Respondents Brief — Longshoremen v. Hoffman (No. 10)

es Oe ee ee v* a ‘ > -_ a

In the AUG 28 1874

Supreme Court of the Wnited

Octoser Term, 1973 —

BOOAK, R_CLERS

No. 73-1813

INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S

Union, Loca No. 10,

Petitioner,

vs.

Roy O. Horrmax, Director, Recion 20, Nationau

Lasor Re.ations Boarp,

Respondent.

No. 73-1924

James R. Muniz and BrorHernoop or TEAMSTERS AND

Avto Truck Drivers Loca No. 70, IptcHwa,

Petitioners,

vs.

Roy O. Horrmayn, Director, Recion 20, Nationau

Lazor Retations Boarp,

Respondent.

On Petitions for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Brief for Respondent, California Newspapers, Inc.,

d/b/a San Rafael Independent Journal,

in Opposition

Natuan R. Berke

One Embarcadero Center

San Francisco, California 94111

Counsel for Respondent

California Newspapers,

Inc.

Severson, Werson, BeRKE

& MELcHIoR

One Embareadero Center

San Francisco, California 94111

Of Counsel

SUBJECT INDEX

Page

Opinions Below 2

Jurisdiction 2

Questions Presented 2

Argument 2

I. The Evidence Demonstrating the Participation

of Petitioner Local 10 3

Il. Th2 Evidence with Respect to the Participation

of Local 70 6

III. Petitioners Had Notice of the Injunctions... &

IV. The Evidence Supports the Finding of Civil

Contempt Against Local 10 7

V. The Injunctions May Not Be Collaterally

Attacked 10

VI. The Injunctions Enjoined the Activities En-

gaged in 10

VII. No Jury Trial Was Mandatory 14

Conclusions ... 16

srititoid

WS) awa

ane <itansh eatias Arta hier Pras We MEG

ss. Reel ee ae

TABLE OF AUTHORITIES CITED

Cases Pages

Adickes vy. S.H. Kress & Co., 39 U.S. 144, 90 S.Ct. 1598

(1970) 14

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886

(1970) 15

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477 (1968) ... 15

Brotherhood of Teamsters & Auto Truck Drivers,

Local No. 70 (Sam-Joe, Inc. d/b/a Smiser Freight

Services), 174 NLRB 98 (1969) 13

Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523

(1966) 14, 15

City of Campbell Mo. v. Arkansas-Missouri Power

Co., 65 F.2d 425 (C.A. 8, 1933) on |

Cliett v. Hammonds, 305 F.2d 565 (C.A. 5, 1962) -...... 8, 10

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88

S.Ct. 14673 (1988) —........... 15

Frank vy. United States, 395 U.S. 147, 89 S.Ct. 1503

(1969) 14, 15

Green v. United States, 356 U.S. 165, 78 S.Ct. 632

(1958) 15, 16

Hoffman v. Local 10, Longshoremen (D.C. No. D.

Calif. 1966) 61 LRRM 2339 .... 13

Holland Furnace Co. v. Schnackenberg, 381 U.S. 924,

85 S.Ct. 1559 15

{

‘

TABLE oF AuTHoritTiEs CITED

iii

Pages

ILWU, Local 10 (Howard Terminal), 147 NLRB 359

ILWU, Local 10, (Johnson Lee, et al), 155 NLRB

1231

ILWU, Local 10 (Matson Navigation Co.), 140 NLRB

GOP mcccicm

In re Jersey City Education Ass’n., 115 N.J. Super.

42, 287 A.2d 206

In the Matter of Local 825, Int’l. Union of Operating

Engineers, Et al, 57 LRRM 2143 (C.A. 3, 1964)

cert den., 379 U.S. 934, 85 S.Ct. 326 a

Int’l Longshvremen’s and Warehousemen’s Union,

Local 10 (Pacifie Maritime Assn. & Milton Moore),

121 NLRB 938 (1958) -..............

Jersey City Education Association Et al v. New Jer-

sey, 404 U.S. 948, 92 S.Ct. 268 (1971)

Johansen v. Longshoremen (California Cartage Co.),

80 LRRM 2521 (DC No. D. Calif. 1972) 20.

McComb v. Jacksonville Paper Co., 336 U.S. 187, 69

S.Ct. 497 (1949)

NLRB v. Brotherhood of Teamsters & Auto Truck

Drivers, Local No. 70, 490 F.2d 87 (C.A. 9, 1973) ....

