Pabst Brewing Co. v. Brewery Workers Local Union No. 77, AFL-CIO

• Decision Date: 03 May 1977
• Docket Number: AFL-CIO,No. 75-1934,75-1934
• Citation: 555 F.2d 146
• Parties: 95 L.R.R.M. (BNA) 2453, 81 Lab.Cas. P 13,196 The PABST BREWING COMPANY, Plaintiff-Appellee, v. BREWERY WORKERS LOCAL UNION NO. 77,, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 146

555 F.2d 146

95 L.R.R.M. (BNA) 2453, 81 Lab.Cas. P 13,196

The PABST BREWING COMPANY, Plaintiff-Appellee, v. BREWERY WORKERS LOCAL UNION NO. 77, AFL-CIO, et al Defendants-Appellants.

No. 75-1934.

United States Court of Appeals Seventh Circuit.

Argued Dec. 4, 1975.

Decided May 3, 1977.

Marvin Gittler, Chicago, Ill., Philip I. Sipser, New York City, for defendants-appellants.

Stuart I. Cohen, Peoria, Ill., Mervin N. Bachman, Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, HASTINGS, Senior Circuit Judge, ^* and WHELAN, District Judge. ^**

FAIRCHILD, Chief Judge.

The defendants, brewery workers for the plaintiff-company, are appealing from a September 23, 1975 order of the district court holding them in civil contempt, and fining each individual $100.00. The court found that the defendants had violated its order of February 25, 1975 which " . . . enjoined and restrained (the defendants) . . . from engaging in . . . a strike, work stoppage, slowdown or picketing against plaintiff at its Peoria Heights plant with respect to the disputes between plaintiff and defendant(s) regarding the: (1) discharge of Dan Markham, an employee covered by said Collective Bargaining Agreement between plaintiff and defendant(s); and (2) utilization of foremen, rather than bargaining unit employees, to perform the work of spot checking bottles of beer for abnormal conditions; and (3) any other grievance under the Agreement, the plaintiff being required to carry out the grievance procedure with respect to any such dispute or grievance . . .." In this appeal the defendants contend that they did not violate the court's order because (1) the court lacked jurisdiction under the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., to issue such a broad injunction (particularly (3), just quoted); (2) the injunction was binding only as long as the then existing collective bargaining agreement was in effect; and (3) the defendants were denied their right to a jury trial in the contempt proceedings.

I

Pabst is engaged in brewing beer at a plant located at Peoria Heights, Illinois. The defendants are workers at the plant; during the incidents complained of in February, 1975, they were members of Brewery Workers Local Union No. 77, AFL-CIO, bargaining agent for the defendants under a collective bargaining agreement which became effective July 1, 1973 and terminated June 30, 1975. This Agreement covered a broad range of employment conditions and contained a grievance procedure which included no-strike and binding arbitration provisions.

Early in the morning of February 20, 1975 the defendants commenced a strike against Pabst at the Peoria Heights plant. The issues that spawned the strike concerned the discharge of employee Dan Markham, and the utilization of Pabst's foremen, rather than bargaining unit employees, to spot check beer bottles for abnormalities. Grievances relating to these disputes were filed the same day.

In the late afternoon, a hearing was held before the district court on plaintiff's motion for temporary restraining order. In granting the motion the court found that the disputed matters were arbitrable under the collective bargaining agreement and that the plaintiff was prepared to proceed with arbitration at the time of the strike. The court also agreed with the plaintiff's claim of continuing irreparable harm due to the defendants' failure to honor their no-strike obligation. In addition to restraining the defendants from striking over the two disputed matters, the court ordered them not to strike or picket regarding "(a)ny other grievance under the Agreement." By a consent order dated February 25, the temporary restraining order was converted into a preliminary injunction.

Nearly seven months later, on September 21, the defendants again picketed the Peoria Heights plant. The dispute which spurred this action concerned the suspension of Leonard A. Asbell. A grievance had been filed on behalf of Asbell on September 17, but Pabst had refused to process it. Pabst explained its refusal on the grounds that the grievance was presented by a representative of Local Union No. 770, an affiliate of the Teamsters Union, which was not the union Pabst was required by the collective bargaining agreement to recognize as the agent of the brewery workers. The company then filed a motion with the district court asking that the defendants be held in contempt for violating the February 25 preliminary injunction. After a hearing, the court found that the September 21 and 22 picketing and strike by the defendants violated paragraph (3) of the February 25 injunction. It held the defendants in contempt and fined each of them $100.

