United States of America, Plaintiff-appellee, v. Derald W. Wilson, Defendant-appellant.united States of America, Plaintiff-appellee, v. Gary O. Black, Defendant-appellant, 908 F.2d 968 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 908 F.2d 968 (4th Cir. 1990) Argued: May 10, 1990. Decided: June 22, 1990

Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Glen M. Williams, Senior District Judge. (CR-89-66-V; CR-89-59-V).

Scott Wayne Mullins, Coeburn, Virginia, argued for appellants.

Jerry Walter Kilgore, Assistant United States Attorney, Abingdon, Virginia, argued, for appellee; John Perry Alderman, United States Attorney, Abingdon, Virginia, on brief.

W.D. Va.

AFFIRMED.

Before ERVIN, Chief Judge, K.K. HALL, Circuit Judge, and DUPREE, Senior United States District Judge for the Eastern District of North Carolina, sitting by designation.

PER CURIAM:


This is an appeal from a judgment of the district court holding Derald W. Wilson and Gary O. Black in criminal contempt for violating a temporary injunction previously entered by that court at the request of the National Labor Relations Board ("NLRB") on behalf of Clinchfield Coal Company ("Clinchfield"). On appeal, the contemnors argue that: (1) they were entitled to a jury trial; (2) the government failed to prove that they had actual or constructive notice of the injunction; (3) the injunction was unconstitutionally vague; and (4) the government did not establish contempt beyond a reasonable doubt. Because the proceedings below are free of error, the decision of the district court is affirmed.

On April 5, 1989, the International Union, United Mine Workers of America ("Union") called a general labor strike against the Pittston Coal Group ("Pittston") and its various subsidiaries, including Clinchfield. On May 24, 1989, the United States District Court for the Western District of Virginia, at the request of the NLRB, entered a temporary restraining order ("TRO") prohibiting the Union, its members, and any persons who were acting in concert with the Union or were otherwise participating in the strike from mass picketing, physically blocking access to and from Clinchfield's work sites in Virginia, inflicting damage or injury to property owned by either Clinchfield or its non-striking workers, following Clinchfield employees, and obstructing, hindering or preventing Clinchfield employees or any other persons doing business with Clinchfield from travelling to or from their places of employment or from working. The TRO expired by its own terms on June 1, 1989.

On June 7, 1989, the district court entered a temporary injunction, again on petition of the NLRB, which was substantially identical to the TRO.1  The only significant difference between the TRO and the temporary injunction was that the TRO referred to Clinchfield by name, and the temporary injunction referred only to "the Charging Party," an undefined term. The temporary injunction had no express expiration date, and was drafted by the NLRB.

Both contemnors were arrested, on separate occasions, for driving excessively slow in front of Clinchfield and Pittston coal trucks in violation of the temporary injunction. The arresting Virginia state police officers and federal marshals testified that the contemnors had been driving at a speed of approximately five to ten miles per hour, thereby causing traffic congestion involving up to fifty cars and trucks. Apparently, the striking coal miners and the Union's sympathizers were participating in vehicular slow-downs in order to impede the hauling of coal and to disrupt Clinchfield's business.

The contemnors were separately charged with violating the temporary injunction, and their cases were consolidated for trial. The district court denied their motion for a jury trial because the criminal complaints charged each defendant with only a single petty offense. Following a bench trial, the district court found the contemnors in violation of the temporary injunction, and sentenced each of them to sixty days in jail with all but ten days suspended, six months of supervised probation, and a special assessment of $10.00. This consolidated appeal followed.

The contemnors maintain that they were entitled to a jury trial under Federal Rule of Criminal Procedure 42(b)2  and 18 U.S.C. § 3692.3  The Supreme Court, however, has addressed this issue and concluded that section 3692 does not provide for trial by jury in contempt proceedings brought to enforce injunctions issued by the district courts at the behest of the NLRB in labor disputes arising under the Labor Management Relations Act of 1947, 29 U.S.C. §§ 141 et seq. See Muniz v. Hoffman, 422 U.S. 454, 474 (1975). In Muniz, the Court reaffirmed the historic rule that minor crimes such as "petty" contempts may be tried without a jury notwithstanding the provisions of article III, section 2 and the sixth amendment. Id. at 475-76; accord United States v. Troxler Hosiery Co., 681 F.2d 934, 935-36 (4th Cir. 1982); Richmond Black Police Officer's Ass'n v. City of Richmond, 548 F.2d 123, 127 (4th Cir. 1977). Criminal offenses punished by imprisonment of up to six months plus normal periods of probation are deemed to be minor. Muniz, 422 U.S. at 476; In re Scott, 605 F.2d 736, 738 (4th Cir. 1979). In this case, the contemnors were sentenced to sixty days in jail with all but ten days suspended, followed by six months of supervised probation. Thus, under Muniz and its progeny, the defendants were not entitled to a trial by jury.

