Amicus Curiae Brief — Muniz v. Hoffman

TABLE OF CONTENTS;

|. Legislative History and the Statutory Language of

18 U.S.C. §3692 Grant the Right to a Jury Trial

in Contempt Proceedings Arising out of Injunctions

Issued Pursuant to the Taft-Hartley Act. ........... 6

A. History and the Statutory Development of the

Labor Law Demonstrate the Justification for

Selection of the Jury as Fact-Finder in Labor

I 6 one tks cena kauwend caces 6

B. The Enactment of 18 U.S.C. §3692 Affirmed

the Right to a Jury Trial in Labor Contempt

Proceedings Involving Injunctions Arising Under

ek Se hoc eee i cekk bea nss ck 15

C. The Purposes Furthered by 18 U.S.C. § 3692

Require That Persons Accused of Violating a

Taft-Hartley Injunction in the Context of a

Labor Dispute be Entitled to a Trial by a

Sg ee Oe en 19

Il. Petitioner Union was Constitutionally Entitled to

a Jury Trial Because of the Intrinsically Serious

Nature of the Offensive as well as the Severe

Nature of the Punishment Imposed. .............. 27

A. Although All Criminal Contempts May Not Be

intrinsically Serious by Constitutional Standards,

Particular Contempts May Be Deemed Serious

on the Basis of Either the Nature of the Punish-

ment or the Nature of the Offense. ........... 27

B.. The Instant Qffense Consisting of a

ombination- of Workers, is of an Inherently

rious Nature, and Should Have Been Tried

OE eo chk cece sas eandesadaceescucecs 31

C. The $25,000 Fine Imposed on Petitioner

Union Rendered the Offense Serious, and a

Jury Trial Was Therefore Required. . se eeeeneee 38

7

TABLE OF CASES

American Steel Foundaries v. Tri-City Trades Council,

yogi? Bk) eee eee pivenene 13,37

Baldwin v. New York,

SOO US. OB (1GOB) .. ccc ccccchonnee pieces Sis 27, 29, 30,

Bedford Cut Stone Co. v. Journeymen Stone Ass‘n, 32, 37

Eg errr er er rer 27, 30, 35,

Bloom v. Illinois, 36,

Bre MR TU CHMOD b cbc edice cee ceseccsenenecs 7, 23

Boys Market, Inc., v. Retail Clerks Local 770,

Ee ED cA eb boo 00k bese ceceeewes 13

Burdett v. Commonwealth,

103 Va. 838, 48 S.E. 878 (1904)....... WPeeuades 9

Callan v. Wilson,

og 8 err rr ee 28, 31, 33,

Cheff v. Schnackenburg, 36

BE As ED Nab oe We ndeccccceceesecces 27, 30, 38

Codispoti v. Pennsylvania,

es IE A IE ko wo kA 860 6a ECC es 27

District of Columbia v. Clawans,

EE EEE BUMETD Ki ns anv a case sdeceecececes 29 :

District of Columbia v. Colts,

EE er eee 27, 29, 30,

Duncan V. Louisiana, 31, 36

re ey CUE aie we tcccecccccccvesece 27, 29, 31,

Duplex Printing Press Co. v. Deering, 38, 39

eo a 38

Dyke v. Taylor Implement Co.,

ee EE hee Seki cede eset cedscces 27

Frank v. United States,

ee RE EE I 6 6 kc 60.0. 8'044 Ss eawKce Oe 27, 31, 37,

Gompers v. Bucks Stove and Range Co., 38, 39

Ee ME, OEE she daa eane ec ceerecescnas 13, 25, 38

Hoffman v. |.L.W.U., Local 10,

492 F.2d 929, 934 (9th Cir. 1974) .............. 20

In Re Atchinson, _ | 7

MOA E. GH4 CR. Fla 1GRR) oioc cc cece ences 9

In Re Debs,

Se ee re 13, 34, 38

iii

es

In Re Union Nacional de Trabajadores,

GOP F.3d 11D (PanCir. TOPE). ccc cc ccccccces 14, 17, 18, 22,

Loewe v. Lawlor, 25, 26, 38

DEE TOO TU on civccseccsvecseccsasucss 13

Mastro Plastics Corp. v. NLRB,

BART, BOTT oc cccsccccseccccccsccece 20, 23

Michaelson v. United States ex rel. Chicago, St. P. M&O Ry.,

266 U.S. 42 (1924)... 2. eee e cece cree cence 9, 25

Nichols v. Judge of Superior Court,

130 Mich. 187, 89 N.W. 691 (1902) ............. 9

Pernell v. Southall Realty,

ti. Bh 4 errr rrr 28

Schick v. United States,

195 U.S. 65 (1904) ...... POPP Teer CTT Te eee 29

Sinclair Refining Co. v. Atkinson,

EEE, Te CHEE o ec ccc ccc cect escncccenes 23

State v. Dalton,

134 Mo. App. 517, 114 S.W. 1132 (1908) ........ 33

State ex. inf. Crow, Atty. Gen. v. Shepherd,

177 Mo. 205, 76 S.W. 79 (1903) ............66-- 9

Taylor v. Hayes,

~~ & os PPPS TETTTET TTT eT ee 27.

Tinder v. United States,

EE I EES ndccccccccstovsececeeces 15, 19

United States v. Barnett,

SE CIE oinct sieve cncawscccsevccces 35

United States v. R.L. Polk & Co.,

438 F. 2d 377 (Oth Cir. 1971)... cccccccccccces 38

Walton Lunch Co. v. Kearney,

236 Mass. 310, 128 N.E. 429 (1920) ............. 9

TABLE OF STATUTES

Title 18, United States Code (1970 ed), [Act of

June 25, 1948, ch. 645, 62 Stat. 683] ...............

Section 1 [62 Stat. Pekae ee keechawenckeae ys 2, 39

Section 402 (62 Stat. 701] ............ eee eee

Section 3691 [62 Stat. 844] ............0eeeeee

Section 3692 [62 Stat. 844] ............e ee eeee 2, 6, 17, 19,

20, 21

Clayton Anti-Trust Act [Act of October 15, 1914,

Che. SES, DE Ge, TH ok kins ee sec cides cicczcas

Section 22 [28 U.S.C. §389 (1946 ed); 38 Stat.

738; Repealed, Act of June 25, 1948, ch.

CU ihc be ooo ert heck ek ees eke 9

Norris-LaGuardia Act [29 U.S.C. §101 et seg.(1970 ed);

Act of March 23, 1932, ch. 90, 47 Stat. 70] ........... 1

Section 7 [29 U.S.C. §107 (1970), 47 Stat.71...... 11

Section 11 [29 U.S.S. §111 (1946 ed), 47, Stat.

73; Repealed, Act of June 25, 1948, ch. 645,

gt _~ ; gr 11, 12, 14

Section 13(c) [29 U.S.C. §113 (c) (1970 ed);

GE WU TOL Kahne ose n bes h eed idee w ec dewess

National Labor Relations Act (The Wagner Act)

[29 U.S.C. §151 et seg, (1970 ed); Act of June 5,

1935, ch. 372, 49 Stat. 440] ...... ccc cece ccececes 16

Section 10 (h) [29 U.S.C. §160 (h); 49 U.S.C.

ee ee ee Pe ee ee eee 12, 23, 26

Labor-Management Relations Act (The Taft-Hartley

Act) [29 U.S.C. §141 et seq.(1970 ed); Act of June

23, 1947, ch. 120, 61 Stat. ISB] ow. ccc wcrc ccc ccess

Sections [29 U.S.C. § § 158 (b) (1),

158 (b) (4) (1970 ed);61 Stat. J ............. 13

Sections 10 (j), 10 (1) [29 U.S.C. § § 160 (j),

160 (1) (1970 ed);61Stat. J] ................. 13, 24

Section 208 [29 U.S.C. §178 (1970 ed); 61

Pe ree ee, ert re ree 25

Section 301 [29 U.S.C. §185 (1970 ed);

te ee ee ree 25

Labor-Management Reporting and Disclosure Act (The

Landrum-Griffin Act) ] 29 U.S.C. § $401 et seq, (1970

ed); Public Law 86-257. 75 Stat. 519] .............. 18

Section 608 [29 U.S.C. $528 (1970 ed)

pj St eee reer TT eT CEE Tee eT Tre ree 18

v

LEGISLATIVE MATERIAL CITED:

51 CONG. REC. 14369 (1914) (Senate Debate

ee . e

75 CONG. REC. 4507 (1932) (Senate Debate

on the Norris-LaGuardia Act)...................:.

75 CONG. REC. 5515 (1932) (House Debate

on the Norris-LaGuardia Act).................0.-

93 CONG. REC. 4757, 5041, anager (1947)

(Senate Debate on the Taft-Hartley Act) ...........

93 CONG. REC. 5048-5049 (1947) (House

Debate on the Revision of the Criminal Code) .......

103 CONG. REC. 8536-8537, 8648 (1957) (House

Debate on the 1957 Civil Rights Act)..............

105 CONG. REC. 6730 (1959) (Senate Debate

on the Landrum-Griffin Act) .................02.

H.R. REP.No.304, 80th Cong., 1st Sess. (1947) ......

H.R. REP. No. 245, 80th Cong., 1st Sess. (1947)... ..

H.R. REP. No.510, 80th Cong., 1st Sess. (1947) .....

SECONDARY MATERIALS CITED;

BARTOSIC & LANOFF, Escalating the Struggle

Against Taft-Hartley Contemnors, 39 U. CHI.

oF fh Pee ee eee

BONNET, The Origin of the Labor Injunction,

50 SO. CAL. L. Rev, 105 (1931) ...............0.8.

3 COMMONS & GILMORE, DOCUMENTARY

HISTORY OF AMERICAN INDUSTRIAL

fo oe re er. ee ee re

vi

A. COX & D. BOK, LABOR LAW (7th ed. 1969) .......

F. FRANKFURTER & N. GREENE, THE LABOR

INSU TION CISS ci cos cvs atessnevePsawe neces

S. GOMPERS, 4 AMERICAN FEDERATIONIST

UOTE cc dev vended ecascxcesvnsssanvens sass

NELLES, The First American Labor Case,

41 YALE L.J. 165 (1931)... 0.0... eee eee ee eee

NELLES, A Strike.and Its Legal Consequences,

40 YALE L.J. 165 (1931)... ....... ce ee ee ee eee

SAYRE, Criminal Conspiracy, 35 HARV. L. REV.

