Phillips Sheet & Tin Plate Co. v. Amalgamated Ass'n of Iron, Steel & Tin Workers

Decision Date27 September 1913
Docket Number12.
Citation208 F. 335
PartiesPHILLIPS SHEET & TIN PLATE CO. v. AMALGAMATED ASS'N OF IRON, STEEL & TIN WORKERS et al.
CourtU.S. District Court — Southern District of Ohio

P. P Lewis, of Steubenville, Ohio, and Karl E. Burr, of Columbus Ohio, for complainant.

Belcher & Connor, of Columbus, Ohio, and Jay S. Paisley, of Steubenville, Ohio, for defendants.

SATER District Judge.

At the close of the hearing the accused in three of the contempt proceedings were dismissed. The charges against two others were held to be sufficiently proved, but no order was entered regarding them because their respective cases were taken under advisement along with others submitted at the same time. None of the defendants prior to or in the progress of the trial challenged in any respect the sufficiency of the charges, or the form in which they were preferred, or the entitlement or prayer of the motions, or raised a query as to whether the proceedings ere civil or criminal. The court did not therefore then make the critical examination of the moving papers which a detailed study of the submitted cases required. The result of such study was a request that counsel argue orally and on brief certain specific questions and any others by them deemed deserving. This was done. Considering the existing condition, the atmosphere may be clarified by an expression of views on practically every contention made.

The claim that the troubles considered in the contempt proceedings are attributable to the guards employed by the plaintiff is mere assertion and barren of support from the evidence. Some of the acts of violence were openly and others were impliedly admitted; the effort of the defense being to affix the responsibility for them on other than the accused. The troubles which have been aired in these contempt proceedings originated with strikers and strike sympathizers and in every instance the aggressor was the one or the other. With one exception the accused are all union men. There have been some manifest exhibitions of lawlessness and disregard of the temporary injunction heretofore granted, which injunction ran against not merely the defendants named in the bill, but also against the members of the respective unions, their agents, confederates, aiders, and abettors. The assault on unoffending Kia, in which his nose was broken, was unprovoked, cowardly, and brutal. Of all the strikers and sympathizers that were present when it occurred, not one entered a protest or endeavored to bring the assailant to justice. When called upon to point him out, they protected him by standing mute. Some of them appeared here as witnesses to screen the guilty party. The court was impressed at the hearing with the appearance, first in one case and then in another, of certain overindustrious witnesses and always to prove an alibi or its equivalent. The assaults which were the most reprehensible and vicious occurred in proximity to and in view of the strike headquarters. In so far as the present record discloses, no effort has been made by organized labor to bring any assailant of any of plaintiff's employes to justice. The managers of the strike were not on trial, and none of them were offered as witnesses. They will not be condemned unheard, but a word of warning is timely.

