of those conversations between Willacy, Butler and the strikers were established through the testimony that I found to be credible of the witnesses Howard (34-37, 88-89, 94-96), Pagan (195-196) and Vallecillo 121-122 and 141).
4. On or about March 6, or 7, 1978 there was an incident involving company president Butler and the employee Pagan at a place away from the picket line. Pagan testified that Mr. Butler took a truck from the shop apparently to make a delivery and that on instructions of the union representative Pat Di Cosmo, strikers were to follow every truck and picket it wherever they go to pick up loads and to deliver and that he followed the truck with Mr. Vallecillo on that date. Pagan testified that when he was following Butler's truck, Butler stopped the truck started backing the truck into his car exited the truck and ultimately threatened him to the effect that if he persisted in following him he (Butler) was going to "blow his brains out". Pagan testified that Butler reentered the truck and Pagan started to follow him again when one of the dispatchers, Ron Fowler, came in with a car and cut him off (198-199). Pagan testified that he was following the truck a car lengths distance behind (252) that Butler was starting to make a turn when he started backing up (253) made the turn and proceeded (256). Mr. Valecillo testified that he was following the procession and saw the truck make a left turn, Butler emerged, conversed with Pagan (124-125). He did not testify to hearing any part of that conversation but did testify that after Butler and Pagan conversed Butler went back to his truck and departed the scene (125). Butler testified that he was taking a damaged truck to a garage and an employee's car was tailgating him. He observed that it was Pagan when he got out of his truck because he had difficulty making a turn due to snow that was on the ground. He stated that he asked Pagan to move his car when Pagan replied that it's "a free country" and refused to back up. Butler further testified that he got into his truck, put the truck in reverse and started backing up at which Pagan moved Butler making his turn and proceeding about his business. He testified that he did not notice Pagan's car following him after that incident (467-469). The undersigned views Mr. Butler's testimony of that event as the most plausable that this was an altercation concerning tailgating in connection with a difficult turn complicated by ground snow and that the incident bore no relationship to the strike or any effort to chill employees' exercise of their rights under the Act.
5. On Monday, March 13, 1978 Willacy sent identical letters to all of the striking employees. Some of the letters were mailed to strikers, others were handed to them. In those letters Willacy stated that "since there has been no response from you to my March 3, 1978 offer I had no recourse but to replace you with permanent employees on March 9, 1978". (Petitioner's exhibit 2, exhibit 13(b)(1) through 13(b)(11)). Willacy testified that as of March 9, 1978 the company had not hired any replacements for the strikers (279-280). Willacy further testified that the first replacement that was engaged by Vanguard was hired on or about March 17 or 18 (280). The respondent's position is that the letter represents nothing more than repetition of the statement made by Willacy on the first day of the strike and acknowledged in the respondent's answers to interrogatories that the strikers could be replaced. The undersigned views the letters as speaking for themselves in that they stated that the replacement with permanent employees was effected on March 9, 1978. That statement in a letter signed by Mr. Willacy is unambiguous it alleges in the letters that permanent replacements were hired on March 9, 1978 when in fact no such replacements were hired.
6. The witness Howard and Pagan testified that in mid March 1978 while the strikers were on the picket line, Willacy was asked about vacation pay and replied that the amounts due to the strikers for vacation pay would be used to compensate the company for damage to certain trucks that he believed had been inflicted by strikers. On being told by Howard that "we worked for the money" and being told by Pagan that he had nothing to do with the damaging of the trucks Willacy replied "I see you guys as a unit" and if you "want your money... go file charges [with] the National Labor Relations Board." Vacation pay was finally paid to the strikers in January 1979 after the Board filed its contempt motion. There appears to be no dispute as to whether or not Willacy told the workers to seek their money from the National Labor Relations Board. Willacy indicated that he made such a statement in an affidavit taken by the Board prior to trial (451-452) and that while he did not recall it specifically he might have told the strikers that their vacation pay would go to compensate the company to pay for repairs of the company trucks. (453). Willacy acknowledged that the strikers did not get any vacation pay until January 1979 (306) and explained the delay as due to economic hardship (405-406).
7. Howard testified that in late March 1978 he told Willacy that his license had been suspended because of the company's failure to clear up a traffic ticket which Howard had received for driving a company vehicle with a broken tail light. Howard testified that Willacy said "I am not going to give you anything". "You take it to the National Labor Relations Boards". The problem was eventually resolved when the company gave Howard a letter to give the motor vehicle bureau and a check to cover the traffic fine. The respondent contends that this matter is de minimis and that the proper procedure for the processing of the traffic violation would be for Howard to discuss the matter with Mr. Fowler the dispatcher. If the matter was one that was properly dealt with by the dispatcher rather than Mr. Willacy, it is interesting to note that the letter that was ultimately written to the Motor Vehicle Bureau was one written by Mr. Willacy (42).
