N.L.R.B. v. Cincinnati Bronze, Inc.

Citation829 F.2d 585
Decision Date21 September 1987
Docket Number86-3523 and 86-3800,Nos. 86-3464,s. 86-3464
Parties126 L.R.R.M. (BNA) 2433, 107 Lab.Cas. P 10,236, 9 Fed.R.Serv.3d 43 NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellee, v. CINCINNATI BRONZE, INC., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Thomas M. Sheran, Andrew L. Lang, Edward C. Verst, Region 9, NLRB, Cincinnati, Ohio, Aileen A. Armstrong, Abby Simms/Corinna L. Metcalf, argued, NLRB, Washington, D.C., for plaintiff-appellee.

Eugene M. Rothchild, argued, Cincinnati, Ohio, for defendant-appellant.

Before MILBURN and RYAN, Circuit Judges; and EDWARDS, Senior Circuit Judge.

MILBURN, Circuit Judge.

Defendant-appellant Cincinnati Bronze, Inc. ("CBI") appeals from the orders of the district court clarifying its original enforcement order and holding CBI in contempt. For the reasons that follow, we affirm.

I.

This dispute arises out of the NLRB's attempts to investigate an unfair labor practice charge filed by the United Steelworkers Union. In June 1984, eleven former employees of the defunct Lukenheimer Company began operations at the former Lukenheimer facility. These eleven individuals were equal shareholders in CBI, a newly-formed corporation.

As operations expanded, CBI began to take on new employees. This led to a demand by the United Steelworkers that CBI bargain with the union. CBI refused on the grounds that it did not consider itself a successor to Lukenheimer, and that the Steelworkers did not represent a majority of CBI's employees.

On December 21, 1984, the United Steelworkers filed an unfair labor practice charge against CBI. The NLRB subsequently began an investigation, during the course of which it issued a subpoena duces tecum on February 14, 1985, directing "Cincinnati Bronze, Inc.--Attn: George Frye, President" to appear "to testify in the Matter of Cincinnati Bronze, Inc." The subpoena further directed the production of the following documents For the period December 11, 1984, to the present, your payroll records and all other books, documents and papers showing names, addresses, telephone numbers, job classifications, dates of hire, dates of termination or layoffs where applicable and dates of all promotions or changes in job classifications for all individuals employed by Cincinnati Bronze, Inc.

Joint Appendix at 72-73 (emphasis supplied).

CBI refused to comply with the subpoena duces tecum. On May 24, 1985, the NLRB filed an application for enforcement of the subpoena in the district court, and on August 6, 1985, the district court entered an order directing CBI to comply with the subpoena. 1 Enforcement of the order was stayed until August 12, 1985, to afford CBI an opportunity to appeal.

CBI filed a notice of appeal on August 8, 1985. On August 16, 1985, the district court refused to extend the stay. Appeals of the district court's refusal to grant an extension of the stay were denied by this court on September 20, 1985, and by the Supreme Court on October 4, 1985.

Thereafter, on December 18, 1985, the NLRB initiated contempt proceedings. On January 6 and 8, 1986, CBI produced some records containing some of the requested information. However, CBI's counsel instructed its accountant, who produced the records, not to supply any information regarding job classifications because the information was not contained in the records. This instruction was given despite language in the subpoena requiring the company to testify and produce documents regarding, among other things, job classifications.

Without the information it sought on job classifications, the NLRB could not continue its investigation. Accordingly, on March 21, 1986, the NLRB filed a motion requesting the district court to rule on the contempt petition. At a hearing on April 16, 1986, CBI took the position that it had complied with the subpoena because it had produced all of its records, and it had no duty to give testimony outside the scope of the documents.

Following the hearing, the district court, on April 16, 1986, ordered CBI to provide the NLRB with "the identity of the employees of the corporation from December 11, 1984, to the present date, the job classifications, and the work performed by each employee." Joint Appendix at 80. The order also required CBI to make an officer available to provide the information before April 21, 1986.

On April 17, 1986, CBI filed a motion for a stay pending appeal and a notice of appeal. On April 21, 1986, the district court denied the motion for a stay, and this court denied a stay on April 23, 1986. A motion for reconsideration of the April 23 order was filed in this court on April 25, 1986, but the motion was denied on May 9, 1986, as being prematurely filed.