The strike committee, the officers of the union, and the managers of the strike have an active duty to perform. That duty does not end in instructing strikers or sympathizers, or both, to observe and not to violate the injunction, even though the instructions be given in good faith. The rational rule prevails that a labor organization, or its officers, or a committee which selects members to act as pickets during a strike may become responsible for the unlawful acts of such pickets or their violation of an injunction, although they were instructed in good faith to observe the injunction and do no unlawful act, where, with knowledge that the instructions have been disobeyed by particular persons, such persons are still kept in service. The directing officers of a union, whose members are on a strike and have been enjoined from intimidation, will themselves be deemed guilty of a violation of the injunction if they do not prevent (if they reasonably can do so) its violation by those under their control, or if they countenance acts of intimidation and refrain from using, so far as good faith would suggest, the means which they possess of preventing such acts. Allis-Chalmers Co. v. Iron Moulders Union, 150 F. (C.C.) 155, 184; Re McCormick, 132 A.D. 921, 117 N.Y.Supp. 70; Martin, Modern Law of Labor Unions, 292, 304; Rapalje on Contempt, Sec. 45, p. 59. Mere passive personal obedience to an injunction order is not enough. Inexcusable inattention and negligence resulting in its violation by agents and employes are reprehensible and punishable. Poertner v. Russel, 33 Wis. 193, 202. The constant and regular maintenance of pickets and in considerable numbers, after repeated acts of violence by them, their use of insulting and abusive epithets and threatening language, their creation of an unfriendly atmosphere surrounding workmen, their following of them upon the streets, rise to the dignity of a conspiracy among the pickets unlawfully to intimidate and coerce workmen. Allis-Chalmers Co. v. Iron Moulders Union (C.C.) 150 F. 181, 182. The weight of the evidence before me is that when Kia was assaulted the workmen at the mill were required to pass on the sidewalk between rows of strikers. A worse species of intimidation could scarcely be devised, and yet there is not a syllable of evidence in the record that those in charge of the strike expressed a word of disapproval or sought the punishment of any guilty party who violated either the injunction order of this court or, by their assault, the law of the state. The court has allowed picketing, but not unlawful picketing. It should be done in a peaceful manner and by such limited numbers as not to awaken the fear and lead to the intimidation of workmen. Such picketing only was in contemplation when the injunction issued. It has been said (150 F. 172) that peaceful picketing is very much of an illusion, but it is practically as well as theoretically possible. When the injunction was granted, attention was drawn by the court to the fact that among strikers and strike breakers there is usually found a lawless element, and that managers of the strike on the one hand and the employer on the other are charged within all reasonable bounds with the responsibility of restraining the lawless from deeds of violence and other unlawful acts. Neither can safely do less. My purpose is to reinforce the views then expressed.

In Bessette v. Conkey Co., 194 U.S. 324, 328, 24 Sup.Ct. 665, 666 (48 L.Ed. 997), Mr. Justice Brewer, speaking for the court, approved the following definition of civil and criminal contempts as given in Re Nevitt, 117 F. 448, 458, 54 C.C.A. 622, 632 (C.C.A. 8): 'Proceedings for contempts are of two classes: Those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. * * * A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little, if any, interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings.'

Whether a particular act shall be classified as a civil or a criminal contempt is not always easy of determination, because it may partake of the characteristics of both. Contempts are neither wholly civil nor altogether criminal. Bessette v. Conkey Co., 194 U.S. 329, 24 Sup.Ct. 665, 48 L.Ed. 997; Gompers v. Bucks Stove & Range Co., 221 U.S. 441, 31 Sup.Ct. 492, 55 L.Ed. 797, 34 L.R.A.(N.S.) 874. In cases of civil contempt, the order made is interlocutory and remedial to indemnify the injured suitor or coercively to secure obedience to a mandate in his behalf, and the remedy of the accused is by appeal from the final decree rendered in the cause. Re Merchants' Stock Co., 223 U.S. 641, 32 Sup.Ct 339, 56 L.Ed. 584; Doyle v. London Guarantors Co., 204 U.S. 599, 27 Sup.Ct. 313, 51 L.Ed. 641; Ex parte Heller, 214 U.S. 501, 502, 29 Sup.Ct. 698, 53 L.Ed. 1060; Clay v. Waters, 178 F. 385, 391, 392, 101 C.C.A. 645, 21 Ann.Cas. 897 (C.C.A.8). But where the order made against the accused is punitive, it is a final judgment in its nature and reviewable on writ of error without awaiting such final decree. Re Merchants' Stock Co., supra; Bessette v. Conkey Co., 194 U.S. 338, 24 Sup.Ct. 665, 48 L.Ed. 997; In re Christensen Engineering Co., 194 U.S. 458, 461, 24 Sup.Ct. 729, 48 L.Ed. 1072; Grant v. U.S., 227 U.S. 74, 76, 33 Sup.Ct. 190, 57 L.Ed. 423. The teaching of Re Christensen Engineering Co....

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