JOHN W. PECK, Circuit Judge.
This is an appeal from a finding of contempt for violation of a temporary
The dispute centers about the inspection of conveyor belts which convey coal from the producing coal face in an underground mine to the outside. These inspections are necessary to prevent frictional mine fires and explosions of the gas that accumulates when coal and coal dust build up around the belts during their operation. Under the Federal Coal Mines Health and Safety Act of 1969, which became effective in March 1970, such inspections are required ". . . after each coal-producing shift has begun." 30 U.S.C. § 863(d)(1).
When the Act took effect in 1970, the Federal Bureau of Mines (hereafter Bureau) accepted the State of Kentucky's then current program for certifying these belt inspectors until such times as the Bureau could view the program. At that time neither the Act nor the Bureau had established criteria for certifying belt inspectors.
On April 25, 1972, a grievance
On May 13, a grievance filed at the Star mine asked that the belt inspectors' duties be "posted"
In the meantime, the parties agreed, both at the Star mine on May 20 and the Ken mine on May 30, that only union members would inspect the belts until the federal-state agreement was reached. As to the River Queen mine, since the grievance procedure regarding these disputes had only been orally initiated as of June 1, the only agreement reached referable thereto was that the resolution of any grievance would await the outcome of the negotiations.
On May 31, the Bureau announced that Kentucky's first class certification
On June 6, a complaint having been filed by Peabody on June 5, the U.S. District Court for the Western District of Kentucky granted a temporary restraining order which required the parties to submit the dispute to the grievance procedure and enjoined the work stoppage at all three mines. But the striking miners did not return to work and on June 9 an order to show cause why the defendants-appellants should not be held in contempt of court was issued by the District Court. Defendants' response set up two basic defenses: first, that the walkout was caused by unsafe working conditions and thus is protected under 29 U.S.C. § 143
At the show cause hearing held on June 14 the District Judge observed that his crowded docket precluded the conduct of a full hearing and allowed each side a 15-minute argument after refusing to take evidence on the defenses or the contempt charge itself. He then found the defendants in contempt of court, fined the Locals $2,500 plus $500 per day for each day after June 14 that they remained in contempt, and fined District 23 $5,000 and $1,000 per day for each day after June 14 it was in contempt. At the same time the parties agreed to continue the temporary restraining order and stipulated that it had been "providently granted." A hearing on the request for a preliminary injunction was scheduled for June 20.
On June 16, Peabody filed a motion to reconsider the June 14 contempt fines and increase them, alleging that the defendants were still in contempt. This motion was considered by the District Judge at the time of the hearing on the preliminary injunction, and on June 22 the Court raised the fine to $4,000 per day against the District and $1,000 per day against each Local. It appears that this action was successful in forcing the miners to return to work because there are no other proceedings in the record involving this issue.
On June 20-21, a hearing was conducted on Peabody's motion for a preliminary injunction at which the District Court considered all the motions then pending in the case. On June 22, the District Court issued a preliminary injunction which ordered the defendants to end their work stoppage and submit the dispute to the grievance machinery. Six days after the filing of the preliminary injunction, defendants filed a motion to reconsider the fines against them, alleging that (1) Peabody had notified the striking miners of the contempt hearing on June 14 and then used their presence at the hearing as evidence
Three jurisdictional issues are raised on appeal. First, it is claimed that the appellants have failed to designate a final, appealable order in their notice of appeal; second, that the contempt order is interlocutory and hence non-appealable; third, that the notice of appeal was untimely filed. We will treat these sequentially.
Peabody first contends that this Court lacks jurisdiction to consider this appeal for the reason that the notice of appeal indicates that the defendants are appealing a discretionary order which is non-appealable; namely, the denial of a motion for reconsideration. We conclude, however, that the failure of defendants to name either the June 14 order (contempt citation) or the June 22 order (preliminary injunction) is not fatal to the appeal.
In the case of United States v. Ellicott, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535 (1912), a judgment was entered in May 1908 and a timely motion for a new trial was filed in August, which was overruled in January 1909. Later that January, a motion was made to amend the findings of fact and that motion was granted in part and overruled in part on February 15. Notice of appeal was then filed on February 25 from the judgment in January denying the motion for new trial. Responding to the allegations that the appeal was not taken within the statutory ninety-day appeal period and that the appeal was filed from the order denying the motion for new trial, the Court stated a general rule that judgments are not considered final, and hence the time for appeal does not run, until the date of disposition of a motion for new trial or petition for rehearing, if applicable. 223 U.S. at 539, 32 S.Ct. 334. The Court also found that the failure to specify in the notice the final judgment of May 1908 was not fatal.
