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November 12, 1991


The opinion of the court was delivered by: Haight, District Judge:


This case is before the Court on defendant's motion to hold plaintiff in contempt, to obtain for Douglas Brown his full back pay from the date of this Court's original judgment, and for attorneys' fees. Plaintiff has also moved for attorneys' fees.


The events at issue in this case arise out of efforts of the Bakery and Confectionery Workers, Local No. 3, AFL-CIO ("Local 3") to obtain reinstatement for Douglas Brown, an employee of plaintiff Harrison Baking Company ("Harrison"). On September 5, 1990 an arbitrator, selected pursuant to a collective bargaining agreement between plaintiff and defendant, ruled in favor of Brown and ordered that he be reinstated to his prior position with defendant within thirty days of the date of the award.

On October 10, 1991 Harrison filed this suit to set aside and vacate the arbitrator's award. The parties cross moved for summary judgment and in an Opinion, Order and Judgment dated March 1, 1991 this Court confirmed the arbitrator's award. In its opinion the Court stated "Brown has wrongfully been denied reinstatement since the running of 30 days from the date of the arbitrator's award." Slip. op. at 14. The Opinion, Order and Judgment were docketed on March 5, 1991.

Counsel for plaintiff, Thomas W. Budd, states that on March 6, 1991 he received a copy of this Court's order and that on the same day counsel for defendant called him concerning compliance with it. Budd states that he told counsel for defendant that he would discuss the matter with his client. On March 7, 1991 Budd reports that he discussed this Court's order with his client and that client asked that he appeal the order and seek a stay of reinstatement. Reply Affidavit of Thomas W. Budd dated March 19, 1991 ("Budd Reply Aff.") ¶¶ 2-3. On March 8, 1991 an associate of Budd's, Suzanne B. Seiden, had a phone conversation with counsel for defendant and informed him that Harrison would be appealing the Court's order and would be seeking a motion to stay pending appeal. Seiden admits that in that conversation counsel for defendant stated that the Union would be filing a motion to hold Harrison in contempt of the March 1, 1991 Order and Judgment, although she states that she did not respond definitely to counsel for defendant's statement because she did not understand why he was planning to file a contempt motion so soon. Affidavit of Suzanne B. Seiden dated April 1, 1991 ("Seiden Aff.") ¶ 4.

Counsel for defendant does not dispute that he had several conversations with counsel for plaintiff but he disputes the content of those conversations. Counsel for defendant states that between March 8 and March 13, 1991 he had several conversations with Seiden, during which he threatened contempt and asked whether Harrison intended to comply with this Court's order pending a decision on Harrison's motion for a stay. Counsel for defendant avers that the answer was repeatedly no. Counsel for defendant states that in one conversation, either Seiden or Budd told him that Harrison would "probably" reinstate Brown if the motion for a stay was denied but that no firm commitment was made. Supplemental Declaration of Franklin K. Moss ("Moss Supp. Decl.") ¶ 2. Seiden responds that at no time did she inform Moss that her client would not comply with the Court's order. Seiden Aff. ¶ 9.

On March 15, 1991 plaintiff filed and served its Notice of Motion to Stay Pending Appeal with the Court and also filed a Notice of Appeal to the Second Circuit of this Court's denial of plaintiff's summary judgment motion and granting of defendant's summary judgment motion. Budd contends that plaintiff moved expeditiously to file this motion because the decision was docketed on March 5, 1991 and the motion was filed ten days later on March 15, 1991. Budd also notes that the discussions of a proposed "partial stay" delayed the filing of the motion but were in fact good faith settlement negotiations. Budd contends that the motion for a stay was timely because of the automatic ten day stay provided for under Fed.R.Civ.P. 62(a), which Budd contends is applicable to this case. Budd Reply Aff. ¶¶ 7-9.

At the time counsel for defendant moved for contempt, Budd stated that the contempt motion was merely an attempt to prevent plaintiff from applying for a stay that it asserts it is entitled to under Rule 62(a). Budd also stated that if the Court denied the stay, it would of course comply with the Court's Order although it planned to seek an emergency stay from the Second Circuit. However, Budd asserted that if the stay was not granted and if an emergency stay could not be obtained, plaintiff would immediately reinstate Brown under the terms of the Court Order. Budd Reply Aff. ¶¶ 10-11. Counsel for defendant avers that at no time did Budd or Seiden mention that they believed that the ten day automatic stay of Fed.R.Civ.P. 62(a) was applicable to the Court's Order. Moss Supp. Decl. ¶ 4.

Counsel for defendant states that when he received a motion for a stay on the afternoon of March 15, 1991 returnable March 29, 1991, it was clear to him that Harrison would not comply absent a contempt motion and so he spent that weekend preparing an Order to Show Cause. Moss Supp. Decl. ¶ 3.

On March 18, 1991 the Court signed defendant's Order to Show Cause and made it returnable on March 21, 1991. Budd states that after he became aware of the Order to Show Cause he contacted counsel for defendant and informed him that plaintiff would pay Brown as if he had worked from March 18, 1991 until the Court decided on whether or not to grant a stay of the Court's Order. Counsel for defendant stated that payment without reinstatement would be satisfactory but that he believed that Brown should be paid from on or about March 5, 1991 the date the Court's Order was docketed. Counsel for plaintiff asserted that under Fed.R.Civ.P. 62(a) there was an automatic stay on the Court's Order running through March 15, 1991 and since that was a Friday the first date on which compliance was required was March 18, 1991. Counsel for defendant disagreed with that position but indicated that he was willing to discuss the matter further. Budd contends that during this conversation counsel for defendant at no time indicated that he would be seeking payment of attorneys' fees for the work on the Order to Show Cause. Budd states that on March 20, 1991 counsel for defendant informed him that if Harrison would not agree to pay Brown from March 5, 1991 he would insist upon payment of his attorneys' fees and plaintiff refused that request. Budd Aff. ¶¶ 4-5.

On March 26, 1991, before the Court heard the motions for a stay and for contempt, Budd gave counsel for defendant a check representing Brown's straight time pay, excluding overtime, for the week ending March 22, 1991 (that is, the week beginning March 18, 1991). Despite counsel for defendant's demand for overtime pay, the check did not contain overtime pay. Moss Supp. Decl. ¶ 5; Transcript of Hearing March 26, 1991 ("Tr.") at 5.

At 4:00 p.m. on March 26, 1991 the Court denied plaintiff's motion for a stay pending appeal and reserved on defendant's motion for contempt. Tr. at 16-18. Counsel for both sides agree that on March 27, 1991 Brown was restored to his regular shift at Harrison. While Brown was paid from March 18, 1991, counsel for defendant reports that Harrison has not paid him his back pay or his overtime for ...

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