In re Amalgamated Meat Cutters & Butcher W., etc.

• Decision Date: 12 November 1975
• Docket Number: Misc. No. 516.
• Citation: 402 F. Supp. 725
• Parties: In re Grand Jury Subpoena "Custodian of Records AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO LOCAL 248".
• Court: U.S. District Court — Eastern District of Wisconsin

402 F. Supp. 725

In re Grand Jury Subpoena "Custodian of Records AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO LOCAL 248".

Misc. No. 516.

United States District Court, E. D. Wisconsin.

November 12, 1975.

William J. Mulligan, U. S. Atty., by Charles N. Clevert, Asst. U. S. Atty., Milwaukee, Wis., for the United States.

James M. Shellow, Milwaukee, Wis., for Local 248.

MEMORANDUM AND ORDER

REYNOLDS, Chief Judge.

Before the Court is a motion to quash certain portions of a subpoena duces tecum issued by the grand jury. For the reasons hereinafter stated, I have decided some of the matters before this branch but have referred others to Judge Robert W. Warren for decision.

I.

The Milwaukee Independent Meat Packers Association ("Association") is a multi-employer bargaining unit consisting of certain companies engaged in the processing of meat products in the Milwaukee metropolitan area. The Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO Local 248 ("Local 248") is the collective bargaining representative of certain employees of the Association. On January 25, 1975, Local 248 commenced an economic strike against the Association.

The Association subsequently filed charges with the National Labor Relations Board ("Board"), alleging that Local 248 was engaged in unfair labor practices involving violence and threats of violence against the Association's nonstriking employees and supervisory personnel. The Board concluded that reasonable cause existed to believe that Local 248 had engaged and was engaging in conduct violative of § 8(b)(1) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(b)(1), and consequently issued a complaint pursuant to § 10(b) of the Act. Thereafter the Board petitioned the United States District Court for the Eastern District of Wisconsin, asking for temporary injunctive relief as authorized by § 10(j) of the Act, 29 U.S.C. § 160(j). Squillacote v. Local 248, Meat & Allied Food Workers, C.A.No. 75-C-64 (E.D.Wis.).

The matter was assigned to the branch of this court presided over by Judge Robert W. Warren. Judge Warren issued a temporary restraining order on February 11, 1975, and on March 21, 1975, granted a temporary injunction barring certain conduct pending final disposition of the § 8(b)(1) charges before the Board.

On May 9, 1975, the Board requested that Judge Warren "institute sua sponte, a prosecution of respondents named Local 248 and eight of its members * * * for criminal contempt of the Court." (Board's petition, p. 43.)

At the behest of counsel, Judge Warren heard argument on the propriety of the institution of criminal contempt proceedings, as well as the manner in which such prosecutions, if any, would ensue. On May 23, 1975, Judge Warren determined that he would proceed criminally against the respondents as prayed by the petitioning Board but took under advisement all issues respecting the manner in which any prosecutions for criminal contempt would proceed.

Thereafter, in a decision and order dated June 26, 1975, Judge Warren determined that the matter of criminal contempt would be submitted to the grand jury:

"Each of the nine respondents against whom criminal contempt is sought is alleged to have in some manner violated an injunctive order of this Court by engaging in proscribed strike misconduct. In view of the fact that the allegedly contemptuous conduct thus occurred outside the presence of the court, the procedural requirements of Rule 42(b), Fed.R. Crim.P. are applicable * * *. With respect to these requirements, respondents have sought that the criminal contempts proceed by grand jury indictment, if at all, rather than by simple notice.

"* * * The Seventh Circuit Court of Appeals has determined that the right of grand jury indictment does not extend to criminal contempt proceedings * * *. * * *

"Nothing stated by the Seventh Circuit Court of Appeals, however, nor any other rule of law prevents this Court from exceeding minimal due process requirements and directing submission of this matter to the grand jury where such procedure might better serve the interests of justice. * * * Because of the nature of the contemptuous conduct alleged as against each of the nine respondents, this Court is of the opinion that there is much to be gained in terms of equity and judicial efficiency by employing the grand jury. * * *" Squillacote v. Local 248, Meat & Allied Food Workers, C.A.No. 75-C-65 (E.D.Wis.)

