611 F.

2d 926
103 L.R.R.M. (BNA) 2176, 87 Lab.Cas. P 11,752

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
UNION NACIONAL DE TRABAJADORES and its Agent,
Arturo Grant,
Respondents.
Nos. 75-1372 to 75-1376.

United States Court of Appeals,

First Circuit.
Submitted Sept. 14, 1979.
Decided Dec. 28, 1979.

John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel,
Robert E. Allen, Acting Association Gen. Counsel, Elliott Moore, Deputy
Associate Gen. Counsel, Paul Elkind, Asst. Gen. Counsel, Stanley R.
Zirkin, Deputy Asst. Gen. Counsel, Washington, D. C., for contempt
litigation, and Christopher Katzenbach, Atty., Washington, D. C., on brief,
for petitioner.
Pedro J. Varela and Escribano, Carreras, Acevedo, Perez & Varela, Hato
Rey, P. R., on brief, for respondents.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
COFFIN, Chief Judge.

In 1976, this court granted enforcement of orders issued by the National Labor
Relations Board against appellant here, Union Nacional de Trabajadores
(Union), and various of its agents, including Union president Arturo Grant, in
four separate unfair labor practices proceedings. N.L.R.B. v. Union Nacional de
Trabajadores, 540 F.2d 1 (1st Cir. 1976). In March 1978, the Board petitioned
the court to find that the Union and Grant had not complied with the judgment
and were in contempt of the orders. We appointed a special master to conduct a

hearing and recommend findings of fact and conclusions of law. After

conducting an evidentiary hearing and receiving briefs from both sides, the
master found the Union and Grant in contempt and recommended various
remedies. After carefully reviewing the special master's report and the record
he developed, we conclude that the Union and President Grant are in civil
contempt of our orders.
2

The underlying orders were the result of findings by the NLRB and this court
that the Union had violated 8(b)(1)(A), 8(b)(4)(i) and 8(b)(4)(ii)(B) of the
National Labor Relations Act, 29 U.S.C. 158(b)(1)(A), 158(b)(4)(i) and
158(b)(4)(ii)(B). The behavior held to constitute such violations included:
threatening employees on numerous occasions with physical injury and death if
they continued to work during Union-sponsored strikes; assaulting and
threatening to kill a worker who opposed the Union as the collective-bargaining
representative at his plant; threatening an employee to persuade him not to
testify at an unfair labor practices hearing; and, assaulting, and in one instance
brutally beating, members of management. Because the court agreed with the
Board that the Union had demonstrated a marked proclivity for violating the
rights of employees secured by 7 of the Act, 29 U.S.C. 157, we upheld
relatively broad orders against the Union and Grant, which enjoined them from
threatening violence against employees of any employer in Puerto Rico, and
also from in any manner restraining or coercing employees in the exercise of
rights guaranteed by 7 of the Act. 540 F.2d at 11. The advisability of such an
order was made manifest by the Union's intransigence and denial of authority
of the court, the Board and the labor laws of the United States. Id. We also
ordered the Union to publish in newspapers of general circulation and mail to
affected employees notices prepared by the Board. We thought the publication
and mailing requirements warranted not only because they would give notice to
interested parties, but because they would "ha(ve) the salutary effect of
neutralizing the frustrating effects of persistent illegal activity by letting in 'a
warming wind of information and, more important, reassurance'." 540 F.2d at
12, Quoting J. P. Stevens & Co. v. N. L. R. B., 417 F.2d 533, 540 (5th Cir.
1969).

The special master received evidence on two instances of allegedly

contumacious conduct.1 First, the Board alleges that the Union violated the
decree by publishing a side notice adjacent to the notice required by the Board
in the general circulation newspaper El Nuovo Dia. Second, the Union is
accused of having threatened violence and other reprisals against two
employees if they continued to work as strike replacements during a Unionsponsored strike at a service station.

