Allen Bradley Co. v. LOCAL UNION NO. 3, ETC.

• Decision Date: 10 July 1939
• Parties: ALLEN BRADLEY CO. et al. v. LOCAL UNION NO. 3 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al. In re VAN ARSDALE et al.
• Court: U.S. District Court — Southern District of New York

29 F. Supp. 759

ALLEN BRADLEY CO. et al. v. LOCAL UNION NO. 3 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.

In re VAN ARSDALE et al.

District Court, S. D. New York.

July 10, 1939.

McLanahan, Merritt & Ingraham, of New York City (Hyler Connell, Walter Gordon Merritt, and Burgess Osterhout, all of New York City, of council), for plaintiffs.

Harold Stern, of New York City, for defendants.

CONGER, District Judge.

This is a motion on the part of the plaintiffs to adjudge one Harry VanArsdale, Jr., and the defendant Local Union No. 3, International Brotherhood of Electrical Workers, or either of them, guilty of contempt, and to direct them or either of them to produce certain papers before the Special Master hearing this case. Other incidental relief by way of punishment and imposition of costs is asked for herein.

There is little, if any, dispute as to the facts out of which arose the controversy which resulted in this motion.

The plaintiffs in this action accuse the defendants of a conspiracy to prevent the plaintiffs from selling their electrical products in interstate commerce in the metropolitan district.

Local Union No. 3, one of the defendants, is a labor union (an unincorporated association of journeymen electricians of New York City and vicinity).

Harry VanArsdale, Jr. (not a defendant), is the business manager of the said defendant, Local Union No. 3.

The issues were referred to John Kirkland Clark, as Special Master, to hear and determine and report back to the Court.

The trial before the Special Master commenced on October 14, 1937 and is still going on. At least 134 hearings have been held and about 15,000 pages of testimony taken.

This controversy arose as follows: Harry VanArsdale, Jr., was testifying as one of the defendants' witnesses. He testified that he had in his possession a complete file of the issue of the newspaper known as the "Allied Union News". He stated that he, the business manager of the said Union, had them at the Union headquarters. When asked if he would produce them, he stated that he would not.

On May 23, 1939, at one of the hearings, Howard McSpedon, business agent, was being cross-examined. An article in the June 3, 1938 issue of the "Allied Union News", appearing over the witness' name was offered in evidence. At that time the attorney for the plaintiffs called upon the defendants to produce the complete file of the said newspaper. Thereupon the Special Master ruled: "On the statement made that there is a file of this kept by union headquarters, I will direct its production."

On the hearing of May 25, 1939, the attorney for the defendants reiterated the refusal to produce the file and gave his reasons therefor. The Special Master then stated on the record: (transcript of testimony, page 13403) "As I said before, my judgment is entirely clear that as a matter of logic the evidence seems clearly admissible and since presumptively the other issues of this paper which are now the property of the union procured by one of the officers in the course of his duties, as he testified, there can be no question so far as I see it that a notice to produce those or a subpœna duces tecum for their production should be effective to bring them into Court to enable counsel to make use of them either as direct evidence or as a means of cross-examination."

Thereupon and on May 31, 1939, a subpœna duces tecum regularly issued was duly and properly served on the part of the plaintiffs on Harry VanArsdale, Jr., and defendant Local Union No. 3, requiring them to be present and produce "a copy of each issue of the Allied Union News published from January 1, 1935 to date", before the said Special Master, at the place of trial therein specified on June 2, 1939, at 10 A. M.

No issue is made herein as to the form or regularity of the subpœna, nor as to its service.

On the return date before the said Special Master, VanArsdale, Jr., and the attorney for the defendants, refused to produce the file called for by the said subpœna duces tecum, for reasons which they gave in a statement made to the Court and which is in the record.

Subsequently, and as a result of that refusal, this motion was brought on.

At the outset, let me state that while I think the stand taken by the witness VanArsdale, Jr., and the defendant Local Union No. 3 was legally wrong, yet I find that their refusal to obey the subpœna was not contumacious, but was motivated by reasons which they thought were legal and proper.

A careful reading of the memorandum submitted by the defendants indicates to me that they thought that they were well within their legal rights when they refused to and did not obey the subpœna. No disrespect to the Court was intended. It was an honest difference of opinion. However, I think that they were clearly wrong. This is a very simple issue. A subpœna duces tecum properly issued and served called for the production of certain papers which are in existence and can and may be produced by either the defendant Local Union No. 3 or its business manager without any great inconvenience.

At least the lawful mandate of the Court should have been obeyed, to the extent of bringing the papers properly subpœnaed, into Court where, in the proper time and when the occasion arose for their use, they would be passed upon by the Special Master, as to their competency, materiality and relevancy. The simple obeying of the order of the Court by the production of the papers in no way would harm the defendants. That at least should have been done, particularly in view of the fact that the defendants had failed to take advantage of the opportunity to quash the subpœna by the method provided by the New Rules. Rule 45(b) of the Federal Rules of Civil Procedure.

True, they might be incompetent, irrelevant and immaterial, but how could the Special Master pass on that until the papers or some part of them were offered in evidence or used on the trial.

One of the reasons urged by the defendants for the refusal to produce said file is that the papers therein...