Hoffman for and on Behalf of N.L.R.B. v. Beer Drivers and Salesmen's Local Union No. 888, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America

Decision Date03 June 1976
Docket NumberNos. 74-1449,s. 74-1449
Citation536 F.2d 1268
Parties92 L.R.R.M. (BNA) 3302, 79 Lab.Cas. P 11,489 Roy O. HOFFMAN, Regional Director of Region 20 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. BEER DRIVERS & SALESMEN'S LOCAL UNION NO. 888, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, and Alameda Central Labor Council, Respondents-Appellants. Roy O. HOFFMAN, Regional Director of Region 20 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. BEER DRIVERS & SALESMEN'S LOCAL UNION NO. 888, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent-Appellant. 1 to 74-1452, 74-2124 and 74-2976.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before KOELSCH and HUFSTEDLER, Circuit Judges, and SMITH, * District Judge.

RUSSELL E. SMITH, District Judge:

These consolidated appeals all arise out of proceedings in which the National Labor Relations Board sought, under the authority of 29 U.S.C. § 160(l ), to prevent the appellant labor organizations from engaging in secondary boycotts in violation of Section 8(b)(4)(B) of the Act (29 U.S.C. § 158). The disputes arose out of attempts by the appellants, some of whom had primary labor disputes with beer distributors handling beer in Northern California, to keep the beer handled by those distributors off the market.

We here consider appeals from the orders of November 6, 1973, December 4, 1973, March 26, 1974, and June 28, 1974. All of these orders are in some measure dependent upon the order of September 26, 1973, from which no appeal was taken.

THE ORDER OF SEPTEMBER 26, 1973

On July 24, 1973, the National Labor Relations Board (hereafter Board), having received and investigated complaints charging the unfair labor practices proscribed by Section 8(b)(4)(B) of the Act, filed a petition for a temporary injunction, naming Beer Drivers & Salesmen's Local Union No. 888 (hereafter Local 888) and Teamsters Brewing & Soft Drink Workers Joint Board of California (hereafter Joint Board) as respondents. An order to show cause was issued, but before the hearing the parties stipulated among other things that Local 888 and Joint Board would refrain from the commission of certain specified acts. The stipulation was approved by the court. On September 19, 1973, the Board, having by that time received complaints against Alameda Central Labor Council (hereafter Labor Council), and believing that violations were continuing notwithstanding the stipulation, filed a second petition for injunction, naming Local 888, Joint Board, and Labor Council as defendants. The second petition took the same file number as the first petition. No order was made expressly permitting the joinder of Labor Council as a party defendant, but the court did, on September 19, 1973, on the basis of the second petition, issue a temporary restraining order and an order to show cause specifically directed to all of the respondents, including Labor Council, by name. Labor Council filed what it denominated a "special appearance" questioning the service of the order to show cause and temporary restraining order, and objecting to the manner in which it was brought into the case. As the Labor Council later conceded, the service was adequate. At the hearing on the order to show cause, the court noted the special appearance of Labor Council. Following a hearing, and on September 26, 1973, a temporary injunction was issued. It was served September 27, 1973.

While no appeal was taken from the order of September 26, 1973, appellant Labor Council complains that, by reason of the fact that the court made no formal order permitting joinder of Labor Council as a party, the order of September 26, 1973, and all subsequent orders affecting Labor Council, are void. Neither Local 888 nor Joint Board objected to the joinder. The district court, after hearing Labor Council's objections, issued the order of September 26, 1973, and by it enjoined Labor Council by name from doing certain acts in concert with the other defendants. If this did not constitute an exercise of the court's discretion to permit the joinder under Fed.R.Civ.P. 21, still Labor Council is in no position to complain. Normally a person becomes a party defendant because of the unfettered choice of the plaintiff. When a party is added in an on-going lawsuit, the approval of the court is required by Rule 21 in order to protect the parties already in the case whose rights might be seriously affected by the addition of a new party defendant. Rule 21 is not designed to protect the defendant to be added who is not entitled to notice. 3A J. Moore, Federal Practice P 21.05(1) at 21-24 (2d ed. 1974).

