Backo v. Local 281, United Bro. of Carpenters & Joiners

• Decision Date: 29 December 1970
• Docket Number: No. 76-80,Dockets 34771-34775.,76-80
• Citation: 438 F.2d 176
• Parties: Andrew BACKO, Mike Karaman, Casmir Macko, James Barno and Ercell Cummings, Plaintiffs-Appellees, v. LOCAL 281, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Rudy Colton, Individually and as President of Local 281, Duane Kane, Individually and as Vice President of Local 281, Defendants-Appellants, and Ervin B. Lambert, Defendant-Appellant. UNITED STATES of America, Plaintiffs-Appellees, v. Rudy COLTON and Ervin B. Lambert, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 176 (1970)

Andrew BACKO, Mike Karaman, Casmir Macko, James Barno and Ercell Cummings, Plaintiffs-Appellees, v. LOCAL 281, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Rudy Colton, Individually and as President of Local 281, Duane Kane, Individually and as Vice President of Local 281, Defendants-Appellants, and Ervin B. Lambert, Defendant-Appellant.

UNITED STATES of America, Plaintiffs-Appellees, v. Rudy COLTON and Ervin B. Lambert, Defendants-Appellants.

Nos. 76-80, Dockets 34771-34775.

United States Court of Appeals, Second Circuit.

Argued October 6, 1970.

Decided December 29, 1970.

COPYRIGHT MATERIAL OMITTED

Thomas P. McMahon, Buffalo, N. Y. (McMahon & Crotty, Buffalo, N. Y., of counsel), for Local 281 and Ervin B. Lambert, defendants-appellants.

Stephen J. Pawlinga, Utica, N. Y., on the joint brief for Rudy Colton and Duane Kane as defendants-appellants.

Angelos Peter Romas, Endicott, N. Y., for plaintiffs-appellees in civil contempts and for United States of America, plaintiff-appellee in criminal contempt.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal brought by defendants Ervin B. Lambert, Duane Kane, Rudy Colton and Local 281, United Brotherhood of Carpenters and Joiners of America, A.F.L.-C.I.O. (the Union) from the judgment of civil contempt entered against them on January 29, 1970 and by Ervin B. Lambert and Rudy Colton from the judgment of criminal contempt entered against them on December 31, 1969.

The dispute which led to the contempt judgment arose out of a Union election. Plaintiffs were candidates for elective office in Local 281. The election was to be held on June 6, 1968. Pursuant to Section 401(c) of the Labor Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 481) (the Act), plaintiffs made a request that the Union distribute campaign literature by mail at the candidates' expense. The Union refused on the grounds that the material contained allegations which were incorrect. Julius Amadio, acting as the Union's Election Committee chairman, made this known to plaintiffs in a letter dated June 3, 1968. It was not until the morning of June 6th that plaintiffs decided to bring this action. Plaintiffs presented a complaint and a proposed "Order to Show Cause and Temporary Restraining Order" to Judge Edmund Port at his chambers in Auburn, New York. The testimony is unclear as to exactly what Judge Port did with the complaint. However, on the complaint as well as on the show cause order and temporary restraining order which Judge Port signed, it is noted on the top left in ink: "Filed 6/6/68, at 10:33 A.M. at Auburn, New York signed E. Port, U.S.D.J." The docket entry of the Clerk states that a summons and complaint was filed on June 6, 1968. This constitutes prima facie evidence that the complaint was filed by Judge Port at the time noted and there is nothing in this record to rebut that fact. Judge Port signed the order to show cause and temporary restraining order and it was served on defendant Rudy Colton, the Union president, at the hall where the election was about to be held in Binghamton, N. Y. According to a docket entry dated June 18th, the return of service indicated that along with the Order to Show Cause and Temporary Restraining Order, a copy of the complaint was also served. Although the testimony of plaintiffs' lawyer, Angelos Peter Romas, as to the exact papers served on Colton is vague and does not specifically indicate that the complaint was included therein, we again find no evidence to the contrary and conclude that the docket entry was accurate, and that the time of such service was, as indicated in the testimony of the plaintiffs' witnesses, namely, just prior to the start of the meeting at 1:00 P.M.

Meanwhile, between 11:30 and 12:00 that morning, Judge Port made a telephone call to Colton's office. He spoke to Mrs. Betty Wilke, a secretary at the office of Local 281 in Binghamton, New York. Judge Port informed Mrs. Wilke of the order he had just signed, and requested that either Colton or Lambert return his call. This was not done, although Lambert was given the message at 12:30, which message Lambert said he considered "unimportant." At 1:00 P.M. when Colton was served, Lambert was standing next to him. Mr. Romas told Colton that he was deputized by Judge Port to serve the order. Lambert told Colton that he should put the paper in his pocket and talk to the lawyers later. Later that evening, copies of the papers were also served on the defendant Duane Kane. This was at 7:30 P.M. before the polls had closed. In addition to Kane, vice-president of the Union and member of the election committee, other members of said committee not involved in this appeal were also served. The testimony was that all of them treated the papers as "a big joke."