8. The petitioner offered in evidence two employment applications. (Petitioner's exhibits 11 and 13). Exhibit 11 was dated June 1, 1978 and was an application for employment by Jerry Whitley. On that application was a question "Union Member" with blocks for checking yes or no. Mr. Whitley did not answer that question. Mr. Whitley was hired by Vanguard (285). Exhibit 13 was an employment application form similar to the application form admitted as exhibit 11. It was an application for employment by one Ruie P. Cooper dated October 11, 1977. Mr. Cooper applied for a position as a driver and indicated on his application for employment that he was not a union member. This application was filled out before the strike. It is not indicated on the record whether or not Mr. Cooper was hired as a driver by Vanguard. Exhibit 12 is an employment application form of Raphael Cotto dated December 7, 1976. Mr. Cotto was hired as a driver by Vanguard. That employment application form does not contain a question concerning union membership. The testimony indicated that applicants for employment as drivers or mechanics with Vanguard would, in addition to filling out applications, be interviewed by either Mr. Willacy or Mr. DeSouza. (280-281). The record does not disclose whether or not such interviews included questions concerning union membership. The respondent offered in evidence a number of employment applications, some of which were for positions as tractor-trailer drivers during the period encompassed by the negotiations and the strike which did not contain questions concerning union membership e.g. respondent's exhibits N, Q, H. Respondent's exhibit J was an employment application by one Astley Martin.That printed form did not contain the question concerning union membership but in the upper left hand margin of that application it was written in ink "Union Member" with two boxes, one for yes and one for no and the no box was checked. At a deposition Mr. Willacy testified that a particular application marked as a deposition exhibit (presumably containing the union membership question) was an application form that was invariably used and never changed (288). At another point in his deposition Mr. Willacy stated that all drivers who want to work at Vanguard had to "fill this out" (287) and at another point Mr. Willacy acknowledged entering "Yes" to a question "Is this a standard application form". (Emphasis supplied) Considering the fact that a number of application forms submitted by prospective employees during the relevant period contained questions concerning union membership, further considering the fact that one application form which did not contain a printed question relative to union membership had such a question inked in, further considering the fact that there were oral interviews with either Mr. Willacy or Mr. DeSouza before any person could be engaged as a driver or mechanic with Vanguard and notwithstanding the fact that there was no direct evidence that any employee was shown to have answered in the affirmative concerning union membership and not been hired the undersigned is convinced that questioning concerning union membership was a frequent if not invariable part of the employment application process at Vanguard.
THE CONDUCT OCCURRING AFTER THE STRIKE
1. The picketing at Vanguard stopped some time in May of 1978 (292). Around that time striking employees Cornelius Spady, Ronald White and Henry Vallecillo requested reinstatement (292-293), Petitioner's Exhibit 14). Prior to the strike Vallecillo, Spady and White were paid on an hourly basis (294). Spady and White sought reinstatement within a month of the termination of the picketing (295). Willacy asked these three employees if they would be willing to work on a per load basis rather than on a hourly rate (296) and they agreed to that revision in their terms of employment (296). Individual contracts were entered into with these three employees (Petitioner's Exhibits 15A, 15B and 15C). At the time Willacy entered into those contracts the company had two or three full time drivers on the payroll working at an hourly rate. These drivers continued to work at an hourly rate while White, Valecillo and Spady worked on the per load basis (298). There were also at the time these three employees worked on an hourly basis assistants who were drivers who were also paid at an hourly rate (299). The company did not notify or bargain with the union with respect to any of these matters (299-300, Petitioner's exhibits 1 and 2, P17 and 18).
2. In May of 1978, as per the testimony of both Messrs Valecillo and Pagan, Pagan, Valecillo and DeSouza met in the apartment of DeSouza, which was in the same building as the apartment of Mr. Valecillo (127-128, 205). At the conversation, Mr. Pagan discussed with Mr. DeSouza the possibilities of obtaining his job back and was told by DeSouza that the would do what the could but it was Willacy's decision. DeSouza told Pagan that he would get in touch with him about this request (206). Not hearing from DeSouza, Pagan testified that he decided to call Willacy to ask for his job back and when he spoke to Willacy he was told that "I had caused him a lot of trouble, it's costing him a lot of money because of the strike and that he was -- that he wasn't going to take me back." Pagan testified that he reminded Mr. Willacy that Henry was taken back with less seniority than he had and at that point the subject was changed with Willacy saying "well, I'll see what I can do." (206) Shortly after this conversation Pagan learned that Cornelius Spady had also gotten a job with the company. (Spady having less seniority that Pagan) (207). Pagan then testified that he went back to see DeSouza, spoke to him in the Vanguard office and asked him how come they hired Spady and they didn't call him back. DeSouza said that he would again speak to Mr. Willacy (208). Pagan has never heard from the company since that occasion (208). Willacy testified that to the extent he recalls a telephone conversation with Pagan, that conversation dealt solely with Pagan's discussing charges that Pagan had profered and droppoed before the NLRB (420-421, 445 and 446). Willacy stated that Pagan never requested that he be rehired during the conversation (421) and that DeSouza had never discussed the rehiring of Pagan with him at any time (421).
