Brotherhood of Loc. Fire. & Eng. v. Bangor & Aroostook R. Co.

• Citation: 380 F.2d 570,127 US App. DC 23
• Decision Date: 12 May 1967
• Docket Number: No. 20316.,20316.
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN and H.E. Gilbert, Appellants, v. BANGOR & AROOSTOOK RAILROAD COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

127 US App. DC 23, 380 F.2d 570 (1967)

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN and H.E. Gilbert, Appellants, v. BANGOR & AROOSTOOK RAILROAD COMPANY et al., Appellees.

No. 20316.

United States Court of Appeals District of Columbia Circuit.

Argued September 29, 1966.

Decided May 12, 1967.

As Amended September 18, 1967.

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Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. John Silard, Daniel H. Pollitt, Isaac N. Groner, David Epstein and Stephen E. Moss, Washington, D. C., were on the brief, for appellants.

Mr. Francis M. Shea, Washington, D. C., with whom Messrs. Richard T. Conway and William H. Dempsey, Jr., Washington, D.C., were on the brief, for appellees.

Before DANAHER, Circuit Judge, BASTIAN, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.

BASTIAN, Senior Circuit Judge:

This is an appeal from a District Court order entered June 15, 1966, upon motion of the plaintiff-appellee railroads,¹ assessing fines against the defendant-appellants, Brotherhood of Locomotive Firemen and Enginemen (BLF&E) and its president, H.E. Gilbert.² These fines were assessed for failure to terminate the contempts of which appellants had been adjudged guilty by a previous order of the court, due to violation of the court's temporary and supplemental restraining orders against a strike.

The restraining orders, the contempt conviction, and the fine assessment arose out of the consolidated merits proceedings now on appeal in Bhd. of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R., No. 20,192 on the docket of this court.³

As much of the history of the long pending dispute between the railroads and the unions hereinafter referred to will be found in the merits case decision filed this day, this opinion will not duplicate any more of the facts than are necessary to an understanding of the issue herein. The pertinent facts follow:

Following almost five years of failure by most of the railroads and the five operating unions to settle their dispute concerning the manning of trains and engines in freight service,⁴ Congress passed Public Law 88-108, 77 STAT. 132 (1963). Pursuant to the provisions of that statute, Arbitration Board No. 282 was convened, and its award covering both engine and train service employees was issued on November 26, 1963, to become effective 60 days later (January 25, 1964) and to continue in effect for two years thereafter (until January 24, 1966). Agreements were then reached among the carriers party to the award and the BLF&E, as well as the Brotherhood of Locomotive Engineers (BLE), both unions representing the engine service employees, whereby the award would continue in force through March 30, 1966, for the parties to the agreements. Thus, the award expiration date for engine service employees was March 31, 1966.

On January 19, 1966, 178 railroads⁵ filed suit in the United States District Court for the District of Columbia seeking a declaration that the rules and procedures of the award would be continued in effect after its expiration date.⁶ That action, however, concerned only train service employees, and was filed against only the three unions representing those employees.

On February 17, 1966, the BLF&E engine service employee's union filed suit in the Northern District of Illinois for a declaratory judgment that the same Arbitration Award would have no effect after March 30.

Finally, on March 24, the merits case in which the order here on appeal was entered was filed by 181 railroads in the United States District Court for the District of Columbia against BLF&E, again seeking declaratory and injunctive relief regarding work rules to be in effect upon expiration of the award, this time for engine service employees. Also on March 24, the District Court for the Northern District of Illinois granted a motion filed in that court on February 28 by the defendant railroads, pursuant to which the Illinois BLF&E suit was transferred to the District of Columbia.⁷ That suit was then consolidated with the engine service employees' case here.

The first anti-strike temporary restraining order was issued against the BLF&E on Monday, March 28, on motion of the railroads. The order forbade a strike "over any dispute as to the agreements, rules, regulations, interpretations, or practices to be applied by plaintiffs upon the expiration of the award." During the hearing on this motion, the BLF&E requested that Judge Holtzoff send the case to another judge since some statements in his March 3 opinion relating to train service employees, supra note 7, included matters "affecting the Firemen, when they were not a party to the case." This request was not allowed.⁸

The BLF&E filed in this court a motion for stay of the temporary restraining order on March 30, and we denied the motion and dismissed the appeal on the same date.

