Respondents Brief — Muniz v. Hoffman
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EEE EE ISAS
ee
A. The injunction orders of February 13 and
se Se eae ae
C. The decision of the court of appeals______
I Or oc cnc a cocnoe.e
oe Gia cee cececce won
I. 18 U.S.C, 3692 does not require a jury trial
in criminal contempt proceedings grow-
ing out of violations of injunctions issued
under the National Labor Relations Act.
A. Section 11 of the Norris-LaGuardia
II. A jury trial was not required by the Con-
stitution in order to subject the peti-
tioner union to the fine for criminal
contempt imposed in this case_____.___
A. Jury trials are not constitutionally
required in criminal contempt
proceedings against unions or
corporations, which cannot be
| I ie oe ick wetnnn ae
4 (1)
we 569-660—-75-——1
Onn NS
35
Argument—Continued
B. In any event the fine imposed on
the petitioner union was not
such as to make the contempt
Page
"Sc tnetcashcieacaeso 43
1. The distinction between
“petty” and. “serious”’
CNN b. cece - eee 43
2. 18 U.S.C. 1(3) is an in-
adequate basis for de-
termining whether a fine
ee gg ee ee - 45
3. The fine imposed on the
union in the present case
was not so serious as to
require a jury trial_____ 52
COIR. 5 6 nen nding nant ameueeen tee tekees 54
ANBAR . divin neds csi ncn kniendneenstien Ceeeiens 55
CITATIONS
Cases:
Amalgamated Ass’n of Motor Coach Employees
v. Dixie Motor Coach Corp., 170 F. 2d 902- 22
Amazon Cotton Mill Co. v. Textile Workers
ade, BEF ©. We ited nee ccddeaennn 22
Argersinger v. Hamlin, 407 U.S. 25_.....----- ~
Bakery Sales Drivers Local Union 33 v.
Weasel SOR Vite Git occctikd ont s nc 21
Baldwin v. New York, 399 U.S. 66__-.------ 15, 44
Bloom v. Illinois, 391 U.S. 194___------- 14, 39, 43
Boys Markets, Inc. v. Retail Clerks Union,
Leoal FPO, TAB UB. FOB nein n ssh senin un 17
Brotherhood of Locomotive Firemen and Engine-
men V. Bangor & Aroostook Railroad Co.,
PES 2D ah ON a
Cases—Continued —
Cass v. United States, 417 U.S. 72__._______- 32
Cheff v. Schnackenberg, 384 U.S. 373____- 39, 42, 44
oe ee gk | ee ee ne 40
Douds v. Local 294, Teamsters, 75 F. Supp. 414- 21
Duncan v. Louisiana, 391 U.S. 145__________ 38,
39, 40, 41, 43, 44
Fair Lawn Education Association, In re, 63
N.J. 112, 305 A. 2d 72, certiorari denied,
Green v. United States, 356 U.S. 165_ 36, 37, 39, 40, 46
Holland Furnace Co., In re, 341 F. 2d 548,
certiorari denied, 381 U.S. 924..__.._______ 42
International Longshoremen’s and Warehouse-
men’s Union, Local No. 10 v. Hoffman, No.
73-1813, certiorari denied November 11,
Jefferson City Education Ass’n, In re, 115 NJ.
Super 42, 278 A. 2d 206, certiorari denied,
LeBaron v. Printing Specialities, Local 388,
SE... Sa 21
Local 825, Operating Engineers, In re, 57
LRRM 2148, certiorari denied, 379 U.S.
Madden v. Grain Elevator, Flour and Feed Mill
Workers, 334 F. 2d 1014, certiorari denied,
SF WA Oa ek he chee 28
Mitchell v. Barbee Lumber Co., 35 F.R.D. 544. 28, 31
National Labor Relations Board v. Mackay
Radio Co., 304 U. S. RS See 31
Cases—Continued
Rankin v. Shanker, 23 N.Y. 2d 111, 242 N.E. nie
2d 802, stay denied, 393 U.S. 930_________ 42, 49
San Francisco Typographical Union No. 21
(California Newspapers, Inc. and Emporium-
Capwell Corp.), 188 NLRB 673, affirmed,
Schauffler v. Local 1291, International Long-
shoremen’s Ass’n, 189 F. Supp. 737, reversed
on other grounds, 292 F. 2d 182__________ 28
Schick v. United States, 195 U.S. 65_________
Shillitant v. United States, 384 U.S. 364______ 43
Tinder v. United States, 345 U.S. 565________ co
Union Nacional de Trabajadores, In re 502 F.
PO so 25, 28, 29, 31, 34
United States v. Barnett, 376 U.S. 681____ 38, 40, 46
United States v. Hutcheson, 312 U.S. 219_____ 18
United States v. Robinson, 449 F. 2d 925_____ 28
United States v. United Mine Workers, 330 U.S.
\ \) WsesGacccuwaw bowen. 12, 23, 24, 33, 34, 41, 42
United Steelworkers v. R. H. Bouligny, Inc.,
Wee os oe oe 53
Virginian Railway Co. v. System Federation No.
iy ee As Os a 5 ks Se. a 31
Winn-Dixie Stores, In re 386 F. 2d 309______ 28
Constitution, statutes and rule:
United States Constitution:
Article III, Section 2.............___.. 36, 60
Sixth Amendment-__-________- 36, 38-39, 43, 60
Fourteenth Amendment_-______________ 38, 43
Act of June 25, 1948, 62 Stat. 683__________ 26
Air Quality Act of 1967, 81 Stat. 502, 42 U.S.C.
SN iis ng cin cue cckuwacdeca 47
Antitrust Procedures and Penalties Act, Pub.
L. No. 93-528, Section 3, 88 Stat. 1708____ 48
Civil Rights Act of 1957 (Section 151, 71 Stat.
more oe... 35
a
Vv
Constitution and statutes—Continued
—— Act, 38 Stat. 738; repealed, 62 Stat.
nae ad Rell LE Daan patel SE Ae serene
alee Mad 6h YAN oeleay
Page
"link Diietivdhudnan Gnas nk kcabads ces 27
I UI is oe oa oe 27
Clean Air Act Amendments of 1970, 84 Stat
Pa obi bas is whacked aocuueka en 47
Fair Labor Standards Act, 52 Stat. 2060, 29
BO NE ON kon cca casdecackicn 31
: Immigration and Naturalization Act, 66 Stat.
: BREA s SOc bak boo cena cues su 46
Labor Management Relations Act, 1947 (61
Stat. 136, 29 U.S.C. 141, et seg.) - -----__-- 20
Ne 24
Marine Mammal Protection Act of 1972, 86
Stat. 1036, 16 U.S.C. 1375(a)_.._...-._.-- 46
National Labor Relations Act, as amended
(29 U.S.C. 151, 49 Stat. 449, 61 Stat. 136,
73 Stat. 519, et seq.):
a 31
NN ie oe eke wons aan 20, 55
IN i, ic cake 12, 20, 55
SOON PO cc cece 3, 5, 55
nn ecemeaduuae 20
ee 20
I ia i a ha oe a Sa cc 30
I ik cau cuca 30
ae 30
TN 19, 30
a 19, 30
ec ne 12, 19, 21, 25, 55
| EES ERE 21, 25, 28, 30, 31
PE OI os in ccheceabcnacuce ccs 30
icc
_ 3
Constitution and statutes—Continued i
Norris-LaGuardia Act (47 Stat. 70, asamended, page
29 U.S.C.
a 12, 16, 58 ij
Ce, SER Reis 23, 30, 58 j
RE i ee OP ee 30 :
ce na 8 ERE ETERS el ai Ree MENON AES 30 ‘
en ty, REE ER 30
I ek 30 :
Section 11(1046 ed.) _...._..........-| passim i
Pt ORE SE No 27
é Coie od CeO SLE IE SET EATS 31
Occupational Safety and = Act, 84 Stat.
RO tN i oc Pa 46, 47
Air Quality Act of 1967, 81 Stat 502, 42
d: ae ee ccs eS 47
me eee ae 46, 47
Oe ee 47
eo 47
ae See os 47
Sherman Act, 26 Stat. 209, 15 U.S.C. 1, et seq- 48
WE a i. 45
18 U.S.C. 1542-1545, ontemeu ee ee 26
Mune ee... 27
i Uae Me 2,
10, 13, 14, 16, 26, 27, 28, 29, 30,
32, 33, 34, 35, 59
18 U.S.C. 3693_____- Wakie diweue bonis sa cc 27
Gane Oe OO 26
SO See so ck kaw 11, 15, 44, 45, 49, 52, 60
Oe NP oe cova 27
Ill. Ann. Stat., ch. 38, § 1005-9-1(5) (Smith-
| EE eae 48
N.Y. Penal Law § 80.10 (McKinney, 1967) -- 48
-
F
f
‘
;
a ey eh nc Ae Tg tg RCT“ eT
vir
Miscellaneous:
Pe FE Po Ba oo nwo ce ens ins
75 Cong. Rec. 4508-4509_ __.....----------
75 Cong. Rec. 4510-4511... ----------
75 Cong. Rec. 4621-4624_ -_..-------------
Oe, I eo vein se i scene
Fe eo oo ek ln ncenc sme
BP IE ok enn dvcnannvane
Fy I PU a os Sein eed nn cece cnes
75 Come, et, Gee... . 5
Te Re Oe Es ob es
poe ES |. SRR Cheer ape omer repeere
De Ry I OE Es x ook us keene ask ede anne
TT, FI Ee oo cs sees :
A, WI IN oo oe hoc dcee nin enencen
76 Comm. Ree. 5600-5551... ... ...-.2-...-.
Pie i Me i oor Sow ncn ee
75 Cong. Rec.’ 6335-6336 - _ - --.------------
Ot BE og oo coke en ne mncan ses.
po a a ee senane pee
Tee ee ee... (ss ce
92 Cong. Rec. 9122- __--- Giunceeuenkues un
Oe hw nes
03 Come: Mec, 6G-0eO.. 2... ....-. ....-=-.
te ee ee...
04 Come. Moo. 8721-8722... ...--.------
94 Cong. Rec. 8864-8865... _.-.------------
Pe I He i ons cow eee cae
103 Cong. Rec. 8684-8687 _ _ __..-----------
103 Cong. Rec. 8686-8687 _ _ _-._.----------
103 Cong. Rec. 8688-8691 _ _ .......--------
103 Cong. Rec. 12842-12843: ____..--------
Frankfurter and Greene, The Labor Injunction
Ce os an so ene
vou
Miscellaneous—Continued
Hearings on Reform of the Federal Criminal
Laws before the Subcommittee on Criminal
Laws and Procedures of the Senate Commit-
tee on the Judiciary, 92d Cong., Ist Sess.,
Page
ict ee a 50, 51, 52
Holmes, Privilege, Malice and Intent, 8 Harv.
i 8: Aa eee 17
H.R. 5315, 72d Cong., Ist Sess___._..._____ 17, 18
H.R. 2200, 79th Cong., tst Sess__....._____ 33
H.R. 3190, 80th Cong., Ist Sess._.......___ 25
H. Rep. No. 1699, 71st Cong., 2d Sess.._____ 45
H. Rep. No. 669, 72d Cong., Ist Sess....____ 18
H. Rep. No. 152, 79th Cong., Ist Sess_._____ 33
H. Rep. No. 304, 80th Cong., Ist Sess_._____ 26, 46
ee RR ee re ee 22
ees ek eee ena 24
SAM Oe es 25
I Leg. Hist. 876, 93 Cong. Rec. 6296..._____ 21
I Leg. Hist. 887, 93 Cong. Rec. 6385________ 21
IT Leg. Hist. 1012-1013, 93 Cong. Rec. 3838_ 20
II Leg. Hist. 1055-1056, 93 Cong. Rec. 4131_ 20
II Leg. Hist. 1109-1113, 93 Cong. Rec. 4199-
MONS ioe keke bee 21
II Leg. Hist. 1323-1324, 93 Cong. Rec. 4757. 24
II Leg. Hist. 1348, 93 Cong. Rec. 4834______ 25
II Leg. Hist. 1364, 93 Cong. Rec. 4843______ 21
Me MM A SP cine 34
II Leg. Hist. 1899-1400, 93 Cong. Rec. 4874—
MNS We 25
II Leg. Hist. 1544, 93 Cong. Rec. 6445-6446. 21
S. 935, 72nd Cong., Ist Sess............____ 18
S. Rep. No. 163, 72d Cong., Ist Sess.._______ 17,18
t,
Ix
Miscellaneous—Continued
Page
S. Rep. No. 573, 74th Cong., Ist Sess.._____- 31
S. Rep. No. 105, 80th Cong., Ist Sess._______ 22, 24
S. Rep. No. 1620, 80th Cong., 2d Sess. ______ 34
Standards Relating to Sentencing Alternatives
and Procedures, A.B.A. Special Committee
on Minimum Standards for Criminal Justice
(Approved Draft, 1968) and Commentary_ 51, 52
|
.
4
Gu the Supreme Gourt of the United States
OcToBER TERM, 1974
No. 73-1924
James R. Muniz AND BROTHERHOOD OF TEAMSTERS AND
Avro Truck Drivers Locat No. 70, IBTCHWA,
PETITIONERS
v.