Valecillo's testimony only relates to the conversation in DeSouza's apartment. I find that Velecillo's testimony is credible especially considering the fact that Mr. Valecillo is still in the employ of Vanguard (118). I find the testimony of Pagan concerning the conversations with Willacy to be credible in that the only logical reason Mr. Pagan would telephone Mr. Willacy at that juncture would be to request reinstatement. The discussion of the proffered and dropped charges before the NLRB could only at the very most be a preamble to a request for reinstatement. Willacy testified that he was busy at the time that Pagan called him and that he terminated the conversation with the remark that he would talk to him later (446). In view of the fact that this inquiry was no doubt of greater interest to Pagan than it would be to Willacy, to the extent that the recollections may differ the recollection concerning this incident on the part of Pagan is likely to be the sharper and I find Mr. Pagan's testimony in regard to this incident totally credible.
ConclusionS OF LAW
A. Standard of Proof in Civil Contempt
To meet its burden of proof in these proceedings the Board is required to produce clear and convincing evidence that the respondents have engaged in "contemptuous conduct" N.L.R.B. v. J.P. Stevens & Co. Inc., 464 F.2d 1326, 1328, 80 LRRM 3126 (2nd Cir. 1972), cert. denied 410 U.S. 926, 82 LRRM 2597. It has also been held that clear and convincing evidence has been defined to be more than a mere preponderance. See N.L.R.B. v. J.P. Stevens & Co., Inc. 563 F.2d 8, 18, 96 LRRM 2150 (2nd Cir. 1977). By the same token the Board need not show that the conduct of the respondent was wilfull in order to establish a civil contempt. N.L.R.B. v. J.P. Stevens, 563 F.2d 8, 16-17, 96 LRRM 2507 (2nd Cir. 1977), Oil Chemical and Atomic Workers International Union v. N.L.R.B., 547 F.2d 575, 581, 92 LRRM 3059 (D.C. Cir. 1976), McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 8 WH Cases 500 (1949).
B. The Origin and Character of the Strike
The findings of fact relative to the respondents' pre-strike behavior reveal that the Company attempted to negotiate directly with its employees rather than with the representatives of the Union. Section 8(a)(5) of the Act states that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provision of 9(a)." Section 9(a) provides that the representatives selected by the employees "[s]hall be the exclusive representative of all the employees in such a unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." An employer can not deal directly with his employees, bypassing the Union representative. Medo Photo Corp. v. N.L.R.B., 321 U.S. 678, 683-84, 14 LRRM 581 (1944); N.L.R.B. v. Stratford Lithographers, Inc., 423 F.2d 1219, 1220, (3 LRRM 2944 (2nd Cir. 1970); Utica Observer Dispatch v. N.L.R.B. 229 F.2d 575, 577, 37 LRRM 2441 (2nd Cir. 1956). In N.L.R.B. v. Katz, 369 U.S. 736, 747, 50 LRRM 2177 (1962), the Court stated that "[u]nilateral action by an employer without prior discussion with the Union... amounts to a refusal to negotiate about the affected conditions of employment, and must of necessity obstruct bargaining, contrary to the congressional policy." It is a per se violation of an employer's bargaining obligation as well. N.L.R.B. v. Katz, supra; N.L.R.B. v. General Electric Co., 418 F.2d 736, 756, 72 LRRM 2530 (2nd Cir. 1969), cert. denied, 397 U.S. 1059, 73 LRRM 2600 (1969).
The promise of benefits made to the employees to induce them to abandon the Union, which occurred at the November 1977 meeting, is also an unfair labor practice. Medo Photo Supply v. N.L.R.B., supra; N.L.R.B. v. A & S Electronic Die Corp., 423 F.2d 218, 220, 73 LRRM 2750 (2nd Cir. 1970), cert. denied, 400 U.S. 833, 75 LRRM 2379 (1970). Informing the employees that the presence of the Union prevented the Company from granting new benefits such as medical and pension plans, which occurred at the November 1977 and February 22, 1978 meetings, is similarly and unfair labor practice, G.A.F. Corp. v. N.L.R.B., 488 F.2d 306, 85 LRRM 2220 (2nd Cir. 1973), as was the soliciting of employee repudiation of the Union at the February 22, 1978 meeting N.L.R.B. v. Solboro Knitting Mills, Inc., 572 F.2d 936, 97 LRRM 3047 (2nd Cir. 1978), cert. denied, 437 U.S. 864, 99 LRRM 2601 (1978); N.L.R.B. v. S & H Grossinger's Inc., 372 F.2d 26 64 LRRM 2295 (2nd Cir. 1967).