The election was held as scheduled despite the Temporary Restraining Order which prohibited the holding of the election. Neither Colton nor Lambert were on the election committee but they did and still do hold the two most important positions in the Union: President and Business Manager, respectively. Defendants claimed they had no power to stop the election but the jury obviously found otherwise.

On June 12 and 13, 1968, a hearing was held on the Order to Show Cause why a preliminary injunction should not be granted. Judge Port nullified the election, and ordered that a new election be held on June 27th and that plaintiffs' literature be distributed by the Union. The defendants did not appeal that decision. The election was held and the plaintiffs' slate was defeated.

That settled the question of who was to run the Union, but did not end the litigation. Contempt proceedings were begun by order to show cause and after the issuance of a "Second Amended Order to Show Cause" on September 3, 1968, returnable September 23, 1968, a preliminary hearing was held. Subsequently, on July 23, 1969, Judge Port appointed attorney Romas as Attorney for the United States of America, nunc pro tunc for the purpose of prosecuting defendants for criminal contempt. It soon became clear that both civil and criminal contempt judgments were being sought. Separate trials were held by Judge Lloyd F. MacMahon for the criminal and civil complaints. The criminal trial came first and the same jury was used in both cases. The record in the civil contempt includes the record from the criminal side, a practice which seems appropriate since the same facts and fact finders were present in both cases.

Defendants make numerous allegations of error, which we will now discuss.

I. Existence of the Writ

It is contended that there was no sufficient proof that a valid restraining order was issued, although the order was introduced into evidence. The issuance of the writ was the subject of testimony by plaintiffs' lawyer, Romas, but it is argued that such testimony must be disregarded since Romas, as the prosecutor in the criminal contempt, should not have testified. United States v. Alu, 246 F.2d 29, 33-34 (2d Cir. 1957). However, this is not an absolute rule, and special circumstances will justify testimony by the prosecution. United States v. Socony Vacuum Oil Company, 310 U.S. 150, 240-242, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Greenberg v. United States, 280 F.2d 472, 475 (1st Cir. 1960). Here where Romas had co-counsel present the summation in both trials, where he was appointed nunc pro tunc, and where the basic items to which he testified were jurisdictional prerequisites, most of which were solely within his knowledge and the knowledge of Judge Port, the testimony was proper. In any event, the docket entry referring to the writ is prima facie evidence of its existence, and such prima facie showing has not been rebutted. Defendants' contention that there can be no writ without the seal of the Court is without merit.

II. Validity of the Writ

Defendants' next set of contentions relates to the jurisdiction of the Court in relation to the issuance of the Temporary Restraining Order. It is first suggested that the Court was without jurisdiction to issue such order because no action had been commenced. However, a complaint was filed at the same time, thereby commencing the action and giving the Court jurisdiction to issue the order.

In order to enforce rights of Union members with respect to a Union election, the election may be enjoined by a temporary restraining order. Calhoon v. Harvey, 379 U.S. 134, 140 n. 13, 85 S. Ct. 292, 13 L.Ed.2d 190 (1964); Sheridan v. United Brotherhood of Carpenters, etc., 194 F.Supp. 664 (D.Del.1961), rev'd on other grounds, 306 F.2d 152 (3d Cir. 1962). While it may be that under certain circumstances the possibility of post-election relief will prevent a finding of irreparable injury, we cannot say that the District Court was clearly erroneous in its assumption that irreparable injury would have resulted in this case had the Temporary Restraining Order not been granted.

Defendants also argue that the Court had not obtained in personam jurisdiction over anyone at the time of the service of the show cause order and temporary restraining order. Although normally a summons must be issued and served in order to obtain in personam jurisdiction, here in personam jurisdiction was obtained by the service of the Temporary Restraining Order and complaint. The parties were in Auburn, New York where there was no court Clerk, and since the Clerk is designated as the proper person to issue a summons, Fed.R.Civ.P. 4 (b), it is clear that Judge Port felt it best to advise plaintiffs to use the order itself to obtain jurisdiction over the persons to whom the order was addressed. Where an order and complaint are properly served on an individual, he is placed within the jurisdiction of the Court for the purposes of that order. Cf. Jacobson v. Coon et al. (National Bank of Detroit), 165 F.2d 565, 567 (6th Cir. 1948). Although the form of the order, naming only the...