Roy O. Horrman, Director, Recion 20, NationaL
LABOR RELATIONS Boarp
‘\
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT
OPINIONS BELOW
The opinion of the court of appeals (Pet. App.
i-xvi)' is reported at 492 F. 2d 929. The district.
court’s Order and Adjudication in Criminal Contempt
(Resp. App. C, 23a-25a), Findings of Fact and Con-
clusions of Law Re: Criminal Contempt Proceedings
(Resp. App. D, 26a—-40a), and Judgment Imposing
1“Pet. App.” refers to the appendix to the petition, “Resp.
App.” to the appendix to respondent’s memorandum in response
to the petition, and “A.” to the parties’ joint appendix in th’
Court.
(1)
2
Fines and Penalties in Re: Criminal Contempt (Resp.
App. E, 4la—48a) have not been: reported.
JURISDICTION
The judgment of the court of appeals was entered
on January 25, 1974, and amended on March 7, 1974.
Petitions for rehearing and rehearing en banc were
denied on March 26, 1974 (Pet. App. xvii-xviii). The
petition for a writ of certiorari was filed on June 24,
1974, and was granted on November 11, 1974, limited
to the two questions restated below (A. 53-54).’
jurisdiction of this Court rests on 28 U.S.C. 1
STATUTES INVOLVED
The relevant statutory and constitutionatprovisions
are set forth in the Appendix hereto, infra. pp. 55-36.
QUESTIONS PRESENTED
1. Whether 18 U.S.C. 3692 ° requires a jury trial in |
a proceeding to adjudge a union and its officers in
criminal contempt for having violated injunctions
issued by the district court pursuant to section 10(1)
of the National Labor Relations Act.
*On November 11, 1974, the Court also denied the petition
in No. 73-1813, Jnternational Longshoremen’s and Warehouse-
men’s Union, Local No. 10 v. Hoffman, which sought review of
other aspects of the decision of the court of appeals.
*18 U.S.C. 3692 provides: “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 accused shall enjoy the right to a speedy
and publie trial by an impartial jury of the State and district
wherein the contempt shall have been committed.”
3
2. Whether a jury trial was constitutionally re-
quired where a $10,000 fine was imposed on the union
for criminal contempt.
STATEMENT
A. THE INJUNCTION ORDERS OF FEBRUARY 13 AND
APRIL 28, 1970
California Newspapers, Inc., doing business as the
Independent Journal (Journal), publishes a daily
newspaper of general circulation in Marin County,
California. In January 1970, San Francisco Typo-
graphical Union Local 21 (Local 21) commenced
picketing the Journal’s San Rafael, California, pub-
the Regional Director of the National Labor Relations
Board (respondent herein), pursuant to a charge filed
by the Journal, petitioned the district court under
Sectiion 10(1) of the National Labor Relations Act as
amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 15,
et seq.), for a temporary injunction against Local 21
and Locals 85 and 287 of the Teamsters (Locals 85
and 287). The petition alleged that there was reason-
able cause to believe that the named unions were c1-
gaging in secondary boycott activity prohibited by
Section 8(b) (4) (B) of the Act, principally by picket-
ing to induce employees of various neutral employers
at the Port of San Franciseo to refuse to work, with
an object of preventing and interfering with the de-
livery of newsprint to the Journal (Pet. App. iii).
On the same date, February 11, the district court
issued a temporary restraining order and order to
show cause, and, on February 13, following a hearing,
eae
a temporary injunction. Pending a final disposition
by the Board, the court (A. 6-9): enjoined the named
unions, “their officers, representatives, agents, serv-
ants, employ ees, attorneys, and all members, persons
-and other labor organizations acting in concert or par- .
ticipation with them or any of them,” from, inter alia:
Engaging In, or by picketing, orders, direc-
7 tions, solicitation, requests or appeals, how-
ever given, made or imparted, or by any like
or related acts or conduct, * * * Inducing Or
Encouraging any individual employed by Star
Terminal Co., Inc., Garden City Transportation
Co., Ltd., Globe- Wally’ s Fork Lift Service, Inc.
(herein called Star, Garden City, and Globe), ,
or by any motor carrier, lift truck service com- oy
pany or other person engaged in commerce or
in an industry affecting commerce To Engage
In, a strike, slowdown or refusal in the course |
of his employment to use, manufacture, process, 1
transport, or otherwise handle or work on any fd
goods, articles, materials or commodities, or ee
to perform any service; or sanctioning, sup-
porting or promoting any such strike or re-
fusal; or in any such or similar manner or by
any other means * * * Threatening, Coercing
Or Restraining said employers, or any other |
person engaged in commerce or in an industry |
affecting. commerce,—where in either case An |
Object Thereof is: (1) to force or require
Powell River-Alberni Sales Limited (herein
called Powell), or any other person, to cease I
doing business with Journal; or (2) to force or \
require Star, Garden City, or any other person
to cease doing business with Powell, or to force :
or require Globe or any other person to cease
5
doing business with Garden City, in order to
compel Powell to cease doing business with
Journal.
On April 28, 1970, the Regional Director filed in
the district court a second petition for an injunction
against Local 21, This petition, based on charges filed
by the Journal and the Emporium-Capwell Corpora-
tion, alleged that Local 21 was further violating Sec-
tion 8(b)(4)(B) of the Act by picketing and dis-
tributing handbills appealing to the public not to
patronize various retail stores because they were ad-
vertising in the Journal (Pet. App. iv). On the same
date, Local 21 consented to the entry of an order
pending the final disposition by the Board (A. 10-13), _
enjoining “Local 21 * * * and all members, persons
and labor organizations acting in concert or partici-
pation with it,” from engaging in the charged unlaw-
ful conduct at the picketed stores or at the premises
of other stores advertising in the Journal, or. from:
Threatening, coercing or restraining [the named
firms] or any other. firm advertising in The In-
dependent Journal newspaper, by consumer
picketing or by any like or related acts or con-
duct, where an object thereof is to force or
require the said advertisers to cease advertising
in The Independent-Journal newspaper or to
cease doing business with [the Journal].
B. THE CONTEMPT PROCEEDINGS IN THE DISTRICT COURT
Despite these injunctions and an order, issued on
June 24, 1970, holding Local 21 and certain of its of-
ficers in civil contempt of the April 28 injunction,‘
*That adjudication (except as to two officials not involved
here) and the Board’s subsequent decision in the unfair labor
_ practice case, finding that Local 21 had violated Section 8(b)
(4) (B) of the Act by its picketing before and after the issu-
se ! «
6 | ;
“the tempo of illegal activities in violation of both
injunctions increased, with other locals participating”
(Pet. App. iv). The new participants ‘included * * *
Teamsters No. 70 and James R. Muniz, its president’’
(Pet. App..iv-v). As the court of appeals later de-: F
scribed the activities (Pet. App. v): “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 de-
livery trucks from entering ‘exit ramps from main
highways to enter the city.’’
Accordingly, on October 19, 1970, the Regional Di- ;
rector filed with the district court a petition to ad-
judge Local 21 and certain other labor organizations
and their officials, including petitioners, Teamsters
Local 70 and its president, James Muniz, in civil and
criminal contempt for failure to obey tho February
13 and April 28 injunctions. The petition charged that
the named unions and their officers, acting in further- )
ance of a joint venture, had committed at least 28
violations of the injunctions (A. 14-36).
The district court ordered the named defendants,
including petitioners, to show cause why they should
not be adjudged in civil and criminal contempt (A.
39-42).° Subsequently the court heard argument on a
motion by the defendants for a jury trial in the crim-
ance of the April 28 injunction (San Francisco Typographical
Union No. 21 (California Newspapers, Inc. and Emporium-
Capwell Corp.), 188 NURB 673) were affirmed by the court
of appeals, 465 F. 2d 53 (C.A. 9).
5’ Four Board attorneys appearing for the Regional Director
were appointed by the district court as counsel to prosecute
the criminal contempt proceeding (A. 37-39).
a eee aa
7
inal contempt proceeding (A. 44-55). .The court
denied the motion (A. 55-56).
Testimony was taken by the district court for 17
days, between November 3.and December 15, 1970. On
December 28, the court found certain of the defend-
ants, including petitioners, guilty of criminal ¢on-
tempt of the February 13 and April 28 injunctions.°
The court’s Order and Adjudication in Criminal Con-
tempt (Resp. App. C, 23a-25a) and its formal Find-
ings and Conclusions (Resp. App. D, 26a—40a) were
entered the next day, December 24.’
The district court found that all of the defendants,
including petitioners, “[o]n or about, or prior to,
October 1, 1970 * * * embarked upon a joint plan,
program and campaign to create a boycott of goods,
raterials, commodities and services destined to, con-
signed to, or utilized by firms advertising in the
Journal or to firms doing business with the Journal”’
(Resp. App. D, 31a). The court found that the
defendants, including petitioners, ‘‘[i]n furtherance
and support of their aforesaid joint plan, program
and campaign,” engaged in at least 26 acts of picket-
ing, oral inducement of work stoppages, threats, and
¢Qne union (Longshoremen’s Local 10) and one individual
(DeMartini) were not adjudged in criminal contempt because
the proof did not establish the requisite degree of willfulness
on their part (Resp. App. C, 23a, 24a-25a). Neither is invol ved
in the case before this Court.
7 The district. court’s Order and Adjudication in Civil Con-
tempt (Resp. App. A, la-6a) issued the same day, and its
Findings of Fact and Conclusions of Law Re: Civil Contempt
Proceedings (Resp. App. B, Ta-22a) issued on January 28, 1971.
The civil contempt findings are not at issue here.
. 569-660—75——2
8
harassment (id. at 3la-37a), of which the following
is typical (td. at 33a):
8. On or about October 12, 1970, respondents,
by their pickets and agents, by picketing and
by other means, induced and encouraged driv-
ers of Lucky not to perform services at the
Lucky store located at 720 Center Street, Fair-
fax, California, and as a consequence prevented
regular drivers from performing their duties
for Lucky.
The defendants, including petitioners, caused traf-
fic tie-ups in San Rafael (td. at 34a):
14. On or about October 13, 1970, respondents
picketed three corners of the Highway 101 off-
ramp to San Rafael, California, at Mission and
Heatherton Streets, carrying signs the legend
on some of which read: ‘‘Unfair To Teamsters—
Seabs Must Go.” By such picketing, and other
conduct, respondents obstructed traffic entering
San Rafael while inducing and encouraging
truck drivers not to perform services for, make
deliveries to, or pickups from retail stores lo-
cated in San Rafael.
The court noted particularly petitioner Muniz’ in-
volvement in one act of harassment (7d. at 32a):
3. Also on or. about October 8, 1970, respond-
ents, by their agents, including Respondent
Richardson and Respondent Muniz, harassed
the driver of a truck of Garden City Transpor-
tation Co., Ltd. (herein called Garden City) on
its return trip to Garden City’s premises after
making delivery of newsprint to the Journal,
and picketed the premises of Gerden City and
its truck with signs, the legend on some of
9
which read: ‘Teamsters on Strike—Seabs Must
Go.” As a consequence of such picketing,
drivers of Garden City engaged in work stop-
pages and refusals to perform services for their
employer. In addition respondents threatened
Garden City with the shutdown of its opera-
tions on October 9, 1970.
The court found that by such acts and conduct the
defendants, including petitioners, encouraged em-
ployees of reiail stores and other picketed firms to
engage in work stoppages, with the object of forcing
the firms “to cease placing advertisements in or to
otherwise cease doing business with each other or with
the Journal’? (id. at 37a-39a). The court concluded
that by’ such acts and conduct certain of the defend-
ants, including petitioners, were ‘in eriminal con-
tempt of this Court by reason of their wilful disobedi-
ence of and resistance to, and their wilful failure and
refusal to comply with” the two injunctions (Resp.
App. C, 24a-25a; see also Resp. App. D, 39a—40a).
Pursuant to the district court’s request (A. 57),
counsel for the Regional Director filed with the court
a “Presentence Report and Recommendations”, list-
ing previous injunctions issued under Section 10 (7)
of the Act against the various defendants, data on the
financial conditions of the unions, and the dollar
amount of damages suffered by five of the twenty-six
affected business establishments as a result of defend-
ants’ illegal conduct (A. 43-47). The data on the fi-
nancial conditions of the unions came from the most
recent reports filed by them with the Department of
Labor (“Labor Organization Annual Report, Form
LM-2”), which reports were provided the district
10
court (A. 48-52). Petitioner Local 70’s LM-2 showed
that, in 1969, it took in a total of $1,013,742 in dues
from.its members (A. 49). At the end of 1969, its total
assets amounted to $895,627, of which $95,534 was
listed as “eash in banks” (A. 49). Loeal 70 filed no
documents with the district court respecting its then
current financial status. |
The district court ordered each of the unions ad-
judged in criminal contempt, including petitioner
Local 70, to pay a fine of $25,000, subject to the quali-
fication that payment of $15,000 of the amount would *
be suspended for one year and remitted to the union |
upon the court’s determination that the union had not
further violated the injunctions (Resp. App. E, 4la-
45a). The individuals adjudged in criminal contempt,
including petitioner Muniz, were placed on probation
for one year, with the condition that, if they engaged
in further violations of the injunctions, they would
be subject to imprisonment for a term not exceeding
six months (Resp. App. E, 45a -46a).