Moreover, the courts have also stated that the threat of closure of the shop to avoid unionization (which occurred at the February 22, 1978 meeting, prior to the strike) is also an unfair labor practice. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 619-20, 71 LRRM 2443 (1969); N.L.R.B. v. River Togs, Inc. 382 F.2d 198, 200-201, 65 LRRM 2987 (2nd Cir. 1967). In Gissel Packing, supra, the Court stated that an employer's prediction, even though sincere, that unionization "will or may" result in closure, would be itself be coercive, unless the likelihood of closing was capable of objective proof. There is no free speech protection for threats of reprisal or force against employees exercising their rights to self-organization, or promising of benefits to those who do not exercise those rights. Such statements whether oral or written are deemed to be coercive and are unfair labor practices, per se . Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 58 LRRM 2657 (1965).
In light of the several unfair labor practices committed by the Company (as well as their past history of unfair practices), which occurred beginning just four months prior to the strike, with the last taking place just days before the strike and in view of the nature of the conversation between Howard and union delegate DiCosmo the night before the strike I conclude that the strike was motivated in substantial part by the unfair labor practices of the Company and therefore should be deemed an unfair labor practice strike rather than a strike motivated solely for economic gain.
A work stoppage that has been initiated or prolonged in whole or part by the misconduct of the employer pursuant to the Act is deemed to be an unfair labor practice strike. N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333, 2 LRRM 610 (1938). In order to be considered an unfair labor practice strike, a causal relationship must be shown between the work stoppage or prolongation of an existing strike and the employer's violation of the Act. Allied Industrial Workers, Local 289 v. N.L.R.B., 476 F.2d 868, 883, 82 LRRM 2225 (D.C. Cir. 1973). The unfair labor practices must also be shown to be a sole or substantial contributing cause of the strikers' action. General Drivers & Helpers, Local 662 v. N.L.R.B. 302 F.2d 908, 911, 50 LRRM 2243 (D.C. Cir. 1962). However, "strike may be an unfair labor practice strike even though it also has economic objectives." N.L.R.B. v. Fitzgerald Mills Corp., supra at 269; N.L.R.B. v. A. Sartorius & Co., 140 F.2d 203, 13 LRRM 769 (2nd Cir. 1944); N.L.R.B. v. Stackpole Carbon Co., 105 F.2d 167, 4 LRRM 457, 583 (3rd Cir. 1939), cert. denied, 308 U.S. 605, 5 LRRM 694 (1935).
Moreover, an economic strike may be converted into an unfair labor practice strike if the employer engages in violations of the Act which prolong or aggravate a work stoppage. N.L.R.B. v. Remington Rand, Inc., 130 F.2d 919, 928, n. 8, 11 LRRM 575 (2nd Cir. 1942); N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 33 LRRM 2324 (2nd Cir. 1953), cert. denied, 347 U.S. 953, 34 LRRM 2027 (1954). N.L.R.B. v. Acme Wire Works, Inc., 582 F.2d 153, 158, 98 LRRM 3163 (2nd Cir. 1978), cert. denied, U.S. . An economic strike may be converted into an unfair labor practice strike when an employer informs his employees that he has hired others to replace them in their jobs, before the employer has in fact done so. In N.L.R.B. v. International Van Lines, 409 U.S. 48, 50, 81 LRRM 2595 (1971), the Supreme Court held that "the unconditional reinstatement of the employees was proper since their discriminatory discharges prior to the time their places were filled constituted unfair labor practices regardless of whether they were economic strikers or unfair labor practice strikers." This decision indicates that once such a practice occurs it may be inferred that a discriminatory discharge has taken place which requires reinstatement. The instant case contains an analagous situation. The Company sent letters to all striking employees on March 13, 1978, the tenth day of the strike, which informed the striking employees that they had been permanently replaced on March 9, 1978. In actuality, no replacement had been hired as of either March 9 or March 13. It is therefore reasonable to conclude that a discharge of the employees had occurred on or near the first day of the strike.
