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 the prior week (presumably
the week of March 18, 1991). Budd Aff. ¶ 6; Moss Supp. Decl. ¶
At the March 26, 1991 hearing counsel for both sides were
directed to submit further affidavits and briefs on the issues
of contempt and attorneys' fees and they have done so.
On September 30, 1991 the Second Circuit affirmed this
Court's grant of summary judgment confirming the arbitrator's
The issues of plaintiff's alleged contempt, Brown's back pay
and attorneys' fees for both sides are now fully briefed and
ripe for decision.
In its papers accompanying the Order to Show Cause,
defendant argued that Harrison was in contempt of this Court
on March 17, 1991 because it had refused to reinstate Brown.
Defendant asked for penalties of $186.00 per day from March 1,
1991 until the date of compliance as lost wages to Brown, and
$500.00 per day coercive sanctions payable to Local 3.
Defendant asked for Rule 11 sanctions against plaintiff's
attorney for seeking a stay based on frivolous assertions of
irreparable harm but that request was withdrawn at the March
26, 1991 hearing. Tr. at 17; Memorandum of Local 3 In Support
of Application to Hold Harrison Baking Company for Contempt
and for Rule 11 Sanctions and In Opposition to Motion for a
Stay at 3-4.
In its supplemental papers, defendant argues that the ten
day automatic stay is not applicable because this Court had
issued an injunction and that even if it were, plaintiff was
still in contempt. Defendant argues that plaintiff was in
contempt from March 6 to March 15, 1991 because there was no
automatic stay. Even if the stay is applicable, defendant
argues that the plaintiff was in contempt from March 16 to
March 27, 1991, when it finally reinstated Brown. Regardless,
defendant argues that it should be reimbursed for its
attorneys' fees on the Order to Show Cause because it was
necessary to force compliance with this Court's Order.
Supplemental Memorandum of Local 3 at 1-2.
Plaintiff responds that the automatic stay provision of Rule
62 meant that plaintiff was not obligated to comply until
March 18, 1991. Plaintiff argues that counsel for plaintiff
contacted counsel for defendant on March 19, 1991 and offered
to pay Brown as if he had worked from March 18, 1991.
Plaintiff contends that the Court's Order was not an
injunction, and hence exempt from Fed.R.Civ.P. 62(a), because
this Court did not comply with the Norris-LaGuardia Act or the
provisions of Fed.R.Civ.P. 65. Memorandum of Harrison Baking
In Opposition to Defendant's Application to Hold it In
Contempt at 1-4.
Contempt and the Applicability of Rule 62
Plaintiff argues that since this Court's Order confirming
the arbitrator's award was not automatically an injunction, it
was subject to the automatic ten day stay of Fed.R.Civ.P.
62(a) and so plaintiff was not in contempt from March 5
through March 15, 1991. Defendant contends that since the
award ordered reinstatement of Brown it was an injunction not
subject to the automatic stay and so plaintiff was in
contempt. While defendant does not specify the authority for
contempt, it is presumably relying on Fed.R.Civ.P. 70 and the
inherent power of the court. See Spallone v. United States,
493 U.S. 265, 276, 110 S.Ct. 625, ___, 107 L.Ed.2d 644 (1990).
As the Second Circuit has held, parties may be
held in civil contempt for failure to comply with
an order of the court if the order being enforced
is clear and unambiguous, the proof of
noncompliance is `clear and convincing,' and
[they] have not been reasonably diligent and
energetic in attempting to accomplish what was
United States v. O'Rourke, 943 F.2d 180, 189 (2d Cir. 1991)
(citing and quoting E.E.O.C. v. Local 580 Int'l Ass'n of
Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594
(2d Cir. 1991) and E.E.O.C. v. Local 638 . . . Local 28 of the
Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172, 1178 (2d Cir.
1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344
(1986)). "The sanctions imposed upon a contemnor may properly
serve to coerce future compliance or to remedy past
noncompliance." Perfect Fit Industries, Inc. v. Acme Quilting
Co., 646 F.2d 800, 810 (2d Cir. 1981), cert. denied,
459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982).
In arguing that the Court's order confirming the arbitration
award was an injunction, defendant relies on Boston Celtics
Limited Partnership v. Shaw, 908 F.2d 1041, 1049 (1st Cir.
1990), where the First Circuit held that when the district
court ordered an arbitration award enforced, "[t]he enforcement
award was the equivalent of a preliminary injunction and
amounted to a final judgment on the merits." However, in the
Boston Celtics case the district court had also issued a
separate preliminary injunction enforcing the award. Defendant
also relies on the Supreme Court's holding that where a
district court's order "directs" a party to take an action and
uses words like "must," the order clearly has injunctive effect
and cannot be defied. See Aberdeen & Rockfish R.R. Co. v.
SCRAP, 422 U.S. 289, 307, 95 S.Ct. 2336, 2349, 45 L.Ed.2d 191
Where the government moved for a stay pending appeal ten
days after the entry of a district court's order, the Ninth
Circuit found it was an abuse of discretion to hold the
defendants in criminal and civil contempt because the
defendants were not shown to be in "willful" defiance of the
Court's order. Clemente v. United States, 766 F.2d 1358, 1367
(9th Cir. 1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 881, 88
L.Ed.2d 917 (1986). In Clemente, the determination of
willfulness was critical because a mix of civil and criminal
contempt is judged by criminal standards. Id.
