Petitioners Brief — Muniz v. Hoffman

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Subject Index

I Page

SPI I 55 oo okay Pia ok wk psc ek bn cs baba ecu 1

I eA i nk eres bop oc 2

III

ee a ee ee 2

PPI IN os ord s 8s ho 4 oS ob bi ces doc dakuan ccs. 3

NT id ik on c'o noes aes ee bed 4

MONE OE SO oi 6 boo po sc can hok nn cnt besicas 9

Bi I HD do ha oi wc os sve nc kciclnccvcs 9

B. The statutory sue 2........ 6s cticcecseccsscccuss 10

The Constitutional Issue

VII

Trial by jury is required where a criminal contemnor is fined

$10,000 fer indirect contempt by willfully disobeying a

I 5 eeu eek cs 5 oh oe oe ek sc eho eek ae eecnde 11

Bri i ass 1: AMOR OS A VEE 2K. ee Oe Recae ce Base 4g Sa AUR eng S Eeciin im Nam wR UNO ee bd 11

A. Jury trial is required whether a sentence is by fine or

Bi Se oo hon do ate ws Bah oh be ed he dene Wx > 14

B. The objective standard of 18 U.S.C. Section 1(3) gov-

erns as to whether or not a crime is serious for pur-

ee Re rar Ce eee Pee re aes 18

The Statutory Issue

VIII

A summary of the statutory framework ................... 21

IX ‘

Scetion 3692 is unambiguous on its face and must be con-

strued in favor of the right it grants ................. 23

ii Susgect Inpex

x Page

Petitioners were charged with contempt arising out of a labor

dispute within the meaning of Section 3692 ............ 26

Section 10(h) does not exempt 10(1) injunctions from the .

piovinkons of Mota: BONG io ose cs ios os es ke kk 29

XII

Section 10(1) does nothing more than grant jurisdiction to

the District Court to issue temporary injunctions ....... 35

XIII

The scope of Section 3692 is not restricted to contem

ing out of Norris-LaGuardia injunctions \....../....... 38

XIV

The necessary power of the Courts to coerce compliance with

injunctions is preserved ..............00s0000% sae wees 45

OTN iid 5 os SAS ERAS as dda 48

oe, ti en ae |

AE ENT EADS SRN RNR IRE mr ago om

Table of Authorities Cited

Cases Pages

American Postal Workers Union v. United States Postal

Service, 356 F.Supp. 335 (E.D. Tex. 1972) ............ 43

Auto Workers v, Wisconsin Employment Relations Bd., 351

RF Se CR 565 a5 8 es week ss Fee ec 43

Bakery Sales Drivers Union v. Wagshal, 333 U.S. 437

(AOR) os bic ve i hee es hs a oak ks bo bees ber eine 35

Baldwin v. New York, 399 U.S. 166 (1970) ............

5 £5 60ee $44 bbs aed se eee eee 9, 12, 13, 14, 16, 18, 19, 20

Banks y. Grain Trimmers Ass’n, 390 U.S. 459 (1968) ..... 24

Blankenship v. Kurfman, 96 F.2d 450 (7th Cir. 1938) .... 42

Bloom vy. Illinois, 391 U.S, 194 (1968) ..8, 9, 12, 14, 17, 18, 19, 23

Brotherhood of Locomotive Firemen and Engineers v.

Bangor & Aroostook R.R. Co., 380 F.2d 570 (D.C. Cir.

1967), cert. denied 389 U.S. 327 (1967) ............... 46

Brotherhood of Railway Trainmen v. Chicago River &

Indiaija R.R. Oo., 353 U.S. 30, reh. denied 353 U.S. 948

CRE bn he bk wk 66 66ers a ee ee 47

Building & Condiasins Trades Council v. Alpert, 302 F.2d

Pe CO Cy Tae ik bbs i vce ke eee ne dca ree 37

Burlington Mills Corp. v. Textile Workers Union, 44 F.

map. GP Ca FO SI) aia eee iv evccsdas 42

Callan v. Wilson, 127 U.S.:540 (1888) .................. 18

Campbell v. United States, 365 U.S. 85 (1961) ........... 24

_Cheff v. Schnackenberg, 384 U.S. 373 (1966) ....8, 12, 13, 18,19

Codiposti v. Pennsylvania, 41 L.Ed.2d 912 (1974). .9, 11, 13, 14, 19

Compton v. Teamsters, Local 901, 49 L.R. R. M. 2835 (D.P.R.

OU os ie ka ee ee Wis cies FeNs kas 37

District of Columbia v. Clawans, 300 U.S. 617 (1937) .... 19

District of Columbia v. Colts, 282 U.S. 63 (1930) ......... 18

Donnelly Garment Co. v. Internat’l Ladies Garment Workers

Union, 99 F.2d 309 (8th Cir. 1938), cert. denied 305 U.S.

COS CADE) ies bn vic denice ies ieee ei 42

Douds v. Local 294, I.B.T., 75 F.Supp. 414 (N.D. N.Y.

BGT) oskaencad on Ckacei ss PU heh tins to Hehe 32

Duncan v. Louisiana, 391 U.S. 145 (1968) ........$ 9, 12, 16, 17, 19

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968)

‘av spee ees Mh pam Gees baa WeeeOR ab akneeiaced eases 9, 12,18

iv TaBLe oF AUTHORITIES CITED

/ é r ee i Pages

Frank vy. United States, 395 U.S. 147 CR 5 ica a cess

eae Wk Fe re cl bs 6 is we ke as 9, 11, 12, 13, 19, 20, 23

Granny Goose Foods, Ine. y. Brotherhood of Teamsters &

Auto Truck Drivers, Local 70, 415 U.S. 423 (1974) ....17,37 :

Green v. United States, 356 U.S. 165 (1958) ............ 11, 23

Hill v. United States ex rel, Weiner, 84 F.2d 27 (3d Cir.

1936), rev’d on other grounds 300 U.S. 105 (1937) ..... 42

In Re Fair Lawn Edue, Ags’n, 63 N.J. 112, 305 A.2d 72,

cert, denied 414 U.S. 855 SUE he ones 1a ko oe 14

In Re Holland Furnace Co., 341 F.2d 548 (7th Cir. 1965),

cert. denied, 381 U.S. 924 ROPE sd Vas he esa cis oes ines 14

In Re Puerto Rico Newspaper Guild Local 225, 476 F.2d

I [sedew ba vess> 13, 14

In Re Union Nacional de Trabajaderos, 502 F.2d 117..

eGR SM IN GON MON Se Oe Ste oe rly Bee 10, 14, 26, 29, 31, 33, 36, 37, 39

- Internat’l Bro. of Teamsters v. Internat’l Union of Brew ery,

ete. Workers, 106 F.2d 871 (9th Cir. ME wesc b vac 42

Jaffee vy. Newspaper & Mail Soliverees Union, 97 F.Supp.

O60 40.08. TOBE) ook os amie des 66d i% oscua’s i

Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938) ....... 97

Lebaron vy. Printing Specialtice & Pariser Converters Union,

Local 388, 75 F.Supp. 678 (S.D. Ca. 1948), aff'd 171

F.2d 331 (9th i a 5 ROE EGU PU eer NE, ge 31, 37

Madden v. Grain Elevator, Flour & Feed Mill Workers, 334

F.2d 1014 (7th Cir. 1964) as Aegh al een ee bbade cosss in Oh 48

McGowan v. State, 258 So.2d 801 (Miss., 1972), cert. denied

ee ye ob ose cit... 14

Michaelson v. United States, 266 U.S. 42 (1924) ..23, 25,34 45

Mitchell v. Barbee Lumker Co., 35 ER. D. 544 (S.D. Miss.

ae oe Le ER AE ER TSN, SEVIS geen a a 2

New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552

ow SAREE ORE SGT ng G00) TE NOR nes SOG SE aa 74:

New York Telephone Co. v. Communication Workers of

America, 445 F.2d 39 (2d Cir. 1971) ....:............ 37

N.L.R.B. vy. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967) 24

TABLE OF AUTHORITIES CITED Vv

. Pages

N.L.R.B. vy. Red Arrow Freight Lines, 193 F.2d 979 (5th

ns Fe cn Ws dnc ccieincebiia 46

N.L.R.B. v. Hospital & Institutional Workers, Local 250,

Dee ee Se CU BUTE) i ccicccecuvenccbecce 31

N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962) 27

North American Coal Corporation v. Local Union 2262,

United Mine Workers of America, 497 F.2d 459 (6th ,

ih a icc tb ohied oh eceses 10, 13, 48

Oberman & Co, v. United Garment Workers of America, 21

Pepe, --0 CW ez BOG oc ccc cccccctovccsccce 42

Penello vy. 1.L.A., Loeal 1248, 78 L.R.R.M. 2009 (E.D. Va.

1971), aff'd as modified 455 F.2d 942 (4th Cir. 1971) ..31, 37

Philadelphia Marine Trade Ass’n v. Internat’! Longshore-

men’s Ass’n, Local 1291, 368 F.2d 932 (3d Cir. 1966),

rev'd on other grounds 389 U.S. 64 (1967) ............ 28, 46

Rankin v. Shanker, 23 N.Y.2d 111, 242 N.E.2d 802 (1968),

ee Mee Ge Oe, Oe LTO) 6 occ cic cctcceneccces 14

Restaurant Associates Industries v.. Local 71, 79 L.R.R.M.

OR NE oe yw hn va Bibi cob bs Kheun 47,48

Russell vy. United States, 86 F.2d 389 (8th Cir. 1936) .... 42

Sabbath v. United States, 391 U.S. 585 (1968) ........... 24

Sehauffler vy. Loeal 1291, International Longshoremen’s Asso-

ciation, 189 F.Supp. 737 (E.D. Pa. 1960), rev'd on other

erommas Zen Foe 16> (9a Cie. 1061) ..:........5:,% - 46

Schick v. United States, 195 U.S. 65 (1904) .............. 19

Sears, Roebuck & Co. v. Carpet Linoleum, ete., Local Union

Py PE Ce I CD oko ik bosses Sa bocede se 31

Shillitam v. United States, 384 U.S. 364 (1966) ........ 12, 16, 45

Sinclair Refining Co. v, Atkinson, 370 U.S. 195 (1962) ... 28

Smith v. United States, 360 U.S. 1 (1959) ............... 24

Standard Oil Co. v. United States, 221 U.S. 1 (1910) ..... 26

Tanner Motor Livery, Ltd., 148 N.L.R.B. 1402 (1964) .... 9 27—

ane ©, Tes We UT Be TD oo fi cad ven and cdavda 16

Taylor v. Hayes, 41 L.Ed.2d 897 (1974) .............. 11, 14,18

The Boys Markets, Ine. v. Retail Clerks Union Loeal 770,

Wee a ee CANTO) 5 ie Ge iaesviiois cs 28, 37, 46, 47, 48

vi TaBLe or AuTHoritTiEs CITED

Pages

United States v. Barnett, 376 U.S. 681 (1964) ....... wees, 2

United States v. Polk, 438 F.2d 377 (6th Cir. 1971) ......

si ai dk SRA ey RRO WW a sae eewen es ceueen s 9, 10, 13, 14, 20

United States v. Robinson, 449 F.2d 925 (9th Cir..1971).. 43

United States v. United Mine Workers of America, 330 U S,

Re: a A er res Sree 8, 15, 20, 40, 41, 43, 45

United States Steel Corp. v. United Mine Workers of

America, 456 F.2d 483 (3d Cir. 1972) ................ 37

Williams v. Illinois, 399 U.S. 235 (1970) ................. 16

Constitutions

United States Constitution:

Art. III, Seo. 2 ... gi... es eee e eee eee . -9, 10, 14, 20, 23

Amendment: VI .............e cece ees Teer 2, 3, 9, 10, 14

I VERE ois cd owas. ssc nnsc aces csascnancies 15, 20

English Bill of Rights of 1688 .................-005- eee)