Unfair labor practice strikers may not be permanently replaced and are entitled to return to their former positions, even if permanent replacements who have been hired must be fired. N.L.R.B. v. International Van Lines, supra; N.L.R.B. v. Remington Rand, Inc., supra. In a situation where economic strikers are converted into unfair labor practice strikers, the employer is obligated to reinstate the strikers to their former jobs and if necessary discharge replacements hired after the date of conversion. N.L.R.B. v. . Pecheur Lozenge Co., supra. In the instant case no replacements were hired until after the conversion, thereby entitling reinstatement to the strikers.
As stated previously, the undersigned concluded that the strike in the instant case should be classified as an unfair labor practice strike from its onset, due to the unfair labor practices of the employer which precipitated the strike in substantial part. Yet, if the Court should decide that the strike was economic in its incipience it is alternatively submitted that the strike was then converted into an unfair labor practice strike by the discharge of the employees prior to the hiring of replacements.As discussed supra, the Supreme Court's decision in N.L.R.B. v. International Van Lines, supra at 53, held that the replacement notification sent to workers informing them that new employees had been hired, when in fact this had not occurred, constituted a discharge of the strikers, converting the economic strikers into unfair labor practice strikers, requiring reinstatement. Moreover, the prior actions of the Company would indicate that the strikers had probably been fired previously, perhaps even on the first day of the strike. Language such as "this is your last chance" "if you don't come back in now, you're out, you're fired" and "I don't want any of you guys in here", was used. These statements, together with the letter sent to all employees on March 13, 1978, informing them that permanent replacements had been hired, would indicate to the employees that they had in fact been discharged. An employee is deemed to have been discharged if the actions of his employer would reasonable lead him to this conclusion. Sigma Service Corp., 230 NLRB No. 39, 95 LRRM 1359 (1977), aff'd 591 F.2d 100, 86 LC Paragraph 11395, 106 LRRM 2312 (5th Cir. 1979); N.L.R.B. v. Trumbull Asphalt Co., 327 F.2d 841, 55 LRRM 2435 (4th Cir. 1964). In Sigma, supra, reinstatement was ordered.
C. Other Violation of the Judgment.
The record indicates that the company had coercively interrogated prospective employees in a number of cases by inserting into employment applications questions soliciting information concerning an applicant's union membership status without a legitimate reason for the inquiry and absent assurances that the responses would not jeopardize the applicant's job prospect. The undersigned had found that in addition to the employment applications prospective employees were interviewed either by Mr. Willacy or Mr. DeSouza not excluding the possibility that union membership inquiries would be made as part of the employment process. Section 7 of the Act protects the rights of employees to self organization and the right to form, join or assist labor organizations. Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with restrain or coerce employees in the exercise of rights guaranteed in Section 7. While the authority cited by the Board, Bryant Chucking Grinder Co. v. N.L.R.B., 389 F.2d 565, 67 LRRM 2017 (2nd Cir. 1967) and N.L.R.B. v. Gladding Keystone Corp., 435 F.2d 129, 76 LRRM 2099 (2nd Cir. 1970) deal with interrogations of existing employees. The undersigned does find that the inclusion of questions concerning union membership in employment applications is clearly an effort by the company to discourage employees or prospective employees from exercising rights guaranteed in section 7 of the Act and as such is a violation of the judgments.
Clear and convincing evidence establishes that the Company, by its February 27, 1978 letter to James Howard, changed Howard's working conditions by subjecting his work to closer scrutiny in retaliation for his Union activities.
It is well settled than an employer violates the Act when he discriminatorily changes an employee's working conditions in retaliation for his union activities. See, e.g. N.L.R.B. v. A & S Electronic Die Corp., supra, 423 F.2d at 222 (2nd Cir. 1970); N.L.R.B. v. Stratford Lithographers, Inc., 423 F.2d 1219, 1220, 73 LRRM 2944 (2nd Cir. 1970). These actions are condemned under the Act if motivated even in part by the employees' union activities. (E.G., N.L.R.B. v. Roberts, 451 F.2d 941, 945, 78 LRRM 2874 (2nd Cir. 1971), and cases cited therein), and may be proven by circumstantial evidence, including the timing of the action taken (N.L.R.B. v. Rubin, 424 F.2d 748, 750, 74 LRRM 2040 (2nd Cir. 1970)), the bias or hostility towards unionization in general and the discriminatee in particular shown by the employer (N.L.R.B. v. Dan River Milis, Inc., 274 F.2d 381, 384, 45 LRRM 2539 (5th Cir. 1960)), and the shifting nature and/or insubstantiality of the explanation offered by the company for its actions (Trey Packing, Inc. v. N.L.R.B., 405 F.2d 334, 338-339, 70 LRRM 2025 (2nd Cir. 1968), cert. denied, 394 U.S. 919, 70 LRRM 3062).
