BROTHERHOOD OF LOCOMOTIVE FIRE. & ENG. v. United States

• Decision Date: 02 May 1969
• Docket Number: No. 23622.,23622.
• Citation: 411 F.2d 312
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

411 F.2d 312 (1969)

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellants, v. UNITED STATES of America, Appellee.

No. 23622.

United States Court of Appeals Fifth Circuit.

May 2, 1969.

Ralph L. Crawford, John R. Calhoun, Savannah, Ga., Aaron S. Wolff, Alex Elson, Elson, Lassers & Wolff, Chicago, Ill., Harold C. Heiss, Donald W. Bennett, Heiss, Day & Bennett, Cleveland, Ohio, for appellants

John B. Miller, Savannah, Ga., Charles J. Bloch, Wilbur D. Owens, Jr., Macon, Ga., L. J. Bennet, Brunswick, Ga., James H. Wilson, Jr., Atlanta, Ga., for appellee; Sutherland, Asbill & Brennan, Atlanta, Ga., of counsel.

Edwin L. Weisl, Jr., Asst. Atty. Gen., John C. Eldridge, Walter H. Fleischer, Attys., Dept. of Justice, Washington, D. C., for amicus curiae.

Before JOHN R. BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge:

CONTEMPT

This is more fallout from Award 282 and the running, ceaseless, undulating controversy between the Brotherhood of Firemen and the Carriers over unneeded firemen on diesel railroad engines. The twist here is that this appeal tests the correctness of a judgment of criminal contempt against the Brotherhood,¹ four subordinate local lodges, and various national and local Brotherhood officials in both their representative and individual capacities. The fines levied, varying from $2,500 to $25,000,² were payable to the United States.³

The contempt grew out of alleged violation of a temporary restraining order of March 31, 1966, issued by the District Court in Georgia. The immediate facts out of which it grew are set out in the appeal on the merits, this day decided.⁴ The full background is reflected in the opinions of the District of Columbia Circuit.⁵ The appeal by respondents levels two principal attacks — first, the denial of a jury trial, and second, lack of due process. Since we conclude that the criminal contempt proceedings lacked the rudiments of due process, we reverse without deciding the jury issue.

As the history reflects, the temporary restraining order allegedly violated was a duplicate, unneeded order. On the eve of expiration of Award 282, (12:01 a. m. March 31) the Nation's Class I railroads on March 24, 1966, filed suit in the United States District Court for the District of Columbia⁶ seeking declaratory and injunctive relief. On March 28, 1966, Judge Holtzoff, of that Court, issued a temporary restraining order against BLFE prohibiting a strike upon the expiration of the Award. Subsequently, on March 31, Judge Holtzoff expanded his restraining order to cover any strikes in any way relating to the Award. In the meantime, back on the tracks at 12:01 a. m. on Thursday, March 31, 1966, BLFE initiated a strike against the Carriers (including Georgia Central).⁷

Notwithstanding the sweeping injunction in their favor against BLFE and all of its components issued by Judge Holtzoff, on that very day, Thursday, March 31, 1966, Georgia Central and Southern sought identical injunctive relief against BLFE and its components in the United States District Court for the Southern District of Georgia. The District Court in Georgia issued ex parte a temporary restraining order on Thursday, March 31, 1966. This order is at the bottom of this Georgia criminal contempt.⁸

The strike, hurriedly called, was hurriedly terminated at midnight, Sunday, April 3. With parallel alacrity so ran the Georgia contempt proceedings including the trial on Monday, April 4. With all of the activity transpiring in the District of Columbia, much was happening down in Georgia. Early on Friday, April 1, 1966, the day after the temporary restraining order was issued by the Georgia District Court, Georgia Central and Southern petitioned for a rule to show cause why BLFE should not be held in criminal contempt.⁹ It sought a show cause order under F.R.Crim.P. 42 (b) against BLFE, two named individual officers and all Firemen employees of Georgia Central as a class.¹⁰ By separate order the Court appointed the Carriers' attorneys¹¹ to prosecute the criminal contempt, and on their application entered a formal, but uninformative show cause order.¹²