NLRB vy. Erkkila (DC No. D. Calif. 1958) 42 LRRM

2594

NLRB v. ILWU, Loeal 10, 214 F.2d 778 (C.A. 9, 1954)

NLRB vy. ILWU, Local 10, 283 F.2d 558 (C.A. 9, 1960)

NLEB vy. Int'l Longshoremen’s and Warehousemen’s

Union, Local 10, 210 F.2d 581 (C.A. 9, 1954) 0...

N.L.R.B. v. Radeliffe, 211 F.2d 309 (C.A. 9, 1954),

cert. den. 348 U.S. 833, 75 S.Ct. 56

Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173 (1929) ........

13

13

13

16

16

13

16

13

12

13

13

13

13

13

6

8,9

Bes csiosarcns inne tat hituaaien

lee

iv TaBLE OF AuTHoritTiEs CrreD

Pages

Petition of Curtis, 240 F.Supp. 475, affmd. sub nom

Ford v. Boeger, 362 F.2d 999 (C.A. 9, 1966), cert.

den. 386 U.S. 914, 87 S.Ct. 857, rehearing den. 386

U.S. 978, 87 S.Ct. 1160 10

Schauffler v. Local 1291, Internat’! Longghoremen’s

Assn., 292 F.2d 182 (C.A. 3, 1961) a 8

Schmegmann Bros. Giant Super Markets v. Hoffman-

La Roche, Inc., 221 F.2d 326 (C.A. 5, 1955), cert.

den. 350 U.S. 839, 76 S.Ct. 77 10

State v. Taylor, 353 U.S. 553, 77 S.Ct. 1037 (1957) -..... 14

Teamsters Local 70 (Granny Goose Foods), 195

NLRB No. 102, 79 LRRM 1448 (1972) 13

Teamsters Local 70 (Sam-Jo. Ine.), 197 NLRB No. 46,

80 LRRM 1354 (1972) 13

Teamsters, Local 70 (Sea-Land of Calif.), 197 NLRB

No. 24, 80 LRRM 1300 (1972) 13

United States v. ILWU, Local 10 (DC No. D. Calif.

1971) 78 LRRM 2841 13

United States v. United Mine Workers of America,

330 U.S. 258, 67 S.Ct. 677 (1947) 10

Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct.

1824 (1967) 6, 10

STaTUTEs

F.R. Crim. P. 42(b) 8

Labor Management Relations Act, 1947, as amended:

Section 8(b) (4)(B) 3, 11

Section 10(1) 3

National Labor Relations Act:

$§ 10(j) and 10(1) 17

TABLE oF AuTHORITIES CITED

CONSTITUTION

United States Constitution:

Article ITI, § 2

Sixth Amendment

16

16

id

ae

ORs on en eer

GTR eaters Tee ot RE .

-

Iy THE

Supreme Court of the Wnited States

Octoser Term, 1973

No. 73-1813

INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S

Union, Locau No. 10,

Petitioner,

Vs.

Roy O. Horrman, Director, ReGion 20, NATIONAL

Lasor Revations Boarp,

Respondent.

No. 73-1924

James R. Muniz and BroruHernoup or TEAMSTERS AND

Auto Truck Drivers Locat No. 70, Iptcuwa,

Petitioners,

Vs.

Roy O. Horrmay, Director, Recion 20, NATIONAL

Lasor Retations Boarp,

Respondent.

On Petitions for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Brief for Respondent, California Newspapers, Inc.,

d/b/a San Rafael Independent J ournal,

in Opposition

tuoi OD yeni 8 RRR as LS Ma hal UN cE lu A aR is ads GMELIN

Box ea tah cripicht

2

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 492

F.2d 929. Contrary to the statements in the petitions, the

District Court did render an opinion in the form of de-

tailed findings of fact and conclusions of law. The District

Court on December 24, 1970, entered an order and adjudi-

cation, adjudging Petitioners, among others, in civil con-

tempt and an order and adjudication on the same date ad-

judging Petitioners in No. 73-1924, among others, in crim-

inal contempt as well (R. 1194-1205).

On January 21, 1971, the District Court entered its find-

ings of fact and conclusions of law in the criminal con-

tempt proceeding as supplementary to and in extenso of

its December 24, 1970, order and adjudication in that pro-

ceeding (R. 1249-1262).

_ On January 28, 1971, the District Court having reopened

the civil contempt proceeding to allow Petitioner in No.

73-1813 to introduce additional evidence on its behalf, re-

affirmed its order and adjudication in civil contempt as to

all contemnors and entered its findings of fact and con-

clusions of law (R. 1308-1321).