THE ORDER OF NOVEMBER 6, 1973

On October 1, 1973, the Board filed a petition for an adjudication that the respondents were in contempt. Following an evidentiary hearing, and by order dated November 6, 1973 (filed November 7, 1973), each respondent was fined $5,000.00, which was suspended on the condition that defendants purge themselves of the contempt by complying with the terms of the temporary injunction and with certain posting and notice requirements. The order provided a $1,000.00 fine for each further violation.

The appeals from the order of November 6, 1973, are dismissed. The order assessed fines and suspended them on the condition that the contempt be purged. As such, it was an adjudication of civil contempt, interlocutory in character, from which no appeal lies. Hughes v. Sharp, 476 F.2d 975 (9th Cir. 1973); New York Telephone Co. v. Communications Workers of America, 445 F.2d 39 (2d Cir. 1971).

THE ORDER OF DECEMBER 4, 1973

On November 20, 1973, the Board filed a motion for an order directing the payment of compliance fines and a motion to amend the temporary restraining order and to amend the contempt adjudication. Evidentiary hearings were held, and on December 4, 1973, the temporary injunction was amended to provide that, for a period of 45 days, the picketing of any person engaged in commerce doing business with the distributors with whom the respondents had a primary labor dispute was enjoined, and following the 45 days, picketing with more than two persons at any customer entrance was enjoined.

The order of December 4, 1973, 2 is here challenged on the ground that appeal from the order of November 6, 1973, (nonappealable, as above indicated), deprived the district court of jurisdiction. The simplest of several answers to this challenge is that an appeal from a nonappealable order does not deprive a district court of jurisdiction. Ruby v. Secretary of the United States Navy, 365 F.2d 385 (9th Cir. in banc 1966).

The order of December 4, 1973, is attacked on the ground that insufficient notice of hearing was given. The motion noticing a hearing for 1:30 P.M., November 21, 1973, was filed November 20, 1973, and served late in the afternoon of that day. On November 21, 1973, all parties appeared. Hearings were held and two Board witnesses were examined on that day. Counsel for the unions requested the right to recall these witnesses. The request was granted, but the right to recall the witnesses was not exercised. Thereafter hearings were held on November 26, 27, 28, and December 3 and 4, 1973. There is no indication that the parties were not fully aware of the issues or were in any way deprived of a full opportunity to explore the issues of fact or be heard on the issues of law. Under these circumstances appellants were not deprived of due process. The initial notice was shorter than the five days mentioned in Fed.R.Civ.P. 6(d), and if the court erred in failing to enter a formal order shortening the time, the error was harmless.

The order of December 4, 1973, is affirmed.

THE ORDER OF MARCH 26, 1974

On March 26, 1974, after an evidentiary hearing, the court entered an order imposing fines against Local 888 and Labor Council in the amounts of $43,000.00 and $7,000.00 respectively. (These fines were the aggregates of the $5,000.00 fine plus $1,000.00 for each of the further violations 38 additional violations by Local 888 and two by Labor Council.) Of these amounts the sums of $33,000.00 and $5,000.00 respectively were suspended, and it was ordered that the amounts of $10,000.00 and $2,000.00 be paid within 30 days.

We consider the order of March 26, 1974, as distinguished from the order of November 6, 1973, to be a final order and appealable. The fines assessed were ordered to be paid within 30 days without any permission to otherwise purge the contempt. See New York Telephone Co. v. Communications Workers of America, supra.

The order of March 26, 1974, is attacked on several grounds. Underlying these attacks is the assertion that the order was criminal rather than civil in nature. The order of November 6, 1973, originally adjudicating the contempt, assessed a $5,000.00 fine and a $1,000.00 fine for each further violation, but provided that the contempt might be purged. A condition of the purge was that there be no further violations of the order of September 26, 1973.

The appellants were in a sense punished for conduct occurring prior to the time of the entry of the order assessing the fines. But the fines for future violations had been ordered and fixed in an amount on November 6, 1973, and the court, in assessing the amount of $43,000.00 against Local 888 and $7,000.00 against Labor Council, did no more than apply to the violations it found the fines which had been previously fixed.

The purpose of the order of November 6, 1973, was to get compliance. See Shillitani v. United States, 384 U.S. 364 at 368, 86 S.Ct. 1531, 16 L.Ed.2d 622 ...

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