On Friday, April 1, BLFE, McCollum and Healan were served with a copy of the contempt show cause order (note 12, supra). Many others were served, some of whom got both the restraining order and the contempt show cause order at the same time.¹³ Under the show cause order (note 12, supra) the hearing on the criminal contempt citation was scheduled for Monday morning, April 4. The Court persisted in going on with the trial even though the strike had terminated at midnight Sunday, April 3. On the morning of April 4, 1966, attorneys for BLFE and other contempt defendants filed a motion for continuance with supporting affidavits that many had not been served until late Friday evening, April 1, and others as late as Saturday afternoon, April 2. It remains uncontradicted to this day, as the affidavit set forth, that the defendants had been unable to obtain counsel until Saturday, April 2. Moreover, counsel was unable to obtain a copy of the restraining order or the criminal contempt show cause order until late Saturday evening. The persons involved were scattered throughout the state of Georgia. And with the nationwide strike and all high union officials being preoccupied with it and the proceedings then moving swiftly before Judge Holtzoff (Op. 2), counsel had much difficulty in communicating with clients to ascertain the facts. Counsel actually had only Sunday, April 3, in which to prepare for trial, which was inadequate for defense of such serious charges.

With no showing whatsoever why — with the strike over, all matters firmly in hand in Judge Holtzoff's Court including coercive civil contempt proceedings — there was any need to go forward on such notice, the Court nevertheless denied the continuance as well as the motion for a jury trial. Judgment came swift and fast on Tuesday, April 5, followed by the significant amendment of Wednesday, April 6.

Although we think it best that the far-reaching issue of mandatory jury trial in a criminal contempt case arising in the context of the Railway Labor Act ought to be reserved to a case inescapably calling for a resolution then and there, it is appropriate to state here that the problem is formidable with much on the Brotherhood's side. The problem turns on the "arising under this Act" term of § 11 of the Norris-LaGuardia Act, 29 U.S.C.A. § 111 (1940), 47 Stat. 72, now recodified in 18 U.S.C.A. § 3692¹⁴ to "arising under the laws of the United States governing the issuance of injunctions * * * in any case involving or growing out of a labor dispute". The complications are a meld of the United Mine Workers¹⁵ principle that the § 11 jury trial provision is unavailing in labor disputes to which the Norris-LaGuardia Act is not "applicable", the court-developed interplaying accommodation concept that § 4's positive withdrawal of Federal Court jurisdiction does not prevent injunctions to compel compliance with specific requirements of the Railway Labor Act,¹⁶ and the nominally contrary notion that other provisions of the Norris-LaGuardia Act, notably § 8's clean hands doctrine, control the grant or denial of such permissible injunctive relief.¹⁷

The Government, through the United States Attorney General as court-invited amicus, sides unequivocally with the appealing Brotherhood's claim that history, language and purpose mandate a jury trial in criminal, if not civil, contempt proceedings involving Railway Labor Act permitted injunctions.¹⁸ With two voices, if not two hearts, the Government "in the relation of Central of Georgia Railway Company and Southern Railway"¹⁹ takes just the opposite view. Intriguing as the problem is, we think it best for us also²⁰ to defer ruling on it since in our view the contempt judgments must be vacated for other reasons.

On a consideration of the whole record we conclude that the proceedings did not meet the demands of due process as to notice and time.²¹

To begin in the beginning, the underlying petition filed by the Carriers' counsel (note 10, supra) which led to the show cause order (note 12, supra) did not even name specifically 6 of the individual appellants and all 3 of the local lodges found in contempt.²² This was no technical omission curable or to be cured by an actual awareness of those whom the blunderbuss class action order (note 12, supra) was intended to drag in. The best proof of the real uncertainty, chaos and confusion, was this exchange to "arraign" the respondents when the motion for continuance was denied:

The Court:

"* * * so will you let the defendants come forward."

Mr. Crawford Brotherhood counsel:

"I don\'t know who the defendants are, sir. I never have ascertained that fact."

The Court:

"Well, it\'s high time you were finding out."

Mr. Crawford:

"That is what I\'ve been trying to find out all morning, sir. In their language, they specify all employees, officers, etc., without naming them."

The Court:

"You name them, Mr. Miller."

Mr. Miller:

"Yes, sir, of course, I am going to name them when he gives me time."

The Court:

"When their names are called, just let them come forward and stand up."

The advice that it was "high time" was all right in itself. But it had better been addressed to the prosecutors, if not the Court itself. For with the almost limitless variety and extent of the punishment which can come from criminal contempt trials, it is not time enough to know who is being tried when the prosecutor calls out a name. Of course this hurt all. For this rubbed on more than these unnamed individuals (or lodges). Both McCollum and Healan and the National Brotherhood were charged in a representative capacity. Agency was working up and down, down and up. Under the loose charges asserted, the National respondents stood to be condemned for conduct of local persons. Who these were, just who did what and when was a mystery.

Of course...