Here, as shown, James Howard was the leading Union adherent at the plant and had previously been discriminatorily discharged by the Company for such activities. Willacy was well aware of Howard's activities. The February 27 letter accused Howard of "spearheading" the Union drive and was sent to him five days after Howard attempted to talk to the other drivers about the Union, a step which Willacy aborted even though there was no Company rule against drivers talking to each other on Company time. The action came in the midst of an antiunion campaign by the company highlighted by numerous coercive statements.
The Company asserted at the hearing that the February 27 letter was sent to Howard because Howard had "perpetually been a problem to Vanguard, in terms of his production" (412). The letter, however, does not accuse Howard of a general lack of productivity. Rather, it complains about a problem on one specific day, a situation which, Willacy admitted at trial, involved special circumstances (e.g., Howard ran out of oil on his truck). The letter also stated that Howard's worksheets were being selected to develop "guidelines" for productivity of all drivers (evidence established that such guidelines already existed), not as a method of assuring Howard's individual productivity in the future. Finally, Willacy admitted in a prior affidavit that Howard was an "averagec worker and not, as claimed at trial, a low producer (440-441).*fn2 Under these circumstances, the conclusion is inescapable that the Company's justification for sending the letter is a pretext and that the real reason was to punish Howard for his rile on behalf of the Union.
Respondents further violated the judgments by failing to offer Roberto Pagan reinstatement upon his application in May and June of 1968 and by offering jobs to returning strikers Valecillo, White and Spady which did not conform to their predischarge jobs. Where as here a strike is precipitated or prolonged by unfair labor practices an employer has the obligation to reinstate those strikers to their former jobs upon their application and the employer's failure to do so is a violation of the Act. N.L.R.B. v. Fitzgerald Mills, Inc., 313 F.2d 260, 269, 52 LRRM 2196 (2nd Cir. 1963). This obligation is separate from and in addition to the employer's obligation to offer reinstatement in the event that it is found the employer discharged the strikers. N.L.R.B. v. International Van Lines, 409 U.S. 48, 50-51, 52-53, 81 LRRM 2595 (1972). Here, as shown, the company refused to reinstate Pagan despite several requests on his part. Although the respondents offered reinstatement to Spady, Valecillo and White the jobs offerred and accepted by the employees paid on a per load basis and not as formerly on a hourly basis. As such they did not constitute offers to those employees of their former jobs. N.L.R.B. v. Remington Rand, 130 F.2d 919, 931, 11 LRRM 575 (2nd Cir. 1942).
Clear and convincing evidence establishes that respondents violated their bargaining obligations under the June 16, 1977 judgment by repeatedly attempting to deal directly with employees over collective bargaining and other matters, thereby bypassing the Union as the employees' statutory representative. Such conduct occurred during the November 1977 meeting conducted by Desouza, the February 22, 1978 meeting conducted by Willacy, Butler's March 6, 1978 conversation with employees at the picket line, and Willacy's dealings with returning strikers Valecillo, Spady and White in May 1978, culminating in the signing of individual contracts with those employees.
The evidence also establishes that respondents violated te judgment by in June 1978 unilaterally changing the terms of compensation of Spady, White, and Valecillo from an hourly rate to a per load basis without notice to or consultation with the Union.
Section 8(a)(5) of the Act provides that it shall be an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of 9(a)." Section 9(a) provides that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay wages, hours of employment, or other conditions of employment."
Under this statutory scheme, an employer may not bypass the exclusive bargaining representative and deal directly with his employees. Medo Photo Corp. v. N.L.R.B., 321 U.S. 678, 683-684, 14 LRRM 581 (1944); N.L.R.B. v. Stratford Lithougraphers, Inc., 423 F.2d 1219, 1220, 73 LRRM 2944 (2nd Cir. 1970); Utica Observer Dispatch v. N.L.R.B., 229 F.2d 575, 5778 37 LRRM 2441 (2nd Cir. 1956). This is because such actions "tend inevitably to weaken the authority of the [union] and its ability to represent the employees in dealing with the Company." Utica Observer-Dispatch v. N.L.R.B., supra, 229 F.2d at 577. Moreover, since "[u]nilateral action by an employer without prior discussion with the Union... amounts to a refusal to negotiate about the affected conditions of employment, and must of necessity obstruct bargaining, contrary to the congressional policy" (N.L.R.B. v. Katz, supra; N.L.R.B. v. General Electric Co., 418 F.2d 736, 756, 72 LRRM 2530 (2nd Cir. 1969), cert. denied, 397 U.S. 1059, 73 LRRM 2600.
Respondents denied that they made any statements amounting to an effort to deal directly with employees prior to May 1978. They offered no justification for the admitted direct dealing with employees Spady, White, and Valecillo in May 1978.