JURISDICTION

i etna ee

The jurisdictional requisites are set forth in the petitions.

QUESTIONS PRESENTED

We adopt the questions as set forth in the brief in oppo-

sition by Respondent Hoffman.

ARGUMENT

While we join in the argument set forth in the brief in

opposition by Respondent Hoffman, we here discuss some

of the issues as we see them.

3

Based upon the record and the law, we submit there is

no issue presented which raises either a constitutional

question or a conflict between circuits, Neither is an issue

of first impression of an important question of federal law

‘nvolved which requires decision by this Court.

1. The Evidence Demonstrating the Participation of Petitioner

Local 10.

This Petitioner asserts that the evidence relating to it

was “quite insignificant.” On the contrary, the evidence was

such as to warrant the finding by the District Court of this

Petitioner’s active participation in the violations of the ©

injunctions. The evidence showed that the Petitioners in

both cases actively participated with other labor organiza-

tions which were contemnors, in a plan to shut down and

starve out an entire county; to deny the denizens of that

county the daily necessaries of life by preventing trucks

delivering food, food products and other necessaries from

coming into the county; and by picketing trucks making

deliveries and places of business within the county, by

violence, destruction of property, threats and intimidation2

All of such activity was contrary to the’ injunctions issued

pursuant to Section 10(1) of the Labor Management Rela-

tions Act, 1947, as amended?

The Petitioners were acting in furtherance of the Labor

dispute between the San Francisco Typographical Union

Local No. 21 (“Local 21”) and the California Newspapers,

1. That the plan was to shut down all of Marin County by

exerting economic pressure against it, to in turn exert pressure on

the Independent Journal is established in “The President Reports,”

column of the October 1970 edition of the “Typographical Bulle-

tin,” the official journal of Local 21 (Tr. 2303-2304; Pet. Exh. 220).

2. The injunctions were couched in the statutory language of

the secondary boycott provisions of Section 8( b) (4) (B) of the Act

[29 U.S.C. § 158(4) (B)].

a Aa so8 oh NERO E AE ta OL tess,

SS Ba ce

AP + DAO AER Mins Bim et

4

Inc. d/b/a San Rafael Independent Journal (“Independent

Journal”) to boycott the county of Marin in which the

Independent Journal was published.

The testimony of George Johns, secretary-treasurer of

the San Francisco Labor Council revealed that for a period

of months in 1970, representatives of the unions involved,

including Local 10, regularly met at the offices of the Coun-

cil to discuss their support of the strike by Local 21 against

the Independent Journal (Tr. 1886-1890, 1899-1900).

Local 10 actively participated in and jointly sponsored

with the other contemnors, a mass march and rally in San

Rafael on July 25, 1970, in support of the strike against

the Independent Journal. It furnished marchers with trans-

portation by chartering a bus. It furnished free lunches to

the marchers and offered “guaranteed . . . work opportu-

nities for those taking part.” It also periodically made

financial contributions to funds to assist the strike and

picketing activities: On September 2, 1970, about a month

before the activities in violation of the injunction, Local 10

made an authorized contribution in “support of the coming

action by the Labor Support Committee in regards to the

strike” (Tr. 2023, 2234-2238; Pet. Exhs. 166, 169, 182).

Local 10 urged its members to “spread the word of boy-

cotting the scabby Independent-Journal and all their adver-

tisers” (Tr. 2245-2246; Pet. Exh. 174). In October 1970, in

its official publication, “Longshoremen’s Bulletin,” after

referring to the Independent Journal strike and stating “we

must stand behind the strikers,” Local i0 went on to state:

“The AFL-CIO, JLWU, Teamsters, United Farmwork-

_ ers and [sic] Unions are making a joint effort to set

' up formal picket lines outside of Companies that ad-

vertise in the Independent Journal. Any longshore-

man who is willing to help can report to the Marin

Labor Temple ... Remember the next union on strike

5

may be your own. Note: a bus is beina arranged to

transfer all men wishing to go starting Friday, Octo-

ber 16. The bus will leave about 7:00 AM from the dis-

patch hall. How about giving a hand!! (Emphasis

added)

On October 16, 1970, one of the days duging whigh the

injunctions were violated, Local 10 chartered a bus to trans-

port pickets to San Rafael (Tr. 2022, 2250: Pet. Exhs. 180,

181). That day the pickets in San Rafael carried signs with

legends reading “Longshoremen” and “Seamen.” Some of

the signs read “This Longshoreman Supports I.J. Strike.”

