National Labor Relations Board v. Fmg Industries Dba Gamco Industries, and Galaxie Universal Corp., Inc.

INTRODUCTION

These proceedings result from the petition of the National Labor Relations Board (Board) to adjudge both FMG Industries, dba GAMCO Industries (FMG), and Galaxie Universal Corp., Inc. (Galaxie) as the successor to FMG, in civil contempt for failing to comply with this court’s decision enforcing a Board order directed at FMG and its successors. We review the Special Master’s conclusion that due process requires that determinations of successorship status be made in the first instance by the Board and not by a court of appeals in contempt proceedings.

FACTS AND PROCEEDINGS

On January 15, 1980, the Miscellaneous Warehousemen, Drivers and Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) was certified as the exclusive bargaining representative for FMG’s shipping and receiving employees, warehousemen and truck drivers, and a unit of the company’s production and maintenance employees. On July 21, 1980, the Board found that FMG was engaged in an unfair labor practice by refusing to negotiate with the Union. We enforced the unheeded Board decision and ordered FMG, “its officers, agents, successors, and…

dissenting:

I would have the court decide the issue whether Galaxie is a “successor” to FMG.

This is an original proceeding in which the Board asks this court to find the accused, Galaxie, in contempt of the court’s May 1, 1981, judgment enforcing a Board order. Our order was directed to FMG and “its officers, agents, successors, and assigns.” The Board first instituted contempt proceedings against FMG. Following sale of FMG’s business to Galaxie and Board investigation, it amended its petition to accuse Galaxie of contempt. The Board chose to take this path, rather than first bringing an administrative action against Galaxie as in Golden State, or seeking leave of the court to conduct supplemental proceedings as in Ozark Hardwood. Here, the Board chose to stand as the accuser and should be treated like any other litigant.

Judicial precedent on the proper function of the court in a contempt proceeding involving an alleged “successor” is scanty and inconclusive. Golden State was not a contempt proceeding; it and Southport' both concerned enforcement of Board orders. The Supreme Court’s only direction regarding contempt proceedings is found in Southport where the court…

820 F.2d 289 125 L.R.R.M. (BNA) 3013 , 106 Lab.Cas. P 12,409 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FMG INDUSTRIES dba Gamco Industries, and Galaxie Universal Corp., Inc., Respondents. No. 81-7180. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 4, 1986. Decided June 17, 1987. Peter Ames Eveleth and Bernard P. Jeweler, Washington, D.C., for petitioner. David Silverman, Encino, Cal., for respondents. On Petition for Adjudication in Civil Contempt and for other Relief. Before TANG, BRUNETTI and LEAVY, Circuit Judges. BRUNETTI, Circuit Judge: INTRODUCTION 1 These proceedings result from the petition of the National Labor Relations Board (Board) to adjudge both FMG Industries, dba GAMCO Industries (FMG), and Galaxie Universal Corp., Inc. (Galaxie) as the successor to FMG, in civil contempt for failing to comply with this court's decision enforcing a Board order directed at FMG and its successors. We review the Special Master's conclusion that due process requires that determinations of successorship status be made in the first instance by the Board and not by a court of appeals in contempt proceedings. FACTS AND PROCEEDINGS 2 On January 15, 1980, the…