Respondents Brief — Muniz v. Hoffman

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INDEX

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.

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