Cc. THE DECISION OF THE COURT OF APPEALS
The court of appeals affirmed the judgments of civil
and criminal contempt (Pet. App. vi). The court re-
jected the contention that 18 U.S.C. 3692 (n. 3,
supra) requires a jury trial in criminal contempt cases
arising out of violations of injunctions issued pur-
suant to Section 10(/) of the National Labor Rela-
tions Act. The court held that Section 3692 represents
merely a recodification of Section 11 of the Norris-
LaGuardia Act, 47 Stat. 72, 29 U.S.C. (1946 ed.) 111
(infra, p. 18), and, as such, restricts only the powers
ll
of courts in contempt proceedings arising directly out
of labor disputes between private employers and un-
ions; it does not apply to contempts of orders issued
pursuant to ‘‘the administrative scheme” of the Na-—
tional Labor Relations Act (Pet. App. ix-x).
The court of appeals also rejected the contention
that a jury trial was constitutionally required because
fines exceeding $500 had been imposed on the unions |
(Pet. App. x-xii). Notig that the decisions of this «
Court appeared to require a jury trial when the penal-
ty imposed in criminal contempt was “serious,” rather —
than ‘‘petty,” the Court:said (Pet. App. XiV—XV) :
In this plethora of discussion establishing and
reexamining rules as to when a jury trial is re-
quired, there is hardly a word spoken about the
line at which the measure in dollars of a fine
causes the contempt to cease being ‘‘petty’’ and
to become ‘‘serious’’. Certainly we cannot un-
derstand Cheff [v. Schnackenberg, 384 U.S.
373] as holding that the sum of $500 constitutes
that line simply because it uses 18 U.S.C. § 1(3)
to express a point of division between permis-
sible and irapermissible terms of imprisonment
at which a jury is required. A deprivation of
his liberty for a period of more than six months
could certainly be serious to any individval,
whereas a fine of $500 to a large corporation or
to a large union might have no deterrent or
punitive effect at all [footnotes omitted].°
*The court addressed itself again to 18 U.S.C. 1(3) in a
subsequent footnote (Pet. App. xvi, n. 9): e
“The six month-$500 provision of 18 U.S.C. $1(3) defining
the limits of ‘petty’ offenses became law in 1930. Act of Dec.
16, 1930, ch. 15, 46 Stat. 1029. While the value of personal free-
|
12
Turning to the facts of this case, the court held that
the fines imposed on the unions for criminal contempt
were not so serious as to be constitutionally prohibited
absent a jury trial (Pet. App. xvi).
SUMMARY OF ARGUMENT
I
In 1947, the 80th Congress added Section 10(/) to
the National Labor Relations Act, providing an inter-
locutory injunctive remedy to be invoked when a re-
gional officer of the Board has reason to believe that a
union has engaged in secondary boycott activity pro-
hibited by Section 8(b) (4) of the Act. Under Section
10(2), a district court, upon appropriate petition by
the Board’s representative, is free to grant a tempo-
rary injunction “notwithstanding any other provision
of law.’’ This clause, coupled with the express terms
of Section 10(h) of the Act, makes it clear that the
district court’s jurisdiction in granting such injunctive
relief is not restricted by the provisions of the Nor-
ris-LaGuardia Act, 47 Stat. 70, as amended, 29 U.S.C.
101-115, including the provision of that Act (Section
11, 29 U.S.C. (1946 ed.) 111) requiring jury ‘vials of
contempts of injunctions “arising under this [the
Norris-LaGuardia] Act.” United States v. United
Mine Workers, 330 U.S. 258, 298. That this result was
consciously intended by Congress is shown by the de-
bate on a proposal, ultimately defeated, to allow pri-
_ vate employers to seek injunctions against secondary
~ dom has not depreciated in the intervening period the same can-
not be said either of the value of the dollar or of the growth
in dollars of the assets of large organizations.”
13
boycotts but to preserve the right of jury trial for
contempts of such injunctive orders.
In 1948, the same Congress that had enacted Sec-
tion 10(1) of the National Labor Relations Act the
preceding year transferred Section 11 of the Norris-
LaGuardia Act, with certain minor changes, to Section
3692 of Title 18. This was done as part of a general
recodification of federal laws related to crimes and
criminal procedure, and there is no indication that
Congress thereby intended to make any substantive
changes which would make a jury trial available in
contempt proceedings arising from injunctive orders
issued pursuant to the National Labor Relations Act.
The reviser’s note to Section 3692 simply states that
the provision is based on Section 11 of the Norris-
LaGuardia Act.
Nor is a different conclusion required by the fact
that, in transferring Section 11 to Title 18, Congress
replaced the reference to “cases arising under this.
[the Norris-LaGuardia ] Act” with the phrase ‘‘aris-
ing 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.” This
new phrasing was necessary to orient the new pro-
vision to the kinds of cases which arose under the
Norris-LaGuardia Act, for which “labor dispute” is
the jurisdictional touchstone. The National Labor Re-
lations Act, on the other hand, is a law which is
principally concerned with preventing unfair labor
practices. Hence, there is no reason to disturb the
14
virtually uniform conclusion of the federal courts,
adhered to for more than twenty-five years since its
enactment, that Section 3692 does not apply to con-
tempt cases arising out of injunctions issued under
the National Labor Relations Act.
II
As recently as 1958, in Green v. United States, 356
US. 165, 183, this Court, citiag “a long and unbroken
line of decisions”, held “that criminal contempts are
not subject to jury trial as a matter of constitutional
right”. While this Court subsequently held in Bloom
v. Illinois, 391 U.S. 194, that a jury trial was required
for a criminal contempt when a sentence of imprison-
ment for more than six months was imposed, we
submit that the rationale of Bloom does not require
a jury trial in criminal contempt proceedings against
organizations which may not be imprisoned, but only
fined. Bloom “recognized the potential for abuse in
exercising the summary power to imprison for con-
tempt” (391 U.S. at 202); obviously this concern is
not implicated when the contemnor is a corporation
or other impersonal organization. The Court has long
recognized the im nce of a court’s summary con-
tempt power. While it may be appropriate to compro-
mise that power when it threatens to abuse the liberty
interest, there is no need to do so when the only pos-
sible penalty is a fine. Bench trials are not inherently
unfair, and the amount of any fine imposed is subject
to judicial review.
15
Even if organizations are entitled to jury trials for
“serious” (as opposed to “petty”) contempts, the fine
imposed here did not make the contempt serious.
Petitioners’ contention that no offense may be
deemed “petty’’ where a fine exceeding $500 has been
imposed is grounded on the definition of a petty of-
fense in 18 U.S.C. 1(3)—«e., “[a]ny misdemeanor,
the penalty for which does not exceed imprisonment
for a period of six months or a fine of not more than
$500, or both.” But the Court’s holding that a prison
sentence of more than six months makes a crime seri-
ous, thus requiring a jury trial under the Constitu-
tion, was not predicated solely on 18 U.S.C. 1(3), but
rather was based on the “‘near-uniform judgment of
the Nation” as expressed in the laws and practices of
the federal government and the states. Baldwin v.
New York, 399 U.S 66, 72-73. Moreover, there is need
for a uniform rule insofar as imprisonment is con-
cerned, for, in a democracy, one person’s liberty is
equal to that of any other.
A survey of relevant state and federal laws and of
other appropriate gauges of contemporary judgments
reveals no such uniformity on the severity of a fine
which may properly be imposed for a petty offense.
On the contrary, such a survey reveals that a fixed
amount such as that stated in 18 U.S.C. 1(3) is an in-
appropriate standard, especially when the defendant
is a collective body like a corporation or a labor or-
ganization. A more apt expression of the national
consensus would be a standard measuring the severity
of a fine by such factors as the economic resources of
the defendant and the amount of economic damage
ae |
16
flowing from the offense. Tested by such criteria, the
fine of $10,000 imposed on the Union in the present
case (apparently amounting to less than one dollar
per meniber or other affiliated individual) cannot —
‘ be said to have made the Union’s contempt a serious |
offense for which the Constitution ‘would require a
jury trial. : |
ARGUMENT
I. 18 U.S.C. 3692 DOES NOT REQUIRE A JURY TRIAL IN
CRIMINAL CONTEMPT PROCEEDINGS GROWING OUT OF
VIOLATIONS OF INJUNCTIONS ISSUED UNDER THE NA-
TIONAL LABOR RELATIONS ACT 7
In 1947 Congress enacted Section 10(7) of the Na-
tional Labor Relations Act (161 Stat. 136, 149-150),
authorizing the Board, and not private parties, to ob-
tain from the federal district courts temporary relief
against unfair labor practices free of the restrictions
of the Norris-LaGuardia Act, 47 Stat. 70, including
its requirement, in Section 11, of jury trials in con-
tempt proceedings. Although that jury trial provision
was repealed sia replaced the next year by a sub-
stantially equivalent provision in 18 U.S.C. 3692, the
injunctive proceedings provided for by Congress in
the 1947 amendments to the National Labor Relations
‘Act were unaffected. Elucidation of these points re-
quires a brief examination of the pertinent portions
of the legislative history of the Norris-LaGuardia Act,
the National Labor Relations Act, and 18 'U.S,C. 3692.
A. SECTION 11 OF THE NORRIS-LAGUARDIA ACT oF
In 1932, the Norris-LaGuardia Act was enacted,
principally as a response to several decades of broad-
es
17
scale intervention by federal courts in labor contro-
versies. Such intervention took the form of injunctions
issued, often ex parte, and always without the guidance
of any comprehensive legislative policy.’ By thus
intervening in private disputes between employers
and employees without significant reference to any
legislative policy defining precise evils against which
the pubtic was to be protected, judges were deciding
cases largely on the basis of their economic sympa-
thes.” To protect the labor movement against the
destructive impact of such frequent and unrestricted
use of injunctions, Congress severely limited the ju-
risdiction of the federal courts to issue injunctive
orders “in a case involving or growing out of a labor
dispute,’’ broadened the definition of labor dispute so
as to make clear that “the allowable area of union
‘ activity was not to be restricted * * * to an immediate
°Thus, Representative Browning, a member of the House
Committee on the Judiciary, which reported H.R. 5315, the bill
introduced in the House by Representative LaGuardia, ob-
served (75 Cong. Rec. 5470):
“The public policy laid down in the bill * * * is essential,
because there should be some standard by which the courts may
know, at a time when they are in such confusion, what it is
proper to do. I think the most fitting and, in reality, the only
proper tribunal to express such a policy is the Congress * * *.”
See also S. Rep. No. 163, 72d Cong., Ist Sess. 18; Frankfurter
and Greene. Zhe Labor Injunction 15 (1930) (“Thus it is
that the federal courts, under the Supreme Court's lead, have
dealt with labor controversies apart from the authority of
federal legislation 4nd untrammelled by state decisions”).
1 Frankfurter and Greene, Zhe Labor Injunction, supra at
26, citing Holmes, Privilege, Malice, and Intent, 8 Harv. L. Rev.
1. 8 (1930). See also Boys Markets, Inc. v. Retail Clerks Union,
Local 770, 398 U.S. 235, 250-251.
18
employer-employee relation” (United States v. Hutch-
eson, 312 U.S. 219, 231), and provided various pro-
cedural safeguards, including the jury trial provision
in Section 11, which read (47 Stat. 72) :
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 public 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 directly with the administration of
justice or to apply to the misbehavior, mis-
‘conduct, or disobedience of any officer of the
court in respect to the writs, orders, or process
of the court.
The legislative history of Section 11 indicates that it
was intended to apply to both civil and criminal con-
tempts “arising under this Act.’’™
™ Section 11 of the Senate bill (S. 935), in the version
adopted by the Senate prior to its submission to conference,
provided for a jury trial in all cases of contempt of whatever
nature, civil or criminal, without limitation to labor disputes.
75 Cong. Rec. 4757, 4761. See also S. Rep. No. 163, 72d Cong.,
Ist Sess. 1, 7, 23-25. Minority Views, 13-14; 75 Cong. Rec.
4510-4514, 4508-4509, 4621-4624, 4626, 4630, 5003-5005. The
House bill (H.R. 5315), on the other hand, was limited to
indirect criminal contempts arising out of labor disputes fall-
ing within the purview of that bill. 75 Cong. Rec. 5509. See
also 75 Cong. Rec. 5469, 5471, 5472; H. Rep. No. 669, 72d Cong.,
Ist Sess. 10. In conference, a compromise between the House
and Senate provisions was worked ovt. 75 Cong, Rec. 6335-
6336, 6329. See also H. Conf. Rep. No. 821, 72d Cong., Ist
Sess. 7; 75 Cong. Rec. 5550-5551. Explaining the conference
19
B. THE NATIONAL LABOR RELATIONS ACT
A more comprehensive set of protections for the
activities of labor organizations was provided in the
Nationa! Labor Relations Act of 1935 (the “Wagner
Act’’); 49 Stat. 449. Congress, inter alia, proscribed
ceytain unfair labor practices on the part of em-
jloyers, and established an administrative agency, the
National Labor Relations Board, te determine whether
such practices had been committed, and, if so, to
provide an appropriate remedy. The Board’s decision
and order was subject to review in the courts of ap-
peals, pursuant to Section 10 (e) or (f) of the Act,
29 U.S.C. 160 (e) or (f). Concluding that the pro-
tections of the Norris-LaGuardia Act were not needed
in situations covered by the National Labor Relations
Act, Congress further provided, in Section 10(h) of
the latter Act, 29 U.S.C. 160(h), that, when ‘‘grant-
ing appropriate temporary relief or a restraining
' order, or making and entering a decree enforcing,
| modifying, and enforcing as so modified or setting
aside in whole or in part an order of the Board, * * *
the jurisdiction of courts sitting in equity shall not
be limited by * * * ‘An Act to amend the Judicial
Code and to define and limit the jurisdiction of courts
agreement upon the floor of the Senate, Senator Norris stated
that “section 11 now provides that anyone charged with con-
: tempt in any case arising under this act shall be entitled to a
trial by jury.” 75 Cong. Rec. 6450, 6453. Discussing the con-
ference agreement upon the floor of the House, Representative
LaGuardia agreed with Representative Dyer’s explanation that
“a jury trial is now in order for contempt, civil or criminal,”
adding, “That is, arising out of any action contemplated in the
act.” 75 Cong. Ree. 6337.