ER se ee nae ee

C. SWAYZEE, CONTEMPT OF COURT ON LABOR

INJUNCTIONS CASES 100 (1935) .................

” vii

OO ee ere tee es Sere fetes oem em ee ee

SUMMARY

Amicus contends that contemnors who are tried

pursuant to alleged violations of federal labor injunctions,

including those arising out of the Labor-Management Relations

Act (Taft-Hartley Act), 29 U.S.C. §141 et, seq, are entitled to

jury trials. This right to fact-finding by a jury derives from

historical lessons, from the clear statutory language of Section

3692 of Title 18 of the United States Code, and from basic

constitutional protections. ,

During the nineteenth and early twentieth century, the

federal courts had jurisdiction to issue injunctions against

unions involved in labor disputes. The issuance of these

injunctions, and their enforcement through judge-tried

contempts, by-passed the common law right to a trial by

jury in conspiracy cases. The judge made the law, evaluated

the factual evidence, applied his law and sentenced the

defendant. This combination of functions abrogated the

accepted division of legal responsibilities and, by the end of

the 19th century, provoked considerable criticism. Labor

leaders, judges, lawyers, and finally legislators recognized the

divisiveness engendered by these injunctions and their enforce-

ment.

In 1932, Congress enacted the Norris-LaGuardia Act,

29 U.S.C. §101 et. seq., severely limiting the power of the

federal courts to issue injunctions against workers in labor

disputes, and guaranteeing in Section 11 of that statute the

right to a jury in contempt trials arising out of these injunc-

tions. The Labor-Management Relations Act, passed by the

Eightieth Congress in 1947 authorized the federal courts to

issue injunctions in order to enforce findings by the NLRB of

probable unfair labor practices. Employers, rather than pro-

ceeding under the stringent requirements of the Norris-

LaGuardia Act, could rely on the NLRB to seek injunctions

under the laxer standards of the Taft-Hartley Act. Without

| any substantial debate, Congress inadvertently failed to

extend the jury trial right to contempts arising out of these

injunctions.

A

However, in 1948, the same Congress, in revising the

federal criminal code, rectified this omission by its enactment

of 18 U.S.C. 63692. This new statute, in providing for jury

trials in all cases of contempt arising under the laws of the

United States governing the issuance of injunctions in cases

involving labor disputes, makes evident the intent of the

legislators to extend the jury right beyond the cases arising

under the Norris-LaGuardia Act. If interpreted as its plain

words require, Section 3692 clearly extends the jury right to

- contempt cases arising under the Taft-Hartley Act, while not

defeating the purposes of that Act. Nor does such an interpre-

tation conflict with Section 10(h) of the National Labor Rela-

tions Act as incorporated into the Taft-Hartley Act. Exten-

sion of the right to jury trials to Taft-Hartley derived contempt

cases does not limit the equitable jurisdiction of the federal

courts. It merely places fact-finding responsibility in

contempt cases upon jury rather than judge. Section 3692,

therefore, must be interpreted to guarantee the right to jury

trials in contempt cases arising under both the Norris-LaGuardia

and the Taft-Hartley Acts.

In the event that this Court concludes that there is no statu-

tory right to a jury trial, however, the constitutional issue must

still be faced. Petitioners are constitutionally entitled to a

jury trial for two reasons. First, the $25,000 fine imposed

upon petitioner union renders the offense non-petty pursuant

to 18 U.S.C. $1, in which Congress has explicitly drawn a line

between petty and serious offenses. This statute contains no

exception for fines imposed upon unions and should be strictly

construed.

Second, although this Court has indicated that conduct

constituting criminal contempt is not inherently serious, the

possibility remains that particular contemptuous conduct might

he so serious as to require a jury trial. In the instant case,

petitioner’s conduct, consisting of a combination of workers to

impose a boycott, constituted the common law offense of

criminal conspiracy -- an offense which was malum in se and

triable by jury as of right. Even though this common law

regulation of union activities has been supplanted by a compre-

hensive statutory system of regulation, the right to jury trial

still obtains. Whether the proceeding\takes the form of an

ordinary prosecution or a prosecution for contempt, the

underlying, conduct is equally serious. Petitioners therefore

are constitutionally entitled to a jury when tried for con-

tempt of the labor injunction issued in the instant case.

INTRODUCTION

This case arises out of a long and bitter strike encompassing

the entire San Francisco area. In January, 1970, Local 2! of the

International Typographical Union, AF L-CIO, went on strike

against California Newspapers Inc. in Marin County, California.

In attempts to prevent deliveries to the struck employer,

Local 2! established picket lines which ranged over two coun-

ties for a period of four years. Members of at least four other

unions actively and courageously supported the striking union.

Their sympathy for Local 2I’s cause apparently made these

other workers willing to defy their own employers, and sub-

sequently, a federal court order.

Management was similarly committed to its own cause.

Rather than settle the dispute, the newspaper chose to with-

stand a ten month strike.

The factual situation involved in the instant case is typi-

cal of those cases which raise questions concerning labor's right

to a jury trial in contempt proceedings. By their very nature,

charges of contempt, particularly criminal contempt, tend to

arise out of bitter strikes such as this one. Cohtempt trials will

occur when a union and its members fee! so strongly about the

issues involved that they undertake actions which at least argu-

ably violate a Court's order. They will occur when management

or the National Labor Relations Board is willing to risk the years

of bitterness engendered by fines and jail terms imposed upon

unions and their members. Such contempt trials will arise when

the parties are so firmly committed to their positions that for |

a time they are virtually at war.

The instant case and other similar ones are an outgrowth

of the worsening economic conditions in this country. As the

economy has moved into a deeper recession, union members’

real wages have fallen and some workers have lost their jobs en-

tirely. Many companies, faced with increased foreign and do-

mestic competition and with growing uncertainty over their

economic future, have been unwilling to grant wage increases

or have demanded job-cutting efficiency gains. Labor relations,

which appeared calm during the last decade, again have become

turbulent.

During a time of particular economic hardship and devis-

iveness in the field of labor relations, it is particularly incumbent

upon this Court to reaffirm the fundamental rights for which la-

bor fought so hard in the past. The right to a jury trial in con-

tempt proceedings is one of these rights, guaranteed both by the

statutory wording and legislative history of $3692 of Title I8 of

the United States Code, and by the Constitution of the United

States itself.

1. In general, the National Labor Relations Board only infre-

quently brings contempt proceedings. “Until 1964, the peak years

were 1941, 1942, and 1943. In 1941 and 1943, the Board filed

contempt petitions in fifteen and thirteen cases, respectively, and in

1942, eleven cases were decided, five settled and ten were pending

adjudication. The next twenty years were a period of remarkable

inactivity. While unfair labor practice cases and court decrees

continued to increase in number (and there is nothing to indicate

a decrease in the incidence of violation of decrees), the Board filed,

on the average, only three contempt cases per year and none at all

in 1946, 1948, 1949, and 1955. Beginning in 1964, the number of

petitions dramatically increased: fourteen in 1964, twelve in 1965,

—- in 1966, twenty in 1967, twenty in 1968, twenty-three in

1969, twenty in 1970 and seventeen in 1971,’ BARTOSIC &

LANOFF, j i -.

39 U. CHI. L. REV. 255, 257 (1972).

I, LEGISLATIVE HISTORY AND THE STATUTORY

LANGUAGE OF 18 U.S.C. 83692 GRANT THE RIGHT

TO A JURY TRIAL IN CONTEMPT PROCEEDINGS

ARISING OUT OF INJUNCTIONS ISSUED PURSUANT

TO THE TAFT-HARTLEY ACT

A. History and the Statutory Development of the Labor

Law Demonstrate the Justification for Selection of

the Jury as Fact-Finer in Labor Contempt Cases.

Current turbulent labor relations are analagous to the bitter

struggles in this country’s past which led to expanded statutory

protection of the right to jury trials in labor contempt cases.

An understanding of the historical roots of this protection illu-

minate both the purposes of past statutes as well as those pur-

poses furthered today by the statutory provision for a jury trial

in any contempt arising out of a labor injunction issued under

the laws of the United States. 18 U:S.C. §3692 (1970).

1. The Pre-Norris-LaGuardia Act Period

During the nineteenth and early twentieth century, the ef-

forts of workers to gain a greater measure of economic protec-

tion through self-organization and concerted activity met deter-

mined opposition from employers and often, as well, from the

government and the courts.

Among the worst forms of combined apposition to organ-

izing efforts was the indiscriminate issuance and enforcement of

labor injunctions. Any action taken by workers to promote

their interests, including organizing, striking, picketing, handbil-

ling, and speechmaking, often was enjoined by the courts at the

whim of the employer. In their classic study, The Labor Injunc-

tion, Frankfurter and Greene described the abuses which labor

injunctions engendered and the outrage which they provoked

among workers and sympathetic citizens.

2. See grwcally. F. FRANKFURTER & N . GREENE, THE

LABOR INJUNCTION (1930).

In recent decisions, this Court has summarized the use of

injunctions during this early period:

In the early part of this century, the federal .

courts generally were regarded as allies of

management in its attempt to prevent or-

ganization and strengthening of labor unions;

and in this industrial struggle the injunction

became a potent weapon that was wielded

against the activities of labor groups. The

result was a large number of sweeping decrees,

often issued ex parte, drawn on an ad hoc

basis without regard to any systematic elabo-

ation of national labor policy. Boys Market,

inc. v. Retail Clerks Local 770, 398 U.S. 235,

250 (1970).

When workers appeared to violate these injunctions, em-

ployers would rush to court for contempt citations, hoping that

jail sentences or fines would break the strike.” By the end of the

last century, criticism of the arbitrary issuance, and even more

arbitrary enforcement of these injunctions came from all sides.

Critics focused upon the fact that the judge who issued the in-

junction also tried the facts and determined the sentence.

Legal experts such as the President of the American Bar As-

sociation strongly condemned the unfairness of the trial judge

acting as fact-finder in such contempt proceedings.4 Judge

Henry Clay Caldwell, a presiding judge for the Eighth Circuit,

noted in I899:

3. See C. SWAYZEE , CONTEMPT OF COURT IN LABOR

INJUNCTION CASES 100 (1935).