These pickets engaged in picketing at both customer and

delivery entrances of various stores and in shopping cen-

ters (R. 545, 563-564, 588; Pet. Exhs. 58, 64, 73-82, 143-145).

Among these pickets carrying a “Longshoreman” sign,

was a picket who wore a button identifying him as a stew-

ard of Local 10 (R. 545, Tr. 1126, 1129-1130). Two pickets

who were served by a deputy United States Marshal with

copies of hoth injunctions while they were on a picket line

at one of the stores which advertised in the Independent

Journal, identified themselves as Local 10 members and ex-

hibited their union cards (Tr. 985, 995-Y87, 1025, R. 716).

On October 16, 1970, during the period involved, in a

strike report to the membership of Local 21, Abrams the

organizer of that union, praised “the ILWU, whose leader-

ship and participation have been absolutely outstanding”

(Tr. 2064).

There was other evidence of the close cooperation in the

October 1970 events between Locai 10 and the other con-

temnors. Petitioner Muniz, president of Local 70, accord-

ing to the records of that union, incurred expenses on be-

half of Local 10, among others, in connection with the

illegal October 1970 activities (Tr. 2026-2028, 2254-2257:

Pet. Exhs. 187A-C, 188).

te eet.

Bi Oia ih yale satel tl

6

ll. The Evidence with Respect to the Participation of Local 70.

As we read the petition of Muniz and Local 70, they

admit having engaged in violations of the Act in October

1970, but in an argument worthy of a semanticist, they

urge that what they did on that occasion was not prohibited

by the injunctions. In view of their admitted participation,

we shall forego reciting the facts as to their role in the

plan to shut down Marin County.

il. Petitioners Had Notice of the Injunctions.

The law is well settled that in a civil or criminal con-

tempt proceeding, knowledge of the injunction involved,

may be established by circumstantial evidence. Walker v.

City of Birmingham, 388 U.S. 307, 312, n. 4 (1967). In the

absence of “direct evidence of knowledge,” the trier of fact

“may find knowledge from circumstantial evidence . . . if

the circumstances are such as to support a reasonable in-

ference.” N.L.R.B. v. Radcliffe, 211 F.2d 309, 315 (C.A. 9,

1954), cert. den. 348 U.S. 833, 75 S.Ct. 56.

The District Court found that knowledge of the injunc-

tions by Local 70 and Muniz, its president, could be inferred

“beyond a reasonable doubt” from the close collaboration

between Muniz and the president of Teamsters Local 85,

which collaboration was constantly evidenced throughout

the entire secondary boycott plan and campaign? As the

District Judge stated when sentencing the contemnors, “it

would be ridiculous to hold that Mr. Muniz, who was presi-

dent of Local 70 and over there on the ground taking an

active part in it in connection with people from the other

3. One of the injunctions ran against Teamsters Local &5.

Neither that Local, its president Richardson, nor San Franciseo

Typographical Union Local No. 21 and its involved officers all of

whom were also found in contempt, have petitioned this Court for

a writ of certiorari.

“ ance

7

labor unions, didn’t know about this order affecting one of

its kindred teamster unions” (Tr. 2728).

There was additional evidence which lends credible sup-

port to the District Court’s finding of knowledge. There

was Local 21’s widespread and repeated publicity given to

the injunctions. There was close cooperation between Local

21 and other unions, including the Petitioners, as we have

pointed out, supra.

IV. The Evidence Supports the Finding of Civil Contempt Against

Local 10.

Local 10 argues that the District Court did not apply the

proper quantum of evidence standard in finding it in civil

contempt. :

The instant case was begun and tried on the basis of the

evidence in the criminal contempt case. The District J udge

found all of the unions except Local 10, were beyond a

reasonable doubt guilty of criminal contempt. Using the

same evidence and such additional evidence as the defense

adduced, he found all of the unions in civil contempt. Thus,

whether “a preponderance of the evidence,” as some courts

have held or “clear and convincing” evidence as some other

courts have held, is the standard, here the evidence which

measured up to beyond a reasonable doubt to find all but

Local 10 in criminal contempt, was the basis for finding

Local 10 in civil contempt. Surely, such evidence is more

4. In their petition (p. 17), Muniz and Local 70, state: “Local

21's dispute with the Independent-Journal cut a broad path. Locals

85, 287 and possibly 10 were the subject of the first injunctive

decree.” [emphasis supplied] At least to Muniz and Local 70, there

was notice and knowledge of one of the injunctions on the part of

Loeal 10.

ie AS OE f

8

than “clear and convincing,” if that is the standard as

urged by Local 10.5

As was said in Cliett v. Hammonds, 305 F.2d 565 (C.A.