Rules

POR B.Civ.P, GE(d) oon cece reese eecteescscnceers 37

F.R.Crim.P. : - ,

SE PCE CTT eee eee eT Ter TT TTT ere re ee ree 24

pe LE ree er ee eee 24

TG Ue 5.46.4 hoch ieee be sGaevina deus apace 23, 28, 45, 48

Statutes

18 U.S.C., “Crimes and Criminal Procedures,” 62 Stat.

etc io a panes eh a bed ee 44 hav has tensa nes 22, 43

ON, SUD io vs 0450s Koti anivasenss 9, 10, 13, 14, 18, 19, 20

nba GOR oan vinnie chs0 sive essbievannevsesevetons 42,45

mtats TN van. canon 600 0805 deed eceyen tae vein oo Es 23, 24

acthets BORG. . Pan csnsecascsqetavesesvevessevaees passim

28 U.S.C. See. 1254(1) 2.0... . ccc cece e eee Roveendeusa 2

29 U.S.C. (Norris-LaGuardia Act) See. 101, 47 Stat. 70 .. 21

29 U.S.C.: .

Section 4 (29 U.S.C. § 104) 2.0.0... 6. .....008. 21, 28, 37, 47

Section 6 2... ccc cc cece cee eet e eee ween - 34

TaB.e oF AuTHORITIES CITED Vii

Pages

Benth FAG igo cve 5 ce ewe sb 0 6454004 cede CLARO RRO 21

Seetion 100 ...ce.. 0... ee eee sprees Pesneteesewsenees 34

embassy cocoa hes okie Heed Ohne awe ee ee 42 >

Seetion 111 ......... 21, 22, 28, 30, 34, 35, 38, 39, 40, 41, 43, 46 \

Senki FIG xu chen cen cia eins cece s¥snanewnsvavas vas 45, 48

Weetin TIGR) ccs dn wkc ess tuveew ee savaeseviner teens 26

Section 113(b) ...... cece eee eee eee eee eee tenes 26

Seetion LIB(]) oc... cc cccn cece cece cece cen ecenees 26, 27, 42

Metis SERINE ox on hes 5085 05 Gen ea sea ares eeens 26, 97

Rontinn IGBTS) inv ccavvivscdes cucsxsuwenssessseesn 27

eee | ee ere en reer eer ee 25

29 U.S.C. See. 160(b), 10(b):

ONNION, TOURED oc cx sev cheney cewedsseskeeeneseetn ces 31, 32

seta: 2000) iis cna nie 0504050050 e hon deny isenstsawes 31, 32

etki FOE). nana dk ck e esd sees dies hcanessedennasene 32

atthe TOC) 6xcs cases vececcwecawnscectannsa sds 31, 32, 33

“ Meee. 20(6}<20(E) nic cidoncnsscascemeesnecvecens 21, 22, 42

Masti. 2008) gcc vances sanex 0505050 4F0e bens ness 31, 32, 33

Mirtle TGIG) 5 ond6 on venous i 0s055 05 yy redeveegs seen 32, 33

Section 10(h) ............ 11, 22, 29, 30, 31, 32, 33, 34, 35, 36,

Section 10(j) ............008- 22, 32, 33, 35, 36, 37, 38, 39, 45

Mastin POC) sisiensssccpervaws eens 4, 11, 22, 25, 29, 30, 31 .

Peete SGEE) an nk evn vn cows icdescukagey costeencans 26

Slontiom 26G(a) oc. cccccccvsccccccccecccsssesceccess 47

29 U.S.C. (Fair Labor Standards Act) §§201-19, 52 Stat.

FO og viv ho TRS Sha 0066 ed eR ee ERN cee ER RRR ES Ss 27, 28

Boation SOR (a) on. ccscecsvacceeceesescccscseceecens 26, 27

Section 528 ...... obs Ais Se bh Da OR ORSRAST ESE b ORES CKO 23

42 US.C.:

Section 1971(e) ......... eee ween japeaeaeae* (caacus 19

Westie S008. CG gavin ccs cowed e ho eescaensinseues 23

Section 1975(g) . 0... ccc cece ccc e cence eee teen ences 19

Site DOE x xin d5 ous oh bea csawed bias s be eseesa ces 19, 23

Mowkinn MOOG) on icciva ss cyan sh5 55500 b55ne 605s evens 23°

Labor Management Relations Act of 1947, 61 Stat. 136,

Cs er er er re. eer eee a 22

OP et OU ng 5s kh ong 006 as has ie 0s 989 go eo ee es 40

Wagner Act, 49 Stat. 449 20... . ccc cece eect teens 21, 27

be eS RSS Se foe eee eat See cee ee ee eee . =

en ian Dt Eh ee Oe ee ee aes

viii TasBLe or AuTHorities CrrEeD

Miscellaneous ; Pages

H.R. 2200, 79th Cong., 2d Sess. (1946) .............0000. 44

H.R. Report No. 304, pp. A2-A4 80th Cong., Ist Sess. 1947 19

H.R. Report No. 304, 80th Cong., Ist Sess., p. A30 ..... ee 45

93 Cong. Rec. 5049 (1947) 0.0... cece cece eee eens 45

Bartosic & Lanoff, Escalating the Struggle Against Taft-

Hartley Contennors, 39 U. Chi. L. Rev. 255 (1972)).

te ee eee eee err re 17, 18, 2: 22, > 23, 45

Anno: Distinction Between “Petty” and “Serious” Offenses

for purposes of ‘Federal Constitutional Right to Trial nd

Jury—Supreme “Court, Cases) 26 L.Ed.2d 916 (1970) . 13

16 Frankfurter and Corcoran, Petty Federal Offenses and

the Constitutional Guarantee of Trial By Jury, 39 Harv.

Ba, Tie. CRT {EMR access scccsveacccessvecessitsensch \ 16

Gaylin, Partial Justice, A Study of Bias in Sentencing

(Alfred A. Ream®, ITE) oon ccc sccwcccnscepecseccces 18

Note, “Accommodation,” 72 Harv. L. Rev., 354 (1958) 42

“The Labor Management Relations Act and the Revival of

the Labor Injunction,’’ 48 Col. L. Rev. 759 (1948) ..... 30, 35

Legislative History of the National Labor Relations Act,

Fe SERA My SOO sw ccee as vassesascccadecvecsnedees 2T

Legislative History of the Labor Management Relations Act,

ROBT’ (RETARD, EDGB) .nn ccc cwcccciwectuececs 27, 33, 38, 43

The National Commission on Reform of Federal Criminal

Laws: Study Draft of a New Federal Criminal Code

(U.S. Govt. Printing Office, 1970) .................... 19, 20

Rubin: The Law of’ Criminal Correction (West Pub. Co.,

N, BBOBE oc ccesiewevwcasecasconcccessavscsancneccccsene 15

Seagle, Fines, 6 Encye. Soc. Sci. (1981) .........0ees0: 13

1 Stephen, History of the Criminal Law of England (1883) 15

“Thirty-Ninth Annual Report of the National Labor Rela-

tions Board for the Fiscal Year Ended June 30, 1974” ©

CRT pMATg BAPE) viv sccncccsvesescccesdosacsdedeasens 23

SB Wis @ Mary be BT] oases ses cccacescseeces 19

In the Supreme Court

OF THE

United States

OcToBER TERM, 1973

No. 73-1924

JAMES R. Muniz and BROTHERHOOD OF TEAMSTERS AND

Avto Truck Drivers Locat No. 70, IBTCHWA,

Petitioners, .

: vs.

Roy QO. HorrMan, Drrector, REGION 20, NATIONAL

LaBor RELATIONS Boarp,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 492 F.2d 929. The judgment

of the court imposing contempt penalties is contained

i SN PT eT TE Ee =

in the reporter's transcript of the proceedings. (G.A.

41a-48a)."

JURISDICTION

The judgment of the Court of Appeals for the

Ninth Circuit was entered on January 25, 1974. A

timely petition for rehearing was denied on March

26, 1974. The petition for writ of certiorari was

granted on November 11, 1974. This Court has juris-

diction under 28 U.S.C. § 1254(1).

III

QUESTIONS PRESENTED

1. Whether Article ITI, Section 2 and the Sixth

Amendment to the Constitution mandate a jury trial

where a penalty of $25,000.00 ($15,000 suspended)

is assessed against a labor organization in a criminal

contempt proceeding.

2. Whether petitioners, charged with criminal con-

tempt for an alleged violation of an injunction issued

under the National Labor Relations Act, are entitled

to a trial by jury under 18 U.S.C. § 3692, which

provides that alleged contemnors are entitled to a

jury trial in all contempt cases “arising under the

1“G. A.” refers to the Appendix to the “Memorandum for the

Respondent,” dated October, 1974. “J.A.” refers to the Joint .

Appendix filed herein. The opinion of the court below is attached

as an appendix to the petition for writ of certiorari.

a -

laws of the United States governing the issuance of

injunctions or restraining orders in any case involv-

ing or growing out of a labor dispute. m3

STATUTES INVOLVED

United States Constitution, Article III, 62:

“The Trial of all Crinies, excépt in Cases of

Impeachment, shall be by Jury... . .”

United States Constitution Amendment VI:

“In all criminal prosecutions, ‘the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury’...

Title 18, United States Code, Section 3692 Seovilles:

“Jitry trial for contempt in labor dispute cases

“In all cases of: contempt arising under the laws

of the United States governing the issuance

of injunctions or restraining orders in any case

involving or growing out of a labor dispute, the

aceused 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.

This section shall not apply to contempts com- .

mitted in the Presence of the court or so near

thereto as to interfere directly with the admini-

stration of justice nor to the misbehavior, mis-

conduct, or disobedience of any officer of the

court in respect to the writs, orders or process

of the court.” - ,

STATEMENT OF 7HE CASE

This labor dispute arises out of a strike and picket-

ing by Local 21 of the International Typographical

Union (hereinafter Local 21) against the Independent-

Journal newspaper (hereinafter I-J). This dispute

resulted in two separate district court actions which

culminated in the civil and criminal contempt con-

victions involved herein. Petitioner Local 70 was not

a striking union and had no collective bargaining

relationship with the I-J.

In early January, 1970, Local 21 went on strike

against the I-J a daily newspaper serving the Marin

County area north of San Francisco. Picketing by

Local 21 began at the premises of the I-J in San

Rafael. In late January Local 21 begain picketing in

San Franiesco where newsprint from Canada destined

for the I-J was being unloaded from barges. Long-

shoremen members of Local 10 of the International

Longshoremen’s & Warehousemen’s Union respected

the picket lines and refused to unload newsprint from

- the ships to dockside. In addition, members of two

Teamster locals—Local 85 of San Francisco and

Local 287 of San Jose—similarly refused to cross the

picket lines to load and haul the newsprint by truck

the 20 miles north to San Rafael.

Unfair labor practice charges were filed with the

National Labor Relations Board against the unions

involved; the Regional Director of the Twentieth

Region (Respondent herein) obtained a temporary

restraining order pursuant to 29 U.S.C. § 160(1)

against. Local 21’s picketing ‘ef the dock. The theory

of the petition for the temporary restraining order

was that an illegal secondary boycott was involved

against the companies responsible for transporting the

newsprint, Simultaneously, an order to show cause |

was issued which required Local 21, Local 85 and

Local 287 to show cause two days later on February

13 why a preliminary injunction should not issue.’

The preliminary injunction was issued February 13,

1970, against these three labor organizations’ only,

“enjoining further picketing at the pier and further

acts designed to cause the neutral employers to re-

fuse delivery of newsprint.” 492 F.2d at 931. Peti-

tioner Local 70 was not named in either the unfair

labor practice charge nor named as a party to the

injunction and was totally uninvolved in the trans-

action at the pier.

Subsequently, Local 21 commenced consumer pick-

eting of stores in Marin County which advertised in

the I-J. Unfair labor practice charges predicated on

further illegal secondary boycetting were filed against

Local 21. The Regional Director petitioned the dis-

trict court in a second action-for the issuance of a

2This was Case No. C-70-306 LHB (N.D. Ca.). For the text of

the injunction see J.A. 6-9. The “Petition for Adjudication in

Civil Contempt and for Other Relief; and Request for Institution

of, Adjudication In, and Punishment for Criminal Contempt” (J.A.

