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National Labor Relations Board v. Vanguard Oil and Service Inc.

September 2, 1980

NATIONAL LABOR RELATIONS BOARD
v.
VANGUARD OIL AND SERVICE, INC., ET AL.



Author: Chrein

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.

BACKGROUND

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 ...


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