Evans v. International Typographical Union

Decision Date14 October 1948
Docket NumberCivil Action No. 1587.
Citation81 F. Supp. 675
PartiesEVANS, Regional Director of National Labor Relations Board v. INTERNATIONAL TYPOGRAPHICAL UNION et al.
CourtU.S. District Court — Southern District of Indiana


Robert N. Denham, Gen. Counsel, David P. Findling, Associate Gen. Counsel, and Winthrop A. Johns, Trial Atty., all of National Labor Relations Board, all of Washington, D. C., and Allen Sinsheimer, Atty., of Cincinnati, Ohio, for petitioner.

Clarence R. Martin, of Indianapolis, Ind., and Van Arkel & Kaiser, of Washington, D. C., for respondents.

SWYGERT, District Judge.

1. The Motion to Dismiss.

The respondents reiterate the objections to the jurisdiction of the court which they previously asserted in their motion to dismiss the petition for injunctive relief. That motion presented two grounds on which the respondents claimed the court lacked jurisdiction: (1) The questioned constitutionality of Section 10(j) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 160(j), under which the proceeding was brought, and (2) that only the National Labor Relations Board is empowered by the statute to institute the action and that it cannot delegate such power to the General Counsel. Those questions were disposed of by the ruling on the previous motion to dismiss D.C., 76 F.Supp. 881.

In the present motion to dismiss, the respondents further contend that regardless of the power of a constitutional court to entertain a proceeding for temporary injunctive relief where the main proceeding is litigated in another forum, a constitutional court does not have jurisdiction to hear and determine a contempt action growing out of such proceeding for temporary relief. They say this follows because the entire proceeding before the court, including the contempt action and any orders resulting therefrom, fall when the National Labor Relations Board renders a final order in the main proceeding. To support their contention, respondents point out that this Court in disposing of a similar contention regarding the constitutionality of Section 10(j) stated that the Court's order for temporary relief is "not final because the standard of inquiry in Section 10(j) is the probability of the existence of facts, while the decision of the Board in a Section 10(b) proceeding must rest upon a full hearing and a measure of proof and inquiry extending beyond the standard of probability." Respondents then argue in their brief that a "judgment in civil contempt, unlike a decree for temporary injunction, is a final order premised upon a full hearing wherein petitioner has successfully sustained a heavy burden of proof."

In asserting these arguments, the respondents overlook the essential nature of contempt proceedings. As stated in Myers v. United States, 264 U.S. 95, 103, 44 S.Ct. 272, 273, 68 L.Ed. 577, "These (contempt proceedings) are sui generis, neither civil actions nor prosecutions for offenses, within the ordinary meaning of those terms — and exertions of the power inherent in all courts to enforce obedience, something they must possess in order properly to perform their functions." Historically, the federal courts have always possessed the inherent power to enforce their judgments by contempt proceedings, Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997, and this is so irrespective of whether those judgments are interlocutory or final. Finally, the force of respondents' contention is dissipated by pointing out the utter futility of a court's granting temporary equitable relief if it were powerless thereafter to command obedience of its order granting that relief.

The next contention made by the respondents in their motion is that the authority, if any, to initiate contempt proceedings rests with the Board and that no specific delegation of that authority has been made by the Board to the General Counsel. They again assert that the power of the Board to initiate and prosecute injunctive and contempt proceedings is non-delegable, but that if such power may be delegated by the Board, the delegation must be specific. They point out that the decision of the court in overruling the motion to dismiss the original petition held only that the power to institute proceedings for temporary relief under Section 10(j) of the Act was delegable and had been specifically delegated by the Board to the General Counsel. Respondents contend that the question of delegability of the power to institute contempt proceedings and the question of whether such power has been specifically delegated are now at issue before the Court.

As previously pointed out in the Court's opinion on the motion to dismiss the petition for an injunction, the Board in a "Memorandum of Understanding" delegated to the General Counsel the power to initiate and prosecute injunctive proceedings under Section 10(j). The specific language containing that delegation reads:

"General Counsel shall exercise full and final authority and responsibility, on behalf of the Board, for initiating and prosecuting injunction proceedings as provided for in Section 10(j) and (l)."

While the Board did not specifically delegate to the General Counsel the power to bring contempt proceedings, its delegation of the power to initiate and prosecute injunctive actions for temporary relief carries with it, as an incidental and inherent component of that delegation, the authority to institute contempt proceedings growing out of such actions. The contempt proceeding is supplemental to the injunctive proceeding, but nevertheless a part of it. The legal concept of the latter includes contempt actions which may follow the granting of injunctive relief and the subsequent breach of the Court's order or decree.