14-36) was filed and docketed under caption, Case No. C-70-895

WTS (N.D. Ca.), which case involved the second temporary in-

junction issued. The petition claimed violations of both injunctive

decrees.

3L,oeal 10 of the I.L.W.U. became involved when it was served

with the temporary restraining order on the day it was to expire—

February 13.

second injunction against Local 21’s activity.“ On

April 28, 1970, Local 21 envered into a stipulation

with the National Relations Board agreeing to a tem-

porary injunction prohibiting Local 21 from picketing

certain named retail stores and “other firms which

advertised in the Independent-Journal; where an ob-

ject of the picketing [was] to cause customers of

such firms to cease buying products not advertised in

that paper.” (J.A. 12-13), Petitioner Local 70 was

- not named in either the unfair labor practice charge

nor named as a party to the injunction nor did it

have notice of or participate in the injunction pro-

ceedings.

In the middle of October, 1970, further activity in

Marin County developed. The court below character-

ized. this conduct as follows:

“The effort broadened to boycott or quarantine

San Rafael and all of Marin County, curtailing

deliveries of all supplies, causing traffic tie-ups

and attempting to prevent delivery trucks from

entering exit ramps from main highways to enter

the city.” 492 F.2d at 932.

The National Labor Relations Board through the

Regional Director filed a petition seeking to hold

Locals 21, 5, 10 and their officers in civil and

criminal contempt of both previous injunctions, (J.A.

14-36). The contempt petition claimed that “Respon-

dents embarked upon a joint plan, program and

‘This is Case No. C-70-895 WTS (N.D. Ca.). For the text of the

injunction see J.A. 10-13.

PAA NE RN A RR Ee eee

campaign to create a boycott of goods, materials,

commodities and services...” (J.A. 22).

Local 21’s efforts to block deliveries in Marin

County affected members of Local 70. Although its

jurisdiction is Alameda County, its drivers, in the

course of their work, make deliveries in Marin County

atid elsewhere around the Bay Area. The evidence is

overwhelming as to Local 21’s campaign to block

deliveries and otherwise enforce a secondary boycott.

There is also evidence in the record that drivers from

many Teamster locals including 70 refused to cross

the picket lines or to make deliveries | in Marin County

during the week and a half preceding the filing of the

contempt petition. Local 70’s involvement in the boy-

cott scheme was, according to the National Labor

Relations Board, reflected by the presence of peti-

tioner James Muniz, the President of Local 70, and

business agents of the Local in Marin County during

the week anda half in which Local 21 maintained its

picket lines.° , |

Swept into the case as accused contemnors were

petitioners—James Muniz and Local 70. While neither

petitioner was the subject of any unfair labor practice

charge nor a party to either injunction proceeding,

the Board sought to prove that petitioners had acted

in concert and participation with parties to the in-

junction since neither had been given actual notice

of either injunction by personal service or in any

other way.

5Brief of the National Labor Relations Board to the Ninth Cir-

| cuit, pp. 20-21.

On October 23, 1970, the contempt trial began be-

fore Judge Sweigert,® the same judge who signed the

stipulated preliminary injunction. AlF respondents

including Petitiéners Muniz and Local 70 were

charged with both civil and criminal contempt, and

moved for a bifureation of the proceedings. Rather

than bifurecate the proceedings according to the pro-

cedure suggested in’ United States v. United Mine

Workers, 330 U.S. 258, 299 (1947), the court tried

the civil and criminal allegations simultaneously.

Petitioners Muniz and Local 70 demanded a jury

trial as to the criminal contempt, and argued. that

Title 18, Section 3692 guaranteed the right of a jury

trial in such a labor dispute. In addition, these alleged

_ contemnors argued that they had a constitutional right

to a jury trial, relying on this Court’s decisions in |

Cheff v. Schnackenberg, 384 U.S. 373 (1966) and

Bloom v. Illinois, 391 U.S. 194 (1968). The motion

for a jury trial was denied by the court. (J.A. 54-55).7

_ After a trial of the alleged contempt which lasted

for approximately fifteen days, Judge Sweigert con-

cluded that petitioners had “knowingly and willfully, .

and with intent to defy, disobeyed, violated, resisted

and disregarded [the Court’s orders] .. .” (G.A. 40a).

Notwithstanding the fact that Local 21 was the prime

participant in the labor dispute, the court inflicted the

same criminal penalty on each union; a $25,000 fine,

6Petitioners Muniz and Local 70 were represented by separate

counsel uninvolved in any of the prior proceedings.

7After the court imposed substantial fines, these issues were

raised in renewed motions and summarily denied. (G.A. 46a-48a). .

$15,000 of which was to be remitted at the end of a year

(G.A. 43a-44a)." As to the individuals, the Court placed

them “on probation for one year, subject to the Court’s

right to shorten or to extend that period. .. .” (G.A.

45a-46a).

This appeal followed.

SUMMARY OF THE ARGUMENTS

A. The Constitutional Issue

“Serious” criminal contempts are subject to the .

jury trial provisions of Art. III, Section 2 and

Amend. VI, United States Const., Bloom v. Illinois,

391 U.S. 194 (1968); Duncan v. Louisiana, 391 U.S.

145 (1968); Frank v. United States, 395 U.S. 147

(1969) ; Dyke v. Taylor Implement Mfg. Co., 391 U.S.

216 (1968).

Whether or not a crime is “serious” is measured by

objective standards, the dividing line between serious

and petty offenses for federal courts being governed

by Congressional intent as expressed in 18 U.S.C. §1

(3); Frank v. United States, supra; Baldwin v. New

York, 399 U.S. 166 (1970) ; Codiposti v. Pennsylvama,

1. ern (41 L.Ed.2d 912) (1974); United

seeeeneeeeee

’

Prior to imposing sentences the court called for a “pre-sentence”

report from the Board which was treated as a probation report.

(J.A. 47-52). The Board argued that “the contumacious conduct

of rspondents [was] of extremely serious nature,” and that “the

Court can . . . be vindicated by the imposition of substantial fines.

...” (J.A. 52). . .

(

States v. Polk, 438 F.2d 377 (6th Cir. 1971); North

American Coal Corp. v. Local 2262, United Mine

Workers of America, 497 F.2d 459, 467, n4 (6th Cir.

1974); Jn Re Union Nacional de Trabajadores, 502

F.2d 113 (1st Cir. 1974).

Where a fine, rather than imprisonment, is imposed,

the contempt may nevertheless be serious where the

amount of fine exceeds the $500 limitation set forth

in 18 U.S.C. §1(3). United States v. Polk, supra;

North American Coal Corp. v. Local 2262, United

Mine Workers of America, supra; In Re Union Na-

ctonal de Trabajadores, supra.

Since the amount of fine imposed upon petitioner

exceeds the $500 limitation for summary proceedings

in contempt, petitioner is entitled to a jury trial.

Article IIT, Section 2; Amend. VI, U.S. Const.

B. The Statutory Issue

Petitioners, in addition to the constitutional issue,

rely upon the unambiguous language of § 3692 for

a convincing basis for their entitlement to a jury trial

in this ease. There is no lack of clarity or uncertainty

in this section which requires this Court to consider

legislative materials. Similarly, there are no conflict-

ing statutes which require accommodation.

The First Circuit, in In Re Union Nacional de

Trabajadores, 502 F.2d 113, read the statute in its

natural meaning and found no persuasive reason to

create any limitation on the meaning or intent of the

statute. To a large extent, petitioners rely on the well-

fashioned opinion of Chief Judge Coffin.

However, a review of the process of codification of

§ 3692 in 1948 does reveal significant circumstantial

and direct evidence that Congress intended § 3692 to

have a very encompassing meaning. See Part XIII.

Similarly, neither sections 10(h) or 10(1), 29

U.S.C. §§ 160(h) or (1), of the Labor-Management

Relations Act broadens the criminal contempt power

of courts so as to require any accommodation with

§ 3692. See Parts XI and XII.

The broad reading of § 36€2 is consistent with the

principles the statute embraces and the labor relations

policy expressed in the Labor Management Relations

Act and the Norris-LaGuardia Act.

THE CONSTITUTIONAL ISSUE

VII

TRIAL BY JURY IS REQUIRED WHERE A CRIMINAL CON-

TEMNOR IS FINED $10,000 FOR INDIRECT CONTEMPT BY

WILLFULLY DISOBEYING A COURT ORDER.®

Introduction

From Green v. United States, 356 U.S. 165 (1958)

to Codiposti v. Pennsylvania, 41 L.Ed.2d 912 (1974),

and Taylor v. Hayes, 41 L.Ed.2d 897 (1974), this

Court has agonized over when, if at all, trial by jury

may be had by alleged criminal contemnors. See

®Petitioner Muniz, having been placed on probation with neither

fine nor imprisonment imposed, does not raise this jury trial issue

as a constitutional issue—but is entitled to a jury trial under § 3692.

See, Frank v. United States, 395 U.S. 147 (1969).

United States v. Barnett, 376 U.S. 681 (1964) ; Cheff

v. Schnackenberg, 384 U.S. 373 (1966); Shillitani v.

United States, 384 U.S. 364 (1966) ; Bloom v. Illinois,

391 U.S. 194 (1968) ; Dyke v. Taylor Implement Mfg.

Co., 391 U.S. 216 (1968) ; and Frank v. United States,

supra.

The evolution of entitlement to trial by jury for

certain criminal contempts has been guided and deter-

mined in part by resolution of the question as to when

a jury trial is required in criminal cases not involving

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

Baldwin v. New York, 399 U.S. 66 (1970).

Insofar as they are relevant to this case, the appli-

cable rules may be summarized as follows:

(a) When the purpose of a contempt conviction

is to punish for past conduct, the contempt is criminal.

Shillitant,, at 368;

(b) Serious contempts are so similar to other

serious crimes that they are subject to jury trial pro-

visions just like other serious crimes. Bloom, at 201-

202.

is serious or petty depends upon objective standards,

the most relevant of which is how society views the

offense as evidenced by the penalty authorized by

law. Frank, at 148-149.

(d) Where no legislative penalty is specified, seri-

ousness (or pettiness) is judged by the penalty actu-

ally imposed. Frank, at 149; Bloom, at 211; Dyke, at

220.

PIPED LNT CF RN

(e) The dividing line between serious and petty

offenses for federal courts is governed by Congres-

sional intent, as expressed in 18 U.S.C. §1(3)."°

Frank, at 150 fn.3; Baldwin, at 70-71; Codiposti, at

919; Cheff, at 379-380. See also, Anno: Distinction

Between “Petty” and “Serious” Offenses for Purposes

of Federal Constitutional Right to Trial by Jury—

Supreme Court Cases, 26 L.Ed.2d 916 (1970).

None of the cases thus far referred to expressly

involve or deal with jury entitlement where a fine

alone, rather than imprisonment, is the sentence im-

posed. Nor do such cases expressly concern imposition

of a sentence upon an organization such as Local 70.

The Sixth Circuit, in United States v. Polk, 488

F.2d 377 (1971)"' held that a fine of $5,000 imposed

upon a corporate defendant entitled such defendant

to a jury trial because the fine exceeded the $500

line drawn by 18 U.S.C. § 1. Polk was considered to

be “well reasoned” by the First Circuit in In Re

Puerto Rico Newspaper Guild Local 225, 476 F.2d

856, 858 (1973). But, the First Circuit declined to

consider the merit of Polk’s holding, inasmuch as the

ease before it involved $500 fines for separate viola-

tions which, only when aggregated, exceeded the

10“|N]otwithstanding any Act of Congress to the contrary ...

[any] misdemeanor, the penalty for which does not exceed im-

prisonment for a period of six months or a fine of not more than

$500, or both, is a petty offense.”

11See, also, North American Coal Corp. v. Local 2262, United

Mine Workers of America, 497 F.2d 459, 467, n.4 (6th Cir. 1974).

FAAOTE RR

limits of 18 U.S.C. §1(3).% The Court of Appeals

below, without much discussion, refused to follow

Polk, 492 F.2d 929, 937, n.8."*

A. Jury Trial Is Required Whether A Sentence is

By Fine or By Imprisonment.

