Royal Typewriter Co.

ROVAL TYPEWRITER COMPANY Royal Typewriter Company, a Division of Litton Busi- ness Systems, Inc., a Subsidiary of Litton Indus- tries, Inc., and Litton Industries, Inc. and Allied In- dustrial Workers of America, Local 469, affiliated with International Union Allied Industrial Workers of America, AFL-CIO Litton Business Systems, Inc., a Subsidiary of Litton Industries, Inc., and Litton Industries, Inc. and Al- lied Industrial Workers of America, Local 469, affi- liated with International Union Allied Industrial Workers of America, AFL-CIO. Cases 17-CA- 3788, 17-CA-3857, 17-CA-3932, and 17-CA- 4023 October 13, 1978 ORDER DENYING MOTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 2, 1974, a three-member panel of the Na- tional Labor Relations Board issued its Decision and Order in this matter,' in which it found, inter alia, that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with respect to: (I) the decision to close its Springfield, Missouri, plant 2 and (2) the effects of the plant clo- sure on unit employees. As part of the remedy for the unfair labor practices found, the Board ordered the Respondents to prepare a preferential hiring list of all the employees employed at the Respondents' plant, as of February 21, 1969; to "bargain with the Union with respect to the mode of operation of the preferential hiring list and the terms and conditions under which the Royal employees may, if they desire, obtain employment at other Litton plants"; and to bargain with respect to the effect on employees of the decision to close the plant. The Board further found, however, that, under the circumstances present in this case, a backpay remedy was not warranted.' Subsequent to the issuance of the Board's Deci- sion, the Charging Party (hereinafter referred to as the Union) and the Respondents filed motions for reconsideration and the General Counsel filed a mo- tion for clarification of the Board's Decision and Or- der. All of the above-stated motions weie denied by the Board in an Order dated June 20, 1974.4 Thereafter, the Union and the Respondents filed '209 NLRB 1006 (1974). 2 Member Penello did not join in this finding 3 Then Member Fanning dissented from that finding. 4 Then Member Fanning dissented from the Order insofar as it denieJ the General Counsel's motion for clarification and the Charging Party's motion for reconsideration. petitions for review of the Board's Decision and Or- der and the Board filed a petition for enforcement with the United States Court of Appeals for the Eighth Circuit. On March 31, 1976, the court issued its decision,5 wherein it enforced the Board's Order.6 On or about March 6, 1978, the Board's General Counsel instituted contempt proceedings against the Respondents in order to obtain compliance with the court's order. On June 5, 1978, the Union filed a motion which requested that the Board clarify its Order and grant authorization to intervene in contempt proceedings.7 Thereafter, Litton Industries, Inc. (hereinafter the Respondent Litton) filed a statement in opposition to the Union's motion, the General Counsel filed a re- sponse to the Union's motion, and the Union filed a reply to the Respondent Litton's opposition to the Union's motion and a reply to the General Counsel's response to the Union's motion. In its motion the Union requests that the Board clarify paragraphs A,2(d), and B,l, of its Order to require the Respondents to grant backpay to those employees on the preferential hiring list referred to in paragraph A,2(c), who have not been offered em- ployment as positions have become available, after April 2, 1974, at the Respondents' facilities referred to in the Order. The Union additionally requests the Board to "direct that all employees on the preferen- tial hiring list established pursuant to paragraph A,2(c), of the Board's Order have, since April 23, 1969, continued to accrue seniority rights for the ob- taining of pension benefits" and that the Respon- dents be "required to make such additional contribu- tions to the Pension Fund, based upon accepted actuarial principles, so that the underlying assets in the Pension Fund would then be sufficient to provide the pension benefits to all those employees who were still continuing to accrue rights thereunder." Finally, the Union moves the Board to grant authorization to permit it to intervene in the contempt proceedings that have been initiated by the Board.8 With respect to the "clarifications" the Union seeks in our Order of April 8, 1974, we perceive the extensive relief sought as, in actuality, a request to modify our Order. We note that while Section 10(d) '533 F.2d 1030. The court did not adopt the Board's finding that the Respondents vio- lated Sec. 8(aX5) of the Act by failing to bargain over the decision to close the plant. In doing so, however. the court did not modify the Board's Order. The request for oral argument submitted by the Union is hereby denied as the briefs adequately set forth the issues and positions of the parties. 