Since the Agreement which existed at the time the preliminary injunction was issued had been terminated June 30, there may be some question whether the preliminary injunction applied to the Agreement in effect in September, although it apparently contained similar provisions. Defendants sought to raise this question on appeal, but failed to do so at trial. They will be free to raise it on remand.

II

As a threshold issue we must determine whether this contempt adjudication is an appealable order within the meaning of 28 U.S.C. § 1291. A civil contempt order is ordinarily not appealable as a final order, Fox v. Capital Co., 299 U.S. 105, 107, 57 S.Ct. 57, 81 L.Ed. 67 (1936); appeal is proper, however, from a finding of criminal contempt. Union Tool Co. v. Wilson, 259 U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922). Therefore the appealability of the contempt order in this case depends on whether it can be characterized as criminal or civil.

The feature that distinguishes criminal from civil contempt is that the purpose of the former is primarily to punish for actions already taken while the latter intends to coerce for prospective compliance. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Both imprisonment and a fine may be imposed to achieve these results. The test to determine the nature of the contempt is to ask " . . . what does the court primarily seek to accomplish by imposing sentence?" Id.

In this case we have no doubt that the plaintiff intended the contempt proceeding to be civil in nature. On September 22 Pabst filed a motion asking the court to find the defendants in civil contempt. On the same day Pabst sent a notice to the defendants entitled "Notice of Civil Contempt Hearing." At the outset of the hearing on Pabst's motion the court also addressed the matter as one of "civil contempt." However, what the parties labeled the proceedings or how the court initially regarded defendants' conduct are not determinative of the character of the contempt sentence. Shillitani, supra, at 369, 86 S.Ct. 1531. Rather, we must discover the purpose of the contempt proceeding, whether it was to punish or to coerce compliance.

The contempt hearing of September 23 focused on the defendants' conduct on September 21 and 22. Pabst contended and the court subsequently found that the picketing by the defendants violated the preliminary injunction. From reading the transcript of these proceedings we conclude that Pabst had wanted the court to halt the picketing by means of its power to enforce its prior order. This coercive purpose appears to be in keeping with the character of civil contempt. The cessation of the picketing and resulting work stoppages seems to have been accomplished by the initiation of the contempt proceeding. In the course of the hearing the court indicated that its task during the proceeding was to determine " . . . what, if any, punishment ought to be imposed on people who acted in contempt of its order." Even by this time the court realized that the defendants were no longer picketing and had no intention of resuming this activity.

Still later in the hearing the court continued to refer to punishment as the primary purpose of the impending contempt sentences. Upon questioning Mr. Munday, one of the defendants, the court learned that in accordance with its direction he had been located the previous evening and had spent that night in jail. Referring to his incarceration, the court commented that " . . . by spending the night in jail you have already paid for your error to a degree." In addressing another defendant, Mr. Segal, the court again expressed the view that its obligation in this hearing was " . . . to determine appropriate punishment for violations of its orders." Finally, in a colloquy with Mr. Schnipper, counsel for the defendants, the court explained that the purpose of a contempt sentence in this case was not to serve Pabst's interests, but rather to ensure compliance with an order of the court. Although punishment for a completed violation is a deterrent to further violations, we find implicit in this statement and particularly in the court's continuous references to punishment the conclusion that the contempt sentence was not for remedial purposes but rather for punitive ones.

We are further persuaded of the criminal character of the finding of contempt by reviewing the court's conclusions before it meted out the fines. The judge decided that the contemptuous conduct had ended, but that some punishment was still necessary:

"I am satisfied thoroughly that they (defendants) do understand that (they were acting in contempt of the court's order) now. I am satisfied with their representations on the record that it is their purpose not to violate the order in the future and that we are not involved . . . (in a) . . . continuing contempt by anybody that I am aware of.

That leaves us with the question of what is appropriate punishment for contempt that took place yesterday and the day before . . . ."

The court concluded that the "appropriate punishment" was a fine of $100 for each defendant, and that each would remain in the custody of the United States Marshal until arrangements were made to pay the fine.

We have...