Neither Article ITI, §2 nor Amend. VI" distin-

guish between crimes or criminal punishment based

upon imprisonment or fine. Petitioners concede that at

first blush, there is a certain emotional appeal for re-

fusing to equate a fine with a sentence imposing im-

prisonment. See opinion below, 492 F.2d 929 at 937,

n.9. But there is no reason in history or in law to

2The First Circuit, however, in In Re Union Nacional de

Trabajadores, 502 F.2d 113 (1st Cir. 1974), construed the Puerto

Rico Newspaper Guild case as requiring a jury trial when a fine

for a single offense exceeds $500.00. 502 F.2d 113 at 116. Codiposti

and Taylor were decided after decision in Puerto Rico Newspaper

Guild, and would require a different result in it than was .2ached.

18Other cases in which the issue involved here is discussed were

either decided before Bloom; e.g., In Re Holland Furnace Co., 341

F.2d 548 (7th Cir. 1965), cert. denied, 381 U.S. 924 (1965), or be-

fore Baldwin; see, e.g., Rankin v. Shanker, 23 N.Y.2d 111 (242

N.E.2d 802, 1968, stay denied, 393 U.S. 930, 1968). Still other cases

have rejected Polk; e.g., McGowan v. State, 258 So.2d 801 (Miss.,

1972), cert. denied, 409 U.S. 1006 (1972), in which the Court

merely said without discussion that an organization can be treated

differently than an individual for purposes of entitlement to jury

trial; and In Re Fair Lawn Educ. Ass’n, 63 N.J. 112, 305 A.2d

72, cert. denied, 414 U.S. 855 (1973), in which reliance was placed

upon local statutory safeguards to justify denial of jury trial.

These included a hearing before a judge other than the one whose

order was violated, and requiring clearly defined and separate

criminal contempt proceedings from civil contempt proceedings.

14“The Trial of all Crimes, except in Cases of Impeachment, shall

be by Jury .. .” Art. ITT § 2, U.S. Const.

“In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury . . .” Amend. VI,

U.S. Const. i

}

2 y

po ee

£6 PES EO RE Bee

support any such distinction for purposes of jury

entitlement.

Fines have been used throughout history as an

alternate or supplemental method of punishment for

crime, without regard for the seriousness or pettiness

of offense. See Rubin: The Law of Criminal Correc-

tion, Chap. 7 (West Pub. Co., 1963). Rubin traces the

practice cf fines to the common law and the antecedent

medieval Anglo-Saxon law, which included “wergeld,”

the payment of a specific sum by one who caused the

death of another; “bot,” compensation paid to a vic-

time of crime; and “deodond,”’ the forfeiture of

articles which were the instruments causing injury

or loss; and fines were used as serious punishment in

other criminal law systems such as the multa in

Roman law, the amende in French law, and the

geldestrope in German law. Id., n.9 at 522. The use

of fines in serious cases led to such abuses of govern-

mental power that a prohibition against “excessive

fines” was incorporated in the English Bill of Rights

of 1688, and later in Amend. VIII. Id. at 223, 1

Stephen, History of the Criminal Law of England 57

(1883).

In the United States, fines have been imposed for

both serious and less serious offenses, especially where

the offending party is an organizational entity. See

Seagle, Fines, 6 Encye. Soc. Sci. 249, 250 (1931). In

United States v. United Mine Workers of America,

330 U.S. 258 (1946), a heavy, albeit reduced, fine was

explained to be justified in order to emphasize the

gravity of a union’s disobedience to a court order.

Witerescxcgce geo SoS aos PLS, Vises —< ce ee ee ee

16 ff

Utilization of fines against organizations, which by

their nature cannot be jailed, or against individuals*®

hardly means that a fine is not serious, or that the

offense for which it is imposed must be, because of

its imposition, a petty one.

Denial of trial by jury for petty offenses has nothing

to do with whether or not a jail sentence or fine, or

both, are imposed. Instead, jury trials are denied for

petty offenses because historically, a criminal offense

deemed to be petty was not tried by jury. Duncan,

at 159; Frankfurter and Corcoran, Petty Federal

Offenses and the Constitutional Guarantee of Trial

By Jury, 39 Harv. L. Rev. 917 (1926).

The fact that imprisonment ts imposed is not deter-

minative of the question as to when an offense is

serious or petty. Imprisonment for six months or

less is imprisonment just the same. But an offense

for which a sentence of six months or less is imposed

is deemed to be petty for jury trial purposes because

of the need to balance rights of accused with the

desirability of convenient and early disposition of

criminal cases. Baldwin, at 73. Petitioner does not

doubt that an early and convenient disposition of

injunctive relief, such as was sought by respondent,

is desirable. Such a need is fully met by utilization

15While an individual may not be imprisoned for failure to pay

a fine solely because of indigency, imprisonment for failure to pay

a fine imposed is not constitutionally prohibited. Tate v. Short,

401 U.S. 3% (1971); Williams v. Illinois, 399 U.S. 235 (1970) ;

Morris v. Schoonfield, 399 U.S. 508 (1970).

of civil contempt proceedings,‘* which do not require

jury trial. When, however, criminal sanctions are

imposed, there is no more need to weight the scales

of convenience’ against an accused: merely because the

sentence is a fine, rather than impriso1iment.

This Court has recognized that a fine upon a union

for criminal contempt can be serious. Granny (roose

Foods, Inc. v. Brotherhood of Teamsters & Auto

Truck Drivers, Local 70, 415 U.S. 423, 448 (1974).

Here, petitiener, already subject to civil penalties

of $21,000, is faced with additional criminal sanctions

of at least $10,000.

The reason for having jury trials in serious offenses

is just as applicable where a sentence is a fine as

when a sentence is imprisonment; i.e., to “prevent

oppression by the Government.” Duncan at 155. In

cases of criminal contempt, potential and actual judi-

cial abuses are the same, whether or not a fine or

imprisonment is the sentence decreed. Bloom, 206-209.

The danger for abuse and misuse of contempt power

is even greater where, as here, the order of contempt

was sought by an arm of governraent, the N.L.R.B.,

and the trial was heard by the same judge who signed

the order. It is not surprising that in recent years,

the conviction rate for violation of N.L.R.B.-sought

injunctions has jumped to 91%. Bartosic and Lanoff,

16Shillitani teaches that a judge always should utilize civil con-

tempt power to obtain and coerce obedience to judicial orders.

Criminal sanctions should be resorted to only in the most serious

situations. 384 U.S. 364, 371, n. 9.

Escalating the Struggle Against Taft-Hartley Con-

temnors, 39 U. Chi. L. Rev. 255, 258 (1972).?"

Requiring jury trials in criminal contempt cases

where serious fines are imposed does not deprive

courts of their power to convict or to sentence for

criminal violations of court orders. It merely requires

that before a serious fine can be levied, jury trial on

the criminal charge must be had. .

B. The Objective Standard of 18 U.S.C. §1(8) Governs As To

Whether or Not A Crime Is Serious For Purposes of Jury

Trial.

This Court has remained resolute in its commit-

ment “to the proposition that ‘criminal contempt is

not a crime of the sort that requires the right to jury

trial regardless of the penalty involved.’” Taylor,

at 906. Similarly, the Court has been resolute in

drawing the line between serious and petty offenses

for purposes of jury entitlement, on the basis of soci-

ety’s view of the offense as evidenced by the degree

of punishment imposed. Cheff, at 379; Bloom, at 2

Dyke, at 219; Baldwin, at 68; and Taylor, at 906.

Earlier cases took into consideration the nature of

offense. Callan v. Wilson, 127 U.S. 540 (1888); Dis-

trict of Columbia v. Colts, 282 U.S. 63 (1930); and

earlier cases considered also the actual penalty

imposed as being the most relevant gauge to society’s

view, when the offense itself was not considered to

1™More frequently than not, a sentence is determined, “not by

the nature of the offender, or the offense, but by the nature of the

sentencing judge,” Gaylin, Partial Justice, A Study of Bias in

Sentencing (Alfred A. Knopf, 1974). See, also, Bloom at 202, n.4.

be inherently evil. Schick v. United States, 195 U.S.

65 (1904) ; District of Columbia v. Clawans, 300 U.S.

617 (1937). |

Clawans’ “counsel” (see Duncan, at 161) to seek

“objective” criteria has led this Court to draw the line

between serious and petty offenses by referring to

existing “laws and practices” in the nation. Baldwin,

399 U.S. 66, 70. Thus, 18 U.S.C. §1(3) has become

the dividing hne for federal offenses (Cheff, at 379;

Frank, at 219), and its provisions have emerged as

the dividing line for requiring jury trials in state

cases. Baldwin, at 68; Codiposti, at 919, n.4.

“Objective” criteria must be sought in deciding

whether an offense is petty or serious. Baldwin, at

p. 68; Frank, at p. 152. The dollar amount contained

in 18 U.S.C. §1(3) is just as relevant for purposes

of fines as it is for imprisonment.'’*® It reflects soci-

ety’s view of what is petty and what is serious, as

determined by society’s legislative representatives.’®

18There is nothing in the history of 18 U.S.C. § 1(3) which jus-

tifies any distinction between fines and imprisonment for purposes

of determining whether a crime is serious or petty. See, H. R. Re

port No. 304, pp. A2-A4 80th Cong., 1st Sess., 1947.

19Most states which have imposed monetary limitations upon al-

lowable fines for contempt have restricted the amount to $500 or

less. Only three states specifically authorize fines up to $1,000, and

the remaining states impose no limitations upon either the extent

of fines or imprisonment. 8 Wm. & Mary L. Rev. 76, 90-100, Ap-

pendix. See, also, Bloom at 206, n.8.

It is interesting to note, too, that when Congress adopted con-

tempt provisions in the Civil Rights Act of 1957, 42 US.

§ 1971(e), 1975(g), jury trial was granted where a fine imposed

exceeded $300. 42 U.S.C. § 1995. See, also, Bloom, at 204, n.6.

The National Commission on Reform of Federal Criminal Laws:

Study Draft of a New Federal Criminal Code (U.S. Govt. Printing

Office, 1970) classifies contempt by disobedience of a court order

There is considerable wisdom in utilizing 18 U.S.C.

§ 1(3) as the dividing line for serious and petty fines.

It provides courts and those accused of crime with

certainty as to when a jury is required, and it avoids

a hodge-podge of absurd results which may be brought

about by varying extrinsic factors such as inflation, \

high employment, unemployment, personal or organ- |

izational wealth or lack of wealth at any given point |

in time (a factor which will vary for an endless

number of reasons).

Subjective considerations may make sense in decid-

ing whether or not a fine imposed is constitutionally

“excessive.” Amend. VIII, U.S. Const.; United States

v. United Mine Workers, supra. But these considera-

tions, deemed valid under the Eighth Amendment, do

not meet the requirement of objective standords for

purposes of Art. ITI, §2 and Amend. VI.” Baldwin ;

Frank; Polk, supra, at 380.

as a Class A misdemeanor, subject to unlimited fine or imprison-

ment. § 1341(2). However, the Commission does not take a fixed

position on the length of sentence. Instead, it suggests terms of

three, six or twelve months as possible limits, and it notes that

twelve months may be more desirable. § 3204 and Comment thereto.

20The Constitutional provisions for jury trial impose the require-

ment without regard for the entity status of the criminally ae-

cused. The — to jury trial is attached, not to the accused, but

to “trial of crimes” and “in all criminal prosecutions.” Peti-

tioner, being subject to criminal prosecution (see, e.g., Standard

Oil Co. v. United States, 221 U.S. 1 (1910) ), can claim the same

entitlement to jury trial as may a human defendant charged with

crime. See also, The National Commission on Reform of Federal

Criminal Laws, supra, §§ 402-405, working papors, pp. 167 et seq.

aeRO EERE ORT ARR rRMENT ummnemeermaene sm nee

21 '

THE STATUTORY ISSUE

VITI

A SUMMARY OF THE STATUTORY FRAMEWORK

In 1932, Congress passed the Norris-LaGuardia

Act, 29 U.S.C. § 101, 47 Stat. 70, which restricted

the powers of the district courts to issue and enforce

injunctions arising out of labor disputes. Section 4 of

that Act, 29 U.S.C. § 104, forbade the issuance of

any injunction whatsoever interféring with nine types

of specified activity engaged in by workers or their

organizations. Sections 7-10 imposed severe procedural

and substantive limits on the injunctive process when

applied in residual circumstances not absolutely pro-

scribed in § 4.

Section 11, the predecessor of 18 U.S.C. § 3692,

with which this case is concerned, provided for a jury

trial in contempts of injunctions issued pursuant to

§§ 7 through 10.

Norris-LaGuardia governed all injunctive decrees

issued by the courts in labomlisputes. In 1934, Con-

gress attempted to create additional protection for

workers in the National Labor Relations Act, 29

U.S.C. § 151, 49 Stat. 449. In §§10(e)-(h) of that

law, courts of appeals were granted jurisdiction

to enforce National Labor Relations Board orders

against, employers only. Nowhere were the courts_

given any power to issue any injunctions against —

unions, and therefore, there was no retreat from

the principles enunciated so clearly in the Norris-

LaGuardia Act.

In 1947, Congress substantialiy revised the Waguer

Act with the Taft-Hartley amendments, the Labor

Management Relations Act of 1947, 61 Stat. 136, as

amended. This revision created new unfair labor

practices chargeable against unions, and gave juris-

_ diction to the district courts to temporarily enjoin

_ those unfair labor practices (including unfair labor —

practices against employers). For the first time in

fifteen years, limited inroads in the Norris-LaGuardia

principles were effected: courts were given jurisdic-

tion to issue injunctions in labor disputes. 29 U.S.C.

§§ 10(j) and (1). The power of the courts of appeals

to enforce Board orders was continued, 29 U.S.C.

$§ 10(e)-10(h), as before. }

One year later, in 1948, the entire federal criminal

law was recodified and revised into Title.18, “Crimes

and Criminal Procedures,” 62 Stat. 683.

| At this time, §11 of Norris-LaGuardia was

repealed, and a new section was added to. Title 18,

§ 3692, guaranteeing a jury trial “[i]n all cases of

contempt arising under the laws of the United States

governing the issuance of injunctions or restraining

orders in any case involving or growing out of a labor

dispute.” ae

The interplay of § 11 of Norris-LaGuardia with its

revision into § 3692. of Title 18, and two sections of

the Taft-Hartley amendments, 29 U.S.C. §6160(h) |

‘and (1), is the issue before this Court.?!

21For a general discussion of the practical and legal framework

‘surrounding contempt of these Board-obtained injunctions, see

Bartosic & Lanoff, Escalating the Struggle Against Taft-Hartley

ee a en

| Ix

SECTION 3692 IS UNAMBIGUOUS ON ITS FACE, AND MUST BE

CONSTRUED IN FAVOR OF THE RIGHT IT GRANTS

A. Under a number of provisions of law, Congress

has provided an absolute statutory right to a jury

trial for federal criminal defendants.?? This Court

has not only giv..: constitutional :sanetion to—this

authority,”* but it has continually emphasized the

validity of these statutory requirements.”

Section 3692, under which petitioners assert the

right to a jury trial, is part of the Federal Criminal

Code, which not only defines federal crimes, but also

grants procedural protections to those accused in fed-

eral courts. Where rights of defendants are involved

in criminal proceedings, this Court has evolved spe-

cial tools and concepts for statutory construction.®

In construing another section of Title 18, “Crimes

and Criminal Procedure,” in favor of the accused,

ih's Court remarked: “that the interest of the United

States in a criminal prosecution ‘. . . is not that it

' Contemnors, 39 U. Chi. L. Rev. 255 (1972). Each year, the Board

reviews its contempt litigation in its annual report; e.g., “Thirty-

Ninth Annual Report of the National Labor Relations Board for

the Fiseal Year Ended June 30, 1974,” 170-72 (N.L.R.B., 1974).

22Sce e.g., 42 U.S.C. § 1973(1)a; 42 U.S.C. § 1995; 42 U.S.C.

§ 2000(h); F.R.Crim.P. 42; 18 U.S.C. § 402; 29 U.S.C. § 528 and

18 U.S.C. § 3691. Part VII of this brief raises the constitutional

issues inherent in the right to a jury trial.

23Michaelson v. United States, 266 U.S. 42 (1924).

*4Green v. United States, 356 U.S. 165, 187, n.19 (1958): Bloom

v. Ilinois, 391 U.S. 194, 204, n.6 (1968); and Frank v. United

States, 395 U.S. 147, 149, n:1 (1969). In each case, within the

footnote indicated, this Court noted the impact of § 3692.

25In the proceedings in the district court, criminal rights were

— = accused except that right asserted herein. See FR.

rim.P. 42.

shall win a case, but that justice shall be done... .’”

Campbell v. United States, 365 U.S. 85, 96 (1961).

In this case, the literal meaning of the statute

would grant James Muniz and Local 70 a jury trial.

Of that, there should be no question. In an anal-

ogous case, this Court interpreted the breadth of F.R.

Crim.P. 7(a), relating to the requirement that a

prosecution proceed with an indictment, Smith v.

United States, 360 U.S. 1, 9 (1959). When this Court

was asked to “construe the provisions of the Rule

loosely,” it refused, “in view of the traditional canon

of construction which calls for the strict interpreta-

tion of criminal statutes and rules in favor of the

defendant where substantial rights are involved.” Id.

When asked to place a gloss on another section of

the same Federal Criminal Code, the Court balked,

“when a statute is designed to incorporate funda-

mental values .. .” Sabbath v. United States, 391 U.S.

585, 589 (1968). Only where the literal meaning of a

statute produces “extraordinary results” does this

Court consider whether extraneous sources, such as

legislative history, require a gloss. N.L.R.B. v. Allis-

Chalmers Mfg. Co., 388 U.S. 175, 184 (1967). See

also, Banks v. Grain Trimmers Ass’n., 390 U.S. 459,

465 (1968). There is simply no need for extraneous

or independent information, because a proper result

is mandated by § 3692.

Fifty years ago, this Court considered a predecessor

to 18 U.S.C. § 3691, which guaranteed a right to jury

trial in specified circumstances. This Court refused

26Cf. F.R.Crim.P. 2.

to limit the plain meaning of that statute, and criti-

cized the lower court’s exercise in judicial legislation:

“To say that railroad employees are outside the

provisions of the statute is not to construe the

statute, but to engraft uponsitvan exception not

warranted by its terms. If Congress had intended

such an exception, it is fair to suppose that it

would have said so affirmatively. The words of

the act are plain, and in terms inclusive of all

classes of employment; and we find nothing in

them which requires a resort to judicial construc-"

tion. The reasoning of the court below really

does not present a question of statutory construc-

tion, but rather an argument justifying the sup-

posititious exception on the ground of necessity

or of policy—a matter addressed to the legislative

and not the judicial authority.” Michaelson v.

United States, supra, 266 U.S. at 68.

In the context of a criminal statute guaranteeing

a fundamental right, the natural meaning of ordinary

words cannot be ignored. There is no persuasive

reason to impose any narrow ‘meaning on § 3692.

B. Each and every element of § 3692 is present

herein:

(1) Petitioners were charged with criminal

contempt.

(2) A law “of the United States governing

the issuance of injunctions or restraining orders”

was the statutory basis for the district court’s

jurisdiction. 29 U.S.C. § 160(1).”"

*7References to subsections of 29 U.S.C. § 160 will be referred to

to by the internal numbering system of the section. Thus, § 160(1)

is § 10(1).

(3) This is a case growing out of a labor

dispute.”®

(4) The alleged contempt was not committed

in the immediate presence of the court, nor did it

concern the disobedience of any officer of the

court.

The court below placed a restrictive gloss on § 3692,

which effected a denial of this jury trial provision.

Although the opinion does not completely reflect all

the arguments made in favor of that interpretation,

petitioners, will consider those arguments advanced

by the Board in the court below to support this

restrictive reading.®®

».«

PETITIONERS WERE CHARGED WITH CONTEMPT ARISING OUT

OF A LABOR DISPUTE WITHIN THE MEANING OF § 3692

The dispute out of which Local 70 and James

Muniz were charged with contempt involved a strike

at the Independent-Journal and subsequent alleged

secondary boycott involving both consumers and deliv-

ery drivers. The phrase “labor dispute” is common

to federal regulatory statutes. See 29 U.S.C. §§ 152

(a), 164(c); 113(a), (b), and (c); and 29 U.S.C.

Pie Board’s assertion to the contrary is dealt with in Part X,

infra.

2°The arguments are contained in the brief of the Board to the

Ninth Circuit, pp. 59-64. The First Circuit addressed these issues

in In Re Union Nacional de Trabajadores, 502 F.2d 113 (1974).

The opinion of the First Circuit is printed as an appendix to peti-

tioners’ supplemental brief to the petition for writ of certiorari,

dated August 21, 1974.

§ 402(g¢). Any controversy over the terms and condi-

tions of employment, “whether the disputants stand

in the proximate relation of employer and employee”

are labor disputes within the meaning of the Labor

Management Relations Act. 29 U.S.C. § 159(9). See-

ondary boycotts are labor disputes. Lauf v. E. G.

Shinner & Co., 303 U.S. 323, 329 (1938); and New

Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552,

009-61 (1938). Norris-LaGuardia and Taft-Hartley

have the same definition of a labor dispute. Cf. 29

U.S.C. §§ 152(9) and 113(c). The drafters of the

definition in the 1935 Wagner Act stated that the

language was lifted directly from that used in Norris-

LaGuardia.* The same definition was continued by

the 1947 amendments.** See 29 U.S.C. § 151 (indus-

trial disputes). The National Labor Relations Board

itself has recognized that the definition of a labor

dispute used in the National Labor Relations Act is

“substantially the same” as used in Norris-LaGuardia.

Tanner Motor Livery, Ltd., 148 N.L.R.B. 1402, 1403

(1964) ; and N.L.R.B. v. Washington Aluminum Co.,

370 U.S. 9, 15 (1962).

Of course, the term “labor dispute” is not strained

to cover every controversy involving workers and

their employers. For that reason, the courts have

not applied § 3692 to contempts arising out of injune-

tions issued according to the authority of the Fair

Labor Standards Act. 29 U.S.C. § 201-19, 52 Stat.

80], Legislative History of the National Labor Relations Act,

1935, at 1348 (N.L.R.B., 1949).

31], Legislative History of the Labor Management Relations Act,

1947, at 538 (N.L.R.B., 1948).

1060, Mitchell v. Barbee Lumber Co., 35 F.R.D. 544,

547 (S.D. Miss. 1964); or violations of orders to

specifically perform a collective bargaining agreement

according to an arbitration award, Philadelphia

Marine Trade Ass’n v. Internat’l Longshoremen’s

Ass’n, Local 1291, 368 F.2d 932, 934 (3d Cir. 1966),

rev'd on other grounds, 389 U.S. 64 (1967).

Notwithstanding the well-established meaning of

labor dispute, the Board argued below that since an

unfair labor practice was charged, no labor dispute

was in fact involved withing the meaning of § 3692.*

The court below seems to have reached the same con-

clusion, in stating that this case arose as part of “the

s2Because of subsequent history, this case is perplexing. The

case stands chronologically between Sinclair Refining Co. v. Atkin-

son, 370 U.S. 195 (1962), and The Boys Markets, Inc. v. Retail

Clerks Union, Local 770, 398 U.S. 235 (1970). The district court

which issued the injunction presumed it could only do so if it

could find that the dispute was outside the prohibitions of § 4 of

Norris-LaGuardia. When the case reached this Court, it refused

to reach the issue which it faced later in The Boys Markets, Inc.

case. 398 U.S. at 73. The injunction against the strike pending

further arbitration would now be permissible. The issue posed in

Part XIV C, infra, is thus joined.

