The opinion of the court was delivered by: KEECH
This case is before the court on a rule to show cause why the respondent, International Union, United Mine Workers of America (hereinafter called the Union) should not be found guilty of both criminal and civil contempt, pursuant to the petition of the United States of America (hereinafter called the Government). On information and belief, the Government has charged that the Union has knowingly, wilfully, wrongfully, and deliberately disobeyed and violated certain provisions of the temporary restraining order issued by this court on February 11, 1950, in a proceeding under Section 208 of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 178, for injunction against the present coal strike.
The Government specifically charges:
'On information and belief, at no time from and after the service of the aforesaid temporary restraining order has the defendant, International Union, United Mine Workers of America, brought to an end and ceased the strike in existence at bituminous coal mines throughout the United States of America owned or operated by coal operators and associations signatory to the National Bituminous Coal Wage Agreement of 1948; nor has the said defendant ceased from engaging in, permitting or encouraging the said strike or its continuance.
'On information and belief, at no time from and after the service of the aforesaid temporary restraining order has the defendant, International Union, United Mine Workers of America, acting through its president and other appropriate officers, agents, servants and employees, taken all appropriate action to insure that all members of the said Union employed in the bituminous coal mines covered by the Agreement cease the said strike and that they return to their employment; nor has the said Union ceased, desisted and refrained from encouraging, inducing and permitting the said strike to continue.
'On information and belief, from and after the service of the aforesaid temporary restraining order, the defendant, International Union, United Mine Workers of America, has caused and engaged in a strike at the said bituminous coal mines, has interfered with and affected the orderly continuance of work at the said coal mines, and has engaged in and is continuing to engage in, a course of action which is interfering with this Court's jurisdiction, and which would obstruct and render fruitless the determination of this case by the Court.
'On information and belief, the strike in the bituminous coal mines of the United States owned or operated by operators and associations signatory to the said Agreement, which began on or about February 6, 1950, has continued uninterruptedly to the date of this petition.
'On information and belief, said respondent has violated the temporary restraining order issued by this Court on February 11, 1950, and is in contempt of this Court by reason of the facts aforesaid.'
The Union having waived its right to jury trial on the criminal contempt charge, the charges of criminal and civil contempt have been tried together before this court. The court has heard three days of testimony and rather protracted argument of respective counsel, and since the close of the hearing has received further authorities from both parties.
The defendant in a criminal contempt proceeding has the same protection as the defendant in any other criminal case. He is presumed innocent until proved guilty, and the party seeking his conviction must prove him guilty beyond a reasonable doubt. Gompers v. Bucks Stove & Range Company, 221 U.S. 418, 444, 31 S. Ct. 492, 55 L. Ed. 797, 34 L.R.A.,N.S., 874. In cases of civil contempt, proof need not be beyond a reasonable doubt; but it is incumbent upon the party seeking the adjudication of contempt to prove guilt by clear and convincing evidence and not by a mere preponderance of evidence. Kansas City Power & Light Co. v. National Labor Relations Board, 8 Cir., 137 F.2d 77, 79; National Labor Relations Board v. Standard Trouser Co., 4 Cir., 162 F.2d 1012, 1014.
It is true that the record discloses that approximately 370,000 members of the Union were on strike- as that term is defined by the Labor-Management Relations Act, Sec. 501(2), 29 U.S.C.A. § 142(2),- as of February 11, 1950, and have continued on strike to the present time; and that substantially the only Union miners working were those employed by operators who had signed a new wage agreement. It is recognized by this court that it has been held that, 'as long as a union is functioning as a union it must be held responsible for the mass action of its members.' United States v. International Union, United Mine Workers of America et al., D.C., 77 F.Supp. 563, 566; affirmed D.C. Cir., 177 F.2d 29; certiorari denied 338 U.S. 871, 70 S. Ct. 140. However, the facts disclosed by the record in this case do not prove- either beyond a reasonable doubt or by clear and convincing evidence- that there has been wilful contempt of this court's order on the part of the Union, by the action which it has taken or by the action which it has failed to take.
The record in this case is different from that in the 1948 contempt proceeding against the same respondent. There it was shown that the Union has 'made no attempt to restore normal production.' In reviewing the conviction, the United States Court of Appeals for the District of Columbia stated, 177 F.2d 29, 36: 'It seems plain enough that if Lewis had sent on April 12th, neither he nor the Union would have been guilty of contempt of the court's order.'
Following the court's order in the instant case, various telegrams, letters, and other communications were sent by the Union to its district and local branches and members, instructing the miners to return forthwith to work.
This court does not hold that any telegram or combination of telegrams or letters would constitute a good faith compliance with an order directing action on the part of the Union. It does hold that, where the Union has sent communications such as are included in this record. the apparent good faith of such communications must be controverted not by mere suspicion based on failure to obtain results, but by clear and convincing evidence, if they are to be ruled by a court of law to constitute only a taken compliance.
It was testified on behalf of the Union that no Union funds have been used to aid striking miners since issuance of the temporary restraining order. There was no attempt to disprove this testimony.
The record shows but one affirmative action which the Union might have taken but omitted to take, namely, revocation of the charters of local unions which notified Union headquarters they had voted not to comply with the back to work order, a sanction authorized by the Union's constitution. This omission, in my opinion, is not sufficient to prove either civil or criminal contempt, particularly in view of the terms of the restraining order, which directed the Union to take 'all appropriate action * * * to insure that * * * all members of said Union * * * cease the said strike, to return to their employment.' There is no showing in the record that such action would have been appropriate.
It may be that the mass strike of Union members has been ordered, encouraged, recommended, instructed, induced, or in some wise permitted by means not appearing in the record; but this court may not convict on conjecture, being bound to act only on the evidence before it, which is insufficient to support a finding of either criminal or civil contempt.
I therefore, find the respondent Union not guilty of civil of criminal contempt.
Counsel will prepare appropriate findings of fact, conclusions of ...