The NLRB renewed its motion to hold CBI in contempt on May 1, 1986. At the hearing, the NLRB presented evidence regarding its costs during the course of the enforcement proceedings. The district court awarded the NLRB $2,500.00 in costs and held that CBI would be subject to a fine for every day it refused to supply the requisite information. Finally, by August 14, 1986, CBI fully complied with the subpoena; however, it has failed to pay any portion of the $2,500.00 assessed at the May 1, 1986, hearing.

In this appeal, CBI presents several issues for review; however, much of its brief is devoted to issues concerning the original enforcement order. Those issues are no longer before the court, as the original order enforcing the subpoena was affirmed by this court on December 1, 1986. See Appendix 1. CBI has formulated the remaining issues as follows:

(1) whether the district court erred in finding that it had jurisdiction to expand and modify its order of August 6, 1985, while an appeal was pending;

(2) whether the district court erred in finding it had jurisdiction to issue more than one order of subpoena enforcement, when section 11(2) of the LMRA limits the district court's remedy to the issuance of only one order;

(3) whether the district court erred by holding defendant in contempt without allowing defendant an opportunity to present a defense at an impartial hearing.

In addition to the issues presented by CBI, we must consider the NLRB's request for sanctions pursuant to Rule 38, Federal Rules of Appellate Procedure. The Board argues that sanctions should be awarded because CBI's appeal is frivolous and was filed merely for the purpose of delay.

II.
A.

CBI argues that it cannot be held in contempt for violating the district court's order of April 16, 1986, because the district court lacked jurisdiction to enter the order while an appeal from the enforcement order of August 6, 1985, was pending. As a general rule, an effective notice of appeal divests the district court of jurisdiction over the matter forming the basis for the appeal. See, e.g., Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 378-79, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985); Island Creek Coal Sales Co. v. City of Gainesville, 764 F.2d 437, 439 (6th Cir.), cert. denied, 474 U.S. 948, 106 S.Ct. 346, 88 L.Ed.2d 293 (1985); Ced's Inc. v. United States Environmental Protection Agency, 745 F.2d 1092, 1095 (7th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985).

However, "the mere pendency of an appeal does not, in itself, disturb the finality of a judgment." Wedbush, Noble, Cooke, Inc. v. SEC, 714 F.2d 923, 924 (9th Cir.1983). "[T]he district court has jurisdiction to act to enforce its judgment so long as the judgment has not been stayed or superseded." Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 n. 2 (5th Cir.1984). Although a district court may not alter or enlarge the scope of its judgment pending appeal, it does retain jurisdiction to enforce the judgment. Deering Milliken, Inc. v. Federal Trade Commission, 647 F.2d 1124, 1128-29 (D.C.Cir.) (mem.), cert. denied, 439 U.S. 958, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978).

We are guided in our consideration of this issue by our recent opinion in Island Creek Coal, in which we recognized that the rule depriving a district court of jurisdiction over matters pending on appeal "is neither a creature of statute nor ... absolute in character." 764 F.2d at 439. "Where, as here, the district court is attempting to supervise its judgment and enforce its order through civil contempt proceedings, pendency of appeal does not deprive it of jurisdiction for these purposes." Id. at 440. See also Hoffman v. Beer Drivers & Salesmen's Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.1976).

Island Creek Coal supports the proposition that, although a district court may not expand upon an order after the notice of appeal has been filed, it may take action to enforce its order in the absence of a stay pending appeal. This rationale is entirely consistent with decisions from other jurisdictions indicating that expansion of a district court's judgment are not permitted while an appeal is pending. See, e.g., Ced's Inc., 745 F.2d at 1095-96 (district court issued new conclusions of law after original judgment was entered and notice of appeal was filed; new judgment was void because district court was without jurisdiction to amend the original order); Gryar v. Odeco Drilling, Inc., 674 F.2d 373, 375 (5th Cir.1982) (per curiam) (amended judgment entered during pendency of appeal was void; amended order conflicted with terms of original order on appeal); McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734-35 (9th Cir.) (amended order issued after filing of notice of appeal was void), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982).

As noted above, courts considering this issue have drawn a crucial distinction between enforcement and expansion. To support its argument that the district court in the present case lacked jurisdiction to issue the order of April 16, 1986, CBI relies on several cases falling into the latter category. 2...

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