8The Union asserts that the Board's General Counsel has not acted dili- gently and In good faith in enforcing the Board's Order because of his "hostility to the Union" and bias in favor of the Respondent. We consider the Union's assertion with respect to the conduct of the General Counsel to be totally unfounded and unwarranted. In our view, the General Counsel has exhibited neithtr bias nor prejudice toward any of the parties involved in this proceeding. I DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act provides that the Board may, until the record is filed in a court, modify or set aside any order issued by it,9 Section 10(e) of the Act provides that upon the filing of the record "the jurisdiction of the court shall be exclusive and its judgment and de- cree shall be final," subject, of course, to review by the Supreme Court. Since, as noted above, the Board's order has already been enforced and is now the subject of contempt proceedings, we are of the view that we no longer possess jurisdiction to either modify or clarify that Order.'o Moreover, we note that the Union's requested modification of the Order as to the pension plan was previously considered and denied in the June 20, 1974, Order referred to above. With respect to the portion of the Union's motion that seeks authorization to intervene in the contempt proceedings, it has long been established that only the Board has standing to initiate contempt proceed- ings with regard to one of its Orders that has been enforced by a court." In Amalgamated Utility Work- ers, supra, the Supreme Court noted that the Act did not give authority to any private person or organiza- tion to secure enforcement of a Board order, but rather conferred such authority upon the Board alone as an agency acting in the "recognized public interest." Similarly, when charging parties have at- tempted to intervene in contempt proceedings al- ready brought by the Board, the circuit courts have regularly denied such attempts." In Kohler, supra, the 9 Similarly, Sec. 102.49 of the Board's Rules and Regulations and State- ments of Procedure, Series 8, as amended, provides that the Board may modify any findings or order made or issued by it until the transcript of the record is filed in court. 10 See N.L.R.B. v. Mastro Plastics Corp., 261 F.2d 147, 148 (2d Cir. 1958): cf. Flav-O-Rich, Inc. v. N.L.R.B., 531 F.2d 358. 361 (6th Cir. 1976), where the court indicated that, once the record is filed with it, the Board is without jurisdiction to modify an earlier order. Amalgamated Utility Workers, etc. v. Consolidated Edison Compani of New York, 309 U.S. 261. 270 (1940). court explained the general policy in not permitting such intervention in the following terms: "The Board must prevail if there is conflict between it and the union on the extent to which findings of contempt should be sought, the remedy desired, or the legal theories advanced. And the possibility of conflict is the major prop to party status." The above statement is particularly relevant to the instant matter, since the Union has indicated the very reason that it desires to intervene is its disagreement with the theories ad- vanced and the remedies sought by the General Counsel. Upon careful consideration, we have de- termined that the arguments raised by the Union do not warrant the conclusion that the General Counsel will not adequately represent the interests of the af- fected employees in the pending contempt proceed- ing. Moreover, in seeking the Board's permission to allow it to intervene, rather than moving the court of appeals to grant it intervenor status, the Union re- quests relief that is arguably beyond our authority. As noted by the Kohler court, "the Amalgamated holding seems to arise from considerations of public policy, which the Board is not competent to waive." Accordingly, IT IS HEREBY ORDERED that the Union's motion for clarification of the Board's Order and for authoriza- tion to intervene in contempt proceedings be, and it hereby is, denied. 12 Local No 380. International Union, Allied Industrial Workers of Amer- ira, AFI. (C10 [Flambeau Plastics Corp. v N.L.R.B., 79 LRRM 2330. 71 LC 1 13.616 (7th Cir. 1971 ), denying motion to intervene on basis of master's decision in 79 LRRM 2329 (1971); N. LR.B. v. Shurrenda Steaks, Inc., 424 F.2d 192 (O10th Cir. 1970): N.L.R.B. v. Sunshine Mining Co., 125 F.2d 757. 761 (9th Cir. 1942). CI. N.L. R.B v. Kohler Company, 351 F.2d 798, 809 (D.C. Cir. 1965), where the court affirmed a special master's decision deny- ing the charging party's motion to intervene in a contempt proceeding. The court went on to suggest to the special master, however, that, under the particular circumstances of that case, it would be appropriate to permit the union to participate. In doing so, the court indicated that its opinion was "intended to resolve the fundamental questions of policy and law on which Board-Union conflict might arise." and all that remained was an inquiry into [actual questions. 2