It is the Court's conclusion that the order granting summary
judgment and confirming the arbitrator's award was an order
specifying injunctive relief that was not subject to the
automatic stay of Rule 62. See Boston Celtics, 908 F.2d at
1049; Aberdeen, 422 U.S. at 307, 95 S.Ct. at 2349. An order to
reinstate an employee contained in an arbitration award is not
the kind of injunctive relief that is barred by the Norris
LaGuardia Act, which is primarily concerned with injunctions
against strikes. "[A]n injunction to enforce the terms of the
arbitration award — [is] relief which would not run afoul of
the restrictions in the [Norris-LaGuardia] Act." U.P.S. (New
York) v. Local 804, Intern. Broth. of Teamsters, 698 F.2d 100,
107 (2d Cir. 1983); see also Niagara Hooker Emp. Union v.
Occidental Chemical, 935 F.2d 1370, 1374-80 (2d Cir. 1991). The
arbitrator's award is sufficiently definite and specific to
comply with the requirements of Fed.R.Civ.P. 65(d) and it
became an injunction when it was confirmed by the Court. See
e.g. Golden State Bottling Co. v.
N.L.R.B., 414 U.S. 168, 177-181, 94 S.Ct. 414, 421-23, 38
L.Ed.2d 388 (1973).
In Service Employees International Union, Local 722 v.
Children's Hospital National Medical Center, 640 F. Supp. 272,
276-78 (D.D.C. 1984), the district court declined to hold the
defendant in contempt for not reinstating an employee pursuant
to a court order but imposed attorney's fees and costs incurred
by plaintiff in forcing compliance. Although the court found
that the circumstances made it clear that defendant was
obligated "to reinstate the union member and award her back
pay," the Court did not hold defendant in contempt because the
"Order was not as clear and crisp as an order should be which
is to be the predicate for a contempt citation." Id. at 278.
The Court's order in the case at bar granted summary
judgment to defendant and confirmed the arbitrator's award.
The order was not cast in terms of an injunction and could
plausibly, although erroneously, have been interpreted as
falling under the automatic ten day stay of Rule 62(a). As the
impact of the order was not as "clear and unambiguous" as is
required for civil contempt, the Court will not hold plaintiff
in contempt for not complying from March 5, 1991 to March 15,
1991. Once the plaintiff was faced with the Order to Show
Cause on March 18, 1991, it did tell counsel for defendant
that it would pay Brown under the "partial stay" proposal.
While this was not full compliance, it was not "clear and
convincing" evidence of noncompliance. See O'Rourke, 943 F.2d
Defendant has also asked for back pay for Brown from March
5, 1991 to March 15, 1991. Although the Court finds that the
plaintiff was reasonable in believing that the automatic stay
applied to the Court's order and so plaintiff is not in
contempt, plaintiff was obligated to reinstate Brown as of
March 5, 1991. The arbitrator's award and the Court's order
made it clear that plaintiff was obligated "to reinstate the
union member." Service Employees International Union, Local
722, 640 F. Supp. at 278. The motion for back pay from March 5,
1991 through March 15, 1991 is granted.
While plaintiff was not in contempt of the Court's order, it
did not comply until it received the Order to Show Cause
obtained by defendant.
Although plaintiff appears to have believed that its motion
to stay and appeal relieved it of the obligation to comply,
"the vitality of [a district court's] judgment is undiminished
by pendancy of the appeal. Unless a stay is granted either by
the court rendering the judgment or by the court to which the
appeal is taken, the judgment remains operative." Deering
Milliken, Inc. v. F.T.C., 647 F.2d 1124, 1129 (D.C. Cir. 1978);
C.H. Sanders v. B.H.A.P. Housing Dev. Fund Co., 750 F. Supp. 67,
69 (E.D.N.Y. 1990). "[T]he argument that an application for a
stay either here or in the Court of Appeals is itself a stay is
patently frivolous." Service Employees International Union,
Local 722, 640 F. Supp. at 278.
A motion for a stay is not a stay and plaintiff, under its
own interpretation of the Federal Rules, was required to
comply with this Court's order as of March 16, 1991. However,
on March 19, 1991 counsel for plaintiff informed defendant's
counsel that plaintiff would be willing to pay Brown until
this Court decided the motion for a stay. Counsel for
plaintiff also stated, "[i]f our request for a stay is not
granted, the Company [Harrison] will immediately comply with
the Court's Order." Budd Reply Aff. ¶¶ 9-10. Defendant was
reasonable in believing from previous conversations with Budd
and Seiden that plaintiff believed that an application for a
stay would relieve it of compliance. When defendant received
the motion for a stay returnable on March 29, 1991, he was
reasonable in believing that plaintiff would not comply with
this Court's Order absent an Order to Show Cause.
The defendant is entitled to its reasonable attorneys' fees
incurred in obtaining the Order to Show Cause to secure
plaintiff's compliance. Even where contempt is
not appropriate courts have awarded "the expense incurred by
[a party] in proceedings before this Court to secure
compliance by [the other party]." Service Employees
International Union, Local 722, 640 F. Supp. at 278. The
defendant in the case at bar is entitled to its reasonable
attorneys' fees in obtaining the Order to Show Cause. Defendant
is directed to serve and file proof of its attorneys' fees and
costs, including contemporaneous time sheets, within ten (10)
days of the date of this Opinion and Order. Plaintiff may file
and serve papers opposing the claimed amount within ten (10)
days thereafter. Defendant may have seven (7) days to reply.
As the Court finds defendant's action in securing the Order
to Show Cause was reasonable to obtain compliance, plaintiff's
motion for attorneys' fees in defending the Order to Show
Cause is denied.
Defendant's motion for contempt and plaintiff's motion for
attorneys' fees are denied. Defendant's motions for attorneys'
fees incurred in preparing the Order to Show Cause and for
back pay for Brown are granted.