5, 1962), where the Court reversed the criminal contempt

proceeding because of non-compliance with F. R. Crim. P.

42(b), the evidence in that aspect of the case being used for

a finding of civil contempt (at 571): “As a finding of civil

contempt, the judgment . . . is fully supported.”

In Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173 (1929)

cited by Local 10, the Court treated of the proof required

in “civil fraud” in a bankruptcy proceeding in which the

bankrupts were found in civil contempt for disobeying

court orders. The judgment was affirmed. In that part of

this Court’s opinion from which Local 10 quotes partially

and out of context, this Court stated (278 U.S. 364):

“With reference to the character or degree of proof

in establishing a civil fraud, the authorities are quite

clear that it need not be beyond reasonable doubt, be-

cause it is a civil proceeding . .. The Court ought not

to issue an order lightly or merely on a preponderance

of the evidence, but only after full deliberation and

satisfactory evidence, with the understanding that it

is rendering a judgment which is only to be set aside

on appeal or some other form of review, or upon a

properly supported petition for rehearing in the same

court.”

In the instant case there is “full deliberation” and more than

“satisfactory evidence.”

5. As was pointed out in Schauffler v. Local 1291, Internat’l

Longshoremen’s Assn., 292 F.2d 182 (C.A. 3, 1961), a case cited

by Local 10, some courts have held that the petitioner in a civil

contempt proceeding must prove a violation of the court’s order

by “more than a mere preponderance of the evidence,” some have

held it must be “a clear preponderance of the evidence,” and others

have indicated that “a degree of certainty is required which leaves

no fair ground of doubt.” Whatever the test, it is more than met

in the instant case.

- —— ionenitiiaien

9

This Court in Oriel v. Russell, swpra, went on to hold

(278 U.S. 366-367) :

“Tn the two cases before us, the contemnors had ample

opportunity in the original hearing to be heard as to the

fact of concealment, and in the motion for the contempt

to show their inability to comply with the turnover

order. They did not succeed in meeting the burden

which was necessarily theirs in each case, and we think,

therefore, that the orders of the Cireuit Court of Ap-

peals in affirming the judgments of the District Court

were the proper ones.”

There remains a comment on one other case cited by

Local 10. City of Campbell Mo. v. Arkansas-Missouri Power

Co., 65 F.2d 425 (C.A. 8, 1933) from which Local 10 pur-

ports to quote from page 428, we are unable to find any

such statement by the Court. Local 10 has apparently taken

separate phrases out of context from two separate para-

graphs and tacked them together to make it appear as if

they read as appears in the quote. The language of the

Court at 428 is as follows:

“When it is doubtful whether a decree of injunction

has been violated, a court is not justified in punishing

for contempt, either criminal or civil, for the reason

that no one can say with any degree of certainty that

the authority of the court needs vindication or that

the aggrieved party is entitled to remedial punish-

ment.®

“*Process of contempt is a severe remedy, and should

not be resorted to where there is fair ground of doubt

as the wrongfulness of the defendant’s conduct’.”

To find civil contempt, the Court in that case said (at

427):

“_..in order to be found guilty of even a civil contempt,

it must appear that the appellants were doing some-

6. The sentence begins at the bottom of 427.

10

thing which constituted a violation of the letter or

spirit of the injunction.”

Here, the evidence is replete with actions by Petitioners

which both violated the letter and the spirit of the injunc-

tions.

V. The Injunctions May Not Be Collaterally Attacked.

It is well established by the decisions of this and other

courts, that the validity of an injunction order which has

been disobeyed is not open in a criminal contempt proceed-

ing to question in the slightest degree. Disobedience con-

stitutes contempt even though such order may be set aside

on appeal. Walker v. City of Birmingham, 388 U.S. 307, 87

S.Ct. 1824 (1967) ; United States v. United Mine Workers

of America, 330 U.S. 258, 67 S.Ct. 677 (1947) ; Cliett v. Ham-

monds, 305 F.2d 565 (C.A. 5, 1962).