The Publication of the Side Notice

4

The facts concerning the Union's publication of a notice addressed "To All
Workers" alongside the Board's required notice are not in dispute. The
difficulty is in determining whether the side notice merely expressed political
opinion protected by the First Amendment or whether its publication at the
particular time and place contemptuously eviscerated the Board's lawful
publication requirement.

The notice required by the Board and by this court essentially repeated the
terms of the injunction. The notices proclaimed that the Union would refrain
from violence and threats against any employees and from other violations of
the protected rights of employees. As mentioned above, an important purpose
of the notices was to reassure workers that they need no longer fear violence
and threats from Union Nacional.

The side notice was published after warnings by Board officials that its
appearance next to the required notice would be considered noncompliance
with the orders. The side notice, which is set out in full in the appendix to this
opinion, states that publication of the order is being made only because the
Board and this court have required it. The government's motivation is ascribed
to involvement in an "anti-labor conspiracy". The Union asserts that the Board
and the court have no jurisdiction to "dictate such orders", and that the orders
violate the constitutional rights of the workers to organize and strike. The
Union then proclaims its "unyielding commitment" to the defense of these
rights. Finally, the Union's broadside calls on workers "to repudiate" what
amounts to the labor laws of the United States.

In evaluating the character of the side notice we begin with the wise
observation of the Supreme Court that expressions of opinion in a labor context
must be comprehended in light of the natural tendency of employees "to pick up
intended implications . . . that might be more readily dismissed by a more
disinterested ear." N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617,
89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). Bearing this admonition in mind,
we ask what are the "rights" to which the Union avows its "unyielding
commitment". Because the context clearly implies that these "rights" are those
impinged by the adjacent order forbidding the use of violence, threats and
coercion, we think it plain, even after discounting the proclamation for a certain
amount of face-saving bravado, that the Union is telling workers that it will
continue to use these illegal means to further what the Union perceives to be the
interest of the workers. This interpretation is reinforced by the Union's
concluding call for "repudiation" of American labor laws. In short, the side

notice tells workers that the orders of the Board and of the court are illegitimate
and will not be obeyed.
8

Participants in labor disputes have a clear right to express opinions on Board

orders, Board supervised settlements and labor affairs generally. See e. g.,
Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The
Board's requirement that a party publish a dictated order does not deprive the
party of the right contemporaneously to express opinions on issues addressed
by the required notice. Thus, in N. L. R. B. v. Teamsters and Chauffeurs Union,
Local 627, 241 F.2d 428 (7th Cir. 1957), a union was held not in contempt of a
decree when contemporaneous with posting and mailing a notice required by a
court-approved consent decree stating that the union would cease and desist
from certain practices, the union posted and mailed a letter denying that the
practices were illegal, claiming to accept the settlement only because it was
favorable to the union, and promising to exercise full rights allowed by the
Taft-Hartley Act. The court, referring to the union's privileges under the First
Amendment and the labor laws themselves, wrote, "(A) limitation upon the
privilege can be tolerated only where such speech or expression is intended or
calculated to produce some result illegal under the Act, such as restraint or
coercion." 241 F.2d at 432. See also Edward G. Budd Manufacturing Co. v. N.
L. R. B., 142 F.2d 922, 926-27 (3d Cir. 1944). Despite the court's broad
protection of side notices, it should be noted that the union's letter in no way
contradicted the notice.

Despite the Seventh Circuit's formulation, courts have not found it easy to
maintain a bright line between privileged and contemptuous side notices. In
News-Texan, Inc. v. N. L. R. B., 422 F.2d 381 (5th Cir. 1970), the court found
noncompliance with a settlement agreement when the side notice "was
calculated to decimate the crucial terms of the settlement." 422 F.2d at 385.
There, the required notice was intended to reassure employees, and the court
felt that the employer's statement that the settlement agreement was
meaningless had "destroyed (the notice's) substance and purpose." Id. While we
are concerned about the vagueness of the standard used by the News-Texan
court and express no opinion on the propriety of that decision on its own facts,
we read the case as standing for the salutary principle that publication of a side
notice may so contradict the terms of the Board's required notice as to cancel
the legitimate purpose of the required notice and amount to noncompliance
with the notice order. Such a side notice, although not calculated to produce a
result illegal under the Act, is itself unlawful under the order.2

