568 F.2d 7 | 6th Cir. | 1977
In the spring of 1975, certain members of Local Union 1827, United Mine Workers of America (UMW), engaged in a series of unauthorized strikes at facilities operated by Island Creek Coal Company in Martin County, Kentucky.
The Local appeals
Appellees move for dismissal of this appeal on the ground that Appellant designated only a partial transcript for the record on appeal without serving upon Appellees a statement of issues to be presented, as required by Rule 10(b), Federal Rules of Appellate Procedure. We do not find dismissal warranted in this case. Appellees were neither misled nor prejudiced by Appellant’s failure to serve a statement of issues, and they have had ample time to seek supplementation of the record. See Committee Note of 1966 to New Rule 75(b), now Appellate Rule 10(b). Moreover, there is no evidence that Appellant’s omission here was made in bad faith. See Drybrough v. Ware, 111 F.2d 548, 550 (6th Cir. 1940). The motion to dismiss the appeal is therefore denied.
As to the substantive issue, we note that at the time of the contempt hearings, the District Court did not have the benefit of our opinions in Peabody Coal Co. v. Locals 1734, 1508 and 1584, UMW, 543 F.2d 10, 12 (6th Cir. 1976), cert. den., 430 U.S. 940, 97 S.Ct. 1571, 51 L.Ed.2d 787 (1977), and Southern Ohio Coal Co. v. UMW, 551 F.2d 695, 701 (6th Cir.), cert. den., — U.S. —, 98 S.Ct. 227, 54 L.Ed.2d 155 (1977). Both of these cases bear directly on the issue raised by Appellant. Accordingly, it is ordered that the judgment of the District Court as to Local 1827 be vacated and the case remanded for further consideration in light of Peabody Coal and Southern Ohio Coal.
No costs allowed.
. The facility struck was Island Creek’s Pevler Mine, at which the company operates a coal processing plant. The other plaintiffs apparently work under contract with Island Creek.
. Appellees maintain that the contempt order is not appealable, under the doctrine of Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936). There, the Supreme Court held that a party to a pending proceeding could not appeal a civil contempt order prior to final judgment on the underlying action. Although the District Court proceedings were not formally terminated at the time of this appeal, we find that the permanent injunction was a sufficiently final order to justify review at this stage. See Peabody Coal Co. v. Locals 1734, 1508 & 1548, UMW, 484 F.2d 78, 84 (6th Cir. 1973).