# Petitioners Brief — Muniz v. Hoffman

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0439%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 454

## Text

Subject Index

I Page

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

I eA i nk eres bop oc 2
III

ee a ee ee 2
IV

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

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

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
XI
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
XV
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

© Weis FEE gions can cea adn bat seb es rece neeense 21, 27
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} 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

oe

I
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 =

2
in the reporter's transcript of the proceedings. (G.A.
41a-48a)."

II

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.

3
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

IV
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.” - ,

4

V
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)

5

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.

6

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

a

7

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.

8

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.

.
ee

VI
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

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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). . .

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10

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.

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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).

12

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.

(c) Whether or not a crime or criminal contempt
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

13

(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

14

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
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15

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 — 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.

X

\

47

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

48

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.

XV
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0439%3A11. Public record. Not legal advice.