One of the major functions of the injunction-contempt

system was to bypass juries, which, in the last quarter of the

nineteenth century often refused to return convictions in criminal

conspiracy cases ty tye labor disputes. Nevertheless, in

In. ce Debs, 158 U.S. (1895) this rt ruled that this deliber-

ate bypass of trial by jury was constitutional, thereby necessi-

tating a legislative approach.

a F. FRANKFURTER & N. GREENE, supra note 2, at 57

n. 40.

is GREYS a RAE,

. . . iN proceedings for contempt of an al-

leged violation of the [labor] injunction,

the judge is the lawmaker, the injured par-

ty, the prosecutor, the judge and the jury.

It is not surprising that uniting in himself

all these characters, he is commonly able

to obtain a conviction. i

dury, 33 Am.L.Rev., 321, 327 (1899).

Similarly, American Federation of Labor leader Samuel Gom-

pers said that criminal contempt charges were worse than the

old labor conspiracy charges, for the contempts were not tried

by a jury, but rather were a “‘purely personal trial by a judge,

a jeopardy depending on his peculiar notion of the fractured

dignity of his court and his sympathy with one or the other

of the parties at issue.’’5

Legislators at the time were especially concerned that con-

tempt trials by judges were undercutting the legitimacy of the

courts. Judge Clark of North Carolina was asked by the Commis-

sion on Industrial Relations in 1915 whether such trials by the

judge had been “one of the causes of social unrest in the United

States?” He answered, “’Yes,sir; and undoubtedly will be more so, .

unless it is remedied.” F. Frankfurter & N. Greene, supra at 57.

Senator Walsh of Montana suggested that requiring juries in such

contempt cases would strengthen the hand of the courts:

An injunction has issued in an industrial

dispute. It is charged that it has been vio-

lated. If the judge himself assumes to de-

termine whether it has been or has not been,

he can scarcely hope to make a decision that

will not subject him to the charges if he finds

the prisoner guilty, of subserviency to the

capitalistic interests of hostility to organized

labor, or if he shall acquit, to the pusillani-

mity of the ambition of the demagogue. In

either case his court suffers in the estimation

of no inconsiderable body of citizens. How

5. 4 AMERICAN FEDERATIONIST (1897).

much wiser it would be to call in a jury to

resolve the simple question of fact as to whe-

ther the defendant did or did not violate the

injunction?. .. Their verdict would silence

caviling and strengthen in the minds of the

people the conviction that the courts are in-

deed the dispensers of justice and not engines

of oppression. 5! Cong. Reg. 14369 (1914)

(Senate debate on Clayton Act)

Therefore, beginning in 1896, legislators at both the na-

tional and state levels introduced bills guaranteeing the right to

a jury trial where contempt of a labor injunction was charged.

Frequently, when states passed these bills, the courts would

declare them unconstitutional or unwarranted intrusions by

the legislature into inherent judicial power. See, Nichols.v.

Judge of Superior Court, 130 Mich. 187, 89 N W .691 (1902):

. State ex inf, Crow, Atty. Gen. v, Shepherd, 177 Mo. 205, 76

S.W. 79 (1903); Burdett v. Commonwealth, 103 Va. 838, 48

S.E. 878 (1904); Walton Lunch Co, v, Kearney, 236 Mass.

310, 128 N.E. 429 (1920).

In Section 22 of the Clayton Anti-Trust Act of 1914, 38 Stat.

738 (recodified in 1948 to I8 U.S.C. 884402, 3691), Congress pro-

vided the first federal guarantee of the right to a jury trial in cer-

tain contempt cases arising out of labor injunctions. Specifically

in those cases, where an offense was both a criminal offense

and a violation of an injunction, the accused had a right to a

trial by a jury of his peers if he were tried for contempt of the

injunction.

Two lower federal courts declared even this limited reform

unconstitutional. Michaelson y..United States ex rel, Chicago,

StP..M&Q. Ry,, 291 F.940 (7th Cir. 1923); In re Atchison, 284

F.604 (S.D. Fla. 1922).

2. The Norris-LaGuardia Act

In enacting the Norris-LaGuardia Act, 29 U.S.C. $10! et seq. in

1932 (originally enacted as Act of March 23, 1932, ch. 90, 47

Stat. 70), Congress recognized the severe need for major reforms

in the area of labor injunctions and resulting contempt proceed-

ings. In the House, Representative Schneider described these

results of bench trials for labor contempts:

The judge whose order or decree had been vio-

lated, if in fact it had been violated. . .became

the prosecuting officer, the jury and the judge

all rolled up in one.

He was the complainant, he was the prose-

cutor, he judged the facts without a jury, con-

victed the accused and sentenced him to jail

for contempt of court. And these judges,

setting at naught the most precious rights

which ages of progress and struggle had made

the heritage of all, expected the people to have

anything but contempt for them and their

orders. 75 Cong. Rec. 5515 (1932) (House

debate on the Norris-LaGuardia Act).

Senator Norris, the sponsor of the Act, set forth even more

graphically the need for a jury trial in contempts arising out of

labor injunctions:

And suppose one of these defendants diso-

beyed this injunction? He would not be vio-

lating any State law! He would only be doing

what every human being has a right to do! No

statute of any State or the Federal Government

would preclude him from giving full publicity

to all of the facts. But, under this judge-made

law, a new statute was put in force-not by the

legislature of the State, not by anyone having

authority to enact a statute, but by the judge

sitting on the Federal bench. rete

And let us suppose, too, that for a violation

of this order, one of the defendants was arrested.

Where would he be tried? Would it be in the

courts of the State where the offense is alleged

to have been committed? No. It would be be-

fore the same judge who made the law. The

judge who, acting as a legislator, made the law

.... In such a case the defendant would have

committed a crime as defined by this arbitrary

law in the shape of an injunction--not a crime

under any Federal law, but a crime made so by an

arbitrary order of a judge, who is not supposed,

under our Constitution and laws, to have any

legislative authority. And if, when he was arres-

ted, there was a dispute as to whether he has

violated the order of the judge and thus commit-

ted a crime, would he have the right to law his

case before a jury of his peers? Would the consti-

tution and the laws of the State where the alleged

offense was committed control in such a trial?

No. No jury could sit in that case. Who would

be the jury? The answer is, the same person who

fixes the penalty. 75 Cong. Rec. 4507 (1932)

(Senate debate on the Norris LaGuardia Act)

The new legislation provided that no federal court had juris-

diction to issue an injunction in any case involving or growing out

of a labor dispute,” unless the employer met certain precise sub-

stantive standards enumerated in the Act. See 29 U.S.C. SI0I et

seq. Even where these standards were met, the federal court could

grant injunctive relief only if it fulfilled numerous procedural

safeguards designed to protect the rights of unions and workers. 7

At the time, any injunction issued by a federal court in a case in-

volving a labor dispute had to fulfill these substantive and proce-

dural requirements.

Recognizing the past history of contempt trials in labor cases,

Congress specifically provided in Section II for a trial by jury in any

contempt” proceeding arising under the new Act. [29 U.S.C.

\

6. “Labor dispute” was defined broadly to cover almost any

type of labor-management controversy. 29 U.S.C. § 113 (c)

(1970) (originally enacted as Act of March 23, 1932, Ch. 90,

$ 13, 47 Stat. 70).

7. E.g. , 29 U.S.C. § 107 requires a hearing on notice in open

court with the opportunity for defendants bothto cross-examine

es en against them and to present testimony in their own

alf.

8. Section 11 had two exceptions to this jury trial requirement:

“Provided, That this right shall nor apply to contempts committed

in the presence of the court or so near thereto as to interfere directly

with the administration of justice or to apply to the misbehavior

misconduct, or disobedience of any officer of the court in respect

> > — orders, or processes of the court.’’ Ch. 90, § 11,

tat. 73.

Sill (1946 ed.); Act of March 23, 1932, ch. 90, $li, 47 Stat. 73]

In enacting this provision, Congress intended to avoid both the

unfairness and the appearance of unfairness of bench trials for

labor contempts. The legislators embodied in Section || of the

Norris-LaGuardia Act an historic restoration of the protection

which labor had enjoyed before criminal conspiracy prosecutions

had been replaced by injunctions and summary contempt: in

all. cases where the federal courts could issue labor injunctions,

an soqeed contemnor was entitled to a trial by a jury of his

peers.

3. The National Labor Relations Act

In 1935, Congress enacted the National Labor Relations Act

(NLRA or the Wagner Act, 29 U.S.C. $151 et. seq.,49 Stat. 499)

guaranteeing to workers the right to join unions, to strike and to

engage in certain other protected activity. The new Act outlawed

five specific ‘unfair labor practices’ by employers, and established

the National Labor Relations Board (NLRB) which was to enforce

the Act by seeking court orders enforcing its decisions in the

United States Courts of Appeals. Section |0(h) of the NLRA

granted the Courts of Appeals equitable jurisdiction to enforce

the NL.AB’ s decisions and provided that in the exercise of this

function “the jurisdiction of courts sitting in equity shall not be

limited by [the provisions of the Norris-LaGuardia Act] .”” 29

U.S.C. s160(h).

While Section 10(h) prevented the application of the Norris-

LaGuardia Act to Board orders issued on behalf of workers, it

had no effect on the availability of injunctions against workers.

Thus, the historic gain embodied in Section II of the Norris-

LaGuardia Act was unaffected by the new Section !0(h) or by

any other provision of the new NLRA. As had been true before,

in all cases in which federal injunctions were issued against wor-

kers, those accused of contempt had the right to a trial by a jury

of their peers.

9. With the exceptions cited in note 8 supra.

4. The Taft-Hartley Act

In the 1947 Labor-Management Relations Act (Taft-Hartley

Act), 29 U.S.C. $141 et seq., 61 Stat. 136, the Eightieth Congress

once again expanded the jurisdiction of the federal courts to

allow them to issue injunctions against workers in labor disputes.

This Act authorized federal injunctions in many of the situa-

tions in\which employers had obtained them prior to the Nor-

ris-LaGuardia Act.