10

From the foregoing, we think it is clear that Union Nacional's side notice
destroyed the substance and purpose of the required notice. The side notice

here expressed the Union's intention to threaten and use violence in the future,
even if it did not itself threaten or harm and thereby create a result illegal under
the Act. The Union clearly told the workers of Puerto Rico that it would not
obey the lawful orders of the Board and this court when we directed it to state
that it would obey these orders. We think this was contempt.
11

This holding does not abridge the Union's freedom of speech. The Union may
publicly disagree with the wisdom of Board or court actions; it may urge that
the laws be changed; it may castigate our motives or our sense. What will not
be tolerated or protected are statements made in a given time and place that
express determination to continue patently unlawful conduct when we have
ordered the speaker to notify interested parties that it will abjure illegal
practices.3 Threats Against Employees

12

The second episode of alleged contemptuous conduct involves threats by Union

members directed at employees attempting to work during a Union-sponsored
strike at Servacar de Puerto Rico, d/b/a Esso Service Station, in Villa Carolina.
We accept the special master's findings of fact about this incident because after
a careful review of the record we have concluded that they are not clearly
erroneous. See United States v. S. Volpe & Co., Inc., 359 F.2d 132, 134 (1st
Cir. 1966).

13

The strike began in March, 1978, after months of unsuccessful bargaining over
a new collective bargaining agreement. Thereafter, Servacar found it
impossible to replace striking employees. Minor unexplained property damage
had occurred at the station. Ubarri, a supervisor of Company service stations,
contracted with a security firm, Security Associates, to provide two men to both
pump gas and report threats to persons and damage to property.

14

The first man, Caban, arrived for work on the morning of June 7. Two striking
Union members, Matos and Santiago, who had been standing on a nearby
picket line, approached Caban and inquired whether he was going to work at
the station. When Caban replied affirmatively, Matos asked him to cooperate
with the strike and told him that a former replacement employee who had not
cooperated had been beaten up, that the same would happen to him and that
they could wait for Caban to leave work and attack him then. The conversation
then ended. Caban left work without incident when his shift ended.

15

The second man, Carbrera, arrived to begin his shift. Union organizer Merle
and the two striking employees soon approached Carbrera and asked him not to
work because of the strike. When Carbrera answered that he needed the job,

Merle warned that if Carbrera worked at the station, the strikers would not be
responsible for anything that happened to him. The three Union members then
returned to the picket line.
16

At about 2:30 p. m., a customer drove his car up to the gasoline pumps and
Carbrera began to serve him. The three Union members walked toward
Carbrera; Matos and Santiago carried large broken pieces of wooden two-byfours in a raised position. The station manager, Tomassini, stepped in front of
Carbrera and acceded to Merle's demand that he, rather than Carbrera, pump the
fuel. As the strikers returned to the picket line, Matos and Santiago still holding
the sticks over their shoulders, Merle warned Carbrera: "If you keep working
here you're going to have problems."

17

Carbrera telephoned his supervisor at Security Associates, Nieves, informed

him of the recent events and asked for protection. Soon Nieves and two other
Security Associates employees drove into the service station. Nieves requested
gasoline and Carbrera began to work the pump. The strikers approached the
pump, now not carrying any sticks. Merle demanded that Carbrera not pump
gas, Nieves insisted that he do so, and a small shoving match between the two
men ensued. The police were called and soon arrived. After questioning
Carbrera and station manager Tomassini, the police arrested Matos and
Santiago. At a probable cause hearing held that afternoon, the judge found
probable cause to believe that an assault had been committed and bound over
the two defendants for trial.

18

As Carbrera was leaving the courthouse after the hearing, Union Secretary
Romero approached him and told him that he was "going to get fucked." A
police officer overheard Romero's threat and cautioned him that if anything
should happen to Carbrera, the officer would come looking for Romero.
Romero laughed at the officer's remark.