20
sitting in equity, and for other purposes’, approved
-March 23, 1932 (U.S.C., Supp. VII, Title 29, Sees.
101-115).”
In the Labor-Management Relations Act of 1947
(the “Taft-Hartley Act”), 61 Stat. 136, Congress con-
cluded that certain activities engaged in by unions,
particularly secondary boycotts and jurisdictional
strikes,” were injurious to the national interest, and
proscribed them as unfair labor practices. See 29
U.S.C. 158(b). In Section 10(7), 29 U.S.C. 160(/),
Congress required that, whenever the Board’s regional
official determines that there is reasonable cause to
believe that a charge alleging a violation of Section
8(b) (4), 29 U.S.C. 158(b) (4), the secondary boycott
provision,” is true and that a complaint should issue,
he “shall” petition the appropriate federal district
court “for appropriate injunctive relief pending the
final adjudication of the Board with respect to such
matter.’’ "* Congress accorded the district courts juris-
diction to grant such relief ‘‘notwithstanding any
other provision of law.’ ZW U.S.C. 160(7). The latter
clause freed the district courts from the restrictions
*? See, e.g., II Legislative History of the Labor-Management
Relations Act, 1947 (1948) (hereafter “Leg. Hist.”) 1012-1013,
93 Cong. Rec. 3838 (remarks of Sen. Taft) ; II Leg. Hist. 1055-
1056, 93 Cong. Ree. 4131-4132 (remarks of Sen. Ellender).
** Tn 1959, Congress included in Section 10(7) the newly
added prohibitions against recognitional picketing (Section
8(b)(7), 29 U.S.C. 158(b)(7)) and “hot cargo” agreements
(Section 8(e), 29 U.S.C. 158(e) ). 73 Stat. 519, 543-545.
**A similar provision, Section 10(j), 29 U.S.C. 160(j), was
also added, giving the Board discretionary authority to petition
the district court for temporary injunctive relief in respect to
other types of unfair labor practices.
ZS
pietetaat
vets Maat
| —
21
of the Norris-LaGuardia Act in respect to such in-
junctions ; Congress reinforced this result by retaining
Section 10(h) of the Wagner Act.”
When some members of Congress argued that Sec-
tion 10(1) should be rejected because it represented
a repudiation of the Norris-LaGuardia <Act,"* the
measure’s supporters pointed out that injunctions
sought by a Board representative in a limited class of
cases were quite different from the kinds of injune-
tions which led to passage of the Norris-LaGuardia
Act." The injunctive remedy authorized in Section
10(1) is not to vindicate private rights in an economic
dispute, but rather to protect, the public against cer-
tain carefully defined types of unfair labor practices.
Thus, the Senate Report, commenting on Section
10(1) and the companion provision, Section 10()),
states:
Time is usually of the essence in these
matters, and consequently the relatively slow
procedure of Board hearing and order, fol-
lowed many months later by an_ enforcing
decree of the circuit court of appeals, falls
short of achieving the desired objectives—the
13 See Douds v. Local 294. Teamsters, 7 F. Supp. 414, 418
(N.D. N.Y.); Le Baron v. Printing Specialities, Local 388,
F. Supp. 678, 681 (S.D. Cal.). See also Bakery Sales Drivers
Locol Union 33 v. Wagshal, 333 U.S. 437, 442.
16_See, e.g. I Leg. Hist. 876, 93 Cong. Rec. 6296 (remarks of
Rep. Javits): I Leg. Hist. 887, 83 Cong. Res. 6385 (remarks
of Rep. Madden); II Leg. Hist. 1109-1113, 93 Cong. Rec.
4199-4202 (remarks of Sen. Pepper).
7 See, e.g. II Leg. Hist. 1364, 93 Cong Rec. 4843 ( remarks
of Sen. Smith); II Leg. Hist. 1544, 93 Cong. Rec. 6445-646
(remarks of Sen. Taft).
OO
22
free flow of commerce and encouragement of
and not in vindication of purely private rights,
may seek injunctive relie? in the case of all
types of unfair labor practices and that it shall
Rep. No. 105, 80th Cong., Ist Sess. 8; I Leg.
Hist. 414; emphasis added. ]
In sum, Section 10(2) did not permit the indiscrimi-
nate use of injunctions to influence the outcome of pri-
vate labor disputes at the behest of private parties,
Rather, it authorized the Board to seek temporary
injunctive relief in a narrowly limited elass of cases,
and it made this part of an overall scheme dominated
by ‘elaborate administrative machinery for dealing
with the whole field of labor relationships, a matter
requiring specialized skil] and experience, and [pro-
visions] for the handling of unfair labor practices by
an administrative agency equipped for the task.”
Amazon Cotton Mill Co. v. Textile Workers Union,
167 F. 2d 183, 187 (C.A. 4). See also Amalgamated
Ass’n of Motor Coach Employees y. Dixie Motor
Coach Corp., 170 F. 2d 902, 907 (C.A. 8). Congress
could thus dispense with Norris-LaQuardia Act pro-
Bars an additional protective measure, Section 10( Z) forbids
the issuance of ex parte temporary restraining orders except
on a showing that “substantial and irreparable injury to the
charging party will be unavoidable,” and provides that any
such ex parte orders will expire after five days.
23
tections in Section 10(/) without bringing back the
abuses which led to enactment of that law in 1932.
Petitioners contend (Br. 37-38; see also Brief of
United Mine Workers (‘‘Mine Workers’’) 8-10) that
the foregoing merely shows that Congress intended to
free district courts of the restrictions of the Norris-
LaGuardia Act (e.g., 29 U.S.C. 104) at the stage of
issuing the injunction, but not from its jury trial
. provision, Section 11.” However, Section 11 of the
Norris-LaGuardia Act, by its terms, is applicable only
to “cases arising under this Act,” and, where the is-
suance of the underlying injunction is not governed
by the Norris-LaGuardia Act, a contempt of that in-
junction cannot be a case “arising’’ under that Act.
Thus, in United States v. United Mine Workers,
supra,330 U.S. 258, decided in March 1947, shortly
before § 10(7) was enacted, the Court, after holding
that the Norris-LaGuardia Act was inapplicable to an
injunction sought by the United States against strike
action by a union and its officials in coal mines seized
by the United States, further held that the defendants,
in a trial for criminal and civil contempt of that in-
junction, were not entitled to a jury under Section 11
of the Norris-LaGuardia Act. The Court explained
that “[Section] 11 is not operative here, for it applies
* But petitioners later concede (Br. 41) that, from “the ef-
fective date of Taft-Hartley in late summer, 1947, until June
28, 1948, the effective date of the new § 3692, an alleged con-
temnor of a Taft-Hartley injunction would probably have been
denied the jury trial guaranteed by §11 of Norris-LaGuardia,
because the injunction would not have been one arising under
Norris-LaGuardia itself.”
569-660—75——3
/—
24
only to cases ‘arising under this Act,’ and we have al-
ready held that the restriction[s] upon injunctions im-
posed by the Act do not govern this case” (id. at 298,
footnotes omitted ).”° . |
That Congress did indeed intend to free proceedings
under Section 10(/) from the requirements of the Nor-
ris-LaGuardia Act not only at the injunction issuance
stage, but also at the contempt stage, is confirmed by
the debate over the Ball amendment. That proposal
would have permitted private parties to seek federal
court injunctions against jurisdictional strikes and
secondary boycotts, but would have retained some of
the Norris-LaGuardia Act protections, including the
jury trial provision.” In pointing out the advantages
“Mine Workers (Br. 6, n. 5) attempt to distinguish United
Mine Workers, supra, on the ground that there the Court held
that the Norris-LaGuardia Act did not apply because the labor
dispute was between the federal government and its employees,
whereas Section 10(7) has merely freed the district courts of
the restrictions of the Norris-LaGuardia Act in injunction suits
brought by the Board. However, the Court’s conclusion in
United Mine Workers that Section 11 did not apply does not
rest on any such distinction. Whatever the reason for the inap-
plicability, in both cases, since “the restriction[s] upon injunc-
tions imposed by the Act do not govern this case,” Section 11
“is not operative.”
“The amendment was first proposed by a minority within
the Senate Labor Committee in their supplemental statement to
the Senate Report (I Leg. Hist. 461-462, S. Rep. No. 105, 80th
Cong., Ist Sess. 55-56). It was then introduced in the Senate
by Senator Ball on behalf of himself and three other Senators
(II Leg. Hist. 1823-1324, 93 Cong. Rec. 4757). Although Sena-
tor Taft had signed the supplemental statement, he’ did not
support the Ball amendment but rather introduced a substitute
amendment, ultimately enacted as Section 303 of the Labor
Management Relations Act, 29 U.S.C. 187. The latter provision
4
cuter
ro
RES a Bat Se PURE eee
25
of his amendment over the provisions of Section 10(7)
in the Committee bill, Senator Ball explained (II Leg.
Hist. 1348, 93 Cong. Ree. 4834) :
* * * when the regional attorney of the
NLRB seeks an injunction, the Norris-
LaGuardia Act is completely suspended, as are
section 6 and 20 of the Clayton Act. We do
not go quite that far in our amendment. We
simply provide that the Norris-LaGuardia Act
shall not apply, with certain exceptions. We
leave in effect the provisions of sections 11 and
12. Those are the sections which give an indi-
vidual charged with contempt of court the right
to a jury trial.
The Senate nevertheless rejected Senator Ball’s pro-
posed amendment, and Congress ultimately enacted
Section 10(/), providing an injunctive remedy free
from all Norris-LaGuardia Act restrictions.”
permits private parties injured by unlawful boycotts or juris-
dictional strikes to sue for damages. II Leg. Hist. 1399-1400, 93
Cong. Rec 4874-4875.
22 As noted (supra, p. 21) Congress also carried over without
change Section 10(h), which exempts Board proceedings gen-
erally from the Norris-LaGuardia Act. Section 10(h), by citing
“secs. 101-115” of that Act, renders all of its provisions in-
applicable. See H. Conf. Rep. No. 510, 80th Cong., Ist Sess.
57, I Leg. Hist. 561. Contrary to petitioners’ claim (Br. 29-35),
the exemption in Section 10(h) is not limited to proceedings in
the courts of appeals. Section 10(j) does not contain the language
of exemption found in Section 10(7) (“notwithstanding any other
provision of law”), yet proceedings under that section are exempt
(by virtue of Section 10(h)) from the provisions of the Norris-
LaGuardia Act to the same extent as proceedings under Section
10(2). In re Union Nacional de Trabajadores, 502 F. 2d 113 (C.A.
1).
26
C. 18 U.8.C. 3692
1. In 1948, Section 11 of the Norris-LaGuardia
Act was repealed, 62 Stat. 862, 866, and replaced by
18 U.S.C. 3692, 62 Stat. 844. This was done in the
context of a revision of Title 18, U.S.C., entitled
‘Crimes and Criminal Procedure,’’ in which some sec-
tions formerly in Title 18 were revised, and related
federal laws in other titles were recodified in Title 18.
Act of June 25, 1948, 62 Stat. 683. Some revisions
consisted of minor changes in phrasing, while others
were more substantive.* Changes in laws effected by
the 1948 recodification were thoroughly explained, as
to both purpose and effect, in the series of “reviser’s
notes’’ printed in the House Report. See, e.g., notes
to 18 U.S.C. 1542-1545, 4202, H. Rep. 304, pp. A108,
A187. The revisers were especially careful, where the
coverage of a repealed provision was expanded, to
explain why such a change was made. See, ¢.g., note
to 18 U.S.C. 4162, H. Rep. 304, p. A186. The reviser’s
note to 18 U.S.C. 3692, on the contrary, is quite brief
and indicates no significant change in coverage. It
states (H. Rep. 304, p. A176): |
*e The House Committee on the Judiciary, which reported out
the bill (H.R. 3190) that became Title 18 noted: “Revision, as
distinguished from codification, meant the substitution of plain
language for awkward terms, reconciliation of conflicting laws,
omission of superseded sections, and consolidation of similar
provisions.” H. Rep. No. 304, 80th Cong., Ist Sess. 2 (hereafter
“H. Rep. 304”). In specifically repealing Section 11 of: the
Norris-LaGuardia Act and certain other laws, Congress used
a “method of specific repeal” which, as the House Committee
explained, would “lift from the courts the onerous task of fer-
reting out implied repeals.” Jd. at 9.
an ee hw oe ee ee ee On.
