In the Star Metal case, the company and its officers admitted, and the court found, that the court's bargaining decree had been wilfully and deliberately disobeyed and that the company and the individual defendants were guilty of civil and criminal contempt. In assessing fines of $1,000 and $100, respectively, against the two individual defendants and omitting terms of imprisonment, the court took into consideration that subsequent to the institution of contempt proceedings the defendants bargained and executed a contract with the representative of their employees. The company was directed to reimburse the Board for expenses in the amount of $757.86 incurred in connection with the prosecution of the contempt proceeding. The Board's request to include in the decree a direction that the company and its officers bargain with the union was denied. In the court's opinion, such a direction was unnecessary since the original bargaining decree, entered upon the enforcement of the Board's order, continued in force as a permanent mandatory injunction which, if further violated, could later again serve as basis for contempt proceedings. In the Berkley Machine case, the contemptuous conduct likewise consisted in the employer's refusal to bargain as required under a consent decree embodying the Board's order. While agreeing that the company had not wilfully disobeyed the bargaining decree, the court rejected the special master's finding that the company had bargained in good faith with the complaining union. The court rested its finding of violation on the fact that the employer "was unwilling to bind itself to pay any specific [wage] rate for any specified length of time and was unwilling to bargain at all with respect to [individual] merit pay [increases] but insisted on its right without consulting the union to vary the rates of pay for individual employees." The court directed the company to purge itself of its contempt within 90 days by bargaining in good faith, and by executing a written agreement with the union "as to all matters upon which agreement can be had." The court also taxed the company with the costs of the court in the proceeding. In view of its finding that the company and its officers did not wilfully disobey the court's decree, the court refrained from imposing fines and imprisonment and from directing the institution of proceedings in criminal contempt. The contempt adjudication in the Weirton Steel case soon after the close of the last fiscal year is referred to in the last annual report.83 In this case, the company was ordered to pay a total of $49,459.85 in costs of the contempt litigation and to take certain steps to purge itself, including the reinstatement of certain employees with back pay Cited above; see Fifteenth Annual Report, p. 195, for brief discussion of this case. 974250-52-19 and the disestablishment of a union the company had assisted in organizing. In the Retail Clerks case, the Board's petition for a contempt adjudication was based on its view that the respondent union, by insisting that the employer, Safeway Stores, bargain in regard to its location managers, violated the court's decree enjoining the union from requiring that Safeway bargain for its supervisory employees. The court remanded the case to the Board for the purpose of supplementing the record in the case, which did not disclose the supervisory status of Safeway's location managers. 84 Cited above. 84 SECTION VIII Injunction Litigation ECTION 10 (j) and (1) of the amended act provides for injunctive relief in the United States district courts at the request of the Board to halt conduct alleged to constitute an unfair labor practice. Section 10 (j) confers discretion on the Board to petition for an injunction against any type of conduct, by either an employer or a union, which is alleged to constitute an unfair practice forbidden by the act. Such injunctive relief may be sought upon issuance of a formal complaint in the case by the General Counsel. On the Board's petition, the court may then grant "such temporary relief or restraining order as it deems just and proper." Section 10 (1) requires that an injunction be sought in a United States district court against a labor organization charged with a violation of section 8 (b) (4) (A), (B), or (C),' whenever the General Counsel's investigation reveals "reasonable cause to believe that such charge is true and that a complaint should issue." The court is given discretion to grant "such injunctive relief or temporary restraining order as it deems just and proper." Section 10 (1) also provides for the issuance of a temporary restraining order without prior notice to the respondent party upon an allegation that "substantial and irreparable injury to the charging party will be unavoidable" unless immediate relief is granted. Such an ex parte restraining order may not be effective for more than 5 days. In addition, section 10 (1) provides that its procedures shall be used in seeking an injunction against a labor organization charged with engaging in a jurisdictional strike under section 8 (b) (4) (D), "in situations where such relief is appropriate." During the past year the Board exercised its discretion