For example, in the pre-Norris-LaGuardia period, the United

States government sought and obtained federal injunctions against

strikes which purportedly threatened the public health and safety.

See, e.g., In re Debs, 58 U.S. 564 (1895). Under Sections 206

through 210 of the new Taft-Hartley Act, 29 U.S.C. §$176-180,

the Government again could seek injunctions against strikes

which purportedly threatened the natiorral health and safety.

Similarly, in the pre-Norris-LaGuardia period, many of the

most important injunction and contempt proceedings involved

federal court attempts to halt secondary boycotts. See, e.g.,

Gompers v, Bucks Stove and Range Co., 221 U.S. 418 (I9II);

Loewe v, Lawlor (Danbury Hatters), 208 U.S. 274 (1908); and

Bedford Cut Stone Co. v. Journeymen Stone Cutters Ass’n.,

274 US. 37 (1927). Under Sections 8(b)(4) and 10(1) of the

new Taft-Hartley Act, the National Labor Relations Board was

required to seek injunctions against such secondary boycotts.

29 U.S.C. $8158(b) (4), 160(1).

Finally, as one more example, in the pre-Norris-LaGuardia

era employers sought and obtained injunctions against mass pick-

eting. See, e.g., American Steel Foundaries v. Tri-City Trades

Council, 257 U.S. 184 (1921). Under Sections 8(b)(I) and 10(j)

of the new Act, the NLRB was authorized to do the same. 29

U.S.C. $§158 (b)(1), 160(j).

In view of these newly broadened powers of the federal

courts to issue injunctions against workers involved in labor dis-

putes, employers no longer had to seek injunctions themselves

under the stringent provisions of the Norris-LaGuardia Act. Ra-

ther, they could file unfair labor practice charges with the NLRE

and rely on the Board to seek the injunction for them under

the more lax standards of the Taft-Hartley Act. As the United

States Court of Appeals for the First Circuit noted, with these

new Taft-Hartley injunctions, the Norris-LaGuardia injunction

became an “‘obsolescing kind of injunction.” In re Union

Nacional de Trabaiadores 502 F. 2d. 113,119 (1st Cir. 1974)

For a year, from 1947 until 1948, there was no general

statutory right to a jury trial in contempt proceedings arising

out of these new labor injunctions. Section 11 of the Norris-

LaGuardia Act by its terms provided for a right to a jury trial

. Only for casea arising under that Act. 29 U.S.S.8111 (1946ed.).

47 Stat. 72, § 11.

Such an historic limitation of the right to a jury trial

was not intended by the Eightieth Congress. With the broad

new range of available injunctions, failure to provide for such

a jury right created grave dangers for the rights of the accused

and for the legitimacy of the courts. However, none of the

Committee reports on the Taft-Hartley bill suggests that the

legislators intended to re-establish bench trials in contempts

arising under the new form of injunctions.10 in their exten-

sive comments upon. the bills, neither Senator Taft nor Rep-

resentative Hartley suggested any such change. Those friends

of labor who opposed the bill also did not understand it to

deprive accused contemnors of this hard-won right. 11

Section 10(h) of the new Taft-Hartley Act of course

provided that “the jurisdiction of courts sitting in equity

shall not be limited by [ the provisions of the Norris-LaGuardia

Act]. 29 U.S. C. § 160(h). This section12, however, was

simply re-enacted from the 1935 N.L.R.A., and was seen as

a routine provision which merely granted the Courts of

Appeals jurisdiction to enforce Board orders. See, e.q.,

H.R. REP. No. 510, 80th Cong., 1st Sess. 57 (1947), and

see infra, at page 23. No one in the 1947 Congress sug-

gested that Section 10(h) deprived labor of its right to

a jury trial in contempts arising out of the new Taft-Hart-

ley injunctions.

10. See H.R. REP. No. 245, 80th Cong., 1st Sess. (1947);

H.R. REP. No. 510, 80th Cong., 1st Sess. 947).

11. Even the unsuccessful Ball amendment to the Labor-

Ma Relations Act, which if passed would have granted

juri iction to the federal courts to issue in Siee ivy wad on

ition of private employers, reeange ope gE ar-

antee for contempt prosecutions. See 93 CONG. R C 4757 91947)

(Text of Ball Amendment. &. 1126); 93 CONG. REC.

2. See page 23 , infra. for a complete discussion of Section

t0(h) and its S offect on labor’s jury trial right in a.

arising out of labor injunctions.

In short, the Eightieth Congress recreated a vast range

of federal injunctions while inadvertently failing to provide

for jury trials in contempt proceedings deriving from them.

There is no other explanation for the thunderous Congres-

sional silence: how could an importantright occupying pages

of debate only a few years before suddeni¢ be waived with-

out any substantial debate?

B. The Enactment of F8 U.S.C. 6 3692 Affirmed the

Right to a Jury Trial in Labor Contempt Pro-

ceedings Involving Injunctions Arising Under the

Taft-Hartley Act.

The Eightieth Congress quickly corrected its inadvertent

omission of the jury trial protection in labor contempt pro-

ceedings. In 1948, Congress substantially overhauled and

modernized the federal criminal law. Act of June 25, 1948,

ch. 645, 62 Stat. 683; see H.R. REP. No. 304. 80th Cong.,

1st Sess. (1947). Representative Robison, who submitted

the House Judiciary Committee Report, described the pur-

pose of the act:

[T] his bill [H.R. 3190] differs from the five

codification bills which have preceded it on

this calendar in that it constitutes a revision

as well as a codification, of the federal laws

relating to crimes and criminal procedure.

93 CONG. REC. 5048-5049 (1947) (House

debate on the revision of the criminal

code) (emphasis added)

‘As this Court has recognized, the 1948 Act was a “compre-

hensive revision” of the federal code. 13 Tinder vy. United

States, 345 U.S. 565, 569 (1953). The new Title 18 included

broad changes in the punishments specified for federal crimes.

See H.R. REP. No. 304, 80th Cong., 1st Sess. 2 (1947), and

13. The Bill was entitled H.R. 3190, “A Bill to Revise,

Codify and Enact into Positive Law, Title 18 of the United

States Code, Entitled ‘Crimes and Criminal Procedure,’”

-15-

included important changes in criminal procedure. H.R. REP.

No. 304, supra, at 8. The bill was intended to clarify the old

law and to reconcile apparently conflicting provisions. 14

One of the more important provisions of the new Title

18 was section 3692. This section replaced the old Section 11

of the Norris-LaGuardia Act [previously 29 U.S.C. § 111

(1946) and eliminated the explicit limitation of the jury right

to cases arising under the Norris-LaGuardia Act. Prior to

1947, the Norris-LaGuardia Act was the only statute which

granted the federal courts jurisdiction to issue injunctions in

situations involving labor disputes, and therefore the only sta-

tute under which contempt cases involving employees might

arise. Until the Taft-Hartley Act was passed, Section 11 of

the Norris-LaGuardia Act had effectively guaranteed workers

the right to a jury trial in all contempt cases arising out of in-

junctions granted in labor disputes. The Taft-Hartley Act,

while neglecting specifically to guarantee jury trials in contempt

cases, did provide for the issuance of injunctions in cases in-

volving labor disputes15 in which certain kinds of prohibi-

ted practices allegedly occurred. 16

The new Section 3692 was much broader than Section

11 of the Norris-LaGuardia Act, providing a jury right for

14. The House Report states that ‘Revision, as distinguished

from codification, meant...[inter alia] reconciliation of con-

flicting laws....“’ H.R. REP. No. 304, supra, at 2.

PO By Taft-Hartley Act broadly defined “labor dispute” to

i :

-..any controversy concerning the terms, tenure,

or conditions of employment, or concerning

the association of representation of persons in

negotiating, fixing, maintaining, changing or

seeking to terms or conditions of em:

ployment, regardless of whether the disputants stand

in proxingte elation of employer and employee.

29 U.S.C. § 152 (9) (emphasis added).

With the exception of the insertion of word “tenure,” this is the same

definition as appeared in Section 13 (c) of the Norris-LaGuardia Act,

29 U.S.C. $ 113(c) (1970 ed.), 47 Stat. 73 (1932).

16. For the most part, Taft-Hartley injunctions issue in situa-

tions involving alleged “unfair labor practices.” For example, under

Section 10(j) and 10(I) of the Act, a United States District Court

may enjoin, pending a Board hearing, conduct which purportedly

constitutes an unfair labor practice.

oo

any contempt arising out of injunctions granted pursuant to

federal laws in cases involving labor disputes: f

In all cases of contempt arising under the °

Jaws of the United States governing the is-

suance of injunctions or restraining orders in

f a labor

dispute, the accused shall enjoy the right to a

speedy and public trial by an impartial jury of

the State and district wherein the contempt shall

have been committed. 18 U.S.C. § 3692

(emphasis added)

As the United States Court of Appeals for the First Circuit

stated, Section 3692 “‘is...not an ordinary Statute, but one

infused with a national policy arrived at after a painful

and lengthy period of strike and debate.’ In re Union

Nacional de Trabajadores, 502 F.2d 113, I18 (Ist Cir. 1974)

In the 1948 Congressional debates and reports con-

cerning the new Section 3692, there was no specific mention

of the evident intent of the legislators to broaden the jury

trial right to include contempt cases arising out of Taft-

Hartley injunctions.17 This is not surprising however,

given the language of the section. By referring in the

plural to “laws” governing these injunctions, Section 3692

makes clear the legislative intent to extend the jury trial

right to contempt cases arising out of Taft-Hartley injunc-

tions. This section merely reaffirmed the jury trial right

of workers and labor organizers which had previously

existed under the Norris-LaGuardia Act.

Such alleged unfair labor practices arise out of labor disputes

and the labor disputes do not cease upon the filing of an unfair ‘

labor practice charge. The instant case, for example, arose out of

a labor dispute between Typographers Local 21 and California News-

papers, Inc. The labor dispute, which eventually involved four

other unions, did not cease when the U.S. District Judge issued an

injunction because of alleged unfair labor practices.

In providing for the issuance of injunctions in such cases,

the Taft-Hartley Act is a law of the United States governing

the issuance of injunctions in cases growing out of labor disputes.