19

On two subsequent occasions, Matos threatened and hurled obscenities at

Caban while the latter was working at the service station. The police were
called on one occasion. The strike was settled in July and Union members
returned to work at the station. The assault charges against Matos and Santiago
were dropped.

20

The special master found that the Union members named above in relation to
the incidents involving Servacar acted on behalf of and as agents of the Union.
The Union does not dispute this finding.

21

On the basis of the above facts the special master concluded that the Union had
willfully threatened two employees and should be held in contempt. We agree.
The Union has engaged in the precise conduct forbidden by our decree:
threatening employees who did not wish to follow the Union's dictates.

22

The Union argues in opposition that its members engaged in nothing more than
picketline rhetoric when confronted with an attempt to break a long and
gruelling strike. Threats of violent reprisals, however, are not tolerable
picketline demagoguery. This is especially true in this case where we are not
considering isolated remarks by members of a heretofore law-abiding Union
which are the subject of an original unfair labor practices proceeding. Rather,
we deal with conduct that is an unendurable continuation of threats and
coercion by a Union that has amply demonstrated its disregard for the rights of
employees.

23

The Union further argues that Caban and Carbrera were not true employees of
Servacar, but agents of Security Associates, and that, therefore, threats directed
against them fall outside the prohibitions of the orders and the Act. The special
master made no finding on this issue, believing that a finding that the two men
were technical employees of Servacar was unnecessary. We think the special
master was correct in this conclusion. The two men were hired by Servacar to
pump gas and did so. They were also supervised by Security Associates and
required to report on property damage and other illegal activity. They were not
hired to interfere with legitimate union activity, but to keep the business
operating during a tense and potentially violent strike when the Company could
not hire regular employees. Cf. N. L. R. B. v. Southwire Co., 429 F.2d 1050
(5th Cir. 1970) (undercover surveillance of union activity held to be unlawful).
An "employee" within the meaning of the Act need not be in a technical
employer-employee relationship with any particular employer to receive
protection from threats and coercion. See Hudgens v. N. L. R. B., 424 U.S.
507, 510 n.3, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Phelps Dodge Corp. v. N.
L. R. B., 313 U.S. 177, 192, 61 S.Ct. 845, 85 L.Ed.2d 1271 (1941); John
Hancock Mutual Life Ins. Co. v. N. L. R. B., 89 U.S.App.D.C. 261, 263, 191
F.2d 483, 485 (D.C.Cir. 1951). We think that it is enough that the Union
threatened workers to coerce them not to work at tasks customarily performed
by Union members during a Union-sponsored strike. There is no indication in
the record that the Union members even knew that the two men were also
security agents, and we see no reason for the Union to escape from the
consequences of its contumacious conduct because of an irrelevant technicality.
Finally, the language of the orders offers no relief to the Union: it forbids
threats against the employees of any employer in Puerto Rico.

24

The Union also argues that the Board is estopped from seeking a contempt
order against them because the Regional Director approved withdrawal of
8(b)(1)(A) charges against the Union after a private settlement between the
Company and the Union. The Union, however, did not raise this issue before
the special master and the Board here denies they have approved withdrawal of
the unfair labor practices charge. Because the Union did not raise the issue at a
time when facts could be found, we must hold against them and presume that
the Board did not approve withdrawal of the charges.

25

This leaves us only with the Company's withdrawal of charges after concluding
a settlement agreement. We do not see how a private settlement can prevent the
Board from seeking a contempt order when it is clear that an interested private
party cannot initiate proceedings for a contempt order based on a prior,
enforced Board order. See Amalgamated Utility Workers v. Consolidated
Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940). In International
Union United Automobile, Aerospace & Agricultural Implement Workers of
America, AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 221, 86 S.Ct. 373, 15
L.Ed.2d 272 (1965), the court wrote that this special deference to the Board is
based on "the Board's expertness in achieving compliance with orders". We
think the same rationale supports hearing the Board's charge of contempt even
when the private dispute has been settled. Moreover, when the Board seeks
compliance with a previous order it is not merely vindicating the interests of the
parties injured by the contumacious conduct, but is seeking to prevent the
recurrence of unlawful behavior that has already injured the interests of
numerous other parties. The Board's pursuit of this public interest should not be
prevented by an agreeable adjustment of private affairs. See, e. g., Local 98,
United Association of Journeymen, Etc. v. N. L. R. B., 497 F.2d 60, 65-66 (6th
Cir. 1974).