88See N.L.R.B. brief before the Ninth Circuit, pp. 61-63. The

Board’s position is inconsistent. As will be discussed subsequently,

see Part XIII, infra, the Board claims that § 3692 has the same

meaning as old § 11, 29 U.S.C. § 111, 47 Stat. 72, of the Norris-

La‘juardia Act (and thus including only contempts arising out of

injunctions issued under that Act). The Board at the same time

has denied that “labor dispute” applies to the activity alleged

herein. The inconsistency is that the definition of “labor dispute”

contained in both the Norris-LaGuardia Act and the Taft-Hartley

Act are exactly the same. On the one hand, the Board claims that

§ 3692 is derived from and limited to § 11 of the Norris-LaGuardia

Act. On the other hand, the Board claims that the term “labor

dispute” contained therein is not the same as that contained in

Norris-LaGuardia. See Mitchell v. Barbee Lumber Co., supra, 35

F.R.D. at 546 (definition of labor disputes in § 3692 same as in

Norris-LaGuardia).

administrative scheme of the Labor Management Rela-

tions Act and its amendments.” 492 F.2d at 934. The

gloss placed upon the term “iabor dispute” to exclude

labor disputes where unfair labor practices are com-

mitted is contrary to the plain meaning of this term.*4

The short of the matter is that the term “labor

dispute” is common to Federal statutes involving

labor relations, and concerns the kind of alleged boy-

cotting and strike activity involved herein.

SECTION 10(h) DOES NOT EXEMPT 10(1) INJUNCTIONS

FROM THE PROVISIONS OF SECTION 3692

Nowhere does § 10(h), 29 U.S.C. § 160(h)** exclude

injunctions issued under the authority of §10(1) from

34Chief Judge Coffin, writing for the First Circuit, noted the

ultimate contradiction in the Board’s position :

“That the language of § 3692 would facially apply to many

NLRA injunction situations, such as this one, is borne out

by the source of the language itself, apparently section 1

of the Norris-LaGuardia Act, 29 U.S.C. § 101. That section

applies to cases ‘involving or growing out of a labor dis-

pute.’ If that language did not apply to at least some NLRA

situations, there would be no reason for Congress to include

a provision stating that section 1 did not apply to certain

parts of the NLRA. Yet of course Congress did include such

a provision in section 10(h) of the NLRA, 29 U.S.C.

§160(h), which specifically exempted the jurisdiction of

courts ‘sitting in equity’ under section 10 of the NLRA, 29

U.S.C. § 160, from the limitations of Norris-LaGuardia.” In —

Re Union Nacional de Trabajadores, 502 F.2d at 118.

35Section 10(h) reads in its entirety:

When granting appropriate temporary relief or a restrain-

ing order, or making and entering a decree enforcing, modi-

fying, and enforcing as so modified, or setting aside in whole

or in part an order of the Board, as provided in this section,

the jurisdiction of courts sitting in equity shall not be limited

by the Act entitled “An Act to amend the Judicial Code and

to define and limit the jurisdiction of courts sitting in equity,

and for other purposes,” approved March 23, 1932 (U.S.C.,

Supp. VII, title 29, sees. 101-115).

the provisions of Norris-LaGuardia or § 3692. The

Board’s argument** to the contrary requires that three

consecutive inferences be drawn: (1) Because § 10(h)

applies to “temporary relief or a restraining order”

this includes the “injunctive relief” obtained pursuant

to §10(1); (2) the language of § 10(h) applies to

except from all the provisions of Norris-LaGuardia

those injunctions obtained pursuant to § 10(1);

including, in particular the § 11 right to a jury trial;

(3) The § 3692 right is a mere continuation of § 11

of Norris-LaGuardia. None of these inferences can

properly be drawn. That the history of § 10(h) estab-

lishes that its provisions have absolutely nothing to

do with the type of injunction obtained herein pur-

suant to y 10(1)*’ is discussed in Part A, infra. Sec-

ondly, that the language of § 10(h) indicates that it

serves no greater purpose than a naked grant of juris-

diction to the courts of appeal is considered in Part

B, infra. The third inference is the subject of Part

XITI, infra.

A. The Board’s authority to obtain injunctive

relief to prohibit certain unfair labor practices in

the district courts is grounded solely on § 10(1) itself;

§10(h) applies only to the enforcement of Board

orders in the courts of appeal.** A brief outline of the

36See NLRB brief before the Ninth Circuit, p. 60.

®7See, generally, “The Labor Management Relations Act and

are ae of the Labor Injunction,” 48 Col. L. Rev. 759, 760-62

88Although the opinion of the Ninth Circuit mentions only

§ 10(1), the Board urged the impact of §10(h) in its brief to

that court, p. 60. Other courts, without discussion, have errone-

statutory scheme will illustrate this. The administra-

tive-adjudicative scheme envisions Board investiga-

tion of charges filed by an interested party. §10(b).

A Board hearing is held, and if the charges are

proven, the Board issues an appropriate order.

§10(c). If the order is disregarded by the person

found to have committed the unfair labor practice,

the Board is empowered to seek temporary® or per-

manent injunctive relief in the courts of appeal, which

possess the statutory enforcement function. § 10(e).

As an administrative agency the Board lacks any

power to enforce its orders except through these

procedures. -

§10(e) and similarly §10(f) permit the court of

appeals to enforce a Board order, and where neces-

sary “to grant such temporary relief or restraining

order as it deems just and proper.” §10(h) in haec

verba grants the courts of appeal jurisdiction, not-

withstanding the provisions of Norris-LaGuardia.

The conjunction of identical language in §§ 10(e),

10(f), and 10(h) strongly implies that ¢ 10(h) applies

only to those enforcement orders sought in the courts

ously assumed that §10(h) applies to §10(1). E.g., Lebaron v.

Printing Specialties & Paper Converters Union, Local 388, 75

F.Supp. 678, 681 (S.D. Ca. 1948), aff'd, 171 F.2d 331 (9th Cir.

1948); Madden v. Grain Elevator, Flour & Feed Mill Workers,

etc., 334 F.2d 1014, 1020 (7th Cir. 1964), and Penello v. 1.L.A.,

Local 1248, 78 L.R.R.M. 2009, 2013 (E.D. Va. 1971), aff'd as

modified, 455 F.2d 942 (4th Cir. 1971). See also In Re Union

Nacional de Trabajadores, supra, 502 F.2d at 119-20.

3°Such temporary restraining orders are not uncommon to the

courts of appeal. See, e.g., N.L.R.B. v. Hospital & Institutional

Workers, Local 250, 78 L.R.R.M. 2095 (9th Cir. 1971) : and Sears,

Roebuck & Co. v. Carpet, Linoleum, etc., Local Union No. 419,

397 U.S. 655, 658-59 (1970).

a “ . OLE LO IT CEOS GN INGE Se As EDGED LET, LLG LN OOS TEN a i EIN NS Se RNR NN RR Nah te RN RE

of appeal. However, no temporary or permanent

relief is contemplated or authorized until the proce-

dures outlined in §§10(b) through 10(d) have been

exhausted. This is in deliberate contrast to the rem-

edies provided for in §10(1) (and similarly §10(j))

which are temporary and involve the district courts

prior to the completion of Board procedures.

Secondly, the original inclusion of §10(h) in the

Wagner Act demonstrates that its purpose was and

is limited solely to orders issued pursuant to §§ 10(e)

and 10(f). “This provision was carried over from

the original Act, and has no effect upon subdivisions

(j) and (1), which are new provisions in the amended

Act.” Douds v. Local 294, I.B.T., 15 F.Supp. 414, 418

(N.D. N.Y. 1947).”

When Taft-Hartley was enacted in 1947, Congress

granted the Board new authority to seek relief in the

district courts in §10(1). At the same time, it con-

tinued almost verbatim §§ 10(e), (f), (g), and (h) of

the old Wagner Act. There was no provision what-

soever for injunctive relief prior to 1947 in the district

courts against any unfair labor practice. Contrary

to §10(1), no injunctive relief was ever permitted

until the Board had found a violation after the hear-

ing process mandated in §§10(b) and 10(c). When

§ 10(h) was enacted in 1935, it could apply only to

the enforcement of Board orders sought against

unfair labor practices after hearing and adjudication.

“Accord, Jaffee v. Newspaper & Mail Deliverers Union, 97 F.

Supp. 443, 451 (S.D. N.Y. 1951).

LTBI EEE

When $§ 10(e), (f), (g), and (h) were continued

without significant change in the 1947 Taft-Hartley

enactments, the purpose and scope of § 10(h)

“remained unchanged in the amended act.’ The

debates did not indirectly or directly reflect any

attempt to integrate §§10(h) and 10(1): they were

entirely separate and distinct provisions.‘

Thirdly, § 10(1) itself has its own independent juris-

dictional language:

“Upon the filing of any such petition, the district

court shall have jurisdiction to grant such injune-

tive relief or temporary restraining order as it

deems just and proper... .”

The language and meaning of § 10(h) is superfluous

to any authority necessary for § 10(1).*

B. The effect of §10(h) is limited only to the

equitable powers and not to the criminal contempt

process, The First Circuit recognized that the lan-

guage of §10(h) did not affect anything more than

the court’s “jurisdiction sitting in equity.’** Embraced

*1Sce I, Legislative History of the Labor Management Relations

Act, 1947 at 334 and 433.

In H.R. 3020 (introduced by Mr. Hartley), § 10(h) was re-

tained, § 10(1) was not even proposed. Only the Senate version,

S. 1126, contained both provisions. The fact ‘that §10(h) was

included without §10(1) in the House version indicates the total

independence of the section. Id. at 73-74 and 129-32.

43The reason why § 10(h) does not refer only to courts of appeal

sitting “in equity” is because the district courts could also enter

enforcement orders on the rare occasion when the courts of appeal

ein on vacation. This limited provision continues to exist in

10(e).

*4An extension of this was suggested by Campbell, J., dissent-

ing in In Re Union Nacional de Trabajadores, 502 F.2d at 121-

22. §10(h) excludes its provisions from the application of Nor-

within the meaning of § 10(h) is only “granting

appropriate temporary relief or a restraining order,

or making and entering the decree enforcing, modify-

ing, and enforcing as so modified . . . the jurisdic-

tion of courts sitting in equity shall not be limited .

by the [Norris-LaGuardia Act] ...” Nothing more

is contained in that section. Focusing on the word

“equity” found in §10(h), the First Circuit noted:

“We find it difficult to think of a court sitting to

mete out punishment for past offenses as a court

‘sitting in equity.’ Criminal contempt proceed-

ings can arise from proceedings begun in either

law or equity. While ‘contempt’ generically may

‘sound in’ equity, a criminal contempt proceed-

ing really stems from the inherent power of a

court, not merely a chancellor, to vindicate its

authority. It is sui generis. United States v.

Barnett, 346 F.2d 99 (5th Cir. 1965).” 502 F.2d

at 120. See, also, Michaelson v. United States,

supra, 266 U.S. at 64-65. .

Section 10(h) does not purport to impose any con-

straints on the criminal powers of any federal court.

A second independent reason is that §10(h) itself

speaks only in terms of granting jurisdiction: the

rules of procedure, the substantive law, and the rights

to a jury trial are defined and codified elsewhere.

Norris-LaGuardia itself not only spoke in terms of

“jurisdiction,” but prescribed appeal procedures

(§ 10); the standard of proof of agency (§6); a

ris-LaGuardia only. Since § 3692 is not part of Norris-LaGuardia,

§ 10(h) does not purport to exclude the rights granted by § 3692.

Such a holding is reasonable in light of the alterations made

when § 111 of the Norris-LaGuardia Act was repealed,

duty “to make every reasonable effort to settle”; and

the right codified in § 11 to a jury trial. The word

\ “jurisdiction” contained in §10(h) cannot be broad-

ened beyond the court’s power to issue the injunc-

tion.*® |

§10(h) is simply inapplicable and unrelated to

orders obtained under § 10(1): § 10(h) does not oper-

ate in any way to remove or imply the removal of

any right guaranteed by Norris-LaGuardia to the

proceedings involved herein. |

XIT

SECTION 10(1) DOES NOTHING MORE THAN GRANT JURISDIC-

TION TO THE DISTRICT COURT TO ISSUE TEMPORARY

INJUNCTIONS.