On Thursday, March 31, the BLF&E went on a strike which was declared to be solely in regard to a proposed fireman-training program unrelated to the manning question covered by the Arbitration Award. Upon motion of the railroads filed in the District Court, a supplemental temporary restraining order was issued on the same date, March 31, enjoining the BLF&E, and all others subject to the March 28 order, from striking, because "the said strikes may relate" to the manning disputes under the Arbitration Award. At the hearing on this motion for a supplemental order, counsel for the union again requested Judge Holtzoff to send the case to another judge, which request was denied. The supplemental order was also appealed to this court on a motion to stay, which we denied, and we dismissed the appeal on April 1, 1966.

On Saturday, April 2, the railroads filed in the District Court a motion for a show cause ruling for contempt against the BLF&E for failing to call off the strike. During oral argument on the motion the BLF&E again requested Judge Holtzoff to send the case to another judge, which request was again denied; and also moved for a jury trial under 18 U.S.C. Sec. 3692,⁹ which was also denied. The contempt hearing came on that same afternoon, at which counsel for the union reiterated its requests. Both were denied. The request for a jury trial was denied (1) because 18 U.S.C. Sec. 3692 applied only to criminal contempt, and (2) because the statute which was reenacted in Sec. 3692 had been held, in United States v. United Mine Workers of America, 330 U.S. 258, at 298, 67 S.Ct. 677, 91 L.Ed. 884 (1946), to apply only to cases to which the Norris-La Guardia Act¹⁰ applied. The union's oral response was a "denial in full that we have committed any contempt whatever, in any way, of any order of this court, and secondly, that the outstanding order of this court is invalid." The District Court ruled as irrelevant proffers by the BLF&E regarding (1) the legality of the strike and the invalidity of the order, (2) whether there was a "substantial compliance" in that the union had tried to negotiate with the railroads on the conditions for a return of the men, and (3) whether the railroads had refused to bargain at all times prior to the grant of this equity injunctive relief. The BLF&E and its president, H.E. Gilbert, were found guilty of civil contempt, and a coercive fine "looking to the future as a means of compelling compliance" was imposed: $25,000 per day for the BLF&E and $2,500 per day for H. E. Gilbert, conditioned upon failure to terminate the strike by noon of the next day, Sunday, April 3. Late on Saturday, April 2, the BLF&E appealed the contempt order and filed a motion to stay. We dismissed the appeal on Sunday, April 3.

A motion to show cause why the fine should not be increased was filed on Sunday afternoon, April 3, with affidavits that the strike was continuing. A rule to show cause was issued for the next morning, Monday, April 4. However, on that morning the railroads moved to vacate the rule since the strike had terminated. The rule was vacated by an order presented by the railroads and issued by the District Court on April 6. On April 6, when counsel for the railroads presented the order to vacate, the court commented that the order vacated only the rule to show cause (regarding increased fines) and that rights might have, and probably had, accrued under the restraining and contempt orders, but that the court did not take up such matters sua sponte.

On April 22, the BLF&E filed a motion to disqualify Judge Holtzoff under 28 U.S.C. Sec. 144,¹¹ accompanied by an affidavit of its president, H.E. Gilbert. This affidavit included allegations as to events on March 3, March 28, March 31, and April 2,¹² as well as to events on April 4 and 6. Appellants pursue on appeal the allegations pertaining to the events of April 4 and 6. The affidavit cited Judge Holtzoff's remarks during the April 6 hearing to vacate the rule to show cause as prompting the railroads to act to force union payment of contempt fines which had accrued. It also asserted on information and belief that on Monday, April 4, Judge Holtzoff had informed the press, with an admonition not to quote him directly, that union contempt fines had accrued. The motion to disqualify was denied for legal insufficiency of the accompanying affidavit.

On April 29, the railroads moved for an order "assessing fines for failure to terminate contempts." At the same time they moved also for an order awarding them compensatory damages. During a May 4 hearing on the merits case, Judge Holtzoff clarified, in regard to the fine assessment motion, that only one day's fines were shown to have accrued by the facts as related in that motion. On May 6, the BLF&E filed its opposition to the railroad's April 29 motion, maintaining (1) that the railroads lacked standing to institute assessment proceedings on what were really punitive rather than coercive fines; (2) that the BLF&E and its president were due a jury trial under 18 U.S.C. Sec. 3692; (3) that they had "substantially complied" with...