Remedies and Purgation

26

The special master made a detailed recommendation of remedial obligations to

be placed upon the Union for them to purge themselves of contempt. Under the
master's recommendations the Union essentially must: obey the previous order,
repeat the full publication requirement contained in that order without
impairing such notice by inclusion of the offending side notice; and pay all the
Board's costs for bringing this suit, including attorneys' salaries. The Union has
made objection to several parts of the proposed remedies, attempting to
characterize them as punitive. We think this objection is frivolous. Union
Nacional has, as the special master remarked, an unenviable record of
deliberate defiance of the Board, this court and the law. The remedies proposed
are a reasonable effort to eliminate the effects of the Union's contemptuous

conduct and assure that it will now obey our decree. Thus, we adopt the special
master's recommendations, and hereby order that:
27

Union Nacional de Trabajadores, its officers, agents and representatives, and

Arturo Grant, are required to purge themselves of their past contumacious
conduct by:

28

1. Fully complying with and obeying this court's decree of June 21, 1976, and
refraining from any action or inaction which would constitute committing,
engaging, inducing, encouraging, permitting or condoning any violation of the
said decree.

29

2. Ceasing and desisting from restraining or coercing employees in the exercise

of their rights guaranteed by Section 7 of the Act by threatening violence
directed against such employees or in any other manner restraining or coercing
employees in the exercise of their Section 7 rights.

30

3. Immediately re-publishing in the Puerto Rican newspaper El Nuevo Dia, at

their own expense, the notices required to be posted by the court's June 21,
1976, decree without the side notice found violative by the court's adjudication
herein.

31

4. Immediately posting in conspicuous places at the Union's business offices,

including all places within its jurisdiction where notices are customarily posted,
for a period of sixty (60) consecutive days, copies of the contempt adjudication
and an appropriate notice, in both English and Spanish, in the form to be
supplied by the Board and signed by an officer of the Union, and by Arturo
Grant individually, which states that the Union and Grant have been
adjudicated in civil contempt of this court for violating and disobeying and
failing and refusing to comply with this court's judgment, and that the Union
and Grant will undertake forthwith the action ordered in purgation, said notices,
together with a copy of the contempt 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; and reading said notice, in
both English and Spanish, by an appropriate officer of the Union at a general
meeting of the membership.

32

5. Signing and mailing sufficient copies of said notice to the Regional Director
for the Twenty-Fourth Region, for posting at the offices and installations of the
involved employers, if such employers be willing.

33

6. Forthwith publishing said notice, at respondent Union's expense, in all

newspapers of general circulation published in Puerto Rico and in any
newspaper of respondent Union, in each case in the language in which the
newspaper is printed.

34

7. Filing separate sworn statements with the Clerk of this court and copies
thereof with the Regional Director of the Twenty-Fourth Region of the National
Labor Relations Board in writing within fifteen (15) days after the entry of
adjudication, and again upon termination of the posting period, showing that
steps have been taken by the Union and Grant to comply with this court's
directions.

35

8. Reimbursing the Board for all its expenses, including attorneys' salaries, and
all costs and expenditures incurred in the investigation, preparation,
presentation, and final disposition of this proceeding to adjudge the Union and
Arturo Grant in civil contempt, said amounts, unless agreed upon, to be
established by the court upon submission by the Board of an itemized bill of
costs.

36

The special master also recommended to the court that it impose prospective
compliance fines on the Union to deter future violations of the decree. We think
that such a compliance mechanism is necessary in this case of unusual
intransigence by a party and therefore order that Union Nacional be fined
$10,000 for each and every future violation of the decree and $1,000 per day
for each day such violation continues. Further, an additional compliance fine
will be exacted from Union president Grant of $1,000 for each violation and
$500 per day so long as that violation continues.