The contemnors also argue that they were deprived of their right to procedural due process because they had no prior notice of the proscriptions detailed in the temporary injunction. Under Federal Rule of Civil Procedure 65(d), an injunction "is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." Thus, Rule 65(d) embodies the fundamental due process requirement of notice. United States Steel Corp. v. United Mine Workers of America, 519 F.2d 1236, 1246 (5th Cir. 1975), cert. denied, 428 U.S. 910 (1976); United States v. McAndrew, 480 F. Supp. 1189, 1192 (E.D. Va. 1979). In McAndrew, the court provided a keen discussion of the notice requirement of Rule 65(d):

The object of this Rule may, in some instances, be satisfied by evidence that the parties charged with violating an order had actual knowledge of its terms and their obligation to carry out its command; and that they or those with whom they are in privity, have waived compliance with this Rule's formal requirements. The Court's inherent power to vindicate its authority, necessary to the preservation of the judicial institution, should not be inflexibly bound by procedural niceties where no actual prejudice to the defendants results and the evidence of a knowing and wilfull [sic] violation is clear.

Id. The rationale enunciated in McAndrew is directly applicable to this case.

Herein, both contemnors departed from their respective homes in Illinois and travelled to the southwestern part of Virginia on July 5, 1989. Both stayed at the Union's campground and ate at the local community center which had been set up to feed and assist the striking coal miners. Both were in contact with Union members and their sympathizers. This is significant because the order granting the temporary injunction required the Union to provide a copy of the decree to each striking miner, all officers, representatives, agents, servants, and employees of the Union, and all persons acting in concert or participating with them. The court also directed that copies of the order be posted in each of the Union's business offices and "picket shacks" located in the affected counties of southwestern Virginia.

Moreover, Wilson testified that he knew of the existence of the injunction, and was aware that a lot of people were being arrested for impeding traffic. He insists, however, that he did not know that the injunction specifically prohibited the vehicular slow-downs. Similarly, Black admitted that he was told to watch his speed on the roads because "they're out there for people that are driving too slow or hindering the traffic flow." Nonetheless, he maintains that he had no knowledge of the injunction or that it banned such activities. It should also be noted that all of the strikers and their supporters wore military-style camouflage clothing and yellow ribbons as a symbol of solidarity. At the time of their arrests, both contemnors were so attired.

It is difficult to imagine that neither of the contemnors was aware of the proscriptions contained in the injunction when both congregated with Union members and their supporters, when they visited and stayed at various Union-sponsored centers in Virginia, when they knew that law enforcement action recently had been taken against Union drivers who were impeding traffic, when they were fully briefed on the type of clothing to wear and the procedures to follow in slowing-down traffic, and when at least one of them had actual knowledge of the existence of the temporary injunction. The facts in the record strongly suggest that the contemnors either did have actual knowledge of the injunction and its limitations, or that they properly can be charged with constructive notice thereof. To be aware of all other aspects of the strike other than the injunction is a contention too fanciful to sustain. Equally unbelievable is the assertion that the contemnors were somehow duped into violating the injunction by their brethren in Virginia.

Next, the contemnors insist that the temporary injunction was unconstitutionally vague because it referred only to "the Charging Party" rather than specifically to Clinchfield, because "the Charging Party" is not expressly named in the injunction, and because it is impossible to deduce from the four corners of the district court's order the identity of the party for whose benefit the injunction was entered. This argument is somewhat specious.

In International Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n, Local 1291, the Supreme Court stated:

The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.

389 U.S. 64, 76 (1967), quoted in NLRB v. Heck's, Inc., 388 F.2d 668, 670 (4th Cir. 1967). The Court was referring to Federal Rule of Civil Procedure 65(d), which provides that every court order granting an injunction "shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained...." The Court also has noted that the specificity requirements of Rule 65(d) serve two essential functions: (1) they prevent uncertainty and confusion on the part of those faced with injunctive orders, thereby avoiding the imposition of sanctions for violations of decrees too vague to be understood; and (2) they facilitate informed and intelligent appellate review. Schmidt v. Lessard, 414 U.S. 473, 476-77 (1974).

In the present case, there is very little doubt that all parties familiar with the strike, including the Union, the striking coal miners, and their collaborators, were not only aware of the existence of the temporary injunction but also of the fact that the temporary injunction, like the TRO which preceded it, was intended specifically for the protection of Clinchfield. The terms of the TRO and the temporary injunction were substantially identical, the injunction specifically referred to Clinchfield's work sites in Wise, Russell and Dickenson counties in Virginia, and the order granting the injunction, when read in its entirety and in light of the events taking place in the Western District of Virginia at that time, could only refer to the Union's strike against Pittston and Clinchfield. To accept the contemnors' arguments would be to elevate flawless draftsmanship of court orders over the substantive concerns underlying Rule 65(d). Such perfection is not required, however, when the twin dangers of uncertainty and uninformed review are absent, as they are in this case.

Finally, the contemnors, citing this court's decision in City of Richmond, 548 F.2d at 129, argue that the government failed to establish criminal contempt beyond a reasonable doubt. In particular, they contend that there was no evidence showing that they willfully, contumaciously and intentionally violated a decree that was definite, clear, specific, and left no doubt or uncertainty in the minds of those upon whom it was imposed. See id. We disagree with the contemnors, finding that the evidence in the record fully supports the district court's determination of contempt beyond a reasonable doubt.

Based on the foregoing reasons, the judgment below is

AFFIRMED.

 1

The petition for an injunction was filed by the NLRB and entertained by the district court pursuant to 29 U.S.C. § 160(1)

 2

That rule provides, in relevant part: "The defendant is entitled to a trial by jury in any case in which an act of Congress so provides."

 3

That section provides, in relevant part: "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."

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