In re UNION NACIONAL de TRABAJADORES et al., Petitioners.
No. 74-1073 Original.
United States Court of Appeals, First Circuit.
Aug. 14, 1974.
503 F.2d 113
Affirmed.
Levin H. Campbell, Circuit Judge, filed a dissenting opinion.
Julio Morales-Sanchez, U. S. Atty., and Ignacio Rivera Cordero, Asst. U. S. Atty., on brief for United States.
Frank J. Donner, Robert Z. Lewis, James G. Mauro, Jr., Winn Newman, Washington, D. C., Ruth Weyland, Harold I. Cammer, New York City, Norman Leonard, San Francisco, Cal., John G. Ratcliff, Martha Bergmark, Elliot Addahman, Hattiesburg, Miss., Eugene G. Eisner, I. Philip Sipser, and Stephen L. Fine, New York City, on brief for United Electrical, Radio and Machine Workers of America (UE) and others, Union, amici curiae.
Lance Compa, Newtonville, Mass., Claudia Conway, Warren Leiden, Joann Margulies, Emily Novick, Ellen Schmidt, Bobby Solet, Boston National Lawyers’ Guild, George B. Washington, and Kathleen Weremuik Segal, Cambridge, Mass., on brief for the Labor Committee of the National Lawyers Guild, amici curiae.
Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
Petitioners, a union and its officers, cited for criminal contempt arising out of alleged violations of an injunction granted pending decision on an unfair labor practice charge, sought mandamus to compel the holding of the trial in Spanish and before a jury. We denied extraordinary relief as to the language issue and asked for briefs as to the jury trial issue. The petitioners, the National Labor Relations Board, the United States Attorney, and two amici have submitted briefs.
The present issue is whether this court should grant a writ of mandamus to compel the district court to grant a jury trial to the Union Nacional de Trabajadores and its officers (hereinafter UNT) on an alleged criminal contempt. The alleged contempt arose out of a district court order, pursuant to section
The Supreme Court, in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), has set restrictive general guidelines on the use of mandamus:
“The peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ . . . While the courts have never confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ it is clear that only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” 389 U.S. at 95, 88 S.Ct. at 273. (Citations omitted.)
This is in substantial agreement with the Court‘s previous statements indicating that the petitioner for mandamus has “the burden of showing that its right to issuance of the writ is ‘clear and undisputable.‘” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 149, 98 L.Ed. 106 (1953).
There seems to be some relaxation of this requirement when the petitioner seeks enforcement of a right to a jury trial. In a civil case, there is no doubt that mandamus is appropriate if a jury trial is being wrongfully denied,
We take the position that mandamus would be appropriate if a jury trial were required, and any denial of mandamus should be made only if either the case has not been adequately presented or there is no such right to a jury trial. Since the issue has been adequately raised, and fully briefed, we shall rest decision on our view of the merits.
It is clear that UNT has no constitutional right to a jury trial. The district court has stated that in any event none of the defendants in the contempt case will be sentenced to more than six months imprisonment or fined in excess of $500. This court has adopted the maximum penalty rule in the context of contempt for disobeying a labor injunction, In re Puerto Rico Newspaper Guild Local 225, 476 F.2d 856 (1st Cir. 1973). Whether, therefore, the charged contempt is a major or petty offense must be considered to be a function of what the maximum penalties may be rather than, as the National Lawyers Guild, as amicus curiae, argues, a function of the importance of the defendant‘s charged behavior on some external scale of values. Offenses punishable by no more than six months imprisonment or a $500 fine may be considered petty offenses, for purposes of determining whether a constitutional right to a jury trial attaches. Frank v. United States, 395 U.S. 147, 149-150, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); In re Puerto Rico Newspaper Guild, supra.
The central issue in this case is whether UNT is guaranteed a right to a jury trial because of
“In all cases of contempt arising under the laws of the United States governing the issuance of injunctions
or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed . . . .”
It is our task to try to interpret section 3692. In so doing we shall need to determine whether it carries a broader meaning than the old section 111, and if so, whether section 10(h) in turn narrows the impact of any such broader coverage. We are not helped to any substantial degree by legislative history2 or by decided cases.