Section 10(1) permits the Regional Director of the

National Labor Relations Board to seck temporary

relief in the district courts pending the conclusion of

Board adjudication of certain unfair labor practice

allegations involving unions.** Within the language of

§ 10(1), there is explicit grant of authority to the dis-

trict courts to ‘‘have jurisdiction to grant such injunc-

tive relief or temporary restraining order as it deems

*°Section 10(h) lifts in haec verba the language, “the juris-

diction of courts sitting in equity,” from the title of Norris-La-

Guardia. It is significant that the language “for other purposes”

embodied in that title was not ineluded in the language of

§10(h). That section purports only to reach jurisdictional limits

imposed by Norris-LaGuardia, not the other restrictions of that

Act. See Bakery Sales Drivers Union v. Wagshal, 333 U.S. 437,

442 (1948), but see n.38 and n.43 supra.

4°See, “The Labor Management Relations Act and the Revival

of the Labor Injunction,” supra.

: 36

just and proper, notwithstanding any other provision

fins,

The Board has seized upon this language to claim

that it was the intention of Congress to exempt § 10(1)

proceedings from any provision of law, and in particu-

lar, those provisions of law which would grant alleged

eontemnors jury trials. Ss

The First Cireuit interpreted similar language in

§ 10(h) in its clear and narrow sense to relate to juris-

diction only. See In Re Union Nacional de Trabaja-

dores, 502 F.2d at 119. Theanguage does not directly

or indirectly imply any other provisions of law, in-

cluding § 3692, would be inapplicable to these injunc-

tions. An acceptance of the Board position would re-

quire that every law, both statutory and court made,

applicable to the injunctive process, would be rendered

Zs ‘

47It is worth orapeine the language of Séction 10(j), which

om not employ the “notwithstanding any other provision of

w” language : :

The Board shall have power, upon issuance of a cuin-

plaint as provided in subsection (b) of this section charging

that any person has engaged in or is engaging in an unfair

labor practice, to petition any United States district court,

within district-wherein the unfair labor practice in ques-

tion is alleged to have occurred or wherein such person re-

sides or transacts business, for appropriate’ temporary relief

or restraining order. Upon the filling of any such petition the

court shall cause notice thereof to be served upon such per-

son, and thereupon shall have jurisdiction to grant to the

Board such temporary relief or restraining order as it deems

just and proper. :

In Re Union Nacional de Trabajadores was a case arising un- |

der § 10(j), not §10(1). The court did not discuss the jurisdic-

tional t language in § 10(j). Any distinction between § 10(j)

and § 10(1) would seem improper, in view. of the closely parallel

provisions and purposes. Mins .

nugatory by the “notwithstanding any other provision

of law” phrase.**

Section 10(1) does nothing more than grant certain

powers of injunctive relief to the district courts, ‘not-

withstanding any other provision of law” in certain

narrowly defined labor disputes (those involving sec-

ondary boycotts or jurisdictional disputes) where an

unfair labor practice charge has been both filed and

investigated.“* The Board places a reliance on six

words within § 10(1) for the preposterous proposition

that the courts have unlimited power beyond their

basic jurisdiction to issue injunctions without regard

to other well-established principles.® Once the court’s

48Query: Would the “notwithstanding any other provision of

law” language exclude the provisions of Fed.R.Civ.P. 65(d)

from injunctions issued under § 10(1)? Congress could not have

intended such a wholesale repeal of all such laws.

*°That this phrase grants jyrisdiction only to issue injunctions,

notwithstanding the Norris-LaGuardia Act, is the precise hold-

ing of Bldg. & Construction Trades Council v. Alpert, 302 F.2d

594 (Ist Cir. 1962). Accord, Compton v. Teamsters, Local~901,

49 L.R.R.M. 2835 (D.P.R. 1962) (court may issue ex parte tem-

porary restraining order), temporary injunction granted, 49

L.R.R.M. 2843 (D.P.R. 1962); Lebaron v. Printing Specialties

& Converters Union, Local 388, supra; Penello v. I.L.A., Local

1248, supra; and cf. In Re Union Nacional de Trabajadores, 502

F.2d at 117, n.3.

50That Congress has created limited jurisdictional exceptions to

portions of Norris-LaGuardia, while leaving intact other important

provisions, is clear in this Court's ruling in Boys Market, Inc. v.

Retail Clerks Union, Local 770, supra, diseussed in Part XIV C,

infra. When this Court held that § 4 of Norris-LaGuardia was no

jurisdictional bar to the issuance of injunctions where a collective

bargaining agreement contained grievance-arbitration machinery,

it did not imply that other provisions of Norris-LaGuardia were

weakened or limited. See United States Steel Corp. v. United Mine

Workers of America, 456 F.2d 483, 487-89 (3d Cir, 1972); New

York Telephone Co. v. Communication Workers of America, 445

F.2d 39, 49-50 (2d Cir. 1971): but see Granny Goose Foods, Inc.

v. Brotherhood of Teamsters, Local 70, supra, 415 U.S. 423, 445,

n.19 (1974).

jurisdiction has been established, other recognized

principles of law regarding the breadth of injunctions,

the process of modifying those injunctions, and their

enforcement through contempt are thereafter applic-

able.”

XIII

THE SCOPE OF SECTION 3692 IS NOT RESTRICTED TO

CONTEMPTS ARISING OUT OF NORRIS-LAGUARDIA IN-

JUNCTIONS.

A. Section 3692 is unambiguous, and applies to

‘all cases of contempt . . . involving or growing out

of a labor dispute. . . .” Notwithstanding this explicit

language, the court below concluded that “[t]here is

no reason to believe that Congress intended its grant

51The legislative debate surrounding the 1947 enactment of

§ 10(1) offers no indication that Congress meant that “notwith-

standing any provision of law’’ language to eliminate all the salu-

tary principles of Norris-LaGuardia. Opponents of the amendments

recognized that Norris-LaGuardia provisions were weakened by the

Taft-Hartley proposals. I & II, Legislative History of the Labor

Management Relations Act, 1947, supra, 467, 480, 481, 691, 876,

887, 1047, 1455, and 1585-86. Others emphasized that the Board’s

new injunctive powers would not deprive unions of rights secured

by Norris-LaGuardia. Id., at 985, 1057, 1544. Debate often centered

on the relationship between other proposals (such as § 303) and

Norris-LaGuardia, unrelated to the § 10(1) issue at bar. E.g., id.

at 1375-90 (Aiken amendment). There is one oblique reference to

contempt which is totally uninstructive. Jd. at 1068. The only ref-

erence in the entire debates to § 11 of Norris-LaGuardia is con-

tained during the debate on the Ball amendment. That amendment,

inter alia, would. have permitted. employers to seek injunctions

against secondary boycotts and jurisdictional strikes.

In the debate over these. amendments, Senator Ball referred to

the provisions of § 11, 7d. at 1348-49. Although stating ‘‘that when

the Regional Attorney of the N.L.R.B. seeks an injunction, the

Norris-LaGuardia Act is completely suspended. . . .”, id. at 1348,

of equitable powers to district courts as embodied in

section 10(1) of the Act, 29 U.S.C. § 160(1), to be

repealed by the recodification of section 11 of the

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

§ 3692 [citations omitted].” 492 F.2d at 934°?

Unfortunately the court below misstated the issue.

Section 10(1) does not concern the contempt power

of the district court.®* The issue is rather whether the

revision process by which § 3692 evolved out of § 11

was meant ‘o imply that the new code section was

restricted in scope to that of its predecessor.

Section 11 of Norris-LaGuardia, on which § 3692 is

based, read prior to its repeal:

this is dictum; the discussion concerned whether private employers

should be able to obtain injunctions against certain strikes and boy-

cotts. Senator Ball’s sweeping characterization was meant to dem-

onstrate the contrast between his proposals (which provided ‘‘that

the Norris-LaGWardia Act shall not apply, with certain execp-

tions”) and what he thought were the less restrained § 10(1) pro-

visions. Senator Ball’s attempt at irony (he was a vigorous sup-

porter of greater injunctive power) is an unreliable statement in

view of its context, and nowhere else is support found for this

proposition in the debate. When Senator Ball noted his proposal

left ‘‘in effect the provisions of section 11 and 12,’’ no one rose to

support or contradict the inference that § 10(1) would in any man-

ner have that effect.

A few minutes later, Senator Ball retreated, and more carefully

limited the effect of § 10(1) to “the fact that. under the committee

bill, the National Labor Relations Board attorney can go into court

and obtain an injunction against the secondary boycott or juris-

dictional strike, and the Norris-LaGuardia Act is completely sus-

pended. . . .” Id. at 1352.

The vigorous opposition and sound defeat of the Ball amend-

ment, id. at 1370, demonstrates that Congress wanted to leave in-

tact the Norris-LaGuardia provisions.

'52Rach of the eases relied upon by the Ninth Cireuit is distin-

guishable. None considered the precise question posed herein. See

In Re Union Naciorel de Trabajadores, supra, 502 F.2d at 117.

58See Part XII, supra,

we ee He

In all cases arising under this Act in which a

person shall be charged with contempt in a court

of the United States (as herein defined), the

accused shall enjoy the right to a speedy and pub-

lic trial by an impartial jury of the State and

district wherein the contempt shall have been

committed: Provided, That this right shall not

apply to contempts committed in the presence of

the court or so near thereto as to interfere di-

rectly with the administration of justice or to

apply to the misbehavior, misconduct, or disobedi-

ence of any officer of the court in respect to the

writs, orders, or process of the court.

In 1948, Congress enacted the Criminal Code, in-

cluding § 3692, and repealed § 11. 62 Stat. 844, 866.

Two significant changes appeared in the new section:

(1) the previous restriction to ‘‘cases arising under

this Act” was deleted; (2) the phrase ‘“‘laws of the

United States governing the issuance of injunctions

or restraining orders in any case involving or growing

out of a labor dispute” supplants the previous restric-

tive language.

The legislative history of § 3692 does not support

the Board’s claim that ‘‘the section [3692] was in-

tended after the codification, just as before, to refer

only to contempt proceedings under the Norris-La-

Guardia Act.” Brief of N.L.R.B. in Ninth Circuit,

p. 60 (footnote omitted).

B. The events of the prior year, 1947, support the

conclusion that the phrase “all labor disputes” is not

meant to be restricted. One significant case intercedes

in 1947. United States v. Untted Mine Workers of

America, 330 U.S. 258 (1947)** In 1946, the United

States was in possession of and operated most of the

bituminous coal mines in the United States. “[{T]he

relationship between the government and the workers

[was] that of employer and employee.” Jd. at 289. Be-

cause the Government was exercising its sovereign

power to operate the mines, this Court held that Nor-

ris-LaGuardia was inapplicable to the relationship be-

tween the Government and these employees. As a cor-

ollary, this Court held that no jury trial was man-

dated by § 11 of Norris-LaGuardia because that provi-

sion was “not operative .. ., for it applies only to cases

arising under the Act, and we have already held that

the restriction upon injunctions imposed by this Act

cannot govern this case.” Jd. at 298 (footnotes

omitted).

Section 11’s inapplicability arose only from the sec-

tion’s plain restriction to Norris-LaGuardia injunc-

tions.

From the effective date of Taft-Hartley in late sum-

mer, 1947, until June 28, 1948, the effective date of

the new § 3692, an alleged contemnor of a Taft-Hart-

ley injunction would probably have been denied the

jury trial guaranteed by §11 of Norris-LaGuardia,

because the injunction would not have been one aris-

ing under Norris-LaGuardia itself. No reported case

indicates any court faced this issue.

54The events, including the contempt trial, occurred between

October 21 and December 5, 1946. The matter was argued before

this Court one month later, January 14, 1947. The decision was

handed down March 6, 1947, one month before full Congressional

debate on the Taft-Hartley amendments began, and one year before

§ 3692 was enacted.

C. Until the effective date of the Taft-Hartley

amendments to the National Labor Relations Act in

the summer of 1947, Norris-LaGuardia certainly gov-

erned all injunctions issued by federal courts in labor

disputes.” During that fifteen-year period, courts had

not limited the scope and reach of all thirteen sec-

tions of Norris-LaGuardia, except on a few rare oc-

easions. Only when no “‘labor dispute” was involved

with the Norris-LaGuardia definition contained in 29

U.S.C. §115(¢) had the courts limited its impact.**

The term “labor dispute” was liberally interpreted,

and was “‘intended to embrace controversies other

than those between employer and employees . . .”

