Union of Professional Airmen v. Alaska Aeronautical Industries, Inc.

• Decision Date: 14 August 1980
• Docket Number: AFL-CI,P,No. 77-3516,77-3516
• Parties: 105 L.R.R.M. (BNA) 2646, 89 Lab.Cas. P 12,208 UNION OF PROFESSIONAL AIRMEN, an Affiliate of the Air Line Pilots Association, International,laintiff-Appellee, v. ALASKA AERONAUTICAL INDUSTRIES, INC., and Houston D. Haynes, Defendants- Appellants. CIV A77-41.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 881

625 F.2d 881

105 L.R.R.M. (BNA) 2646, 89 Lab.Cas. P 12,208

UNION OF PROFESSIONAL AIRMEN, an Affiliate of the Air Line Pilots Association, International, AFL-CIO Plaintiff-Appellee, v. ALASKA AERONAUTICAL INDUSTRIES, INC., and Houston D. Haynes Defendants- Appellants.

No. 77-3516.

CIV A77-41.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 22, 1979.

Decided Aug. 14, 1980.

Winship Tood, Seattle, Wash., argued, for defendants-appellants; John M. Stern, Jr., Anchorage, Alaska, on brief.

James W. Tello, Washington, D.C., argued, for plaintiff-appellee; Daniel M. Katz, Washington, D.C., on brief.

Appeal from the United States District Court for the District of Alaska.

Before CHAMBERS and TANG, Circuit Judges, and THOMPSON, ^* District Judge.

CHAMBERS, Circuit Judge:

Alaska Aeronautical Industries, Inc. (hereafter AAI) and its president, Houston D. Haynes, appeal from an order of the district court finding them in contempt for failure to comply with a preliminary injunction in this unfair labor practices action brought under the Railway Labor Act. The district court issued a preliminary injunction on June 6, 1977, ordering AAI to cease interference with the union's organizational activities and to cease undermining support for the union. It also ordered the appellant to reinstate seven pilots unconditionally.

On August 18, 1977, the union moved for an order holding AAI and Haynes (who was not a named defendant), in "civil contempt." A hearing was provided, at which time counsel for the union urged the court to proceed in criminal contempt. The district judge declined to do so, saying he would consider the motion for civil contempt first. On October 4, 1977, he issued an order adjudging both the company and Haynes to be in "civil contempt" and ordered them to pay damages in the amount of $10,000 and attorneys' fees of $7500 to the union within seven days. He also ordered a report, within 30 days, as to the appellants' compliance with the preliminary injunction and to the order of civil contempt. The criminal contempt question was to be held in abeyance for thirty days.

Appellants moved for a stay, paying $17,500 into the registry of the district court and asking that the court retain it and withhold payment over to appellees pending an appeal to this court. ¹ The district judge denied the stay, declined to consider the payment of the $17,500 to the Clerk as a supersedeas bond, and ordered that appellants might withdraw the $17,500 from the Clerk. The withdrawal was made and the sum paid to appellees. We find no record of any application to this court for a stay, but it is clear that appellants at all times intended to appeal from the contempt order. On the facts of this case, i. e. the contempt order's requirement for payment within seven days, the refusal of the district court to accede to appellants' motion for a stay or to accept their payment of the $17,500, etc., we are not inclined to infer a waiver of any right to appeal from the fact of payment of the $17,500 to the appellees.

There are other jurisdictional problems that give us more concern. Both AAI and Haynes seek to appeal from the contempt order. The immediate question raised by their appeal is that of appellate jurisdiction. If, as appellants argue, the order appealed from was punitive and sought to punish the contemnors, then the order was actually for "criminal" contempt. United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980). If the order was indeed one for criminal contempt it was appealable when entered, by both AAI and Haynes. See Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941); Hoffman, etc. v. Beer Drivers & Salesmen's Local Union, etc., 536 F.2d 1268 (9th Cir. 1976).

If, on the other hand, the order was intended to be remedial, by seeking to coerce the recalcitrant company and its president into compliance, or by seeking to compensate the union for its losses due to their recalcitrance, then it would properly be considered an order for civil contempt. United States v. United Mine Workers, supra, 330 U.S. at 303-304, 67 S.Ct. at 701. United States v. Asay, supra, 614 F.2d at 659. As such it would be considered an interlocutory order, a part of the underlying civil action and, thus, not a "final order" within the sense of 28 U.S.C. § 1291. ² Goldblum v. National Broadcasting Corp., 584 F.2d 904, 906 (9th Cir. 1978); Hoffman, etc. v. Beer Drivers & Salesmen's Local Union, etc., supra ; Hughes v. Sharp, 476 F.2d 975 (9th Cir. 1973). If the order is one for civil contempt, a party may appeal the contempt issue as part of any appeal from the final judgment. See David v. Hooker, Ltd., 560 F.2d 412, 415 (9th Cir. 1977).

We reject appellants' argument that this order was one for criminal contempt. Although we are aware that we need not be bound by the label the district judge attached, but must look to the substance of the order (Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966)), we conclude that the substance of this order is precisely what the district judge said it was an order for civil contempt. It seeks both to compensate the union for its damages during the four months of appellants' recalcitrance and it also seeks to coerce them into compliance. The district judge seems clearly to have contemplated further action against the contemnors for criminal contempt, depending on their response to the civil contempt order.

Appellants argue that the amount of the fine and the requirement of immediate payment, are indicative of a punitive intent. We disagree. It would be difficult to compute the damages to the union from four months' failure to rehire the seven pilots or the damages to the union for continued interference with its organizational activities, etc. A round sum such as this will not be deemed "punitive" on this record, nor will the round sum awarded as attorneys' fees. We are not here determining that the requirement of the payment of these sums was appropriate or inappropriate; we say only that they do not serve to convert what we determine to be a civil contempt order, into a...