Neither may an injunction in a contempt proceeding be

collaterally attacked. Schmegmann Bros. Giant Super Mar-

kets v. Hoffman-La Roche, Inc., 221 F.2d 326 (C.A. 5, 1955),

cert. den. 350 U.S. 839, 76 S.Ct. 77; Petition of Curtis, 240

F.Supp. 475, affmd. sub nom Ford v. Boeger, 362 F.2d 999

(C.A. 8, 1966), cert. den. 386 U.S. 914, 87 S.Ct. 857, rehear-

ing den. 386 U.S. 978, 87 S.Ct. 1160.

Vi. The Injunctions Enjoined the Activities Engaged in.

Petitioners Muniz and Local 70 argue that the injune-

tions did not specifically enjoin the activity in which they

engaged in, i.e., “inducement of employees of suppliers and

delivery drivers.’” The evidence demonstrated that in addi-

tion to such activity, Muniz was present with other pickets

7. Petition in No. 73-1924, pp. 13-15.

1l

at both the customer and loading entrances of a Lucky

store in Fairfax in Marin County. The pickets carried

signs bearing the legends, “San Rafael Unfair To Teams-

ters,” “Unfair to Teamsters.” Muniz told Lucky’s trans-

portation supervisor that he (Muniz) had to back Local 21

and that the pickets would be removed if Lucky removed

its advertisements from the Independent Journal (R. 536).

Among others representing Local 70 in picketing at Lucky’s

and other stores in Marin County were business agent

Nunes, and members William Dawson and John Spratt

(Tr. 301, 386-387, 394-395, 468-471, 481-485, 488, 490-491,

R. 535; Pet’r. Exhs. 7-9, 12-15, 54, 68-70, 85, 121). At another

market, Petrini’s, the Temaster pickets besides carrying

Teamster signs, also distributed handbills of Local 21 eall-

ing for a total boycott of stores advertising in the Inde-

pendent-Journal (R. 552, 569).

Thus, the activities of Muniz and Local 70 were not just

confined to inducement of employees of suppliers and de-

livery drivers, which activity in itself is a secondary boycott

proscribed by Section 8(b)(4)(B)-of the National Labor

Relations Act and which statutory language was spelled

out in the injunctions. Their very presence at the stores

with picket signs and their distribution of Local 21’s hand-

bills calling for a total boycott of those stores, was threat-

ening, coercive and restraining conduct against the stores

and other persons by appealing to consumers not to patron-

ize those stores in violations of the injunctions. It was

secondary boycott activity within the language of the injunc-

tions and of the National Labor Relations Act.

Moreover, Muniz and Local 70 were participants in a

plan and scheme with the other contemnors to impose a

complete boycott on Marin County. Thus, as joint ventures

12

or co-conspirators with the other contemnors, they were

each responsible and liable for the conduct of each other

in putting into effect and carrying out that plan and scheme.

Moreover, this Court in dealing with a decree couched

in the language of the Fair Labor Standards Act, held

that immunity from contempt for violations of the decree

could not be claimed because such violations were not spec-

ifically enjoined. McComb v. Jacksonville Paper Co., 336

US. 187, 69 S.Ct. 497 (1949).

The decree in that case enjoined any practices which

were violations of the Act. It directed the respondents to

obey various provisions of the Act, which were spelled out

in the language of the Act. Commenting on the same position

as advanced here by Local 70, Mr. Justice Douglas, writing

for the majority, stated (69 S.Ct. 500) :

“It 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 en-

joined. Such a rule would give tremendous impetus to

the program of experimentation with disohedience of

the law which we condemned in Maggio v. Zeitz, supra,

333 U.S. at page 69... . The instant case is an excellent

illustration of how it could operate to prevent account-

ability for persistent contumacy. Civil contempt is

avoided 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 en-

forcement goes for naught.”

13

As Mr. Justice Douglas also pointed out (at 500):

“That result not only proclaims the necessity of de-

crees that are not so narrow as to invite easy eva-

ac

\

8. Petitioners are not novices in the field of secondary boycotts

or injunctions. That they do not function in a mileu of naivite

with respect to violations of the National Labor Relations Act and

of injunctions, is attested to by the many cases in which they have

been involved before the National Labor Relations Board and the

Courts. NLRB v. Int’! Longshoremen’s and Warchousemen’s Union,

Local 10, 210 F.2d 581 (C.A. 9, 1954): NLRB v. ILWU, Local 10,

214 F.2d 778 (C.A. 9, 1954); NLRB v. Erkkila (DC No. D. Calif.

1958) 42 LRRM 2594; Int’l. Longshoremen’s and Warehousemen’s

Union, Local 10 (Pacific Maritime Assn. & Milton Moore), 121

NLRB 938 (1958); NLRB v. ILWU, Local 10, 283 F.2d 558 (C.A.