27
Section 3692—Section Revised
Based on section 111 of title 29, U.S.C., 1940
ed., Labor (Mar. 23, 1932, ch. 90, § 11, 47 Stat.
72). ’
The phrase ‘or the District of Columbia
arising under the laws of the United States
governing the issuance of injunctions or re-
straining orders in any case involving or grow-
ing out of a labor dispute’’ was inserted and
the reference to specific sections of the Norris-
LaGuardia Act (sections 101-115 of title 29,
U.S.C., 1940 ed.) were eliminated.
In this light, it is reasonable to conclude that, in
enacting Section 3692 of Title 18, Congress intended
to do no more than to place Section 11 of the Norris-
LaGuardia Act in that title, along with other statu-
tory provisions establishing procedures for contempt
hearings.” And, for more than 25 years, this has been
* Thus, Section 3692 is preceded in Title 18 by Section 3691,
which replaces Sections 21 and 24 of the Clayton Act, 38
Stat. 788, 739, which were specifically repealed, 62 Stat. 864.
(Section 3691 provides for a jury trial in the narrow class of
criminal contempt cases involving the wilful disobedience of
an order by conduct which also constitutes a crime under
federal or state law. See Michaelson vy. United States, 266
U.S. 42.) Section 3692 is followed in Title 18 by Section 3693,
which incorporates by reference Rule 42 of the Federal Rules
~‘of Criminal Procedure, governing the procedure to be fol-
lowed in cases of criminal contempt, part of which relates to
the disqualification of a judge to preside at a contempt hear-
ing involving. disrespect or criticism of him, a matter previ-
ously dealt with by Section 12 of the Norris-LaGuardia Act,
which was also specifically repealed. 62 Stat. 866. See also
Section 402 of Title 18. : '
the consistent conclusion of the courts which have con-
sidered the question. See United States v. Robinson,
449 F. 2d 925, 932 (C.A. 9); Madden v. Grain Eleva-
tor, Flour and Feed Mill Workers, 334 F..2d 1014,
1020 (C€.A. 7), certiorari denied, 379 U.S. 967; Mitch-
ell v. Barbee Lumber Co., 35 F.R.D. 544,546 (S.D.
Miss.). Thus, they have held that Section 3692 does
not apply to contempt proceedings arising out of “in-
junctions provided for by or issued in aid of other
federal statutes in the labor relations field * * *.’’
Brotherhood of Locomotive Firemen and Enginemen
v. Bangor & Aroostook Railroad Co., 380 F. 2d 570,
580, n. 30 (C.A.D.C.) (Railway Labor Act). See also
In re Piccinini, 35 F.R.D. 548, 551 (W.D. Pa.) (Fair
‘Labor Standards Act). And, respecting the precise
issue here, they have held that Section 3692 is inap-
plicable to contempt cases arising out of Section 10(/)
injunction orders. Madden v. Grain Elevator, Flour
and Feed Mill Workers, supra; Schauffler v. Local
1291, International Longshoremen’s Ass’n, 189 F.
Supp. 737, 742 (E.D. Pa.), reversed on other grounds,
| 292 F. 2d 182 (C.A. 3). See also National Labor Rela-
tions Board v. Red Arrow Freight Lines, 193 F. 2d
979, 980 (C.A. 5); In Re Winn-Dizie Stores, 386
F. 2d 309, 312, 316 (C.A. 5).
2. However, petitioners (Br. 38-40), adopting the
view recently enunciated by the First Circuit in In re
Union Nacional de Trabajadores, supra, 502 F. 2d
113,” contend that this long established construction of
24 Although that case involved a criminal contempt of ‘an in-
junction issued under Section 10(j) of the N ational Labor Re-
lations Act, while the injunctions here were issued under Section
oe SO es ee el
ES eS, ee
4
29
Section: 3692 is erroneous because it fails to give effect
to the plain language of that section. Petitioners note
that, by its terms, Section 3692 is applicable ‘‘In all
cases of contempt arising under the laws of the United
States governing the issuance of injunctions or re-
straining orders in any case involving or growing out
of a labor dispute” (emphasis added). The argument
therefore runs that, since the contempt here arises
under the National Labor Relations Act, a law “of the
I ) fine e issuance of injunctions
or restraining orders, disigge the case grew out of
a “labor dispute”, Section 3692 requiresa jury trial.”
The argument is unsound fof several reasons.
a. The change in wordihg from the introductory
clause of Section 11 of the Norris-LaGuardia Act ”
is best explained as simply a means of referring to the
subject matter covered by the Norris-LaGuardia Act.
When Section 11 was removed from that Act and
inserted into Title 18, changes in phraseology were
needed to relate it to the kinds of situations covered
by the Norris-LaGuardia Act. The preamble to the
Norris-LaGuardia Act, setting the theme of its suc-
ceeding provisions, recites (47 Stat. 70) “That no
court of the United States * * * shall have jurisdiction
10(7), the issue respecting the application of 18 U.S.C. 3692 is
the same for both types of injunctions (see n. 23¢supra). .
25 But petitioners concede (Br. 46) that, since Section 3692
is included. in Title 18, “Crimes and Criminal Procedure,” it is
applicable only to criminal, and not civil, contempts. See also
Inre Union Nacional de Trabajadores, supra, 502 F. 2d at 119-120.
2¢The introductory clause of Section 11 of the Norris-
LaGuardia Act read “In all cases arising under this Act * * *.”
to issue any restraining order or teraporary or perma-
nent injunction in a case involving or gowing out of a
labor dispute,” except in the narrowly defined class of
cases thereafter described. And Sections 4, 5, 7, 9, and
10 of the N orris-LaGuardia Act repetitively define
their scope in terms of injunctive relief in a “case in-
volving or growing out of any labor dispute”. Thus the
Norris-LaGuardia Act is pre-eminently a law “of the
United States governing the issuance of injunctions
or restraining orders in any case involving or grow-
ing out of a labor dispute.” And the reference in Sec-
tion 3692 of Title 18 to “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”
can reasonably be construed, not as an enlargement of
that provision, but merely as an effort to confine it to
its Norris-LaGuardia Act jurisdictional touchstone.
b. Unlike the Norris-LaGuardia Act, the Natio
‘Labor Relations Act is not essentially a law aa
ing the issuance of injunctions or restraining orders”
in cases “involving or growing out of a labor dis-
pute.” It is concerned with preventing unfair labor
practices, and the power conferred on the Board to
obtain an injunction is merely incidental to achieving
that objective.” While an unfair labor practice often
__* Section 10(a) of the National Labor Relations Act, setting
the theme of ‘its succeeding provisions, empowers the Board
“to prevent any person from engaging in any unfair labor
practice * * * affecting commerce.” Subse. ions (b), (c), (e),
(f), (j), (k), and (2) of Section 10 thereafter repetitively de-
fine their scope in terms of an “unfair labor practice” in which
31
arises out of a labor dispute, the two are not coex-
tensive; some coriduct which constitutes a labor dis-
pute may not constitute an unfair labor practice, and
vice versa. See National Labor Relations Board v.
Mackay Radio Co., 304 U.S. 333, 344 (“The argument
confuses a current labor dispute with an unfair labor
practice defined in § 8 of the Act’’).* Moreover, when
district courts act on petitions filed by the Board pur-
suant to Sections 10(j) or 10(7) of the Act, they are
not engaging in the kind of ad hoc intervention in
labor disputes which led to passage of the Norris-
LaGuardia Act (see supra, pp. 16-17, 21-23).” Rather,
they are acting within a framework established by
Congress to prevent the commission of acts defined as
unfair labor practices, without regard to whether
those acts did or did not arise out of a labor dispute.”
a person “has engaged” or is “engaging,” and the place where
it has “occurred” or is “alleged to have occurred.”
28 To be sure, the National Labor Relations Act incorporates,
in Section 2(9), 29 U.S.C. 152(9), the same definition of a
labor dispute which is embodied in the Norris-LaGuardia Act,
29 U.S.C. 113(c). However, Congress’ purpose in doing so was
not to regulate the dispute itself, but to insure that the Board
would have full power to reach practices inimical to the public
welfare which might emanate therefrom. See S. Rep. No. 573,
74th Cong., 1st Sess. 6-7.
2° Cf. Virginian Railway Co. v. System Federation No. 40, 300
U.S. 515, 563.
* The Court of Appeals for the First Circuit-attempted to
“distinguish cases arising out of unfair labor practices from
those arising under statutes [such as the Fair Labor Standards
_ Act, 52 Stat. 1060, involved in Barbee and Piccinini, supra]
vesting the government with authority to enforce compliance
with more sharply defined federal standards which are not sub-
ject to bargaining” Jn re Union Nacional de Trabajadores, supra,
569-660—75——_4
32
Accordingly, since the injunctions here were issued to
check probable unfair labor practices, the contempt of
_those injunctions is more accurately viewed as arising
out of unfair labor practices rather than a labor
dispute.
c. At minimum, we submit, the foregoing analysis
indicates that the “plain meaning”’ of 18 U.S.C.
3692—i.e., whether it encompasses contempts of in-
junctions issued under the National Labor Relations
Act—is ‘‘sufficiently doubtful to warrant * * * resort
to extrinsic aids to determine the intent of Congress,
which, of course, is the controlling consideration
** *” Cass v. United States, 417 U.S. 72, 77. That
Congress did not intend to expand Section 3692 of
Title 18 beyond the scope of Section 11 of the N orris-
LaGuardia Act is shown by the fact that, in the 1947
amendments to the National Labor Relations Act,
the 80th Congress, after extensive consideration of
the question, explicitly provided for the issuance of
certain injunctions free of Norris-LaGuardia Act re-
strictions, including its jury trial provision (see supra,
pp. 24-25), and the following year the same Congress
transferred that jury trial provision, with the minor
changes indicated (see supra, pp. 26-27), to Title 18
without indicating any intent to modify the scheme it
had so laboriously worked out in the 1947 amendments.
502 F. 2d at 118, n. 4; see also Pet. Br. 27-28). There is no
warrant for such a distinction. Both types of statutes fall out-
side of Section 3692 because the injunctive power which they
confer is utilized to further an express statutory policy, and
not to resolve a private dispute between an employer and em-
ployees, or an employer and a labor organization.
33
3. There is no basis for petitioners’ assumption
(Br. 40-43) that Congress made Section 3692 appli-
eable to all cases involving or growing out of a labor
dispute to overrule this Court’s holding in United
Mine Workers, supra, that, since, the Norris-LaGuar-
dia Act did not bar issuance of the injunction, the
jury trial provision of that Act was likewise inappli-
eable. The United Mine Workers case was decided on
March 6, 1947. At that time the recodification of Title
18 was long underway, and the decision to transfer
Section 11 to Title 18—in substantially the form
finally enacted—had already been made. See H.R.
2200, 79th Cong., Ist Sess. ; H. Rep. 152, 79th Cong.,
1st Sess., p. A164.
Moreover, Title 18 first passed the House on May 12,
1947 (93 Cong. Rec. 5049) and it did not finally pass
both the Senate and the House until June 18, 1948 (94
Cong. Rec. 8721-8722, 8864-8865. There was thus
ample opportunity for Congress, if it so desired,
to indicate its disapproval of the Untted Mine
Workers jury trial holding. Finally, since Title 18
was not enacted until more than one year after the
Senate had rejected the Ball amendment which would
have made Section 11 of the Norris-LaGuardia Act
applicable to proceedings under the National Labor
81 F{.R. 2200 provided in pertinent part:
“In all cases 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 restrain-
ing orders in any case involving or growing out of a labor
dispute, the accused shall enjoy the right to a speedy and public
trial by an impartial jury of the State and district wherein the
contempt shall have been committed. * * *”
34
Relations Act. (supra, p. 25),°* there was also ample
opportunity for Congress, if it had desired to reverse
that action (see In re Union Nacional de Trabaja-
dores, supra, 502 F. 2d at 118-119; National Lawyers
Guild (“Guild”) Brief 15), to so indicate. Yet, neither
in the House or Senate Reports on Title 18, nor in the
legislative debates thereon, is there any intimation that
Section 3692 was intended to overrule either United
Mine Workers or the decision made in respect to the
applicability of the Norris-LaGuardia Act to Board
injunctions. Congress’ sole comment on Section 3692
consists of the brief reviser’s note set forth, supra,
p. 27.*
4. That Congress’ change in wording, between Sec-
tion 11 of the Norris-LaGuardia Act and Section 3692
** The Ball amendment was rejected on May 9, 1947. II Leg.
His. 1370, 93 Cong. Rec. 4847. .
**The Senate Report, S. Rep. No. 1620, 80th Cong., 2d
Sess., which was printed in June 1948, included some addi-
tional “Amendments and Explanations” reflecting, in part,
“new legislation enacted since passage of the bill by the House”
(#d. at 2). But nothing is said about the injunction provisions
of the Labor-Management Relations Act of 1947. (Note, how-
ever, the incorporation of “section 304 of the Labor-Manage-
ment Relations Act, 1947, * * * prohibiting campaign con-
tributions * * * by labor unions.” /d. at 3.)