As to the question of the statutory authority of the Board to delegate to the General Counsel this incidental power to institute contempt proceedings, the previous decision of the Court that the Act permits such delegation of power in relation to injunctive proceedings is applicable. For where the Board may delegate the principal authority, a priori, it may delegate this supplemental power to initiate and prosecute contempt proceedings in aid of the injunctive relief.

A further contention of the respondents is that their present activities cannot form the basis for contempt action because the conduct now complained of was not engaged in prior to the issuance of the decree, was not litigated in that action, and represents a sharp deviation from prior conduct. The analysis of the pleadings by the Court leads to a contrary conclusion. While the conduct now complained of is not identical or of the same nature as that creating the necessity for the decree, it is not unrelated. While the means of violation of Section 8(b) (2), 29 U.S.C.A. § 158(b) (2), differ, the same result is alleged to follow. It is that resulting violation which is proscribed by the Act of Congress and restrained by the decree of the Court.

In their motion to dismiss, the respondents next refer to the report of the trial examiner of the National Labor Relations Board filed August 15, 1948, a week prior to the bringing of this contempt proceeding. Respondents claim that this report "establishes the law of the case, behind which the Court, under the scheme of Section 10(j) should not inquire." A copy of the trial examiner's report has been furnished the Court pursuant to Section 203.26 of the Rules and Regulations of the Board. That section provides in substance that if the trial examiner recommends dismissal, in whole or in part, of the complaint upon which an injunction under Section 10(j) of the Act has been predicated, the General Counsel shall suggest to the District Court which issued the injunction the possible change in circumstances arising out of the examiner's findings and recommendations.

In interpreting the pertinent sections of the Act, it would appear that nothing short of the Board's order in the principal proceeding under Section 10(b) of the Act, other than the action of the District Court itself, can affect or terminate an injunction issued under Section 10(j). However, a trial examiner's recommendations that a complaint which gave rise to the temporary injunction be dismissed, in whole or in part, may result, if the District Court finds such action justifiable in light of the examiner's recommendations, in a modification or even a termination of the injunction.

It is apparent from his report that the trial examiner did not conduct a full inquiry into the activities of the respondents since the decree or in relation to the decree. Furthermore, in his report he has not recommended the dismissal of the complaint in regard to violations of Section 8(b) (2) of the Act, nor have there been suggestions of changes in circumstances which would warrant a modification of the injunction. The decree of the Court has not been modified or superseded, and it thus remains in effect to govern the conduct of the respondents until such time as the National Labor Relations Board determines the issues in the principal proceeding. Accordingly, the question of whether there has been full compliance with the decree is a matter into which the court may properly inquire, regardless of the trial examiner's findings and recommendations.

The next ground upon which the respondents base their motion to dismiss relates also to the proceeding before the trial examiner. They say that the General Counsel, having elected to try the issues presented by the instant petition before the trial examiner, is bound by the latter's findings. The General Counsel has effectively answered this contention by pointing out in oral argument that there are two separate proceedings, albeit, both deal with the same course of conduct as that conduct relates to the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq. There is the instant action, which grows out of the prior proceeding...

To continue reading

Request your trial
12 cases
  • New York Telephone Co. v. Communications Wkrs. of Amer.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 22, 1971
    ...742 (5th Cir. 1943); cf. NLRB v. M. Lowenstein & Sons, 121 F.2d 673, 674 (2d Cir. 1941) (per curiam); Evans v. International Typographical Union, 81 F. Supp. 675, 678 (S.D.Ind.1948). Strict adherence to the foregoing line of cases would compel us to affirm the district court's decision. How......
  • United Factory Outlet, Inc. v. Jay's Stores, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 4, 1972
    ...in mitigation of their offense'). National Labor Relations Bd. v. Lawley, 182 F.2d 798, 800 (5th Cir.) Evans v. International Typographical Union, 81 F.Supp. 675, 688 (S.D.Ind.). 3 Singer Mfg. Co. v. Sun Vacuum Stores, Inc., 192 F.Supp. 738, 741 (D.N.J.)--'The orders of the Court must be ob......
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 26, 1974
    ...Feed Mill Workers, 334 F.2d 1014 (7th Cir. 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965); Evans v. Typographical Union, 81 F.Supp. 675 (S.D.Ind.1948). Here the District Court, acting upon the petition of the Board, did grant injunctive relief under Section 10(l) of ......
  • Clarke v. Comm'r of Internal Revenue (In re Estate of Clarke) , Docket No. 4888-66.
    • United States
    • U.S. Tax Court
    • May 27, 1970
    ...practice, a pleading must be ‘properly read and considered as a whole and construed in (its) entirety,‘ Evans v. International Typographical Union, 81 F.Supp. 675, 680 (D.S. Ind. 1948), and ‘judged by its substance and not its form’ Kerrigan's Estate v. Joseph E. Seagram & Sons, 199 F.2d 69......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT