U.S. v. Hochschild

• Decision Date: 25 August 1992
• Docket Number: No. 91-4204,91-4204
• Citation: 977 F.2d 208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. HOCHSCHILD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 208

977 F.2d 208

24 Fed.R.Serv.3d 89

UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. HOCHSCHILD, Defendant-Appellant.

No. 91-4204.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 10, 1992.

Decided Aug. 25, 1992. ^*

Ellen A. Farrell, Dep. Asso. Gen. Counsel, Corinna L. Metcalf (briefed), Richard A. Siegel, Carolyn B. McCollum (argued), N.L.R.B., Office of the Gen. Counsel, Washington, D.C., Christian H. Stickan, Asst. U.S. Atty., Patrick J. Foley, Office of the U.S. Atty., Mark F. Neubecker, Field Atty., William M. Kohner, N.L.R.B., Cleveland, Ohio, for U.S.

Richard G. Lillie (argued and briefed), Corso, Lillie & Kelly, Geoffrey Schumer, Cleveland, Ohio, for defendant-appellant.

Before: MILBURN and GUY, Circuit Judges; and COOK, Chief District Judge. ^**

MILBURN, Circuit Judge.

Defendant Thomas R. Hochschild appeals his conviction for criminal contempt in violation of 18 U.S.C. § 401(3). After a bench trial before District Judge David Dowd, he was convicted of failing to carry out certain court orders contained in a preliminary injunction and was sentenced to 120 days imprisonment. On appeal, defendant argues (1) that he was not a named party to the civil action in which the preliminary injunction was issued and thus was not bound to obey it, and (2) therefore the United States failed to prove a knowing and willful violation of the injunction in question. For the reasons that follow, we affirm.

I.

On March 15, 1990, the National Labor Relations Board ("Board") filed a petition in the United States District Court for the Northern District of Ohio seeking injunctive relief under Section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), against alleged unfair labor practices committed by the Crystal Window Cleaning Company, Inc. ("Crystal"). The Board's petition sought an injunction to preserve the status quo until the Board could adjudicate the claims of unfair labor practices before it, but the petition named only Crystal as respondent in the action. Defendant Thomas Hochschild was not a named party, although it is undisputed that at all times material to this litigation he was the president of Crystal.

On May 4, 1990, District Judge Alice M. Batchelder entered an opinion and order finding, among other things, that defendant Hochschild was the president of Crystal and granting a temporary injunction against Crystal. The injunction prohibited Crystal from engaging in certain anti-union behavior. It also affirmatively required Crystal to offer nine laid-off or discharged employees interim reinstatement to their former positions; to acknowledge and comply with all the terms of the collective bargaining agreement; to recognize and bargain in good faith with the union; to post copies of the district court's opinion and order at Crystal's Cleveland, Ohio, facilities; to maintain the posting during the pendency of the Board proceedings; to send copies of the court's opinion and order to all employees entitled to offers of reinstatement; and to file and serve on the Board an affidavit of compliance within ten days from the entry of the district court's order.

After several months of alleged noncompliance by Crystal, the Board filed a motion to adjudge both Crystal and defendant Hochschild in civil contempt of court for their failure to carry out the orders of the district court as set forth in the injunction. Following a hearing on October 22, 1990, Judge Batchelder issued a memorandum of opinion on October 30, 1990, in which she made the following determinations:

1. Hochschild, who was not an attorney but had represented Crystal Window in all proceedings to date, had failed to heed the court's advice to secure counsel to represent Crystal Window. Hochschild was prohibited from any further representation of Crystal Window.

2. The motion for a holding of civil contempt named both Hochschild, individually, as well as Crystal Window. As such, Hochschild could cross-examine witnesses and call witnesses on his own behalf. He declined to do either.

3. Hochschild was properly before the court in his capacity as president of Crystal Window but not in his individual capacity. The May 4th order did not enjoin Hochschild personally.

4. Crystal Window was directed to purge itself of the contempt.

5. Hochschild, as president of Crystal Corporation, was obligated to comply with the order on behalf of the corporation. However, Hochschild, personally, had never been made a party in either his corporate or individual capacity.