** The question of statutory interpretation in the present case
differs significantly from that in Tinder v. United States, 345
U.S. 565, cited by the Guild (Br. 19, n. 18). In Zinder, this
Court, construing a provision of the federal criminal code
revised in 1948, was able to establish its meaning by reference
to the reviser’s note, since it fully explained the change made
in the provision. 345 U.S. at 568-569, n. 2. (For a similar explana-
tion of the Zinder holding, see the “Memorandum Re Tinder
v. U.S.” placed in the Congressional Record by Representative
Celler in the course of the debate on the jury trial provision
of the Civil Rights Act of 1957 (discussed infra), 108 Cong.
Rec. 8684).
—
$
35
of Title 18, signifies no substantive change is confirmed
by the debates on the jury trial provision of the Civil
Rights Act of 1957 (See. 151, 71 Stat. 638, 42 U.S.C.
1995). At that time, Representative Celler, who had
been chairman of the subcommittee of the House
Committee on the Judiciary which had conducted
hearings on the recodification of federal laws in Title
18, put into the record a memorandum he described
as “a complete and smothering answer’’ to the sug-
gestion by Representative Smith that Section 3692
applied to proceedings under the National Labor Re-
lations Act, as amended in 1947 (103 Cong. Rec. 8684-
8687). That memorandum concluded that Congress did
not, in Section 3692, restore the applicability of a jury
trial provision to proceedings exempted from it by the
same Congress just a year before (103 Cong. Ree.
8686-8687) .*°
Il. A JURY TRIAL WAS NOT REQUIRED BY THE CONSTITU-
TION IN ORDER TO SUBJECT THE PETITIONER UNION TO
THE FINE FOR CRIMINAL CONTEMPT IMPOSED IN THIS
CASE.
A. JURY TRIALS ARE NOT CONSTITUTIONALLY REQUIRED IN CRIMINAL
CONTEMPT PROCEEDINGS AGAINST UNIONS OR CORPORATIONS,
WHICH CANNOT BE IMPRISONED. 5
Petitioner Local 70, but not petitioner Muniz, claims
a constitutional right to a jury trial of the criminal
contempt charge.” While the last decade has seen a
35 See 92 Cong. Rec. 9122.
36 See, also, 103 Cong. Rec. 8688-8691 (remarks of Rep. Keat-
ing); 103 Cong. Rec. 12842-12843 (letter from Attorney Gen-
eral Brownell).
“Since petitioner Muniz was placed on probation for one
year, without being subject to a fine or imprisonment, he does
36
rapid development of the law regarding the right to
jury trials of individual criminal contemnors who are
subject to terms of imprisonment, none of these recent
cases resolves the questions presented here. In this case
the criminal contemnor is an unincorporated associa-
tion which by its nature is not subject to imprison-
ment, but may only he fined. The questions are
whether organizations subject merely to fines are ever
entitled to jury trials in criminal contempt proceed-
ings, and, if so, whether the fine imposed on Local 70
was such as to require a jury trial.
In our view neither Art. IIT, Section 2, of the Con-
stitution nor the Sixth Amendment requires jury trials
of criminal contempt proceedings where personal lib-
erty is not at stake. Alternatively, we submit that the
$10,000 fine imposed on petitioner Local 70 was not
sufficiently serious to require a jury trial. Elaboration
of these contentions requiréa brief review of recent
eases involving the right of natural persons to jury |
trial, particularly for criminal contempts.
As recently as 1958, in Green v. United States, 356
U.S. 165, 183, this Court, citing ‘‘a long and unbroken
line of decisions,’’ affirmed unequivocally that ‘‘crimi-
nal contempts are not subject to jury trial as a matter
of constitutional right” (footnote omitted). While the
Court noted that contempt proceedings have tradition-
ally been surrounded with many of the protections
available in a criminal trial,” the Court concluded that
not claim a jury trial as a matter of constitutional right. See
Frank v. United States, 395 U.S. 147.
“The Court cited (356 U.S. at 184, n. 15): °
“Cooke v. United States, 267 U.S. 517, 537 (compulsory pro-
cess and assistance of counsel) ; Gompers v. United States, 233
37
such contempts “are neither ‘crimes’ nor ‘criminal ~
prosecutions’ for the purpose of jury trial within the
meaning of Art. ITI, § 2, and the Sixth Amendment”
356 U.S. at 184-185 (footnote omitted). But Green
was not to remain the law for long and, even at that
time, was questioned in a dissent by Mr. Justice Black
(356 U.S. at 193) striking the note of concern that ul-
timately was to persuade a majority of the Court: the
risk of abuse in permitting a judge to be the * judge
of his own cause” where the personal liberty of the al-
leged contemnor is at stake. Thus, for the dissenters in
Green, it was the possibility of “unconditional im-
prisonment”’ which brought the jury trial provisions
of the Constitution into play. Distinguishing impris-
onment for civil contempts, “where the defendant
carries the keys to freedom,” Justice Black wrote
(356 U.S. 197-198) :
In my judgment the distinction between con-
ditional confinement to compel future per-
formance and unconditional imprisonment de-
signed to punish past transgressions is crucial,
analytically, as well as historically, in determin-
ing the permissible mode of trial under the Con-
stitution.
Similarly, he: observed (356 U.S. at 209) that “[a]
great concern for protecting individual liberty from
even the possibility of irresponsible official action was
one of the momentous forces which led to the Bill of
Rights.”’
U.S. 604, 611-612 (benefit of a statute of limitations generally *
governing crimes) ; Gompers v. Bucks Stove & Range Co., 221 ©
U.S. 418, 444 (proof of guilt beyond a reasonable doubt and
freedom from compulsion to testify) .”
38
The rule that “criminal contempts are not subject
to jury trial as a matter of constitutional right” was
reaffirmed in 1964 in United States v. Barnett, 376
U.S. 681, 692. There, however, the Court added the
dictum that ‘‘[s]ome members of the Court are of the
view that, without regard to the seriousness of the
offense, punishment by summary trial without a jury
would be constitutionally limited to that penalty pro-
vided for petty offenses” (376 U.S. at 695, n. 12). In
invoking the concept of petty offenses, the Court
brought to bear on the criminal contempt question a
Separate line of cases dealing with the right to jury
trial of crimes generally. This area too had been char-
acterized by a continuing concern over serious inter-
ferences with personal liberty without the protection
of a jury. In Callan v. Wilson, 127 U.S. 540, 549, the
Court rejected the notion that the jury trial guar-
antee might apply only to felonies, ruling instead that
“[i]t embraces as well some classes of misdemeanors,
the punishment of which involves or may involve the
deprivation of the liberty of the citizen.’’
‘Thus the debate concerning the proper characteriza-
tion of criminal contempt, as well as the proper cate-
gorization of offenses generally, for the purpose of
the jury trial guarantees was informed by a single
overriding concern: the risk of arbitrary deprivation
of personal liberty. It is not surprising, then, that the
Court dealt decisively with both issues on the same
day. In Duncan v. Louisiana, 391 U.S. 145, the Court
held that the due process clause of the Fourteenth
Amendment extended to the states the Sixth Amend-
3
;
:
:
39
ment’s right to jury trial of “serious’’ offenses, and
that a crime for which the eee had authorized
a maximum penalty of two years’ impr isonment was
“serious’’. Applying this holding in Bloom v. Illinois,
391 U.S. 194, decided the same day as Duncan, the
Court held that a jury trial was constitutionally re-
quired for a criminal contempt that resulted in a
sentence of two years’ imprisonment.
Both cases again expressed the abiding concern over
arbitrary interference with personal liberty. Thus
Duncan (391 U. S. at 156) spoke of ‘a reluctance to
entrust plenary powers over the life and liberty of the
citizen to one judge or. to a group of judges,” while
Bloom (391 U.S. at 202) “recognized the potential for
abuse in exercising the summary power to imprison
for contempt—it is an ‘arbitrary’ power which is ‘li-
able to abuse’ Ex parte Terry, 128 U.S. 289, 313
(1888).”
While the two lines of authority which came
together in Duncan and Bloom may thus dictate
similar results forscontempt and other crimes when
the liberty interest is at stake, it does not follow that
the results should be the same when that interest is
not implicated. Contempt has historically been con-
sidered “sui generis” (Cheff v. Schnackenburg, 384
U.S. 373, 380). Over the years contempt has been “sur-
rounded with many of the protections available in a
criminal trial’? (Green v. United States, supra, 356
U.S. at 184), now including the jury trial protection
where serious interferences with personal liberty are
threatened (Bloom, supra). Yet criminal contempt is
40
still recognized as an offense having ‘‘unique” aspects
(Duncan, supra, 391 U.S. at 162, n. 35). We submit
that neither history nor policy requires jury trials of
criminal contempts by associations or corporations
which, by their nature, may not be imprisoned, but
only fined.
The power of the courts to deal summarily with con-
tempts was acknowledged by this Court for 150 years.
At the time Green was decided, in 1958, Mr. Justice
Frankfurter was able to “call the roll’? of “every
Justice who sat on the Courts since 1874” (with two
exceptions) as supporting this power (356 U.S. at
192 and 192, n. 3, Frankfurter, J., concurring). The
basis of this power has been articulated in the
numerous cases cited in Green (356 U.S. at 183, n. 14)
and discussed in Barnett (376 U.S. at 694-699) ; it
was perhaps most succinctly stated by Mr. Justice
Brewer in In re Debs (158 U.S. 564, 594-595) :
[T]he power of a court to make an order car-
ries with it the equal power to punish for a
disobedience of that order, and the inquiry as
to the question of disobedience has been, from
time immemorial, the special function of the
court. And this is no technical rule. In order
that a court may compel obedience to its orders
it must have the right to inquire whether there
has been any disobedience thereof. To submit
the question of disobedience to another tribunal,
be it a jury or another court, would operate
to deprive the proceeding of half its efficiency.
It may be appropriate to sacrifice ‘‘half [the] * * *
efficiency’’ of the contempt power when it threatens
to become an arbitrary interference with the liberty
§
4
:
] -
41 ,
interest. But when the contemnor is an artificial entity
or association—which may not be imprisoned—there
is no need further to compromise this historic power.
The jury is not a crucially important safeguard
when the criminal contemnor is an artificial entity
not subject to imprisonment. Manifestly it has no
“peers” which can sit in Judgment upon it. See Dun-
can, supra, 391 U.S. at 156. And a bench trial of such
a cause obviously is not inherently unfair, since it
is constitutionally adequate in ‘‘petty” contempt pro-
ceedings against individuals. Indeed, when this Court
ruled that counsel must be provided whenever any
term of imprisonment was imposed, it distinguished
the cases permhitting non-jury trials where the poten-
tial punishment was imprisonment for six months
or less, noting that ‘the right to trial by jury has a
different genealogy and is brigaded with a system of
trial to a judge alone.” Argersinger v. Hamlin, 407
U.S. 25, 29." And, significantly, whatever the fine
imposed, it is subject to appellate review. See, ¢.g.,
United States v. United Mine Workers, supra, 330
U.S. at 304-305.
Finally, this Court has long recognized the power of
courts to impose fines—even substantial fines—upon
unions and corporations without the interposition of
a jury. Thus in United States v. United Mine W ork-
%° Argersinger again demonstrates the Court’s fundamental
concern with protecting against arbitrary interference with per-
sonal liberty. Even though uncounseled trials arguably present
a greater risk of unfairness than summary (non-jury) trials,
the Court expressly left open the possibility that uncounseled
trials are nevertheless constitutionally permissible where the
penalty is merely a fine. See 407 U.S. at 37, 40.
a 7
42
ers, supra, 330 U.S. at 304-305, the Court sustained
the imposition, without a jury trial, of a fine of
$700,000 against the union, to be increased to $3,500,-
000, unless it complied within five days with the out-
standing injunction. Since that time on numerous oc-
easions this Court has declined to review criminal
contempt proceedings in which substantial fines were
imposed.“ Perhaps the most significant of these was
the Court’s refusal to review the $100,000 fine imposed
on Holland Furnace Co. while undertaking to review
the claim of its president, Cheff, that a jury was
constitutionally required before he could be impris-
oned for six months for contempt. See Cheff v.
Schnackenberg, 384 U.S. 373, 375."
For these reasons we submit that the right to trial
by jury should not be extended to unincorporated as-
sociations and corporations in criminal contempt pro-
ceedings where the only possible penalty is a fine.
“See In re Local 825, Operating Engineers. 57 LRRM 2143
(C.A. 3), certiorari denied, 379 U.S. 934 (union fined $15,000
and its business manager $5,000); Jn re Holland Furnace Co.,
341 F. 2d 548 (C.A. 7), certiorari denied, 381 U.S. 924 (com-
pany of which Cheff was president fined $100,000); Jn re Jer-
sey City Education Ase’n, 115 N.J. Super. 42, 278 A. 2d 206,
213-215, certiorari denied, 404 U.S. 948 (union fined $10,000) ;
In re Fair Lawn Education Ass'n, 63 N.J. 112, 305 A. 2d 72,
certiorari denied, 414 U.S. 855 (union with 347 members fined
$17,350). See also Rankin v. Shanker, 283 N.Y. 2d 111, 242 N.E.
