State ex rel. Girard v. Percich

• Decision Date: 30 August 1977
• Docket Number: Nos. 38271,s. 38271
• Citation: 557 S.W.2d 25
• Parties: 85 Lab.Cas. P 55,150 STATE ex rel. GIRARD et al., Petitioners, v. Raymond T. PERCICH, 1 Sheriff of the City of St. Louis, Respondent. to 38278 and 38837 to 38841. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 25

557 S.W.2d 25

85 Lab.Cas. P 55,150

STATE ex rel. GIRARD et al., Petitioners, v. Raymond T. PERCICH, ¹ Sheriff of the City of St. Louis, Respondent.

Nos. 38271 to 38278 and 38837 to 38841.

Missouri Court of Appeals, St. Louis District, Division Three.

Aug. 30, 1977.

Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.

Jerome J. Duff, James E. Heckel, St. Louis, for petitioners.

John P. Emde, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondents.

GUNN, Judge.

Petitioners, members and officers of Brewery Drivers and Helpers, Local Union No. 133 of St. Louis affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), contest their convictions for criminal contempt in this original habeas corpus proceeding. This appeal involves thirteen cases consolidated for review and concerns thirteen separate petitions. The convictions are based on a finding by Circuit Judge Carl R. Gaertner that specific conduct by individual members, as well as general strike policies promulgated by the executive board of the Union, were willful and deliberate violations of a lawful restraining order issued by him. We believe the evidence supports the finding as to all petitioners, except Robert Woodson.

The incidents involved in these cases arose out of a long-lived and admittedly virulent strike by the Union against the St. Louis metropolitan wholesale beer distributors. On April 22, 1976, suit was filed in St. Louis City Circuit Court by Lohr Distributing Co., Inc. (Lohr), exclusive distributor of Anheuser-Busch products within the City of St. Louis, against specified persons affiliated with the Union in both their individual capacity and as representatives of a class consisting of the membership of the Union. The petition, which sought a restraining order against the Union, charged that the strikers had engaged in numerous unlawful activities including: mass and unruly picketing for the purpose of harassing and obstructing Lohr's customers; harassment, intimidation and threats of physical violence against Lohr's employees and customers; following Lohr's customers from its premises and stopping the customers on public streets in order to assault, abuse and threaten them to coerce a cessation of business with Lohr; and various other acts or threats of physical violence and property damage. ²

Judge Gaertner issued a restraining order that same day forbidding Union members as well as any other person having notice of the order from:

"a. Obstructing, blocking, stopping or otherwise in any manner interfering with any person or vehicle while the same is entering onto or exiting from any property owned or operated by plaintiff, specifically, plaintiff's facility at 3820 Dr. Martin Luther King Drive, St. Louis, Missouri.

"b. Interfering in any manner, directly or indirectly, with the operation or use by plaintiff or by plaintiff's employees or by plaintiff's agents, of any truck, tractor, trailer or motor vehicle owned, leased or operated by plaintiff or by its said employees or by its agents.

"c. Damaging, abusing or in any manner interfering with the use of any real or personal property owned or operated by plaintiff or by threatening to damage, to abuse or to interfere with the use of any of plaintiff's aforesaid property.

"d. Assaulting, harassing, threatening, injuring, battering, coercing, intimidating or threatening to assault, to harass, to threaten, to abuse, to injure, to batter, to coerce or to intimidate any of plaintiff's customers or any agent, servant or employee of plaintiff while the same is having or attempting to have any business contact with plaintiff.

"e. Interfering directly or indirectly with the purchase, sale, receipt, delivery or distribution of Anheuser-Busch beer products by plaintiff from its facility at 3820 Dr. Martin Luther King Drive, City of St. Louis.

"f. Having in excess of three persons at any one time picketing, congregating or otherwise meeting at, near or about any property owned or operated by plaintiff, at 3820 Dr. Martin Luther King Drive in the City of St. Louis."

In addition, an order to show cause why a temporary injunction should not be issued was filed and a hearing date was set. Petitioners in their answer denied all allegations of violence but admitted that the nominal parties as well as the members of the class had received notice of the restraining order.

On April 28, 1976, the Lohr petition was amended to include a second count on behalf of Grey Eagle Distributors, Inc. (Grey Eagle), the exclusive Anheuser-Busch distributor for St. Louis County. Count II alleged essentially similar acts and threats of violence, harassment, intimidation and property damage directed against Grey Eagle, its employees and customers as alleged in Count I against Lohr, its employees and customers.

Specifically, Count II alleged that Grey Eagle's trucks carrying beer from the Anheuser-Busch plant were attacked with various dangerous projectiles on a public highway while on route to its premises; that a loaded tractor trailer truck owned by Grey Eagle was caused to overturn after a striker hurled a baseball bat through its windshield; that the offices of Grey Eagle were ransacked; that telephone threats were made against the lives of Grey Eagle employees; and that the home of the Grey Eagle chairman was firebombed. It was admitted that these acts, except for the tractor trailer incident, were performed by unknown persons. It was alleged, however, that they were directly related to the strike.

Judge Gaertner immediately issued a second restraining order for the relief of Grey Eagle. Its essential terms were identical to the original order except for the addition of paragraph (g) which forbade the Union "(f)rom picketing, congregating or otherwise meeting, at, near or in the vicinity of the intersection of Dorsett Road and Millpark Avenue in St. Louis County, Missouri." ³ The April 22 order was to remain in effect. The hearing on the order to show cause why a temporary injunction should not be issued was continued numerous times through the month of May by agreement of the parties, but the restraining orders continued in effect.

On May 28, 1976, Lohr and Grey Eagle (plaintiffs) filed a motion for the issuance of citations for contempt and body attachments against petitioners for violations of the restraining orders. The main thrust of the alleged violations was that continued coercion, harassment and intimidation of plaintiffs' customers resulted from the Union's policy of following them from plaintiffs' loading docks, where they purchased beer, to their places of business. Additionally, random acts of vandalism to the property of customers were alleged. On June 1, 1976 a hearing was commenced on this motion which continued until June 3. At its conclusion Judge Gaertner found probable cause to issue citations of contempt against petitioners and ordered them to appear on June 10, 1976 to show cause why they should not be held in civil and criminal contempt of court. He further ordered that each petitioner be served with a notice of prosecution. ⁴ Attorney for the plaintiffs was appointed special prosecutor to try the charges. At the June 10 hearing further testimony was offered, and the parties stipulated that all evidence presented at the June 1-3 hearing was admitted for the court's consideration.

In reciting the facts we shall not dwell on the many sordid incidents detailed in this voluminous record which did not form the basis for contempt convictions. But the course of this strike, both before and after the issuance of the restraining orders, was marked with fulsome instances of violent and destructive activity directed at plaintiffs, their competitors, and the customers of both. Some of these actions could be directly attributed to Union members and others could not. Nevertheless, the acts of violence and destruction were well publicized in the local news media and became common knowledge in the community. During this strike an atmosphere of trepidation existed among members of the community. ⁵ Enmity exploded into vacuous acts. Trucks carrying beer were attacked on public streets with rocks, bricks, ball bearings and other dangerous projectiles. Customers selling plaintiffs' products had the windows of their vehicles and establishments shattered and concrete poured into their plumbing fixtures. There were numerous instances of direct threats against customers because they continued to handle plaintiffs' products. Many customers ceased doing business with plaintiffs during the strike out of fear for their persons and property. Others who continued dealing with plaintiffs employed armed security guards and carried weapons for their own protection. Routine trips to purchase beer became armed caravans through public streets, accompanied by armed guards and police, pursued by car loads of strikers. Customers closely followed by strikers' vehicles often panicked and resorted to dangerous traffic violations in their hegira and efforts to escape their pursuers. For example, customers would flee at speeds in excess of lawful limits and resorted to driving the wrong way on one way streets, oftentimes with their efforts unavailing. This extremely tense situation presented a real and present danger to the well being and safety of the direct participants in this labor dispute as well as innocent members of the community. It is within this context that the evidence relating to the specific episodes leading to the contempt citations must be viewed.

Three specific instances of intimidation and harassment of plaintiffs' customers by individual petitioners, in addition to the promulgation of the following policy by the executive board of the Union, were cited in the trial court's finding of facts as the willful violations of the restraining order leading to the contempt convictions. In the first instance, petitioners Wray...