9, 1960); ILWU, Local 10 (Matson Navigation Co.), 140 NLRB

449; ILWU, Local 10 (Howard Terminal), 147 NLRB 359; ILWU,

Local 10, (Johnson Lee, et al), 155 NLRB 1231; Hoffman v. Local

10, Longshoremen (D.C. No. D. Calif. 1966) 61 LRRM 2339 (see.

boycott and 10(1) injunction): United States v. ILWU, Local 10

(DC No. D. Calif. 1971) 78 LRRM 2841 (civil contempt); Johan-

sen v. Longshoremen (California Cartage Co.), 80 LRRM 2521

(DC No. D. Calif. 1972). The latter ease involved violations of

the secondary boycott and hot cargo provisions. An injunction

under section 10(1) was issued. A week after the injunction was

issued, the hot cargo provision was reimplimented under another

contention by Local 10, which resulted in a further court pro-

ceeding broadening the injunction. That situation demonstrates the

wisdom of Mr. Justice Douglas’ statement, supra. Johansen v.

Longshoremen (California Cartage Co.), 80 LRRM 2895.

Hoffman v. Locals 70 and 85. Teamsters (DC No. D. Calif. 1969)

72 LRRM 2353 (see. boycott and 10( 1) injunction) ; Brotherhood

of Teamsters & Auto Truck Drivers, Local No. 70 (Sam-Joe, Inc.

d/b/a Smiser Freight Services), 174 NLRB 98 (1969, see. boycott) ;

Teamsters Local 70 (Granny Goose Foods), 195 NLRB No. 102, 79

LRRM 1448 (1972) ; Teamsters Local 70 (Sam-Jo, Inc.), 197 NLRB

No. 46, 80 LRRM 1354 (1972) ; Teamsters, Local 70 (Sea-Land of

Calif.), 197 NLRB No. 24, 80 LRRM 1300 (1972), in which because

of “a proclivity to violate the Act,” a broad remedial order was

issued, which was enforeed, NLRB v. Brotherhood of Teamsters &

Auto Truck Drivers, Local No. 7 0, 490 F.2d 87 (C.A, 9, 1973).

Phe, an eee ie

a NE RS ee Te

Pee ee

ie oak ee a en cans

14

Vil. No Jury Trial Was Mandatory.

Petitioner Local 70 asserts a right to a jury trial because

a fine in excess of $500 was imposed upon it.®

This Court in Cheff v. Schnackenberg, 384 U.S. 373, 86

S.Ct. 1523 (1966) reiterated that the decisions of this Court

settled the rule that the right to a trial by jury “does not

extend to every criminal proceeding.” It was there held

that since Chef’ received a sentence of six munths imprison-

ment, and since the nature of criminal contempt, an offense

sut generis, does not, of itself warrant treatment otherwise,

that Cheff’s offense can be treated only as “petty” in the

eyes of the statute and this Court’s prior decisions. So

holding, it was concluded that Cheff was properly convicted

without a jury (86 S.Ct. 1526).

Interestingly enough, this Court pointed out in Chef

that the corporation of which Che ff was an officer was fined

$100,000 in the same contempt proceeding and that the cor-

poration’s petition for a writ of certiorari was denied (86

9. While we have undertaken to discuss the jury issue, we

believe that Local 70 has no standing to urge that issue. It did not

raise it in the Court of Appeals. Muniz cannot raise it because

he was neither imprisoned nor fined. He was placed on probation

for a year. Frank v. United States, 395 US. 147, 89 S.Ct. 1503

(1969). In their brief in the Court below, while Muniz and Local

70 state they “join and adopt all of the argument made by counsel

for each of the other Labor Organizations and individuals found

to be in contempt with respect to procedural, substantive and

given [sic] matters,” they state their brief “will dwell only on

matters that are of particular concern to Local 70 and James

Muniz” (Muniz and Local 70 Br., p. 3). No where in that brief do

they diseuss the jury issue. In their petition for rehearing in the

Court of Appeals, they only assert two grounds, (1) notice of

the injunctions and (2) the quantum of proof. Thus, they ap-

parently did not regard the jury issue as of “particular concern”

to them (Muniz and Local 70 Pet. for Rehearing, pp. 1-2).

Petitioners Muniz and Local 70 are in no position to advance such

issue now. Adickes v. S.H. Kress & Co., 39 U.S. 144, 90 S.Ct.

