The opinion of the court was delivered by: WALSH
This matter comes before the court on plaintiff's motion for issuance of an order to show cause and for judgment of contempt against the defendant railroad. The motion was heard on September 12 and 13, 1963, and briefs were submitted subsequent thereto.
The plaintiff asserts that the Railroad had failed to comply with the Order of this Court of May 29, 1963. That Order required the Southern Railway to 'interpret Section 4 of the Diesel Agreement as it was interpreted prior to July of 1959'. The Order further required:
'* * * that the defendants herein shall maintain the status quo with respect to their operation of locomotives and the use of firemen thereon in the application of Section 4 of the Diesel Agreement, by making available sufficient firemen to comply with said Section 4, and by following the same procedures employed by defendants and maintaining the same working conditions as were maintained by the defendants in the employment and application of said Section 4 during the period 1950 to 1959; * * *.'
The Order granted the defendants thirty days, or until June 28, 1963, in which to comply; and, further stated that the Order would remain in effect until the National Railroad Adjustment Board made a determination of the issues then before it.
The Order was entered following a Memorandum Opinion filed on May 14, 1963. See Brotherhood of Locomotive Firemen and Enginemen v. Southern Railway Co., et al., D.C., 217 F.Supp. 58.
The Brotherhood asserts that the railroad has violated the Court's order in that locomotives have operated without 'the use of firemen thereon', and that the defendants have failed to follow the same procedures and to maintain 'the same working conditions as were maintained by the defendants * * * during the period 1950 to 1959.'
Plaintiff alleges that the contempt arises from two separate actions by the defendants: first, the defendants operated 46 locomotives without the services of firemen between June 28 and September 1, 1963; and second, defendants have hired 223 'aged' men as firemen without regard to their ability or qualifications, and instructed these new men that their only duty consisted of occupying the firemen's seat on the locomotive.
Defendants concede that 46 (in fact, 47) trains did operate without firemen; but that during this period, Southern operated more than 42,000 trains and the 46 represents one-tenth of one per cent, which, counsel asserts, is a good faith effort to comply with the order.
The Brotherhood alleges that the conduct of the Railroad amounts to civil and criminal contempt. In the leading case of United States v. United Mine Workers of America, 330 U.S. 258, at page 302, 67 S. Ct. 677 at pages 700-701, 91 L. Ed. 884 (1947), the Court stated:
'Sentences for criminal contempt are punitive in their nature and are imposed for the purpose of vindicating the authority of the court. Gompers v. Buck's Stove & Range Co., supra (221 U.S. 418) at 441 (31 S. Ct. 492, at 498, 55 L. Ed. 797). The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril. In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court's order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant's defiance as required by the public interest, and the importance of deterring such acts in the future. Because of the nature of these standards, great reliance must be placed upon the discretion of the trial judge.'
Continuing 330 U.S. at page 303, 67 S. Ct. at page 701, 91 L. Ed. 884, the Court stated:
'* * * Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to ...