Respondents assert that the change in the method of compensation from an hourly to a per load basis was economically motivated (Resp. Prop. Fdgs, pp. 20-21). However, it is well settled that the economic "justification for [the change] does not justify the apparently deliberate decision to avoid prior consultation with the Union." Massey-Ferguson, Inc. v. N.L.R.B., 78 LRRM 2289 (7th Cir. 1971). Accord: N.L.R.B. v. The Little Rock Downtowner, 414 F.2d 1084, 1089, 72 LRRM 2044 (8th Cir. 1969).Nor does it excuse respondents' failure to reinstate the strikers to their former jobs, which were still in existence at the Company, rather than jobs paying on the per load basis.
Individual respondents Carl Willacy and Ken Butler, as officers and agents of the Company, and as primary actors in the contumacious conduct committed herein, are in civil contempt as well as the Company.
Rule 65(d) of the Federal Rules of Civil Procedure makes a judgment binding not only on the Company but also on "its officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." See, e.g., Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 13-14, 15 LRRM 882 (1945). The judgment herein specifically ran against the Company's "officers, agents, successors and assigns."
The personal liability of corporate agents for their contumacious conduct is well established. Thus, the Supreme Court long ago held that "a command to a corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt." Wilson v. U.S., 221 U.S. 361, 376 (1911). See also, N.L.R.B. v. J.P. Stevens & Co., Inc., 464 F.2d 1326, 1327-1328, 1348, 80 LRRM 3126 (2nd Cir. 1972) (supervisory personnel held in contempt).
As shown, Willacy and Butler were and are executive officers in the Company and admittedly had notice and knowledge of the judgments. Each was involved in committing unfair labor practices in the underlying proceedings and their conduct was repeated here, with greater intensity. Thus, Willacy conducted an employee meeting in February 1978 at which he attempted to bypass the Union and deal directly with employees and made unlawful threats and promises, and drafted the letter discriminatorily changing Howard's working conditions in February 1978. After the strike began he continued his unlawful threats, discharges the strikers, failed to reinstate or to properly reinstate strikers upon their request, and unilaterally changed terms and conditions of employment. Butler was present at the February 22, 1978 employee meeting and on March 3, 1978, when Willacy discharged the strikers. Butler attempted to deal directly with employees during a picket line conversation on March 6. In view thereof and in order to better police compliance with the judgments and contempt adjudication, it is essential that Willacy and Bulter be held personally responsible for their contumacious conduct.
Provisions requiring respondents to cease and desist from the unlawful conduct, to post, mail, and read notices, and to take other steps to insure compliance with the underlying judgments are all remedies which have been accepted by the courts as appropriate means to assure purgation. See, e.g. N.L.R.B. v. J.P. Stevens & Co., Inc., supra, 563 F.2d at 22-23 (2nd Cir.); N.L.R.B. v. Mr. Electric Service Co., Inc. (No. 74-1961), 2nd Cir. order entered July 26, 1978 O.C.A.W. v. N.L.R.B., 547 F.2d 575, 596-597, 92 LRRM 3059 (D.C. Cir. 1976), cert. denied 431 U.S. 966, 95 LRRM 2642. The Board requests an order requiring respondents to offer reinstatement to the discharged strikers and to make them whole for any losses suffered by reason of respondents' discrimination against them. Discharged strikers, like other unlawfully discharged employees, are entitled to offers of reinstatement without the necessity of signalling abandonment of the strike. Abilities & Goodwill, Inc. 241 NLRB No. 5, 100 LRRM 1470 (1979), enf. denied on other grounds 612 F.2d 6, 103 LRRM 2029 (1st Cir. 1979); Fry Foods, Inc., 241 NLRB No. 42, 100 LRRM 1513, 1514 enf'd 609 F.2d 267, 102 LRRM 2894 (6th Cir. 1979); N.L.R.B. v. Southern Greyhound Lines 426 F.2d 1299, 1303, 74 LRRM 2080 (5th Cir. 1970).
The cost provisions are similarly routinely granted in civil contempt cases to compensate the Board for "reasonable counsel fees and all expenditures incurred in the investigation, preparation, presentation, and final disposition of th[e] proceeding." N.L.R.B. v. Local 80, Sheet Metal Workers, 491 F.2d 1017, 1021, 85 LRRM 2490 (6th Cir. 1974). Accord; N.L.R.B. v. J.P. Stevens & Co., Inc., supra, 563 F.2d at 23.