Judge Warren further ordered that these matters of criminal contempt were to be prosecuted before the grand jury by the United States Attorney or his authorized representative. Grand jury proceedings were accordingly initiated.

On August 14, 1975, Local 248 and certain of its members filed a motion to instruct the grand jury on the law of criminal contempt. On that same date the custodian of records filed a motion to quash a subpoena duces tecum which directed him to produce certain union records before the grand jury. The following day, Local 248 and certain of its members filed a motion to voir dire the members of the grand jury for prejudice.

These motions were assigned to this branch of the court on August 19, 1975, Judge Warren being unavailable to hear them and the grand jury being scheduled to meet the next day. The Government was ordered to respond, and the matter came on for a hearing the following morning, August 20, 1975.

For the reasons stated in open court at that hearing, I denied the motion to instruct the grand jury and the motion to voir dire the grand jury. The motion to quash the subpoena duces tecum was considered separately as to each paragraph of the subpoena duces tecum, the relevant portions of which read as follows:

1. "Any and all documents containing lists of all union members at the time the union went on strike against the Milwaukee Independent Meat Packers Assn. on Jan. 25, 1975.

2. "Documents containing a list of all union members who went on strike at the time indicated above.

3. "Documents containing lists of all persons who have resigned the union since the strike began.

4. "All documents and rosters which show the union members who have been on the picket lines each day since February 11, 1975 through August 18, 1975.

5. "All documents utilized to advise union members of the restraining orders issued by United States District Court Judge Robert W. Warren, of the Eastern District of Wisconsin, (directed to the union) on February 11, 1975 and March 21, 1975.

6. "All documents and receipts signed by union members which acknowledge notice of the court orders referred to hereinabove.

7. "All documents and written instructions which have been given to picket captains, union stewards, union officers and union members regarding their strike activity and picket conduct since the beginning of the strike on January 25, 1975.

8. "Written reports and documents authorized to be made by union agents including picket captains, union officers and other members while on the picket lines.

9. "All documents evidencing disciplinary measures administered to all picket captains, union stewards, union officers and union members for misconduct on and away from the picket lines since Judge Warren's order of February 11, 1975.

10. "Copies of union's local and international constitutional and by-laws.

11. "All documents containing license numbers and home addresses of non-striking employees of the Milwaukee Independent Meat Packers Association.

12. "Roster sheets signed by union members upon receipt of their strike pay." (Numbers added by the Court.)

I declined to quash paragraphs 5, 6, 7, 8, 9, and 10 and that portion of paragraph 11 relating to the time period between March 5 and May 1, 1975; I took under advisement the remainder of paragraph 11 and paragraphs 1, 2, 3, 4, and 12. The disposition of the motion to quash those paragraphs is the matter presently before the Court.

II.

The custodian made three arguments in support of his motion to quash the subpoena duces tecum. First, he asserted that the subpoena sought the production of documents and records not relevant or material to the matters of criminal contempt referred to the grand jury by Judge Warren's order of June 26, 1975. Second, the custodian alleged that the subpoena was being improperly used to discover evidence for pending criminal contempt charges. Finally, the custodian claimed that the subpoenaed documents and records were privileged from disclosure by the First Amendment to the Constitution and § 7 of the National Labor Relations Act, 29 U.S.C. § 157.

In my opinion, the issues of improper discovery and constitutional and statutory privilege should not be considered until the question of the relevancy and materiality of the subpoenaed records and documents is disposed of. For the reasons set forth herein, I conclude that the determination of relevancy and materiality must be made by Judge Warren.

In reaching this conclusion, the Court has had to consider the allowable scope of the grand jury's investigation. At oral argument, the custodian asserted that Judge Warren's order of June 26, 1975, delineated the boundaries of grand jury inquiry. That order, the custodian argued, incorporated by reference the Board's petition of May 9, 1975, which alleged specific acts of criminal contempt by the union and eight of its members on twenty-four particular dates. The custodian claimed that any inquiry reaching beyond those acts by those individuals on those dates was irrelevant and immaterial to any matter properly before the grand jury.

In contrast, the Government argued that Judge Warren's order was not limited to the matters contained in the Board's petition but included within its scope any acts by any individuals constituting criminal contempt of Judge Warren's injunctive orders. Had the Government stopped at this point, the matter could have been readily resolved by referring the parties to Judge Warren for an interpretative...