In the accompanying order entered the next day, Crystal Window was given until November 10, 1990, to comply with specific commands of the court or be subject to the imposition of fines. One of the terms read, "Respondent, by its President, Thomas Hochschild, shall file a sworn declaration with Petitioner of the steps taken to effectuate compliance with this order." J.A. 175.

On November 6, 1990, the Board issued its final order in the unfair labor practices action against Crystal. Thereafter, on August 28, 1991, the district court dismissed the case on the grounds that it lost jurisdiction once the Board acted. ¹

On July 31, 1991, the Board filed a "Request for Institution of, Adjudication in and Punishment for Criminal Contempt" in the United States District Court for the Northern District of Ohio. District Judge David O. Dowd, Jr. issued an order appointing attorneys from the Board and the United States Attorney's Office to prosecute the case, and, accordingly, on September 19, 1991, the United States Attorney filed an information and bill of particulars charging that, from May 4, 1990 (date of injunction), to November 6, 1990 (date of NLRB unfair labor practice order), Crystal and defendant Hochschild failed and refused to comply with the provisions of the district court's May 4, 1990, preliminary injunction. A bench trial was held before Judge Dowd on October 9, 1991, at which defendant Hochschild again represented both himself and Crystal. Judge Dowd found each defendant guilty, sentencing Crystal to pay a fine of $5,000 and Hochschild to 120 days imprisonment. This timely appeal followed.

II.

A.

Defendant Hochschild first argues that he cannot be guilty of violating 18 U.S.C. § 401(3) because the May 4, 1990, injunction was aimed only at Crystal as a corporation and did not name, and therefore did not apply to, him individually. ² The question of whether the district court's temporary injunction applied to defendant appears to be a mixed question of law and fact reviewable de novo. Pullman Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982); Cordrey v. Euckert, 917 F.2d 1460, 1465 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991). Although this appeal is from a conviction in a criminal case, its resolution depends primarily on this court's determination of whether defendant was bound by the terms of the May 4, 1990, injunction.

As a matter of law, injunctions are binding on a party's officers if they receive actual notice of the injunction. Federal Rule of Civil Procedure 65(d) provides in pertinent part:

(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

This court has held that "it is a basic equity principle that 'whenever an injunction, whatever its nature may be, is directed to a corporation, it also runs against the corporation's officers,' in their corporate capacities. 10 W. Fletcher, Private Corporations § 4875 (1970 ed.)." Securities and Exchange Commission v. Coffey, 493 F.2d 1304, 1310 (6th Cir.1974), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42 L.Ed.2d 837 (1975). Accord Donovan v. Trinity Indus., Inc., 824 F.2d 634, 638 (8th Cir.1987) (holding corporate managers in civil contempt for refusing to honor administrative search warrants); NLRB v. Maine Caterers, Inc., 732 F.2d 689, 691 (1st Cir.1984) ("It is well established ... that an officer, responsible for the corporation's affairs and for its disobedience, may be held liable for contempt."); NLRB v. Sequoia Dist. Council of Carpenters, 568 F.2d 628, 634 (9th Cir.1977) ("A command to a corporation is in effect a command to those who are officially responsible for the conduct of its affairs."); Backo v. Local 281, United Bhd. of Carpenters and Joiners, 438 F.2d 176, 180 (2d Cir.1970) (union agents on notice of the contents of a restraining order properly held in contempt although they were not named parties to the underlying action), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971). Defendant cites no authority to the contrary.

The district court's injunction addressed itself to "respondent," and the style of the case showed Crystal Window Cleaning Company, Inc., as the sole respondent. For this reason, and despite the operation of Fed.R.Civ.P. 65(d), defendant argues that he was not bound by the terms of the injunction. He attempts to reinforce this argument with references to Judge Batchelder's memorandum of opinion entered on October 30, 1990, in which the court found that defendant, "in his individual capacity [was] not properly before the Court as a Respondent, either for purposes of the Petitioner's Motion to Adjudge Respondents in Civil Contempt or for any other purpose." J.A. 169. The court went on to state that its "May 4th Order did not enjoin Mr. Hochschild personally and further, the record contains no indication that Mr. Hochschild has ever been joined as an individual in this action." J.A. 170. The court concluded: "Mr. Hochschild has never been made a party to these proceedings, either in his corporate or his individual capacity. Until such time as Mr. Hochschild himself,...