17. Since 1948, members of both the Senate and House Judic-

iary Committees have made clear that Section 3692 was in fact ,

intended to insure that the jury trial protection was extended to

Furthermore, Section 3692 was passed in the context of

. abroad legislative mandate to enact new, positive law. The

explicit provision for jury trials in contempt proceedings

deriving from injunctions arising out of the laws of the

United States governing labor injunctions reflects this

broad mandate. Congress thus made clear its intention to

provide “the same jury trial requirement as had previously

attached to Norris-LaGuardia proceedings.” In re Union

Nacional de Trabajadores, 502 F.2d 113, 119 (1st Cir. 1974)

« The burden is upon the Respondent here to demon-

strate that Congress intended to exclude Taft-Hartley

injunctions from the protections of Section 3692. As

(Landrum-Griffin Act), 29 U.S.C.

73 Stat. 541 § 608, providing for a jury trial in all cases of

...this amendment which | offer...merel

provides for trials in criminal contempt

cases. In way it would harmonize

with the pattern of law which oT Erereled

e

in labor controversies since 1914,

6 | Act

| the of ig 10 make

aon aoe

affect pce _ REC. P39 (1959)

on the Landrum-Griffin Act

, (emphasis added).

Similarly, in the debates over the 1957 Civil Rights Act, Rep-

resentative Smith of Virginia, who had been a member of the House

Judiciary Committee which had overseen the 1948 revision of Title

18 and the enactment of 18 U.S.C. § 3692, argued persuasively that

the _ to a jury trial had been extended to injunctions under the

Taft-Hartley Representative Smith stated that the waiver pro-

vision in the Taft-Hartley Act did not supersede Section 11 of the

Norris-LaGuardia Act and that regardless of any rent conflict

created by the enactment of Taft-Hartley, “in 1948 the Congress

...enacted Title 18 pet ng law...[and] simply transferred

(Norris-LaGuardia Act $ 11, 29 U.S.C. $111 (1946)] and broad:

ened it.” 103 CONG. REC. 8536 (1957). See also the further

statements of R ive Smith at 103 CONG.REC. 8536-

8537, 8684 ( 1957).

-18-

this Court has noted, the words of Title 18 enacted by

the 1948 Act were not chosen lightly. Since there is no

evidence of such a limited purpose, Section 3692 should

be construed according to the broad meaning of its unam-

biguous language and should be held to provide the right

to a jury trial to the Petitioners in this case. 18

C. The Purposes Furthered By 18 U.S.C. § 3692

Require That Persons Accused Of Violating A

Taft-Hartley Injunction In The Context Of A

Labor Dispute Be Entitled to A Trial By A

Jury Of Their Peers.

1. The Purposes of 18 U.S.C. 83692 and of

The Taft-Hartley Act May be Accommodated.

As discussed above, Section 3692 emerged from a painful

fifty-year debate over the provision of jury trials in contempts

arising out of labor injunctions. Congressmen, Senators, and

others repeatedly stressed two overriding purposes for such

protection. First, it was inherently unfair to workers to have °

the judge who issued the injunction try the contempt case,

since in the contempt trial the judge, whose background and

personal sympathies were most likely to be with employers,

became the lawmaker, injured party, prosecutor, jury, and

judge. Second, regardless of how fair the judge-tried contempt

could be in fact, it appeared unfair to workers and undercut

the legitimacy of the federal courts and their orders. 19

These two concerns, which are apparent throughout the

fifty-year debate, were valid in 1948 and are valid in 1974.

In both years, hundreds of thousands of workers were en-

gaged in strikes. In both years, employers sought and obtain-

18. Respondent a technical limitation of Section 3692

to cases arising under the Norris-LaGuardia Act. As this Court has

r ized in discussing another provision of the 1948 Act, “A

highly technical distinction of this sort, which could easily have

been spelled out, cannot be imposed on general words....“’ Tj

j , 345 U.S. 565, 569-570 (1953).

19. See pages 8 ff. supra

ed NLRB assistance in securing injunctions against certain

prohibited practices. And in the most bitter strikes in both

» years, these injunctions were violated and the violaters were

tried for civil and criminal contempts.20

In these contempt trials, it made little difference that

the Board, rather than the employer, had sought the injunc-

tion. Because the Taft-Hartley Act clearly provided that only

federal judges could issue injunctions and restraining orders

requested by the Board, all of the dangers of judge-tried con-

tempts were again present. It still was the judge’s order which

had been violated, and his dignity and authority which had

been challenged. Again he was the lawmaker, prosecutor,

jury, and judge. And if that judge imposed contempt penal-

ties, his verdict still would appear unfair to the accused,

In ruling on the instant case, neither the Ninth Cir-

cuit nor the district court considered the policies which

Section 3692 seeks to further. Both ignored this Court’s

admonition in Mastro Plastics Corp, v NLRB, 350 U.S. 270.

285 (1956), to consider the purposes of the respective stat-

utes; both based their decisions primarily upon narrow and

technical readings of the words of Section 3692.21 The Ninth

Circuit's only analysis of the statutofy purposes consisted of

the following two sentences:

20. See pages 6-7 supra.

21. Even if one limits consideration to the words of Section

3692, the Ninth Circuit’s decision is unpersuasive. That court

held that the Taft-Hartiey Act was included in “the laws of the

pee i i = a a f iy Sepute”"”

n case or growi a e.

. 492 Fo 2d , 934 (9th Cir. 1974).

the issuance of injunctions and restraining orders in labor

The purposes of the Norris-LaGuardia Act to

limit and restrict the equitable powers of the

courts to intervene in labor disputes between

private employers and unions are not the same

as the powers involved in the administrative

scheme of the Labor-Management Relations Act

and its amendments. There is no reason to be-

lieve that Congress intended its grant of equitable

powers to district courts as embodied in section

10(1) of the Act, 29 U.S.C. $160 (I), to be re-

pealed by the recodification of Section 11 of the

Norris-LaGuardia Act, 29 U.S.C. $111, into 18

U.S.C. $3692. [Citations omitted.] Hoffman

, 492 F.2d 929, 934,

(9th Cir. 1974)

Of course, as the Hoffman court stated, the purposes of

the Taft-Hartley Act differ from those of the Norris-LaGuardia

Act. But this general assertion provides no analysis of whether

the reasons for having jury trial protections for violations of

Taft-Hartley injunctions are analagous to the reasons for hav-

ing such protections in Norris-LaGuardia situations.

Moreover, despite the Hoffman court's casual assertion to

the contrary, there is considerable “reason to believe” that

Congress intended Section 3692 to apply to Taft-Hartley in-

junctions.22 Section 3692 does not “repeal the equitable pow-

ers given to the District Court by Section 10(I) of the Act,”

but rather gives the accused contemnor the option of having

a jury participate in the fact-finding process in those bitterly

divided situations where contempt proceedings are instituted.

The District Courts retain jurisdictién both to issue labor in-

junctions (which is all that Section 10(j) and 10(1) of the Taft-

Hartley Act intended)23 and to punish contempts after the

fact-finding process is concluded.

22. See page 16 ff. supra.

23. See pages 24-25 infra.

By authorizing juries in the few cases where contempts

arise under the Taft-Hartley Act, Section 3692 does not de-

feat the purpose of the Act. The Board, the expert federal

agency, still determines when to seek preliminary injunctions

and when unfair labor practices have been committed. In con-

trast, the federal jury is asked only to determine “whether

individuals or groups did in fact disobey, with requisite know-

ledge and intent, a court order so as to impose criminal sanc-

tions. The fact situations and evidence involved in such deter-

minations are ordinary grist for the judgment of juries.’ In

re Union Nacional de Trabaiadores, 502 F.2d. 113, 119 (1st

Cir. 1974).

Thus, the application of Section 3692 to Taft-Hartley

injunctions will not frustrate the purposes of the Taft-Hartley

Act. However, the failure to apply Section 3692 to Taft-Hartley

contempt situations will frustrate the pusposes of Section

3692. Such a construction of Section 3692 would limit the

right to a jury trial to contempts arising from a narrow range

of injunctions in labor disputes., i,e., to those arising under

the Norris-LaGuardia Act. Since the vast majority of injunc-

tions in labor disputes today arise under the Taft-Hartley Act24

this narrow construction of Section 3692 would in effect

confine the right to a jury trial to the fringes of national labor

policy. At the core of national labor policy, all of the evils

of judge-tried contempts would arise again. As the First Cir-

cuit held in a case arising under Section 10(j) of the Taft-

Hartley Act:

...while jury participation seems as appropriate

as ever in criminal contempt proceedings repos-

ing sole dispositive power in the judge who grant-

ed the injunction at the request of the Board,

would be asked to mete out punishment if he

finds that his order has been deliberately flouted.

Appropriateness is not enhanced by the judge

predetermining, before the extent or serious -

ness of the disobedience can be fully known, the

maximum fines or sentences to be imposed in

order to decide whether a jury trial is mandated

by the constitution. In re Union Nacional de

Trabajadores, 502 F.2d 113, 120 (1st Cir. 1974).

24. See page 13 supra.

-22-

This Court repeatedly has held that even apparently incon-

sistent labor statutes should be construed to provide the fullest

realization of the purposes of each statute. See Mastro Plastics

Corp. v. NLRB, 350 U.S. 270 (1956); Boys Market v. Retail Clerks

Local 770, 398 U.S. 235, (1970). As Mr. Justice Brennan stated

in a dissent which became the majority in Boys Market :

...the two provisions do coexist, and it is clear

that they apply to the case before us in appar-

ently conflicting senses. Our duty, therefore, is

to seek out that accommodation of the two which

will ee Oe mane Pere Orueet to the central

purposes of both.

$0n,370 U.S. 195, 216 (1962

In this case, Section 3692 has two important and fundamen-

tal purposes: preserving fairness for accused and legitimacy for

the courts. In these turbulent times, the Court should further

both purposes by ensuring that the jury trial for labor con-

tempts remains at the center of national labor policy. As its

plain words intended, Section 3692 should guarantee to the

Petitioners in thise case, and to all accused of violating Taft-

Hartley injunctions which arise out of labor disputes, the

historic right to a trial by a jury of their peers.

2. Section 10(h) of the Taft-Hartley Act Does Not

Conflict with Granting Accused Contemnors a

Right to a Jury Trial.

In [n.re Union Nacional de Trabajadores, 502 F.2d 113

(1st Cir. 1974), the National Labor Relations Board argued be-

fore the First Circuit that Section 10(h) of the Taft-Hartley Act

precluded granting the Petitioner's demand for a jury under Sec-

tion 3692. This argument, which undoubtedly will be repeated

in this Court, fundamentally misunderstands both the purpose

of Section 10(h) and the purpose of Section 3692.

Section 10(h) of the National Labor Relations Act, as

incorporated into the Taft-Hartley Act provides:

When granting appropriate temporary relief

or a restraining order, or making and entering

a decree enforcing, modifying and enforcing

as so modified, or setting apart in whole or in

part an order of the Board, as provided in this

section, j iction of ittin

in equity shall not be limited by the act en-

titled “An Act to amend the Judicial Code and

to define and limit the jurisdiction of courts

sitting in equity, and for other purposes.”

29 U.S.C. §160 (h) (emphasis added)

Section 10(h) simply grants jurisdiction to the United States

Courts of Appeals sitting in equity to enforce orders of the

National Labor Relations Board without regard to the provi-

‘sions of the Norris-LaGuardia Act. Section 10(h) was present

_ verbatim in the 1935 National Labor Relations Act, which auth-

orized court action only to enforce Board orders, and it simply

was re-enacted as part of the Taft-Hartley Act without signifi-

cant comment. The Taft-Hartley Conference Report makes

explicit the limited purpose of Section 10(h):

Sections 10(g), (h), and (i) of the present

~ act, concerning the effect upon Board's _

orders and review proceedings,

making inapplicable the provisions of the Norris-

LaGuardia Act in proceedings before the courts

[for enforcement and review] were unchanged

by either the House bill or the Senate amend-

ment and are carried into the conference

agreement. H.R .REP. No. 510, 80th Cong.

Ist Sess. 57 (1947) (emphasis added)

Merely stating this limited purpose illuminates the fallacies

of the Board’s argument. In the first place, Section 10(h) on

its face applies only to proceedings to enforce Board orders

in United States Courts of Appeals. Sections 10(j) and

10(1), [29 U.S.C., $160(j), 160(i) (1970 ed.)] , providing

for preliminary injunctions in certain circumstances, and

Sections 301 and 208, [29 U.S.C., $§185, 178 (1970 ed.)],

providing for national emergency situations all contain their

own jurisdictional grants. Thus, whatever effect Section

10(h) may have on the jury right in contempts arising out

of violations of Board orders, it is quite simply inappli-

cable to injunctions obtained under Sections 10(j), 10(1),

301 and 208.

Secondly, since Section 10(h) was a mere re-enact-

ment of the same section in the 1935 NLRA, there is no

evidence that it was intended to deprive labor of the

fundamental right to a jury trial in contempt situations25

In 1948, the Eightieth Congress eliminated any possible

misunderstanding by broadening Section 3692 to include

all labor contempts and by moving the broader section

from the Norris-LaGuardia Act to Title 18. Even if

Section 10(h) did apply to Sections 10(I) and 10(j), it

only provides that the jurisdiction of the courts will not

be affected by the provisions of the Norris-LaGuardia Act.

a Since Section 3692 does not even purport to limit the

jurisdiction of the court, and since it is not part of the

Norris-LaGuardia Act, Section 10(h) does not limit the

effect of Section 3692.

Finally although Amicus would contend that

Section 3692 provides for a jury trial in all contempts

arising out of labor injunctions, it is especially clear that

in cases of criminalcontempt of a labor injunction, the

accused is statutorily entitled to a trial by a jury of his

peers. 18 U.S.C. §3692; In re Union Nacional de Trabajadores,

502 F. 2d 113 (1st Cir. 1974). A criminal contempt pro-

ceeding does not enforce an order; but rather vindicates

the authority of the court by punishing the contumacious

party. Gompers v, Bucks Stove & Range Co., 221 U.S.

418, 444-445 (1911). It is not part of the Original equitable

cause of action, but rather is an independent action at law

and “‘no part of the original cause.” Michaelson v. United

States, ex rel. Chicago, St. P.. M. & O. Ry., 266 U.S. 42,"

64-65 (1924).

25. See pages 14, 25 supra.

-25-

Section 10(h) makes inapplicable the provisions of the

Norris-LaGuardia Act when a court sits in equity for “’grant-

ing... a restraining order, or... enforcing, modifying, and

enforcing as so modified, or setting aside . . . an order.’

29 U.S.C. §160(h). Since criminal contempts are not equit-

able actions and since they are not for the purpose of

“enforcing” the order, Section 10(h)’s limitations are not

applicable to criminal contempt proceedings.

In re Union

Nacional de Trabajadores, 502 F.2d 113 (1st Cir. 1974).

The facts of the instant case raise the question of jury

trials only in relation to criminal contempt proceedings

arising out of labor injunctions, and therefore call upon this

Court to rule solely upon this specific issue. Section 10(h)

of the Taft-Hartley Act is clearly not applicable to criminal

contempts.

ll. PETITIONER UNION WAS CONSTITUTIONALLY

ENTITLED TO A JURY TRIAL BECAUSE OF THE

INTRINSICALLY SERIOUS NATURE OF THE OFFENSE

AS WELL AS THE SEVERE NATURE OF THE PUNISH—

MENT IMPOSED.

A, Although All Criminal Contempts May Not Be

Intrinsically Serious By Constitutional Standards,

Particular Contempts May Be Deemed Serious On

the Basis of Either the Nature of the Punishment

or the Nature of the Offense.

In recent years, this Court has relied exclusively on the

nature of the punishment in determining whether particular

offenses are serious or petty, and therefore, triable by jury.

_ The criterion usually employed in conventional criminal

prosecutions is the statutorily established maximum punish-

ment. See, e.g, Baldwin v. New York, 399 U.S. 66 (1970):

Duncan v. Louisiana, 391 U.S. 145 (1968). |

However, in cases of ¢riminal contempt, since there is

usually no statutorily established maximum punishment,

the Court has relied instead on the actual punishment

imposed. See, e.g. Taylor v. Hayes, 94 S. Ct. 2697 (1974);

rN Codispoti v. Pennsylvania, 94 S. Ct. 2687 (1974): Frank v.

_ United States, 395 U.S. 147 (1969); Bloom v. Illinois, 391

U.S. 194 (1968); Cheff v. Schnackenberg, 384 U.S. 373

(1966). But cf. Dyke v. Taylor Implement Co., 391 U.S. 216

(1968). A statutory maximum punishment is regarded as

an “objective criteri[on] reflecting the seriousness with which

society regards the offense.” Baldwin, 399 U.S. at 68. In

contrast, the actual punishment imposed in most criminal

contempt cases, where there is no statutory maximum, while

admittedly a far less reliable and far less objective indication

of the seriousness of the offense, is nonetheless relied on as

the “best evidence” available. Duncan, 391 U.S. at 162,

n. 35.

-27-

In practice however, the judge rules cn the alleged

contemnor’s demand for jury trial at the beginning of the

proceeding, whereas sentence is not imposed until the

end. As a result the judge is concerned primarily with

setting a sentence which is permissible within the con-

straint of the prior jury ruling and hardly provides an ob-

jective indication of the seriousness of the offense.

Amicus submits that the actual sentence imposed need

not be relied on in the instant case because of the avail-

ability of another criterion which provides a far more reli-

able, far more objective indication of the seriousness of

the instant offense-- i.e. its inherent “‘moral”’ nature, partic-

ularly whether it was malum in seand triable by jury at

common law. This criterion has traditionally been employed

by this Court in determining the existence of a right to jury

trial in both criminal and civil cases. See, e.g. Pernell v.

Southall Realty, 94 S. Ct. 1723 (1974).

Some of the earlier conventional crimin to come

before the Court were decided exclusively on the basis of

the inherently “‘evil’’ nature of the offense. Callan v. Wilson,

127 U.S. 540, 555-56 (1888) involved a union member

tried without a jury for the misdemeanor of unlawfully

combining to impose a boycott. The Court held that, not-

withstanding its present misdemeanor status, this offense

constituted the serious common law crime of conspiracy,

and therefore that Callan’s demand for a jury trial should

have been honored. Similarly, in District of Columbia v.

Colts, 282 U.S. 63, 73 (1930) the Court concluded that

“driving to endanger” constituted the indictable common

law crime of public nuisance, and ruled that Colts was

entitled to a jury trial.26

26. Having concluded that Colts was entitled to a jury trial solely

on the basis of the serious common law nature of the offense, the

petty by contemporary standards, no matter how serious it may

pera en fag mop gt Ao a cnn dey me nee See Colts,

282 U.S. 67, 68 (Arqument for Petitioner).

lactam Ne a hi ag NG te i a

In two other relatively early cases, Schick v. United

States, 195 U.S. 65 (1904), and District of Columbia v.

Clawans, 300 U.S. 617 (1937), the Court concluded that

respective violations of an oleomargarine statute and a

licensing statute were not of an inherently serious nature

(i.e. malum in se), but only malum prohibitum. Thus, the

Court went on to consider the second criterion - the severity

of the authorized punishment. While indicating that the

severity of the punishment might render an otherwise petty

offense serious, the Court concluded that respective author-

ized maximum punishments of a $50 fine, and a $300 fine

or 90 days imprisonment, were not sufficiently severe to

have such an effect in those two cases.27

It was not until more recent years that two conventional

criminal cases reached the Court in which the au thorized

punishment was deemed sufficiently severe to mandate a

conclusion that the offenses were serious rather than petty.

See, Duncan v. Louisiana, 7” U.S. 145 (1968) (maximum

wan 66 (1970) (maximum of one year imprisonment, six month

rule established for other cases).

Although Baldwin suggests that the authorized maximum

penalty has today become the ‘‘most relevant’ criterion of

the seriousness of an offense,28 it also reaffirms the continu-

ing relevancy of the nature of the offense as an alternative

criterion:

= Similarly, in Callan.v. Wilson. 127 U.S. 540, once the Court

concluded that the offense was serious by common law standard

it ceased further inquiry. The decision contains no indication

the statutory maximum penalty, nor is there any discussion of the

relatively trivial sentence ce actualy i ners $25 fine, or, in de-

fault thereof, 30 days imprisonment

27. Thus the Court did accept the converse of the argument

rejected in Colts, note 26, that is, a severe punishment may

render an otherwise petty offense serious; but a trivial punish-

ment may nat render an otherwise serious offense petty.

28. Baldwin v. New York, 399 U.S. at 68:

W] e hav objective criteria re-

SE cg ee

have found the mast

teria in the sev e — rater

ized penalty. severity of theme

Decisions of this Court have looked

self, as well as the maximum poten-

tial sentence...Baldwip_v. New_York,

399 U.S, at 69, n.6 (emphasis sup-

plied). 9

Similarly, in the criminal contempt cases, not-

withstanding the emphasis on the actual sentence

imposed, the Court has also considered "the nature

of the offense," concluding:

Criminal _contempt,intrinsically,and aside

from the particular penalty imposed,

quiring the protection of the con-

stitutional guarantees of the right to

a jury trial. Bloop_y._Illinogis,391

U.S. at 196-197 (emphasis supplied).

This general statement may be accurate with respect

to the vast majority of cases, in which criminal

contempt merely constitutes "an offense sui generis"

CL Calts, 282 U.S. at 73, expressing an earlier view of the

most relevant criterion:

Whether a given offense is to be Icassed as a

crime, so as to require a jury trial, or as a

offense, triable summarily without

aed vimeril ] the nature

of thw offense. temphasis added)”

29. Justice Harlan, although dissenting from most of the Court’s

decision, also recognized that “the nature of the offense and the

severity of punishment are two distinct considerations.” Baldwin

k 399 U.S. at 121, n. 7. Seealso, Id. at 120 (petty -

serious distinction seen as rooted in the common law ).

30. In Cheff, the offense consisted of the violation of a Circuit

Court of Appeals injunction enforcing a cease-and-desist order of

the F.T.C. pending review.

[C] riminal contempt [is] an offense applied to a

wide range of conduct including conduct not’so

serious as to require jury trial absent a long sentence.

Duncan v, Louisiana, 391 U.S. at 162, n. 35 (emphasis

supplied. See also, Frank v. United States, 395 U.S.

147 (1969).31

‘ud

Although most of that “wide range of conduct” constitut-

ing criminal contempt is of the “not so serious’ variety,

described in the above quote from Duncan, the Court has left

open the possibility that in an appropriate case, the contemp-

tuous conduct might be so inherently serious as to require a

jury trial (as was the case in Callan v. Wilson, 127 U.S. 540

and District of Columbia v, Colts, 282 U.S. 63.) Amicus sub-

mits that the alleged contemptuous conduct in the instant Case

is quite serious indeed, and therefore the Court should now con-

sider the question left open since Duncan: may the serious nature

of particular contemptuous conduct be sufficient to trigger the

right to jury trial? This point will be discussed immediately

below.

B. The Instant Offense, Consisting of a Combination of

Workers, is of an Inherently Serious Nature, and

Should Have Been Tried by Jury.

The conduct alleged in the instant case is a combination

of workers to impose a boycott. Within the confines of the

present-day comprehensive, statutory system of administra-

_ tive and judicial regulation, which Originated in the Norris-

LaGuardia and Wagner Acts of the 1930’s, this conduct is

deemed a criminal contempt because it violates an injunc-

tion issued by a District Court Judge.

However, before the regulation of labor relations was

pre-empted by statute, this same conduct would have been

"31. In Erank, efter referring to the same footnote of Duncan,

quoted p. 31 , supra, the Court noted:

But a person may be found in contempt of court

for .graat many diferent tunes of offenses,

ra om a disrespect for the court to

. 395 US. at 149

em s

-31-

regulated by a common law criminal conspiracy prosecution,

_ or'a common ‘aw civil injunction proceeding, combined with

summary, non-jury contempt. Moreover, these historic prece-

dents still provide an objective indication of the “seriousness

with which society regards the offense,” Baldwin, 399 U.S. at

68, quoted note 30, supra, and also provide evidence that

summary contempt proceedings were first applied to combin-

ations of workers in a deliberate attempt to bypass the right

to _ trial, which may be unconstitutional. (See pages

infra).

1. The Alleged Combination of Workers Consti-

: tuting the Instant Contempt Also Constitutes

the Serious Offense of Criminal Conspiracy,

Which Was Triable by Jury at Common Law.

At common law, combinations of workers were re-

garded as criminal conspiracies. See, generally, SAYRE, :

Criminal Conspiracy, 35 HARV. L. REV. 393 (1922).

Although one historian has found evidence of a criminal

conspiracy prosecution against workers in New York City

-in 1741,32 the 1806 Philadelphia Cordwainers’ Case33

appears to be the first reported case, and is generally re-

garded as the first American labor case of any type.34,

Eight leaders of the striking cordwainers were indicted

and arrested on the charge of conspiring to raise their

wages. This had the desired effect of breaking the strike.

NELLES, The First American Labar Case, 41 YALE LJ.

165, 168(1931). They were subsequently tried by a jury,

~ found guilty, and fined $8 each. |d,, at 193.

32. BONNETT, THE ORIGIN OF THE LABOR INJUNCTION,

5 SO. CAL. L. REV. 105, 113, (1931). The defendants were a

men bakers, who combined for the purpose of raising wages. The

charges were instigated by the master bakers who employed them.

‘ 33. 3COMMONS & GILMORE, DOCUMENTARY HISTORY O

AMERICAN INDUSTRIAL SOCIETY, 59-248 (1910).

34, See ap. NELLES The First American Labor Case.

41 YALE L. J. 165 (1931); CO Be BO " CASES AND MATERIALS

ON LABOR LAW, 22 (7th Ed. 1

/ | : -32-

/

—e LS

Notwithstanding some decisions limiting their use,35

criminal conspiracy prosecutions continued throughout the

nineteenth century and into the early twentieth century.36

For example, in 1888 this Court concluded that a combina-

tion to impose a boycott constituted a criminal conspiracy,

which was deemed an inherent!v serious offense, mandating

a jury trial upon demand. Callan v. Wilson, 127 U.S. 540

(1888).37

2. The Use of Summary Contempt Proceedings in

Cases Involving Combinations of Workers Ori-

ginated as a Deliberate Attempt to Bypass the

Common Law Right to Jury Trial and Must

Now be Regarded as Unconstitutional.

By the last quarter of the nineteenth century the criminal

conspiracy prosecution had outlived its usefulness to employers.

During the period from the Philadelphia Cordwainers’ Case (1806)

to the late 1870's, the likelihood of conviction in such cases di-

minished substantially.

in 1806 American juries were composed of propertied ari-

stocrats who were generally hostile to the working classes, and

therefore more than ready to return guilty verdicts.38 However,

by the late 1870's and beyond, the composition of both the

electorate and juries had been significantly democratized. There

had also been a dramatic shift in public opinion. The emerging

industrial giants and railroad monopolies were seen as the evil

of the day. And the cause of the emiserated working classes

35. See.e.g. Commonwealth v.Hunt, 4 Metc. (Mass.) 111 (1842)

(combination must be for unlawful p urpose); Cf State v. Donaldson,

32.N.J.L. 151 (1967) (Combination for “oppresive” purpose; Conduct

not otherwise illegal).

36. See, 2.9., State v. Dalton, 134 Mo. App. 517, 114 S.W. 1132

(1908), and discussion in SAYRE, 35 MARY. L. REV., supra. p. 32,

—.

In Callan the ——_ was imposed when union members

DP AP to work with union member. In the instant case

the boycott was imposed when members of petitioner union, who

were secondary employees, refused to deliver newsprint to the

primary employer. :

38. See SAYRE, Crimibal Conspiracy, 36 HARV.L.REV.

413-414 (1922)

X

had become not only respectable, but even noble. United

States Senators defended workers charged with conspiracy

without fee. William McKinley (later President McKinley) was

elected to Congress for the first time in 1876 after having acted

as voluntary defense counsel for striking mineworkers charged

with rioutous assault. In sum, the climate was such that it was

very difficult to rely on juries to return any convictions against

workers for union activities.39

Thus by the time of the Railway Strike of 1877 employers

needed a new way to manipulate the law (and courts) against

the workers— a way which would eliminate the role of the now-

mischievous jury. And of course, the answer was found in the

system of civil injunction, coupled with summary, non-jury

contempt.40

Whatever objections labor may have had to the use of

criminal conspiracy prosecutions, at least they provided the

significant safeguard of trial by jury. In contrast, the system

of injunction-contempt eliminated this one safeguard. Thus

labor’s opposition to the injunction and non-jury contempt

was far more vigorous than its opposition to the criminal

conspiracy prosecution. See, e.g, the comments of Samuel

Gompers, supra, p. 8 .

Labor first attempted to attack the injunction-contempt

system, with its deliberate bypass of the jury trial, in the

courts. But as might have been expected in the prevailing

judicial climate, the courts, including this Court, were un-

willing to conclude that this usurpation of jury trial was

unconstitutional. See, In Re Debs, 158 U.S. 564 (1895).41

in Debs the Court concluded that the bypass of jury

trial was justified for the following reason:

To submit the question of disobedience to

39. See NELLES, A Strike and {ts Legal. Consequences:

Injunction. 40 YALE L. J. 507, 518-20, 529 (1931).

See generally. NELLES, 40 YALE L. J.,

note 40;

BONNETT 5 SO.CA note 41: FRANKFURTER

& GREENE, THE LABOR ii NJUNCTION, supea, p.

41. Labor then turned to a legislative approach which culminated

in the enactment of the Norris-LaGuardia Act 36 years later.

Sas. discussion suns, pp. 9-12.

another tribunal, be it a jury or another

court, would operate to deprive the proceed-

ing of half its efficiency. 158 U.S. 595.

Notwithstanding Debs. during the twentieth century

this Court has gradually extended the full panoply of due

process rights to alleged criminal contemnors, includin

most recently, the right to jury trial. See, Bloom vy, lilingis,

391 U.S. at 204-06. In the process, the Court has also

explicitly repudiated the foregoing analysis in Debs, concluding

that neither “efficiency” nor “the desirability of vindicating

the authority of the court” were sufficient grounds for de-

priving alleged contemnors of their constitutional right to

jury trial. Bloom, 391 U.S.at 208.