1598 (1970); State v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1039

(1957).

15 “

S.Ct. 1523; Holland Furnace Co. v. Schnackenberg, 381 U.S.

924, 85 S.Ct. 1559.

Recognizing in Chef that by limiting its decision to cases

where a six months sentence was imposed may leave the

lower courts “at sea” in instances involving greater sen-

tences, this Court in the exercise of its supervisory power

and under the peculiar power of the federal courts to re-

vise sentences in contempt cases, ruled further that sen-

tences exceeding six months for criminal contempt may

not be imposed by federal courts absent a jury trial or

waiver thereof.

The fact that review was denied the corporation fined

$100,000 in the same contempt proceeding and the fact that

the court explicitly ruled trial by jury need not be granted

in criminal contempt cases where the sentence is six months

or less and must be granted where the sentence is more than

six months, makes it clear that the amount of the fine does

not determine whether a jury trial shall or shall not be

granted. It is obvious from Chef that this Court’s concern

was with deprivation of liberty and not the monetary pen-

alty.

Subsequent decisions of this Court support our position

on this issue. See, Bloom v. Illinois, 391 U.S. 194, 88 S.Ct.

1477 (1968) ; Dyke v. Taylor Implement M fg. Co., 391 U.S.

216, 88 S.Ct. 1472 (1969); Frank v. United States, 395 U.S.

147, 89 S.Ct. 1503 (1969); Baldwin v. New York, 399 U.S.

66, 90 S.Ct. 1886 (1970). In an earlier decision, not over-

ruled, this Court held that criminal contempts are not sub-

ject to jury trial as a matter of constitutional right. Green

v. United States, 356 U.S. 165, 78 S.Ct. 632, 643 (1958).

Prior to the Chef case, this Court denied review in a

non-jury criminal contempt proceeding in which the econ-

temnor, a union, was fined $15,000 and the union’s business

i ei St NO te AL 9 WES aa NCAR 2 a NA la RN Mi ca aetna

PR Le ARYA A:

16

manager was fined $5000. Jn the Matter of Local 825, Int'l.

Union of Operating Engineers, Et al, 57 LRRM 2143 (C.A.

3, 1964), * cert. den., 379 U.S. 934, 85 S.Ct. 326. See also,

In re Jersey City Education Ass’n., 115 N.J. Super. 42,

287 A.2d 206, in which a fine of $10,000 was levied against

a union in a non-jury criminal contempt proceeding and

which this Court declined to review, sub nom Jersey City

Education Association Et al v. New Jersey, 404 U.S. 948,

92 S.Ct. 268 (1971).

Cheff must, therefore, be read in the light of Green v.

United States, supra and the historical background therein

discussed. So reading Cheff, it must be confined to situa-

tions where imprisonment is involved in criminal contempt

proceedings and not where a fine is imposed. This is so,

unless this Court is prepared to upset “a long and unbroken

line of decisions involving contempts ranging from misbe-

havior in court to disobedience of court orders,” which

“establish beyond peradventure that criminal contempts are

not subject to jury trial as a matter of constitutional right,”

Green v. United States, 356 U.S. 183, 78 S.Ct. 642-643.

CONCLUSIONS

There is no constitutional question involved, nor any

important question of federal law requiring decision by

this Court.

10. Does not appear to be reported in the Federal Reporter.

11. N. 14 of Green, supra, lists the major decisions of this

Court discussing the relationship between criminal contempts and

jury trial, in which it was concluded or assumed that such pro-

ceedings are not subject to trial by jury under either Article ITI,

§ 2, or the Sixth Amendment.

17

In light of the facts and the law, it is submitted that the

petitions for a writ of certiorari should be denied.”

Respectfully submitted,

NaTtHan R, BerKE

25th Floor ‘

One Embarcaderv Cente

‘ San Francisco, California 94111

Counsel for Respondent

California Newspapers,

Inc. d/b/a San Rafael

Independent Journal

‘August 26, 1974. .

12. Muniz and Local 70 assert that “‘the fundamental issue

raised” in their petition “is the extent to which government by

injunction in labor disputes is to be countenanced,” (Pet. p. 27).

This is not an issue for the Court. It is a matter to be addressed, if

anywhere, to Congress. That body has specifically provided, for

injunctions under the National Labor Relations Act [§§ 10(j) and

10(1); 29 U.S.C. 160(j) and (1)]. We are here only concerned

with violations of two injunctions issued under Section 10(1).