Two cases are in point. In Madden v. Grain Elevator, Flour and Feed Mill Workers, ILA, Local 418, 334 F.2d 1014, 1020 (7th Cir. 1964), the court, without extensive consideration of alternatives, summarily concluded:
“Section 3692 covers matters formerly found in § 11 of the Norris-LaGuardia Act. It is inapplicable to a proceeding under the National Labor Management Relations Act [i. e., NLRA]. This inapplicability is evidenced by § 10(h) (29 U.S.C.A. § 160 (h)), of said Act which excludes such proceedings as injunction and enforcement from the limitations of the Norris-LaGuardia Act.” (Citations omitted.)
The court in Hoffman v. International Longshoremen‘s & Warehousemen‘s Union, Local No. 10, 492 F.2d 929 (9th Cir. 1974), spoke to the same end, stressing the difference in purposes served by the Norris-LaGuardia Act and NLRA:
“The purposes of the Norris-LaGuardia Act to limit and restrict the equitable powers of the courts to intervene in labor disputes between private employers and unions are not the same as the powers involved in the administrative scheme of the Labor Management Relations Act [NLRA] and its amendments. There is no reason to believe that Congress intended its grant of equitable powers to district courts as embodied in section 10(l) of the Act,
29 U.S.C. § 160(l) , to be repealed by the recodification of section 11 of the Norris-LaGuardia Act,29 U.S.C. § 111 , into18 U.S.C. § 3692 . . . .” (Citations omitted.) 492 F.2d at 934.
Neither case, in our opinion, revealed sufficient analysis underlying the conclusion to be preclusive or persuasive. Madden simply states a conclusion, while, as we note below, Hoffman‘s fear of any limitation on the Board‘s equitable powers is misplaced.3
Addressing first the reach of
That the language of
Our second inquiry is directed to the words “In all cases of contempt arising under the laws of the United States“. Section 3692 is directly derived from section 11 of the Norris-LaGuardia Act, formerly
This is, however, not an ordinary statute, but one infused with a national policy arrived at after a painful and lengthy period of strife and debate. Absent any contemporary and significant legislative history, it seems to us entirely plausible that the Congress recognized that the conditions which led it to grant authority to the Board to petition for injunctive relief would also lead to its not infrequent use. This has, of course proven to be the case, with Board-requested injunctions now being far more common than those requested by employ-
We distinguish cases arising out of unfair labor practices from those arising under statutes vesting the government with authority to enforce compliance with more sharply defined federal standards which are not subject to bargaining as in Mitchell v. Barbee Lumber Co., 35 F.R.D. 544 (S.D. Miss.1964) and In re Piccinini, 35 F.R.D. 548 (W.D.Pa.1964) [Fair Labor Standards Act].
We therefore read
This, however, does not settle the question before us. For we have to deal with section 10 of the Taft-Hartley Act as amended the year before
“Sections 10(g), (h), and (i) of the present act, concerning the effect upon the Board‘s orders of enforcement and review proceedings, making inapplicable the provisions of the Norris-LaGuardia Act in proceedings before the courts, were unchanged . . . .”
The Board argues that section 10(h) “Thus expressly excludes judicial proceedings under the NLRA, both injunction and enforcement, from the limitations, of the Norris-LaGuardia Act“. It also claims that the entire regulatory scheme created for Board supervision of labor-management relations would be aborted if the Board had to commit “to a panel of untrained laymen, a jury, the final enforcement step of the Act.” This seems to us to overstate the problem, to ignore the policy considerations bearing on a criminal contempt proceeding and, in the light of the policy considerations, to read section 10(h) as carving out an exemption broader than its language suggests.