The Board seeks a recommendation for prospective fines and attachment to assure compliance with the purgation order. These remedies are common to contempt proceedings as per the authority cited by the Board. However, it is the recommendation of the undersigned that in view of the financial burdens that will be placed on the company by the remedies proposed in this report individual fines levied against either Mr. Willacy or Mr. Butler would be inappropriate. There was testimony from Mr. Willacy that the undersigned credits indicating that the financial condition of the corporation (and presumably its principal officers) had significantly deteriorated during the relevant period (405-406). It is also noted that the respondent Butler, while president of Vanguard has nonetheless been only minimally involved in the activities that gave rise to the instant contempt. For the foregoing reasons, it is respectfully recommended by the undersigned that the following relief be granted.
The Company, its officers, agents, successors and assigns, and Carl Willacy and Ken Butler, should be required to purge themselves of such contempt by:
1. Fully complying with and obeying each and every term of the judgments of February 23, 1976 and June 16, 1977, and not in any way by action or inaction commit, engage in, induce, encourage, permit or condone any violation of said judgments;
2. Refraining from threatening employees with discharge, plant closure, withholding of benefits, or any other reprisals because of their union and other protected, concerted activity:
3. Refraining from communicating to employees that the Company will not bargain with the Union or recognize it as the employees' bargaining representative;
4. Refraining from promising benefits to employees in order to induce them to abandon their support for the Union and from encouraging them to repudiate the Union or seek to decertify it;
5. Refraining from changing working conditions or in any other manner discriminating against employees because of their union or protected concerted activity;
6. Refraining from bargaining directly with employees over wages, hours, and other terms and conditions of employment;
7.Refraining from making unilateral changes in wages, hours, and working conditions, and other terms and conditions of employment; failing to give the Union adequate notice of such contemplated changes and failing to bargain in good faith with respect thereto;
8. Refraining from in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act;
9. Eliminating from the Company's employment application forms and prehiring interviews questions concerning the applicant's Union membership status;
10. Offering striking employees James Howard, Roberto Pagan, Henry Valecillo, Rafael Cotto, Arthur Glover, Enoc Moreno, Ernesto Noble, Dennis Simmonds, Cornelius Spady, Ronald White, and William Woody reinstatement to their former jobs or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. In the event that neither their former jobs nor substantially equivalent positions exist at the time of the entry of this order, the Company shall establish a preferential hiring list, following seniority, and shall offer reinstatement to those employees as soon as their former or substantially equivalent positions become available.
11. Making whole the striking employees for the losses they suffered by reason of respondents' unlawful discharge of them on March 3, 1978, said amounts, unless agreed upon, to be computed by the Board in a supplemental proceeding, subject to review by the Court.
12. Preserving and making available to the Board for examination and copying by its agents all records and data necessary to compute the amount of backpay due employees as set forth in paragraph 11 above;
13.Upon request, bargaining collectively in good faith with the Union as the exclusive representative of the Company's employees in the appropriate unit, and if an understanding is reached, embodying such understanding in a signed agreement; recognition not to be withdrawn from the Union without order of the Court:
14. Immediately posting in conspicious places in its Brooklyn location, and all places where notices to employees are customarily posted therein, for a period of sixty (60) consecutive days, copies of this contempt adjudication and of an appropriate notice in the form to be supplied by the Board and signed by Ken Butler, individually and as president of the Company, and by Carl Willacy, individually and as vice president of the Company, which states that the Company, Ken Butler, and Carl Willacy have been adjudicated in civil contempt of this Court for violating and disobeying and failing and refusing to comply with this Court's judgments, and that the Company, Ken Butler, and Carl Willacy will immediately undertake the action in purgation set foth in this contempt adjudication, said notices, together with a copy of the adjudication, to be maintained in clearly legible condition throughout such posting period, and insuring that they are not altered, defaced, or covered by any other material.
15. Mailing copies of said signed notice and contempt adjudication to each of its present employees and to each of its former employees employed since June 16, 1977, and providing to the Director of the Twenty-Ninth Regional Office of the Board a list of the names and addresses of all employees and former employees to whom said documents were mailed, together with proof of mailing;
16. Convening during working hours, all of the Company's present employees, including those entitled to reinstatement under this order, and by Carl Willacy, reading to is employees the contents of the said Board notice or, at its option, permiting a Board agent to read said notice;
17. Filing sworn statements with the Clerk of the Court and a copy thereof with the Director of the Board's Twenty-Ninth Region within ten (10) days after the entry of adjudication and again at the end of the posting period, showing what steps have been taken by the Company and Ken Butler and Carl Willacy to comply with the Court's direction; and
18. Paying to the Board all costs and expenditures, including reasonable attorneys' salaries, incurred by the Board in the inestigation, preparation, presentation, and final disposition of this proceeding, said amount, unless agreed upon by the parties, to be fixed by the Court upon submission by the Board of a verified statement of costs and expenses.