to petition for section 10 (j) injunctions on three occasions, twice against labor organizations and once against an employer and a labor organization. In two of these cases the court granted injunctive relief. In the third case, in which a temporary restraining order pending the hearing on the petition for injunction was denied, the Board withdrew the petition in view of the discontinuance of the alleged violations of the act. Under the mandatory provisions of section 10 (1), injunctions were requested in twenty-one cases. Fourteen of these cases involved These sections contain the act's prohibitions against secondary strikes and boycotts, certain types of sympathy strikes, and strikes or boycotts against a Board certification of representative. secondary action believed to violate the provisions of section 8 (b) (4) (A) or (B). Three cases involved primary action allegedly initiated in disregard of a Board certification in violation of section 8 (b) (4) (C). In four cases the charges alleged jurisdictional strikes forbidden by section 8 (b) (4) (D). In eight of the cases in which applications for injunctions were filed, relief was granted by the court. Four cases were settled, and one was withdrawn. The eight remaining cases were retained on the court's docket, the alleged unfair labor practices having been discontinued. The following table summarizes the proceedings instituted and the action taken by the courts in cases under these sections: Summary of Injunction Litigation Under Section 10(j) and (I)2 ? Injunctive actions during the fiscal year are listed in table 21, appendix B. In this case a temporary restraining order was denied; the application for an injunction was subsequently withdrawn. Retained on court's docket, the alleged unfair labor practices having been discontinued. A. Injunctions under Section 10(i) 5 During the past year, injunctive relief under section 10 (j) was granted in the Newspaper and Mail Deliverers' case in the form of a temporary injunction, and in the Anheuser-Busch case in the form of a preliminary restraining order. On August 17, 1951, soon after the close of the fiscal year, the court in the latter case also granted the Board's application for an order enjoining the respondents from certain conduct pending final adjudication of the complaint by the Board.' In the Newspaper and Mail Deliverers' case, where the Board's complaint alleged that the union by certain conduct violated section Jaffee v. Newspaper and Mail Deliverers' Union, 97 F. Supp. 443 (D. C., S. N. Y.). 1 Douds v. Anheuser-Busch, Inc., 99 F. Supp. 474 (D. C., N. J.). 8 (b) (2) of the act, relief was granted by the court on the basis of the following findings and considerations. 1. Nature of Conduct Involved Prior to the enactment of the provisions of the amended act banning the closed shop and limiting the types of permissible union-security clauses in bargaining contracts, the union had closed-shop agreements with certain newspaper publishers in New York City. Under its former closed-shop agreements, the union furnished the publishers what were called "regular situation holders" and "regular substitutes." When additional men were required, particularly for the delivery of Sunday editions, it was the practice to line up union and nonunion "extras" in a "shapeup" from which union members were again given preference. When, following the amendment of the act, the union's closed-shop contracts expired and could not validly be renewed, the union threatened the publishers with strikes and work stoppages in order to maintain the preferential treatment of its members. The situation was aggravated in 1949 and 1950 when several newspaper publishing and delivery companies went out of business and when the union forced other companies to discriminate against nonunion men and to give job and seniority preference to its unemployed members. Nonunion employees thus discriminated against filed charges which led to the issuance of the Board's complaint against the union and five separate companies which had submitted to the union's demands. Several of the companies involved consented to the issuance of an order by the Board and the entry of an enforcement decree by the Court of Appeals for the Second Circuit.10 In three of the five cases in which the Board had not yet issued orders against the union, the court enjoined the union's practices which, in its opinion, constituted a regular course of conduct designed to circumvent the union-security provisions of the amended act. In issuing its injunction, the court observed that the union acted in disregard of the orders, and possibly the enforcement decrees, in those cases in which the Board had already held that the union's conduct violated the act. Moreover, the court took into consideration that the union persisted in its conduct notwithstanding the advice of other • Section 8 (b) (2) provides that it shall be an unfair labor practice for a union "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." The New York Times Company, New York Mirror, New York Daily News, New York Herald-Tribune, and New York Journal-American. 10 The New York Times Company, New York Mirror, and New York Herald-Tribune. |