It is of course clear that courts must have the power to enforce injunctive orders by civil contempt proceedings. Alleged unfair labor practices may be halted, with full recourse to coercive sanctions necessary to enforce compliance with court orders. What we are dealing with in this case is the question of punishment after the event, not a proceeding which will interrupt or delay enforcement of injunctions. This involves nothing of the kind of expertise which is supplied by the Board in determining whether or not an act constitutes an unfair labor practice. It involves only the determination whether individuals or groups did in fact disobey, with requisite knowledge and intent, a court order so as to impose criminal sanctions.5 The fact situations and evidence involved in such determinations are ordinary grist for the judgments of juries. Indeed, since a section 10(h) injunction may be obtained without the high threshold of a showing of harm re-
Finally, it seems to us that section 10(h) cannot comfortably be read as insulating criminal contempt proceedings following the issuance of a Board-requested injunction from the requirement of a jury trial. In the first place, at least in this context, it may be doubted whether the vindication or punishment function served by criminal contempt proceedings can be said to be embraced within the section 10(h) language of “granting . . . a restraining order, or . . . enforcing, modifying, enforcing as so modified, or setting aside . . . an order“. Whether or not this is so, because of the deeply ingrained Norris-LaGuardia policy of requiring jury trials in criminal contempt cases, because of the appropriateness of jury decision in such cases, and because of the effect, marginal if any, on Board oversight of labor relations, we read narrowly the critical words “the jurisdiction of courts sitting in equity.”
We find it difficult to think of a court sitting to mete out punishment for past offenses as a court “sitting in equity“. Criminal contempt proceedings can arise from proceedings begun in either law or equity. While “contempt” generically may “sound in” equity, a criminal contempt proceeding really stems from the inherent power of a court, not merely a chancellor, to vindicate its authority. It is sui generis. United States v. Barnett, 346 F.2d 99 (5th Cir. 1965). The very fact that section 3692 is now placed under Title 18, Crimes and Criminal Procedure, adds to our conviction that proceedings thereunder cannot be equated with proceedings before a court specifically described as “sitting in equity“.
But we have more direct authority. The Supreme Court in Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162 (1924), faced the question whether the predecessor of
“—since the proceeding for criminal contempt, unlike that for civil contempt, is between the public and the defendant, is an independent proceeding at law, and no part of the original cause, (Gompers v. Buck‘s Stove & Range Co., 221 U.S. 418, 444-446, 451, 31 S.Ct. 492, 55 L.Ed. 797 (1911))—we are at once relieved of the doubt which might otherwise arise in respect of the authority of Congress to set aside the settled rule that a suit in equity is to be tried by the chancellor without a jury unless he choose to call one as purely advisory.”
While the Court was dealing with criminal contempts which were also, independently, criminal offenses, we think its observations support our conclusion that any exemption from a jury trial requirement in criminal contempt proceedings is not adequately accomplished by
Finally, we cannot refrain from observing that, had Congress wished to exempt NLRA completely from Norris-LaGuardia it knew how to do so.
Our conclusion, that
So ordered.
LEVIN H. CAMPBELL, Circuit Judge (dissenting).
I reluctantly dissent because I am unable to accept the broad interpretation placed upon
In any event, for more than twenty years, the NLRB has construed the statute not to require jury trials. The Supreme Court has stated that “[w]hen faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Ten years ago a federal circuit court supported the agency‘s position. Madden v. Grain Elevator, Flour and Feed Mill Workers, ILA, Local 418, 334 F.2d 1014 (7th Cir. 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965). If the statute had been passed recently, I might have found it easier to join the court‘s position. But it is not a new section, and the agency is not advancing a novel or unreasonable construction. Any change in the interpretation of the law should, in my judgment, come only from Congress.
If a literal reading of section 3692 is adopted to justify extending coverage to the Taft-Hartley Act, further problems arise. When the plain meaning of the words are analyzed, it is logically difficult to interpret “all cases of contempt” as limited to all cases of criminal contempt. The majority reasons that when courts enforce injunctive orders by civil contempt, they are “acting in equity” and, thus,
To the extent that the opinion distinguishes between civil and criminal contempt on the basis of policy considerations underlying jury trials in criminal contempt proceedings, I would prefer to rest solely on the lines of distinction drawn by the Constitution. The Supreme Court‘s sensitivity to the rights of alleged contemnors, cf. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), is sufficient protection against the agency‘s undercutting fundamental policy considerations. Jury trials take more time and cost more money, and they are not ideally geared to this sort of procedure. I see no reason to add one more burden to an already overburdened system when, so far as appears, there is no need to do so.