Writ of Certiorari Denied October 19, 1953. See 74 S.Ct. 70.
BAZELON, Circuit Judge.
Voluminous pleadings supported by affidavits and argument trace the long trail which led an unhappy labor-management relationship to these civil contempt proceedings against the employer, West Texas Utilities Company, Inc., and Price Campbell, its President
Board charges that respondents violated this decree gave rise to these proceedings. Pleadings developed certain hotly disputed matters and freed others from doubt or controversy. Since admitted matters clearly sustain charges of civil contempt, a trial of the disputed issues is unnecessary.
Findings of Fact
1. The decree of this court dated July 24, 1950, was directed against respondent West Texas Utilities Company, Inc., and its officers.
2. Respondent Price Campbell, at all times herein material, has been President of respondent West Texas Utilities Company, Inc. He appointed a committee composed of, inter alios, one Harold [D.] Austin, to negotiate with the Union on all matters involving the Company and retained power to ratify the committee's recommendations, agreements, proposals, or contracts.
3. On or about August 10, 1951, respondent Company posted the notice to all employees required by paragraph 2(b) of the court's decree. This notice (the first notice) read in pertinent part:
4. Six days later, on or about August 16, 1951, respondent Company posted another notice alongside the required first notice. This notice (the second notice) read in pertinent part:
5. On and after August 8, 1951, bargaining sessions pursuant to paragraphs 1 (a) and 2(a) of the decree took place between respondent Company and the Union. No agreement was reached between the Company and the Union with respect to wages and rates of pay.
6. On March 25, 1952, one Maurice V. Brooks, an attorney not connected with the Union but claiming to represent a large number of respondents' employees, requested a meeting with respondent Price Campbell to negotiate an adjustment of wages for respondent Company's employees "in accordance with the terms of Paragraph 9(a)" of the Act.
7. On March 26, 1952, respondent Price Campbell, after consultation with respondent Company's attorneys, wrote Brooks that he understood the Company was compelled to negotiate with him "on the matter of wages to certain of our employees."
8. On March 28, 1952, the respondent Company met with Brooks and negotiated an agreement providing an 18 cents per hour average increase in wages for 205 of the 276 employees in the bargaining unit covered by this court's decree.
Conclusions of Law
1. Respondents West Texas Utilities Company, Inc., and Price Campbell, its President, have at all times herein material been subject to this court's decree, and both are liable for any failure to comply therewith.
2. By posting the second notice, respondents disobeyed, disregarded and violated paragraph 2(b) of the decree which expressly ordered the Company and its officers to take "reasonable steps" to insure
3. Section 9(a) of the Act makes a duly certified union the exclusive bargaining representative for all employees of an appropriate unit with respect, inter alia, to "rates of pay, wages, hours of employment, or other conditions of employment" although it permits "any individual employee or a group of employees * * * to present grievances to their employer and to have such grievances adjusted * * * without the intervention of the [exclusive] bargaining representative."
It follows that by bargaining with Maurice V. Brooks regarding wages and rates of pay for a large percentage of employees in the bargaining unit, respondents disobeyed, disregarded and violated both paragraph 1(a) of our decree, which directed the Company and its officers to cease and desist from refusing to bargain with the Union "as the exclusive representative of all employees" in the bargaining unit, and paragraph 2(a) of our decree, which directed the Company and its officers "to bargain collectively with [the Union] as the exclusive bargaining representative of all employees in the * * * bargaining unit, with respect to wages [and] rates of pay." By reaching an agreement with Brooks to alter wage rates, respondents further violated paragraphs 1(a) and 2(a) of the decree.
Since respondents did not comply with the decree, we hold them in civil contempt of this court.
Judicial sanctions for civil contempt are aimed at "the requirements of full remedial relief. * * * and may entail the doing of a variety of acts"
We direct the respondents to
1. Withdraw forthwith from the agreement of March 28, 1952, with Brooks setting wages and rates of pay for employees in the bargaining unit;
2. Make no further payments of wages or rates of pay pursuant to said agreement with Brooks; but respondents may fix wages or rates of pay in any manner and amounts which would have been permissible under the Act and this Court's decree of July 24, 1950, if said agreement had not been made;
3. Post copies of the order to be entered pursuant to this opinion for the same time, and in the same manner and places as provided for the notice in paragraph 2(b) of the decree;
4. Pay all court costs and an amount adequate to compensate the Board for its costs and expenses, including salaries, in investigating, preparing and presenting the matters involved in these proceedings; the amount of such compensation to be determined upon proof submitted by the Board
5. Make a return to this court within thirty (30) days after the date of the order to be entered herein, showing by transcripts, minutes of meetings with the Union as exclusive bargaining representative, letters or other matter, that respondents have brought themselves into compliance with the decree dated July 24, 1950, and with the order to be entered pursuant to this opinion. Upon such a showing, respondents will be purged of this contempt. Upon their failure to make such a showing, this court will deal further with the matter by imposing a compliance fine of $30,000.00 on respondent West Texas Utilities Company, Inc., and $15,000.00 on respondent Price Campbell and a further compliance fine of $1,000.00 a day on respondent West Texas Utilities Company, Inc., and $500.00 a day on respondent Price Campbell for each day of continued non-compliance thereafter
The Board will submit on or before May 1, 1953 its proposal of an order to be entered in accordance with this opinion.
It follows that respondents' counterclaim either to vacate our decree of July 24, 1950, or to remove it as a bar to holding an election, must be denied.
WILBUR K. MILLER, Circuit Judge, dissents.
61 Stat. 140 (1947), 29 U.S.C.A. § 158 (a) (5): "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 section 159(a) of this title." See note 15, infra.
Respondents rely upon National Labor Relations Board v. Express Publishing Co., 1941, 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, to urge that the decree does not proscribe the violations alleged in these proceedings since these violations are unrelated to the § 8(a) (5) violation which originally gave rise to the decree. We think the violations are related. Even if they were not, the Express Publishing case would be inapplicable. That case stands for the proposition that a decree to be entered enforcing a Board order must be related to the unfair labor practice which gave rise to that order. But here the Board is not seeking a decree to enforce its order but rather compliance with a final decree enforcing a Board order not now subject to review. Moreover, our decree was clearly related to the Company's violation of § 8(a) (5) as found by the Board. Furthermore "[i]t does not lie in their mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law which we condemned in Maggio v. Zeitz, [333 U.S. 56,] at page 69, 68 S.Ct. , at page 408 [92 L.Ed. 476]. The instant case is an excellent illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not specifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught." McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 192-193, 69 S.Ct. 497, 500, 93 L. Ed. 599.