2d 802, 807-808, stay denied, 393 U.S. 930 (union subject to
fine of $10,000 per day).
“The corporation, however, did not explicitly raise the jury
trial issue in its petition. See petition for a writ of certiorari,
Holland Furnace Co. v. Schnackenberg, No. 972, O. T. 1965,
’
See Pe ee ee
43
B. IN ANY EVENT THE FINE IMPOSED ON THE PETITIONER UNION
WAS NOT SUCH AS TO. MAKE THE CONTEMPT “SERIOUS”
1. Te distinction between “petty” and “serious” offenses
We have seen that Duncan v. Louisiana, supra, in-
terpreted. the due process clause of the Fourteenth
Amendment to extend to the states the Sixth Amend-
ment right to jury trial for other than “petty” crimes.
While Bloom v. Illinois, supra, held only that a con-
temnor sentenced to two years’ imprisonment was en-
titled to a jury trial, the Court’s discussion did not
appear to treat criminal contempt differently than
other crimes. Thus the Court stated (391 U.S. at 199-
200), “The Constitution guarantees the right to jury
trial in state court prosecutions for contempt just as
it does for other crimes”. While, in our view, this dis-
cussion in Bloom, which involved only a contempt pro-
ceeding against an individual, does not preclude our
submission, supra, that juries are not required for
contempt proceedings against organizations subject
merely to a fine, we submit that, in any event, the
$10,000 fine imposed here “ was not so substantial as
to make the contempt other than “petty’’.
‘2 As Noted in the Statenient (p. 10, supra), the district court
imposed a fine of $25,000 on each union adjudged in criminal
contempt, but $15,000 of this amount was suspended for one
year and would be remitted upon the court's determination that
the union had not further violated the injunctions within that
period. In these circumstances, as petitioner Union apparently
‘concedes (Br. 9, 17), the unconditional fine of $10,000 is the
operative penalty. See Shillitani v. United States, 384 U.S. 364,
368-370, and cases there cited.
44
Petitioners argue that any fine of more than $500
makes a contempt “serious” for the purposes of. the
jury trial provisions, relying on 18 U.S.C.':1(3) which .
defines as “‘petty” an offense ‘‘the penalty for which
does. not exceed imprisonment for a period of six
months or a fine of not more than $500, or, both.” Peti-
ions correctly note that the cases fixing the constitu-
tional line between “petty” and “serious”’ crime at six
months’ imprisonment have cited 18 U.S.C. 1(3). Cheff
v. Schnackenberg, supra, 384 U.S. at 379; Dunc: v.
Louisiana, supra, 391 U.S. at 161. But it is evident
that the Court did not simply rely on this statute—
which Congress could amend at any time—in deter-
mining what constituted a “serious” offense. Thus, in
Duncan the Court’ based its conclusion that “a crime
punishable by two years in prison’”’ is serious, and
not petty, “on past and contemporary standards in
- this country.’’ Duncan v. Louisiana, supra, 391 U.S. at
162. The Court noted (id. at'161):
. In the federal system, petty offenses are defined
as those punishable by no more than six months
in prison and a $500 fine [citing 18 U.S.C. 1].
In 49 of the 50 States crimes subject to trial
without a jury * * * are punishable by no
more than one year in jail [footnote omitted].
Moreover, in the late 18th century in America
crimes triable without a jury were for the
most part punishable by no more than a six-
month prison term * * *.
And in Baldwin v. New York, 399 U.S. 66, 69, 70-73,
the Court concluded that “no offense can be deemed
‘petty’ for purposes of the right to trial by jury where
RET ere -
=~"
45
imprisonment for more than six months is author-
ized,” because, ‘‘with a few exceptions, crimes tri-
able without a jury in the American.States since the
_ late 18th century were also generally punishable by
no more than a six-month prison term,” and because
the existing laws of the fifty states—the “near-wni-
form judgment of the Nation”—reflected the same
view regarding when a term of imprisonment is so
long that it may be imposed only if a jury trial is
made available.
2. 18 U.S.C. 1(3) is an inadequate basis for determining whether
a fine is “petty”
18 U.S.C. 1(3) was not addressed to the prob-
lem here; the relevant “gauges’’ of community judg-
ments regarding what is a serious fine indicate that a
more flexible standard is appropriate.
In 1930, Congress, in defining petty offense for pur-
poses of the provision now codified as 18 U.S.C. 1, set
the punishment limit at six months’ imprisonment
and/or a fine of $500 (46 Stat. 1029). In arriving at
this figure, Congress intended mainly to unclog
criminal calendars by eliminating the need for grand
jury indictment for less serious offenses. See H.
Rep. No. 1699, 7ist Cong., 2d Sess. 3 (“H. Rep.
1699’’). The bill became law over strenuous objections
that, to the ordinary individual, six months’ confine-
ment and a fine of $500 are hardly petty, and that
fines of $100 or less would be a more appropriate
standard. 72 Cong. Rec. 9993; H. Rep. 1699, pt. 2.
Nothing in the history of the provision suggests that
Congress believed that a $500 fine would have a serious
46 y
impact on corporations or other collective bodies.” The
amount of the fine was left unchanged in the 1948 ©
recodification, and there was no reconsideration of
the appropriateness of that amount. See H. Rep. 304,
supra; 93 Cong. Rec. 5048-5049.
Numerous statutes provide for the imposition of
civil penalties in excess of $500 through an adminis-
trative process which excludes jury trials. Thus, under
a section of the Immigration and Nationality Act,
8 U.S.C. 1321, 66 Stat. 226, the Attorney General may
impose a fine of $1,000 per violation on any person,
owner, master, officer, or agent failing to comply with
provisions relating to the unauthorized landing of
aliens. Under the Marine Mammal Protection Act of
1972, 16 U.S.C. (Supp. IT) 1375(a), 86 Stat. 1036, the
Secretary of the Interior may assess a ¢ivil penalty of
not more than $10,000 for each violation of Subchapter
I of the Act. And, under the Occupational Safety and
Health Act, 29 U.S.C. 651, 666(a), 84 Stat. 1590, 1606,
an employer who has wilfully or repeatedly violated
designated sections of the Act may be assessed a civil
penalty of not more than $10,000 for each violation.
Another subdivision of this section provides that any
employer cited for a violation of the designated sec-
tions where the violation has been “specifically de-
termined not to be of a serious nature, may'be assessed
“Of course, Congress could not have been focusing on grad-
ations of contempt since, until at least 1964, when this Court
decided United States v. Barnett, supra, it was virtually un-
questioned that contempt proceedings were sui generis and hence
not classifiable as either crimes or civil wrongs. See Green v.
United States, 356 U.S. 165.
a ;
a civil penalty of up to $1,000 for each such violation”
(29 U.S.C. 666(c)), whereas an employer cited for a
“serious violation * * * shall be assessed a civil pen-
alty of up to $1,000 for each such violation” (29 U.S.C.
666(b)) (emphasis added). Although civil penalties
differ from criminal sanctions by the degree of oppro-
brium they carry with them, they are nevertheless
indicative of the severity of monetary penalties which
Congress is willing to see imposed in proceedings
which do not possess all of the traditional attributes
of trials of serious criminal offenses.“
It is also relevant that, in some statutes, Congress
has increased penalties—both civil and criminal—as
the impact of the original penalties has weakened as
a result of inflation and the growth of the regulated
business entities. For example, violations of the fuel
additives provisions of the Air Quality Act of 1967, 42
U.S.C. 1857f-6c, 81 Stat. 502, were originally punish-
able by a civil penalty of $1,000 for each violation, but
the penalty was raised in the Clean Air Act Amend-
ments of 1970, 84 Stat. 1700, to $10,000 for each viola-
~ 4 None of the foregoing statutory provisions places any ceil-
ing on the total amount in penalties which can be imposed
for more than one violation. Moreover, under one of the crim-
inal provisions of the Occupational Safety and Health Act, 29
U.S.C. 666(2) (under which violations would be prosecuted in
court), a willful violation of designated standards, rules, or-
ders; or regulations, where the violation is shown to have caused
the death of an employee, is punishable by a fine of not more
than $10,000 or by imprisonment of not more than six months
(29 U.S.C. 666(e)). This certainly suggests that six months’
imprisonment and a $500 fine are not a fixed or inevitable
legislative equation.
569-660—75——_5
48
tion. Similarly, fines for criminal violations of the
Sherman Act, 15 U.S.C. 1, et seq., 26 Stat. 209, were
raised from $5,000 to $50,000 in 1955 (69 Stat. 282),
and, in 1974, from $50,000 to $1,000,000 for a cor-
poration and $100,000 for “any other person’’ (Anti-
trust Procedures and Penalties Act, Pub. L. No. 93-
528, Section 3, 88 Stat. 1708.“ .
The most recent changes in the Sherman Act also re-
flect a disposition on the part of Congress to treat col-
lective bodies such as corporations or organizations
differently from natural persons where fines are con-
cerned. The same attitude can be seen in state statutes
and case law. Thus, for example, Illinois has created
a special class of offenses designated ‘‘business of-
fense[s],’’ which are not subject to limitations set in
the general schedule of authorized fines, but rather are
punishable by whatever fine the legislature sets in the
statute defining the particular business offense. III.
Ann. Stat. ch. 38 § 1005-9-1(5) (Smith-Hurd, 1973).
The annotator’s comment on this section indicates that
this exception to the fine schedule is made because im-
prisonment is generally not a possible punishment for
these offenses. Despite the absence of any general limi-
tation on fines, a business offense is defined as “a petty
offense for which the fine is in excess of $500.’’ Jd.
§ 1005-1-2 (emphasis added).”
“In this same section of the 1974 amendment, these violations
were raised from misdemeanors to felonies.
“See also N.Y. Penal Law § 80.10 (McKinney, 1967), setting
out a special schedule of fines for corporations. In this schedule,
unlawful conduct constituting a Class B misdemeanor, for
which a natural person could be imprisoned for no more than
i <4
rete SS
caren ees
ee — - ety
eat RG MDa POP SDA DOI A hc ALD RES Aes inl A
:
49
The logic of this distinction between corporations
and natural persons applies also to labor organiza-
tions. In both cases, since the fine is in reality borne
by a number of persons—whether stockholders or
members—it is reasonable to measure its ‘‘serious-
ness” according to a different scale than might be ap-
propriate for an individual offender. Thus, in some
recent state cases involving criminal contempts by
labor organizations, the courts have placed the fines
imposed in perspective by explaining their impact on
individual members. See In Re Fair Lawn Education
Association, 63 N.J. 112, 305 A. 2d 72, 78, certiorari
denied, 414 U.S. 855 (fine of $17,350 levied against
teachers’ union described as “$50 per member”) ;
Rankin v. Shanker, 23 N.Y. 2d 111, 120, 242 N.E. 2d
802, 808, stay denied, 393 U.S. 930 (fine of $10,000 per
day or 1/52 of annual membership dues, whichever is
the lesser, to which union was potentially subject, de-
scribed as “actually small, amounting, at most, to no
more than a member’s weekly union dues for each day
of the contempt’’).
The foregoing discussion demonstrates, we submit,
that the definition of a petty offense in 18 U.S.C. 1(3)
cannot be taken as the expression of a national con-
sensus on what constitutes a “serious” fine in any
criminal case, including criminal contempts—and cer-
three months, is punishable by a fine of not more than $2,000.
Alternatively, for any gradation of offense, a higher fine not
exceeding double the gain from commission of the offense may
be imposed. This section also states that fines, many of them
higher, specified in other titles of New York law are not sub-
ject to the schedule.
50
tainly not when the impact of the fine is dispersed
among a large number of individual shareholders or
members of the entity fined. Congress and the states
have taken a flexible approach toward determining:
amounts of fines for given offenses, since the resources:
of offenders and changes in economic conditions all
affect the impact that such fines will have. Nowhere
is this approach more apparent than in the Final
Report of the National Commission on Reform of
Federal Criminal Laws (hereafter ‘‘Report”’), con-
taining a proposed new federal criminal code which
would replace most of Title 18 and comments on the
proposed new provisions. “’ The Commission would
classify criminal contempt as a “Class B misde-
meanor,’’ punishable in the case of individuals by: im-
prisonment for no more than six months (Report, p.
120, § 1341(2)).“ That the Commission’s intent is to
avoid jury trials in criminal contempt cases is shown
by the Comment, which states: ‘‘A six-month prison —
term, held by the Supreme Court to be the maximum
which can be imposed without a jury trial, is set as
the maximum for all cases” (Report, p. 121). The
"The Report is printed in Hearings on Reform of the Fed-
eral Criminal Laws before the Subcommittee on Criminal Laws.
and Procedures of the Senate Committee on the Judiciary,
92d Cong., Ist Sess., pt. 1, at 129, e¢ seg. (1971). The Report
supersedes the Commission’s study draft cited by petitioners
(Br. 19, n. 19).
** This limitation on punishment is expressly set forth in the.
section on “Criminal Contempt and Related Offenses”; it thus _
supersedes the 30-day limitation on imprisonment for Class B
misdemeanors set forth in the schedule of authorized terms of
imprisonment, contained in a different section of the proposed
code (Report, p. 284, § 3201(1)).