37

It is so ordered.

APPENDIX
38

The following is the side notice published on September 9, 1977 in El Nuevo

Dia by Union Nacional de Trabajadores and signed by Union President Arturo
Grant:

39

"TO ALL WORKERS

40

"On this same date the undersigned, as president of Union Nacional de

Trabajadores, has submitted four notices to employees and members of the

Union. The same are the result of an order of the United States Court of
Appeals for the First Circuit, and we have been required to sign them to be
published in edicts that will appear in newspapers of general circulation, on
bulletin boards of the Union and of the work centers included in the orders and
by individual mailings to each of the workers of each of the companies
mentioned in the different orders.
41

"Hereby I state to all the workers of Puerto Rico on behalf of and by mandate of
the Board of Directors of our Union, that the signing and publication of the
referred-to orders are the result of a unilateral imposition on the part of the
National Labor Relations Board of the United States and of the United States
Court of Appeals for the First Circuit, due to the militancy and combativeness
of this Union displayed against the imposition of the Board and the employers.
That they are part of an anti-labor conspiracy directed at restraining the
development of the labor work we are carrying out in defense of the interests of
the fellow affiliates of this Union. That Union Nacional de Trabajadores has
challenged and continues to challenge the jurisdiction of the National Labor
Relations Board of the United States and of the United States Court of Appeals
for the First Circuit to dictate such orders; that we understand that such orders
are illegal insofar as they impair the Puerto Rican workers' constitutional right
to become organized, collective bargaining, picketing and striking. That our
loyalty and unyielding commitment is with the defense of those rights and the
full exercise thereof by the workers unionized with Union Nacional and all
Puerto Rican workers.

42

"The workers of Union Nacional call on all Puerto Rican workers to join forces
in the determination to repudiate the laws, regulations and anti-labor practices
reflected in the Taft-Hartley Act, and the regulations established by the
National Labor Relations Board of the United States."

We may summarily dispose of the Union's claim that the underlying decree is
void on its face for overbreadth and vagueness. This argument is out of season.
First, a party cited for contempt of a permanent injunction may not then
collaterally attack the validity of the underlying decree. N.L.R.B. v. Local 282,
International Brotherhood of Teamsters, Etc., 428 F.2d 994 (2d Cir. 1970). This
rule applies at least where the party has had an opportunity to challenge the
decree on appeal, See C. Wright & A. Miller, Federal Practice and Procedure,
2960 (1973), and when the order is not so vague that the party had no notice
that its conduct would be considered contemptuous, See International
Longshoreman's Association, Local 1291 v. Philadelphia Marine Trade

Association, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). Neither
exception is even arguably involved in this case
Second, this court has already ruled that this broad order is proper because of
the Union's "persistent attempts to interfere with legislatively protected rights
by varying methods". N. L. R. B. v. Union Nacional de Trabajadores, supra,
540 F.2d at 11. We see no reason to reopen consideration of this issue.
2

See also West Texas Utilities Co. v. N. L. R. B., 92 U.S.App.D.C. 224, 228,
206 F.2d 442, 446 (D.C.Cir. 1953); N. L. R. B. v. Trojan Powder Co., 135 F.2d
337, 340 (3d Cir. 1943). These cases concluded that a side notice had vitiated
compliance with a Board notice requirement when the overall effect of the
communication left the reader "with quite a different impression" than what
would be given by the Board's notice standing alone. It should be noted that our
holding need not be so broad, for here we have a disavowal of the message
contained in the required notice

N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 616-20, 89 S.Ct. 1918, 23

L.Ed.2d 547 (1969), is not to the contrary. There, the court held that employer
comments on unionization cannot be the subject of an unfair labor practices
proceeding, consistent with the First Amendment, unless the comments
constituted threats of reprisals or promises of benefits. Gissel did not involve
court or Board ordered notice and we think that such orders place a greater
legal burden on the Union to refrain from contradictory comments in certain
contexts