New Negro Alliance v. Sanitary Grocery Co., supra,

303 U.S. at 560-61. When Congress enacted the Taft-

5°This assertion is true, with the very liinited exception of the

power of courts of appeal to enforce National Labor Relations

Board orders against employers, granted by § 10(e), (f), (g), and

(h) of the National Labor Relations Act of 1935. This power did

not intrude on the principles of Norris-LaGuardia, which con-

cerned injunctive power directed against labor. 29 U.S.C. § 102.

From 1935 to 1947, the courts had occasion to consider the relation-

ship between Norris-LaGuardia restrictions and the limited injune-

tive powers granted in 1935. See, generally, Note, ‘‘ Accommodation

of the Norris-LaGuardia Act to Other Federal Statutes,’’ 72 Harv.

L. Rev., 354, 357-60 (1958). The courts resolved any conflicts in

favor of the purposes of Norris-LaGuardia: ‘‘The necessary infer-

ence is that in all other respects, the effect of the Norris-LaGuardia

Act upon the jurisdiction of ‘courts sitting in equity’ was left un-

impeded.’’ Donnelly Garment Co. v. Internat’l Ladies Garment

Workers Union, 99 F.2d 309, 315 (8th Cir. 1938), cert. denied, 305

U.S. 662 (1939). See also Blankenship v. Kurfman, 96 F.2d 450,

453-54 (7th Cir. 1938); Internat’l Bro. of Teamsters v. Internat’l

Union of Brewery, etc. Workers, 106 F.2d 871, 876-77 (9th Cir.

1939); Burlington Mills Corp. v. Textile Workers Union, 44

F.Supp. 699 (W.D. Va. 1941) ; but see, Oberman & Co. v. United

Garment Workers of America, 21 F.Supp. 20 (W.D. Mo. 1937).

56Russell v. United States, 86 F.2d 389, 393 (8th Cir. 1936) ; and

Hill v, United States ex rel. Weiner, 84 F.2d 27, 31 (3d Cir. 1936),

rev'd on other grounds, 300 U.S. 105 (1937).

Bet i‘. CD

2 43

Hartley amendments which embraced the same defini-

tion of labor disputes contained in the National Labor

Relations Act, the term had its own meaning, virtu-

ally without limitation, and cannot reasonably be read

in any exclusive manner.

Secondly, Congress was fully aware of United

States v. United Mine Workers.*"

The fact that Congress methodically eliminated the

restrictive language of § 11 a year after United States

v. United Mine Workers so that the new jury trial

statute applied to all labor disputes, impels one con-

clusion :** the new statute applies universally to all

labor disputes, not just those governed by Norris-

LaGuardia.®® Congress could not have intended the

term “‘labor dispute” in § 3692 to mean anything less

encompassing than that contained within the definition

of Norris-LaGuardia and Taft-Hartley.

D. The legislative history of the recodification of

‘Title 18, Crimes and Criminal Procedures” does not

reveal that Congress intended to restrict the impact

5See I, Legislative History of the Labor Management Relations

Act of 1947 at 420, 1326 (N.L.R.B. 1948).

58Where the Court decides an important case, any Congressional .

enactments taking place shortly thereafter are presamed to be in

full cognizance of the Court’s holding. See Auto Workers v. Wis-

consin Employment Relations Bd., 351 U.S. 266, 273 (1956).

59Query: Would .§ 3692 require a jury trial after its amend-

ment in 1948 in cases involving government employees? Plainly so,

but see, United States v. Robinson, 449 F.2d 925, 931-32 (9th Cir.

1971). Cf. American Postal Workers Union v. United States Postal

Service, 356 F.Supp. 335, 336 (E.D. Tex. 1972). Congress believed

that United States v. United Mine Workers ‘‘did not hold in

broad terms that the government was exempted from the Norris-

LaGuardia Act.” I, Legislative History of the Labor Management

Relations Act of 1947, at 420 (N.L.R.B. 1948).

~ of § 3692 to injunctions “arising under this Act.” The

only limitation imposed in that section is that the in-

junction arise out of a “‘labor dispute.” Rather, the

revisers intended to remove the restrictions relied

upon by this Court in 1947:

The phrase “or the District of Columbia arising

under the laws of the United States governing

the issuance of injunctions or restraining orders

in any case involving or growing out of a labor

_ dispute” was inserted and reference to specific

PP sedges of the Norris-LaGuardia Act [§§ 101-115

Title 29, U.S.C. 1940 ed] were eliminated. (em-

phasis supplied) H.R. Rep. 304, 80th Cong., Ist

Sess., p. A176.

This language indicates that Congress intended to

expand the jury trial provision beyond the limitations

provided in Norris-LaGuardia.”

Nor was the Criminal Code enactment in 1945 only

a “specific transposition to Title 18 of § 11.” Brief of

the Board to the Ninth Circuit, p. 60. This belies the

massive undertaking reflected in the process of re-

vision, which led to the whole revised Criminal Code:

60The proviso contained in the second paragraph indicates Con-

gress full well applied all substantive restrictions it thought appli-

eable.

61]t ig significant that H.R. 2200, 79th Cong., 2d Sess. (1946),

proposed a different § 3692:

‘<Tn all eases of contempt in any court of the United States or

the District of Columbia arising under the laws of the United

States governing the issuance of injunctions or restraining

orders in any case involving or growing out of a labor dis-

pute, 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.’’

The subsequent deletion of the reference to ‘‘in any court of the

United States or the District of Columbia’’ further indicates Con-

gress’ intent to make the statute universally applicable.

“Several preliminary drai.. of the revision were

studied most carefully, word for word, and line

for line, by these various groups, culminating in

the bill now up for consideration.” 93 Cong. Ree.

5049 (1947) (Congressman Robsion)

Moreover, these were revisions of former law, not

mere recodifications. [bid., 5048-49."

The 1948 enactment of § 3692 reflects an attempt

by Congress to correct the omission pointed out by

this Court in United States v. United Mine Workers,

and to broaden its seope to all labor disputes.

XIV

THE NECESSARY POWER OF THE COURTS TO COERCE

COMPLIANCE WITH INJUNCTIONS IS PRESERVED

A. The usual and effective remedy to insure com-

pliance with court orders is civil contempt. Shillitant

vu. United States, supra, 384 U.S. 364, 371, n.9 and

Bartosie and Lanoff, Escalating the Struggles Against

Taft-Hartley Contemnors, supra, at 262. The eivit

remedy comports with the purpose of § 10(1) to effect

immediate and temporary relief pending Board ad-

judication.

62The thorough alteration of companion § 112 of Norris-LaGuar-

dia into a much truncated version in F. R. Crim. P. 42 further

indicates that Congress was not unwilling to alter the scope of

Norris-LaGuardia as it applied to contempts. Where ‘‘changes in

phraseology ‘. . . did not’ change meaning or substanee,’’ or extend

the scope of provisions, H. Rep. No. 304, 80th Cong., Ist Sess., p.

A30, the revisers knew how to indicate such a process. This in

fact. was done to a closely related section, 18 U.S.C. § 402, which

is based on the Clayton Act right to a jury trial, at issue in United

States v. Michaelson, supra. See, In Re Union Nacional de Tra-

bajaderos, 502 F.2d at 117, n.2.

PL LLL ALLEL ALE DLE

The revision of section 11 into § 3692 is a two

edged sword. While broadened in scope to all labor

disputes, its provisions are withdrawn from civil con-

tempt proceedings. Several courts have correctly

reached this conclusion.* Petitioners accept this as

consistent with the legislative history and purposes

of the Taft-Hartley amendments.

B. The question is raised as to whether a jury

trial is guaranteed where criminal contempt is charged

of an injunctive order of a court of appeal. Several

courts have held that the courts of appeal are not

bound by 4§3692.% Although this Court need not

“reach this issue, the necessary implication of the argu-

ments advanced by petitioners is that this case may

well settle that issue.

As noted above, Part XI §10(h) does not alter the

contempt power of the courts of appeal, but only

their jurisdiction to issue injunctions. Petitioners do

not shrink from the logic of this argument; the courts

of: appeal ate also bound by the requirement of § 3692

when a petitfon alleging criminal contempt is filed.

C> The construction of §3692 advanced by the

Board would conflict with The Boys Markets, Inc. v.

63Philadelphia Marine T'rades Ass’n v. International Longshore-

men’s Ass’n, Local 1291, supra; Brotherhood of Locomotive Fire-

men and Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d

570 (D.C. Cir. 1967), cert. denied, 389 U.S. 327, 927 (1967);

N.L.R.B.v. Red Arrow Freight Lines, 193 F.2d 979 (5th Cir.

1952); Schauffler v. Local 1291, International Longshoremen’s

Association, 189 F.Supp. 737 (E.D. Pa. 1960), rev’d on other

grounds, 292 F.2d 182 (3rd Cir. 1961) and Madden v. Grain Ele-

vator, Flour & Feed Mill Workers, 334 F.2d 1014, 1020 (7th Cir.

1964).

64N.L.R.B. v. Red Arrow Freight Lines, supra, and Madden v.

Grain Elevator, Flour and Feed Mill Workers, supra.

Retail Clerks Union Local 770, 398 U.S. 235 (1970)

and Brotherhood of Railway Trainmen v. Chicago

River &: Indiana R.R. Co., 353 U.S. 30, reh. denied,

303 U.S. 948 (1957).

In The Boys Markets, Inc. v. Retail Clerks Union,

Local 770, this Court held that “[t]he literal terms

of § 4 of the Norris-LaGuardia Act must be accom-

modated to the subsequently enacted provisions of

§ 301(a) of the Labor-Management Relations Act...”

398 U.S. at 250. This Court refused to “undermine

the validity of the Norris-LaGuardia Act,” and dealt

“only with the situation in which a collective-bargain-

ing contract contains a mandatory grievance adjust-

ment or arbitration procedure.” Id. at 253. The

“Norris-LaGuardia Act does not bar the granting of

injunctive relief in the circumstances of [that]

case... .” With that decision, an exception to Section

4 of the Norris-LaGuardia Act was created, which

doctrine encompasses the vast majority of injunctions

presently. issued by the federal.,courts in labor

disputes.

In the case at bar, the Board argues that § 3692 is

applicable only to those injuctions governed by Norris-

LaGuardia itself. Query: Would criminal contempts

of an injunction issued under the authority of Boys

Markets, or Chicago River require a jury trial? One

district court has empanelled a jury for trial of

such a contempt. Restaurant Associates Industries

65]t is worth considering that such a restriction on § 3692 would

render its impact virtually meaningless. If one were to exclude all

injunctions issued under Norris-LaGuardia, and all injunctions

issued under 29 U.S.C. § 185(a) and the Railway Labor Act, vir-

tually no injunctions issued out of labor disputes would reqtire a

jury trial. t

v. Lecal 71, 79 L.R.R.M. 2502, 2506, n.4 (E.D. N.Y.

1972).°° The Board’s position that labor injunctions

issued outside of Norris-LaGuardia do not require

the application of § 3692°7 would remove the limited

exception to Norris-LaGuardia created in the Boys

Markets into a total repudiation of that Act. There

is simply no purpose to be perceived by such a limi-

tation in exactly those circumstances where such a :

jury was most intended by the enactment of Norris-

LaGuardia.

CONCLUSION

It is therefore respectfully submitted that the

decision of the court below should be reversed.

Respectfully submitted,

Van Boura, ALLEN, WEINBERG,

WILLIAMS AND Roce, .

Victor J. Van Bours,

Davin A. RosENnFELp,

Attorneys for Petitioners.

SHELDON Ot1s, }

Of Counsel.

January 7, 1975.

66Cf. North American Coal Corporation v. Local Union 2262,

United Mine Workers of America, 497 F.2d 459, 467, n.4 (6th Cir.

1974).

®’This could be extended to the recodification of §112 of Norris iy

LaGuardia into F. R. Crim. P. 42.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.