51
criminal contempt section also provides that, “if the
criminal contempt is disobedience of or resistance to
a court’s lawful temporary restraining order or pre-
liminary or final injunction or other final order, other
than for the payment of money, the defendant may be
sentenced to pay a fine in any amount deemed just
by the court” (Report, p. 120, § 1341(2)).
Although the existence of the special fine provision
for criminal contempt makes the general section on
*‘Authorized Fines’? (Report, p. 295, § 3301) in-
applicable, it is nevertheless useful to look at that
section to, see what the Commission regarded as appro-
priate sanctions for petty offenses generally. Ac-
cording to the schedule in the section, the authorized
maximum fine for a Class B misdemeanor would be
$500 or, in certain eases, a fine imposed’ under an
alternative provision, as follows:
(2) Alternative Measure. In lieu of a fine
imposed under subsection (1), a person who has
been convicted of an offense through which he
derived pecuniary gain or by which he caused
personal injury or property damage or loss
may be sentenced, to a fine which does not
exceed twice the gain so derived or twice the
loss caused to the victim. [Report, p. 295,
§ 3301(2) ].* .
Cf, A.B.A. Special Committee on Minimum Standards for
Criminal Justice, Standards Relating to Sentencing Alternatives
and Procedures (Approved Draft, 1968) p. 118, §2.7(f), and
Commentary, pp. 127-129 (recommending use of a “flexible index”
rather than a fixed dollar amount in certain classes of offenses;
e.g., “fine relative to sales, profits, or net annual income might be
appropriate” in cases “such as business or antitrust offenses, in
order to assure a reasonably even impact of the fine on defendants
of variant. means”).
52
The Comment on this section notes that, “[b]ecause
the number of sanctions which can be used against a
convicted organization is limited, it might be desirable
to set a separate and higher fine limit for such of-
fenders, for use when subsection (2) is unsatisfac-
tory” (Report, p. 295).° The Commission also pro-
poses that, in determining the amount of any fine, a
court shotild take into consideration ‘‘the burden that
payment will impose in view of the financial resources
of the defendant”’ (Report, p. 295, § 3302(1)). In sum,
the $500 ‘authorized maximum fine for Class B mis-
demeanors—which, measured by the maximum term of
imprisonment, are clearly petty offenses—would not
be mechanically applied in every case without regard
for the economic resources of the defendant or the
. amount of economic damage flowing from his offense.
3. The fine imposed on the union in thé present case was not
80 serious as to require a jury trial
In light of the foregoing evidence that current
standards for setting monetary penalties are generally
flexible with regard to petty offenses, a fixed sum,
such as the $500 maximum in 18 U.S.C. 1(3), should
not be adopted as the constitutional dividing line be-
tween petty and serious offenses. Rather, the severity
of the fine should be measured by such factors as the
economic resources of the defendant and the amount.
of economic damage flowing from his offense. At the
°° Cf. Standards [Relating to Sentencing Alternatives and
Procedures, supra, p. 118, $2.7(g), and p. 129 (recommending
consideration of special schedule of fines for offenses committed
by corporations).
53
least, we submit, this approach should be used when
the fine is imposed on an artificial entity or associa-
tion so that its impact is, realistically, divided among
a number of individuals. Cf. United Steelworkers v.
R. H. Bouligny, Inc., 382 U.S. 145.
Tested by these criteria, the fine imposed on the
Union in the present case cannot be said to have made
the Union’s contempt a serious offense, for which the
Constitution would require a jury trial. Although $10,-
000 might represent a serious penalty to an individual
with limited resources, it is bound to have a signifi-
. cantly weaker impact on a large organization with
substantial financial resources, such as Local 70 ”—
and its impact on the individual members of bare 70
(and other persons who pay fees to it), who.,are the
only natural persons affected, is hardly substantial.
Indeed, in 1969 approximately 13,000 persons were
either dues-paying members. of, or non-members re-
quired to pay certain fees to, Local 70%; thus the $10-
51 See Statement, supra, pp. 9-10, regarding the Union’s an-
nual income from dues and its financial assets as of December
* 31, 1969. The Union was, of course, free to call to the district
court’s attention any significant changes in those figures, but,
aside from vague references to a deterioration in the financial
condition of Local 70 owing to unemployment (A. 66-67), it
did not do so.
52 This figure is derived as follows: Local 70’s Form LM-2 shows
that, in 1969, it paid a per capita tax of $233,331 to the Interna-
tional (A. 49, Item 52). Under the 1966 Constitution of the In-
_-ternational Brotherhood of Teamsters (Art. X, Sec. 3(b)), in
~ effect in 1969, each local union was required to pay the Interna-
tional a tax of $1.50 per month ($18 per year) for dues-paying
members and “all persons paying agency shop fees, periodic serv-
ice fees, and hiring hall fees to the Local Union.” $233.331 divided
by $18 yields a figure of just under 13,000 persons.
aa a
54
000 fine imposed in this case amounted to less than 80
cents per affected individual. Moreover, the fine was
clearly in reasonable proportion to the amount of loss
suffered by the firms which were victims of the re-
peated boycott activity in violation of the injunc-
~ tions.”
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
Rosert H. Bork,
Solicitor General.
ALLAN AxBBot TUTTLE,
Assistant to the Solicitor General.
Perrer G. Nasu,
General Counsel,
JouHN S. Irvine,
Deputy General Counsel,
Patrick Harbin,
Associate General Counsel,
Norton J. ComE, :
Deputy Associate General Counsel,
Evinog Hapiey STiLLMAN,
Attorney,
National Labor Relations Board.
Fesruary 1975.
** The Pre-sentence Report filed with the district court was
accompanied by affidavits showing a total of $27,201.06 in dam-
age claims by such firms, and it was noted that additional
claims for damages were anticipated (A. 46).
g Se Se ae SEN Ee Ra. te SR aA a ne RE emote el PS. Sen er omen
PPT the a . . —_ - — .
APPENDIX
The relevant provisions of the National Labor Re-
lations Act, as amended (49 Stat. 449, 61 Stat. 136, 73
Stat. 519, 29 U.S.C. 151, et seq.), are as follows:
Sec. 8. (b) It shall be an unfair labor prac-
tice for a labor organization or its agents—
* * * * *
(4) (i) to engage in, or to induce or encour-
age any individual employed by any person
engaged in commerce or in an industry affect-
ing commerce to engage in, a strike, or refusal
in the course of his employment to use, manu-
facture, process, transport, or otherwise handle
or work on any goods, articles, materials, or
commodities or to perform any services ; or (il)
to threaten, coerce, or restrain any person en-
gaged in commerce or in an industry affecting
commerce, where in either case an object
thereof is—
* * * * *
(B) forcing or requiring any person to cease
using, selling, handling, transporting, or other-
wise dealing in the products of any other pro-
ducer, processor, or manufacturer, or to cease
doing business with any other person * * *.
Provided, That nothing contained in this clause
(B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or
primary picketing;
* * * * *
Provided further, That for the purposes of
this paragraph (4) only, nothing contained in
such paragraph shall be construed to prohibit
(55)
56
publicity, other than picketing, for the purpose
of truthfully advising the public, including con-
sumers and members of a labor organization,
that a product or products are produced by an
employer with whom the labor organization
has a primary dispute and are distributed by
another employer, as long as such publicity does
not have an effect of inducing any individual
employed by any person other than the primary
employer in the course of his employment to
refuse to pick up, deliver, or transport any
goods, or not to perform any services, at the
establishment of the employer engaged in such
distribution ;
* * * * *
Sec. 10. (h) When granting appropriate tem-
porary relief or a restraining order, or making
and entering a decree enforcing, modifying, and
enforcing as so modified, or setting aside in
whole or in part an order of the Board, as pro-
vided 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 pur-
poses,” approved March 23, 1932 (U.S.C.,
Supp. VII, title 29, sees. 101-115).
* *
* * *
(1) Whenever it is charged that any person
has engaged in an unfair labor practice within
the meaning of: paragraph (4) (A), (B), or
(C) of section 8(b), or section 8(e) or section
8(b)(7), the preliminary. investigation of such
charge shall be made forthwith and given pri-
ority over all other cases except cases of like
character in the office where it is filed or to
which. it is referred. If, after such investiga-
tion, the officer or regional attorney to whom
the matter may be referred has reasonable
cause to believe such charge is true and that a
57
complaint should issue, he shall, on behalf of.
the Board, petition any district court of the
United States (including the District Court of
the United States for the District of Columbia)
within any district where the unfair labor prac-
tice in question has occurred, is alleged to have
occurred, or wherein such person resides or
transacts business, for appropriate injunctive
‘relief pending the final adjudication of the
- Board with respect to such matter. Upon the
filing of any such petition the district court
shall have jurisdiction to grant such injunctive —
relief or temporary restraining order as it
deems just and proper, notwithstanding any
other provision of law: Provided further, That .
no temporary restraining order shall be issued
without notice unless a petition alleges that
substantial and irreparable injury to the charg- -
ing party will be unavoidable and such tem-
porary restraining order shall be effective for
no longer than five days and will become void
at the expiration of such period: * * * Upon.
filing of any such petition the courts shall cause
notice thereof to be served upon any person in-
volved in the charge and such person, including .
the charging party, shall be given an oppor-
tunity to appear by counsel and present any
relevant testimony: Provided further, That for
the purposes of this subsection district courts
shall be deemed to have jurisdiction of a labor
- organization (1) in the district in which such
organization maintains its principal office, or
(2) in any district in which its duly authorized
officers or agents are engaged in promoting or
protecting the interests of employee members.
The service of legal process upon such officer or
agent shall constitute service upon the labor
organization and make such organization a
party to the suit. * * *
58
Relovesit provisions of the N: orris-LaGuardia Act, :
47 Stat. 70, are as follows: |
(3
Be it enacted by the.Senate and House of
pg sy aang of the Umited States of Amer-
ca. in Congress assembled, That no court of the
United States, as herein defined, shall have
jurisdiction to issue any restraining order or
temporary or permanent injunction in a case
involving or gro out of a labor dispute, ex-
cept in a strict conformity with the provisions
of this Act; nor shall any such restraining
order or temporary or permanent injunction be
issued contrary to the public policy declared in
this Act.
* * * * *
Sec. 4. No court of the United States shall
have jurisdiction to issue any restraining order
or temporary or permanent injunction in any
case involving or growing out of any labor dis-
pute to prohibit any person or persons partici-
pating or interested in such dis fe (as these
terms are herein defined) from doing, whether
singly or in concert, any of the following acts:
(a) Ceasing or refusing to perform any work
or to remain in any relation of employment ;
(b) Becoming or remaining a member of any
labor organization or of any employer organi-
zation, regardless of any such undertaking or
promise as is described in ‘section 3 of this Act;
(c) Paying or giving to, or withholding from,
any person participating or interested in such
labor dispute, any strike or unemployment bene-
fits or insurance, or other moneys or things of
value ;
(d) By all lawful means aiding any person
participating or interested in any labor dispute
who is being proceeded against in, or is prose-
cuting, any action or suit in any "court of the ;
United States or of ahy State;
(e) Giving publicity to the existence of, or ,
the facts involved in, any labor dispute,
2 : peur
whether by advertising, speaking, patrolling, or
| by any other method not involving fraud or
| violence ;
~ (f) Assembling peaceably to act or to orga-
nize to act in promotion of their interests in a
labor dispute ;
(g) Advising or notifying any person of an
ae to do any of the acts heretofore speci-
ed; :
(h) Agreeing with other persons to do or not
to do any of the acts heretofore specified ; and
(i) Advising, urging, or otherwise causing or
inducing without fraud or violence the acts
heretofore specified, regardless of any such
undertaking or promise as is described in sec-
tion 3 of this Act.
* e* * * *
Src. 11. In all cases arising under this Act
in which a person shall be charged with con-
tempt in a court of the United States (as here-
| in defined), the accused shall enjoy the right to
iaoateaie a speedy and public 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 directly with the administration
of justice or to apply to the misbehavior, mis-
conduct, or disobedience of any officer of the
court in respect to the writs, orders, or process
of the court.
18 U.S.C. 3692, 62 Stat. 844, provides as follows:
In all cases of contempt arising under the
laws of the United States governing the is-
suance of injunctions or restraining orders in
any case involving or growing out of a labor
dispute, the accused shall enjoy the right to a
speedy and public trial by an impartial jury
of the State and district wherein the contempt
shall have been committed.
60
This section shall not apply to contempts
committed in the presence of the court or so
near thereto as to interfere directly with the ad-
ministration of justice nor to the misbehavior,
misconduct, or disobedience of any officer of the
court in respect to the writs, orders or process
of the court.
18 U.S.C. 1(3), 62 Stat. 684, provides as follows:
Notwithstanding any Act of Congress to the
contrary :
* ~ * * *
(3) Any misdemeanor, the penalty for which
does not exceed imprisonment for a period of
six months or a fine of not more than $500, or
both, is a petty offense.
The relevant provisions of the United States Con-
stitution are as follows:
Article III, §2: “The Trial of all Crimes,
except in Cases of Impeachment shall be by
Jury. * &@ #99
o
* * * *
Amendment VI: ‘‘In all criminal prosecu-
tions, the accused shall enjoy the right to a
nedy and public trial, by an impartial
* & #9)
jury.
U_ 4, GOVERNMENT PRINTING OFFICE: 1976.
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.