Amicus therefore submits that judged by today’s

standards, the deliberate bypass of jury trial in Debs, in the

interest of “efficiency,” effected through the use of sum-

mary contempt, would be unconstitutional. And this is not

merely an academic matter; for if this Court should reject

the statutory argument in the instant case, the constitutional

question agaimemerges because workers are being criminally

prosecuted for aetivities which were triable by jury at common

law.

3. Workers Charged With Combining to Impose

a Boycott are Entitled to a Jury Trial Regard-

less of the Form of the Proceeding in Which

Criminal Sanctions Are Sought to Be Imposed.

In effectively overruling the jury trial holding in Debs,

this Court belatedly recognized that there is no practical dis-

tinction between convictions for ordinary crimes and con-

victions for criminal contempt:

In modern times, procedures in criminal

contempt cases have come to mirror those

used in ordinary criminal cases. Our experience

teaches us that icti imi

contempt , not infrequently resulting in extreme-

ly serious penalties, see Upited States y. Bar-

pDett..(Goldberg J., dissenting), are indis-

tioguishable from those ebteined under ordin-

ary criminal laws. If the right to jury trial is a

-35-

fundamental matter in other criminal cases, which

we think it is, it must also be extended to

criminal contempt cases. Bloom v. Itipols,

391 U.S. at 207-8 (emphasis added).4

Before reaching the above-quoted conclusion in Bloom,

the Court had noted that criminal contempt proceedings and

ordinary criminal proceedings served the same ultimate

function: “protection of the institutions of our government

and enforcement of their mandates. 391 U.S. at 201. This

was especially true when the “criminal contemptuous con-

duct may violate other provisions of the criminal law,’’ but

it was also true “even when this is not the case.” Id,, 391

U.S. at 201.

Thus Amicus submits that the conduct alleged in the

instant case doubly qualifies as a serious offense, because it

constitutes a common law criminal conspiracy to impose a

boycott, Callan v. Wilson, 127 U.S. 540 (1888), and also a

criminal contempt, because it involves disobedience of a court

order. Moreover, these two aspects should be viewed cum-

ulatively and not in isolation. If the conduct involved in the

instant case constitutes a serious common law offense, as

it does, it would be fairly ironic to suggest that because it

also constitutes criminally contemptuous disobedience

of a court order that it is somehow rendered less serious or

less of a crime. If anything, this dual aspect of the conduct

renders it more serious.

Nor may it be argued that society today regards a com-

bination to impose a boycott as a less serious offense than

it may have been at common law. A similar ‘argument was

282 U.S. 63 (1930) where the government suggested that

the trivial modern day penalties for driving to endanger

deprived that offense of its serious common law nature.

Also, whatever merit such an argument might have when the

combination to impose a boycott is treated in a civil ad-

ministrative or judicial proceeding, the argument loses

42. The two justices who dissented in Bloom did so on the

that the Court's concept of due proces shoul not be im

on a state court —— that such due

process requirements Seale prupats Gs tages tr a teuerel eoore

proceeding as in the instant case.

any such merit when criminal sanctions (including con-

stitutionally serious sanctions) are sought to be imposed

in a criminal proceeding such as that in the instant case.

And it little matters whether that criminal proceeding

be labeled as one for ‘criminal contempt” or an “ordin-

ary crime.” For as Justice Black once noted:

Nor do | take any stock in the idea that by

naming an offense for which a man can be

imprisoned a “contempt,” he is any the

less with a crime. Frank v. United

States. 395 U.S. at 160 (d ting opin-

ion).

That is also the lesson of Bloom v, !Ilingis.

When the Philadelphia Cordwainers were tried for

combining to raise their wages in 1806, they received a

jury trial before being fined $8. When union member Callan

was tried for combining to impose a boycott, and fined

$25, this Court held, in 1888, that he should have been

granted a jury trial upon demand. So too today, where the

instant offense also consists of a combination to impose a

boycott, resulting in a $25,000 fine, this Court should hold

that there was a right to trial by jury, even though the pro-

ceeding. was nominally for criminal contempt rather than

criminal conspiracy. For nothwithstanding the label ap-

plied to the proceeding, the underlying conduct is equally

serious, and so are the consequences to the offender.43

43. Apart from the serious common law nature of a combinati

of workers, and the severity of the actual punishment imposed, ag

there are other objective indications of the “seriousness with which

society regards the offense,“ Baldwin, which also lead to the con-

The right of workers to combine together is ial

their economic well-being, and constitutes their only ef een

of dealing with management from a position of strength.

257 US.

209 (1921); 29 U.S.C. $ 151 Notwithstanding the common law -

restrictions against such combinations, the right of workers to engage

in concerted activities is now ized as the cornerstone of

national labor policy. See 29 U.S. # 151, 157, aust

Moreover, as n ment I, supra, for the last

junction and summary contempt, when abused, constitute a marked

threat to labor's right to engage in concerted activities. Congress

has therefore limited the courts’ jurisdiction to issue labor injunc-

4

-37-

C. The $25,000 Fine Imposed on Petitioner Union

Rendered the Offense Serious, and a Jury Trial

Was Therefore Required.

Whatever difficulties this Court encountered in draw-

ing the line between serious and petty offenses in state

court proceedings, there have been no such difficulties

in drawing the line for federal court proceedings. For un-

like the situation in Duncan, “where the legislature has not

addressed itself to the problem,” 391 U.S. at 160, Congress

has addressed itself to the problem in 18 U.S.C. 1, and _

drawn the line at six months imprisonment or a $500 fine.

See Duncan, 391 U.S. at 161, see also, Erank v. United

States, 395 U.S. at 150, n. 3, 150-1; Cheff_v. Schnackenberg,, ,

384 U.S. at 379; In re. Union Nacional de Trabaladers 502

&Ge,, 438 F.2d 377 (6th Cir. 1971).

The judgment that the fine ‘‘might have no deterrent

or punitive effect at all,’ 492 F. 2d 936, and is therefore

tions, except in cases involving specified unlawful conduct; but even

then, this power has been carefully regulated and subject to proced-

ural protections such as the right to jury trial upon demand, which

eliminates the powers of summary contempt.

Although this Court has sometimes construed these statutes

in a narrow manner, e.g. Duplex Printing Press Co. v. Deering, 254

UL. 443 (1821) and ay do o again inthe inant case by ve

jecting the statutory argument (part |, supra, ), it is nonetheless

that alleged participati

Or ey Eee

has been true even though the nishment im-

tala iste er tian taceneea mete

25 Se fea A Her won,

> , even

by today more constitutional standards.

nishment on a labor union may be suf-

-established

concerted activities be seriously undercut

qven the dhert laapilaananet of of union leaders at» crucial point

in a strike. Ow pond abe

Thus nthe mafy Rtas wtih Congres prow a

protections nst su mary contempt proceedings

so across the without regard to sulle pustihanent.

44. The court below discussed one of these three

Supreme Court cases indicating that 18 U.S.C. § 1 defines the line

not serious, should be the decision of the legislature and not

of the courts.

In criminal contempt proceedings the judge already has

the combined powers of judge and prosecutor. In addition,

through manipulation of the sentence imposed the judge may

also exercise the powers of the jury. But heretofore the sen-

tence could only be manipulated within the limits of the ob-

jective standards of 18 U.S.C. § 1. If this Court should adopt

the subjective test employed by the court below, the exist-

ing possibilities for abuse, noted by this Court in Bloom vy.

Ulinojs, 391 U.S. at 202, will be substantially increased. A

judge‘s finding that a particular fine imposed on a union or

corporation in excess of $500 is not a deterrent, or not pun-

itive, will be insulated from any meaningful judicial review;

for most appellate courts will no doubt conclude, as did

the court below, that this finding of fact is not clearly er-

roneous. 492 F. 2d 937. Amicus submits that such a result

should not be permitted unless Congress, rather than this

Court, chooses to amend 18 U.S. C.§ 1 to adopt the method |

employed by the court below. Until then, 18 U.S.C. § 1

should be strictly construed as it is written--drawing the

petty-serious line for all federal cases at six months impri-

sonment or a $500 fine. Judged by this objective standard,

the alleged offense of petitioner union, resulting in a

$25,000 fine, must be deemed serious, and the demand

for jury trial should have been granted.

between serious and petty offenses in federal proceedings-i.e.

Cheff. which admittedly referred only to the period of imprison-

ment in the statute, but not the fine. 492 F. 2d 936. The court

below ignored this far more clearer statement in Frank:

Therefore, the maximum penalty authorized

in petty offense is not simply six months

ere and a $500 fine A petty offender

may [also] be on pe on for up to

five years ... U.S. 150-15! (emphasis added)

The court below also disregarded similarly clear language in

In the federal system, petty offenses are defined

as those punishable by no more than six months

in prison and a , 391 U.S. 161 (emphasis

.39-

CONCLUSION

The question before the Court has profound impli-

cations: will the historic right to a jury trial for one accused

of conduct violating a labor injunction be confined to the

fringes of the nation’s labor law, or will that right be placed,

where it belongs, at the center of the national labor policy?

If the national labor statutes are interpreted to confine

the jury right to the now obsoigscent forms of injunctions

issued under the Norris-LaGuardia Act, the unfairness as well

as the appearance of unfairness of judge-tried contempts will

arise again. Since the Taft-Hartley injunctions in many cases

duplicate those available prior to the Norris-LaGuardia Acct,

these evils will be as widespread as they were before 1932.

This Court should avoid such a narrow statutory c:on-

struction because it produces an unconstitutional result.. The

use of summary contempt to bypass the constitutionally

mandated right to jury trial for serious offenses threatems

the very basis of the guarantees which in this century have

been extended to both labor and to criminal defendants.

In these turbulent times, this Court snould extend ‘the

Statutory and constitutional protection of a jury trial to

that narrow range of bitterly contested cases which resullt

in contempt citations under the Taft-Hartley Act. As Sena-

tor Walsh said long ago, a jury verdict in such cases “would

silence the caviling and strengthen in the minds of the peo-

ple the conviction that the courts are indeed the dispensers

of justice and not engines of oppression.’“45

45. FRANKFURTER & GREENE

a ee , THE LABOR INJUNCTION,