Lumbard, Feinberg and Mansfield,*fn* Circuit Judges. Mansfield, C. J. (, Concurring and Dissenting).
In January, 1971, Judge Cannella in the Southern District of New York entered a series of judgments of civil contempt against the Communications Workers of America, CWA Local 1101 which represents the plant department employees of plaintiff New York Telephone Company in three boroughs of New York City (Manhattan, Bronx, and Brooklyn), and Howard Banker, the president of Local 1101. Judge Cannella took this action to halt a strike that he considered to be in violation of a restraining order issued on June 12, 1970, and thereafter extended by consent. By the time the strike ended, fines aggregating $625,000 had been imposed against the CWA, $1,012,500 had been levied against Local 1101, and Howard Banker was fined $99,250. Execution issued immediately upon the judgments of contempt. On February 17, 1971, a panel of this court issued a stay pending consideration of an expedited appeal.
Appellants' arguments, essentially, are that the temporary restraining order of June 12, 1970 could not and did not apply to the January strike. They also contend that the fines were improperly imposed, that Judge Cannella erred in denying them a hearing on certain contentions, and that the international union either was not in contempt or had sufficiently purged itself. Plaintiff New York Telephone Company argues that the contempt judgments are not appealable, that the district court properly found the defendants to be in contempt of a valid and outstanding restraining order, and that the fines were properly levied so as to coerce compliance with the order.
We hold that these judgments of civil contempt are appealable. We also hold that defendants were not in contempt of the restraining order of June 12, 1970, as extended by consent. Accordingly, we reverse.
On May 27, 1970, the Telephone Company announced a temporary involuntary transfer of approximately thirteen switchmen who repair and maintain equipment, from certain central office buildings in Brooklyn where they normally worked to three other central office buildings in Brooklyn. The latter offices needed extraordinary maintenance of new equipment to prevent overloading, so the company felt justified in selecting its most highly skilled and experienced switchmen. Local 1101 and its president, Howard Banker, protested, contending that employees should be transferred on the basis of inverse order of seniority. When attempts at settlement failed, Local 1101 commenced a boycott of all overtime work on June 11, 1970. It appears that a substantial proportion of maintenance work is performed by employees doing overtime, so that the company considered this boycott to be potentially serious.
On June 12, the company filed a complaint in the Southern District and sought a temporary restraining order, which was granted that day ex parte by Judge McGohey. Because of its importance to our decision, we describe in detail the complaint and accompanying affidavits.
Paragraph 1 of the complaint begins: "This action to enjoin a work stoppage in the form of a boycott of overtime work in violation of contract" is within the district court's jurisdiction. The succeeding paragraphs describe the parties, quote the no-strike and arbitration provisions of the collective bargaining agreement, and the history of the switchmen's transfer dispute. Paragraph 14 then states that "defendants' unlawful acts, as set forth above, are jeopardizing plaintiff's ability to furnish telephone communication," and that there is no adequate remedy at law. Paragraph 15 is an allegation of irreparable injury to the company and the public from "this illegal work stoppage." On the basis of the foregoing, the complaint prayed for an injunction against "engaging in, or organizing, inducing, or encouraging others to engage in any strike, work stoppage, boycott of overtime work, slowdown or any other form of interference with the business of plaintiff."
Saul Scheier, an attorney for the company, submitted an attorney's certificate pursuant to Rule 65 (b), Fed. R. Civ. P., stating that he had advised one of defendants' attorneys by telephone that the company would apply for "a temporary restraining order against the work stoppage currently in effect."
The company's assistant vice president for personnel relations, W. Ricks Littel, submitted an affidavit "in support of plaintiff's application for a temporary restraining order against a work stoppage in effect by over 14,000 employees in Manhattan, The Bronx and Brooklyn in the form of an overtime boycott" (paragraph 1). Paragraph 2 alleges that the transfer dispute is arbitrable under the collective bargaining agreement and that the unions have refused to arbitrate. That paragraph concludes:
"The issuance of an immediate temporary restraining order to prevent the concerted refusal to work overtime as required by the collective bargaining agreement will prevent the loss of a large number of man hours which would otherwise be available over the weekend in the form of mandatory overtime . . ."
The Littel affidavit proceeds to describe the parties, the collective bargaining agreement, the transfer dispute, and the harm engendered by an overtime boycott. Paragraph 24 states that the company has taken emergency measures to improve service, but:
"The response of the defendant unions has been to engage in an unprecedented number of work stoppages of various types including overtime embargoes such as the one involved in this action. The prompt and effective enforcement of the no strike clause of the collective bargaining agreement can stop the increasing resort by defendant unions to these illegal work stoppages . . . The dispute which has given rise to the present work stoppage can and should be settled by immediate arbitration as the collective bargaining agreement provides."
Finally, paragraph 25 of the Littel affidavit concludes:
"The Restraining Order now being requested from the Court is essential to prevent serious, immediate and irreparable injury to the Company and to the public as the result of the present work stoppage."
Despite the limited nature of the complaint and supporting affidavits, the temporary restraining order as drawn up by the company and signed by Judge McGohey, echoing the language used in the complaint's "wherefore" clause, enjoined the defendants "from engaging in, or organizing, inducing or encouraging others to engage in any strike, work stoppage, boycott of overtime work, slowdown or any other form of interference with the business of plaintiff."
On June 22, 1970, Judge Lasker extended the temporary restraining order until July 2. On June 30, the parties, who were then engaged in discussions looking toward settlement of the switchmen's transfer dispute, stipulated that plaintiff's motion for a preliminary injunction be adjourned indefinitely, subject to the right of defendants to request a hearing on the preliminary injunction at any time. The temporary restraining order would be extended until such time as the motion for a preliminary injunction was decided. Judge Lasker so ordered on July 1.
The union ceased its overtime boycott upon issuance of the restraining order, and the parties subsequently reached agreement on the thirteen switchmen. By August, these switchmen had returned to their original stations.
On January 11, 1971, members of Local 1101 commenced a strike over the company's importation of workers from other areas to upgrade service in New York City -- the so-called "Service Improvement Program." The company instituted this program in January after a supplemental agreement had been negotiated with the CWA.*fn1 The main complaint of Local 1101 was that ...