The rule has been applied more recently in the Courts of Appeals. For example, in Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972), plaintiff had filed in the District Court a series of motions, the effect of which was to request a new trial under Rule 59, F.R.Civ.P. The motions were denied and the notices of appeal referred only to the orders denying these motions. Nevertheless the court said:
The present case involves a motion to reconsider, which is in the nature of a Rule 59 motion to alter or amend judgment, and therefore should be treated similarly. Gainey v. Brotherhood of Railway and Steamship Clerks, 303 F.2d 716, 718 (3d Cir. 1962). See, also, Lumberman's Mutual Insurance Co. v. Massachusetts Bonding and Insurance Co., 310 F.2d 627 (4th Cir. 1962), wherein the appellant's notice of appeal referred to an interlocutory order and not to a final order. In that case, the court rejected the contention that it lacked the jurisdiction, to consider the final order in the case.
In a second jurisdictional argument, Peabody claims that this Court lacks jurisdiction over the appeal because the June 14 contempt order is interlocutory in nature by virtue of the fact that it is a civil contempt order against a party to the suit. Peabody argues that defendants had two alternatives: either apply for a writ of prohibition or mandamus, or appeal the order in an appeal from a final order or decree. Since neither route was taken, Peabody contends that this Court lacks jurisdiction.
This argument is based on a line of Supreme Court cases typified by Doyle v. London Guarantee and Accident Co., Ltd., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907). In that case, defendants failed to produce documents, books, etc., as ordered by the court and were cited for contempt. In affirming the dismissal of the appeal by the Court of Appeals, the Supreme Court stated:
Of course, it is not necessary to appeal the final order to appeal a contempt citation; rather, all that is required is that a final order exist, so that the policy preventing piecemeal litigation is served. Thus, the requirement is for an appeal "from a final decision," not an appeal of a final decision. Certainly it would make little sense to compel the appeal of a decision that might be favorable, e.g., a decision not to grant a permanent injunction, so that the appellant might attack an improper contempt citation.
The recent case of Emery Air Freight Corp. v. Local Union 295, International Brotherhood of Teamsters, 449 F.2d 586 (2d Cir. 1971), cert. denied, 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972), involved a situation much like the present. There the District Court handed down an ex parte temporary restraining order, found the union in contempt without holding an evidentiary hearing, imposed a $50,000 fine, and later issued a preliminary injunction after a hearing. The Court of Appeals found the preliminary injunction appealable and also considered the contempt citation and fines, but without any discussion of the need for a final order under 28 U.S.C. § 1291.
While the reasoning of the case appears attractive, it is not clear that it is correct. The language of the cases clearly indicates that a final judgment is a requisite for jurisdiction although certain interlocutory orders, such as preliminary injunctions, Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1941), are appealable.
Thus it appears that a final judgment under § 1291 is required.
Accordingly, the real issue is whether the defendants appealed from a final order, i.e., whether there was a final order entered in the case prior to the appellant's appeal. In this regard, we conclude that the June 22 injunction should be considered a final order. As the Supreme Court stated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), while discussing finality under § 1291:
This discussion was elaborated in Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), where the Court said:
In making this "practical" determination as suggested in Gillespie, courts have recognized that the intent of the judge is an important and relevant factor to consider. See, United States v. 1,431.80 Acres of Land in Cross County, Arkansas, 466 F.2d 820, 822 (8th Cir. 1972); United States v. Evans, 365 F.2d 95, 97 (10th Cir. 1966); Paliaga v. Luckenbach Steamship Co., 301 F.2d 403, 407 (2d Cir. 1962); Carnes v. United States, 279 F.2d 378, 380 (10th Cir. 1960). As respects the instant case while the statements of the judge
Peabody's final jurisdictional argument, that the notice of appeal was untimely filed, is easily disposed of. The motion for reconsideration was filed on June 23, six days after the orders were filed. The effect of the filing was to suspend the running of the appeals period until the motion was decided. Maryland Tuna Corp. v. Ms. Benares, 429 F.2d 307 (2d Cir. 1970). This rule has often been applied to motions for reconsideration. Pacific Maritime Association v. Quinn, 465 F.2d 108 (9th Cir. 1972); Roscoe v. Roscoe, 126 U.S.App. D.C. 317, 379 F.2d 94 (D.C.Cir.1967); Woodham v. American Cystoscope Co. of Pelham, N. Y., 335 F.2d 551 (5th Cir. 1964); Gainey v. Brotherhood of Railway & Steamship Clerks, supra.
The motion for reconsideration was denied on July 17, and the appellants had thirty days to file their notice of appeal, which they did on August 16. Thus, the notice of appeal was timely filed and this Court has jurisdiction.
The question is also raised as to whether the contempt order was improperly granted by the District Court following its denial of an evidentiary hearing. We conclude it was improperly granted.
As stated earlier, Emery Air Freight Corp. v. Local Union 295, International Brotherhood of Teamsters, supra, involved a situation almost exactly parallel to the instant case. There, the union struck when the parties failed to agree on a new collective bargaining agreement. On the night of April 22, the strike having begun during the day, the company obtained an ex parte temporary restraining order (TRO) from the District Court halting the strike on the basis that the strike violated the arbitration agreement between the parties. On April 23, the order was served upon the union and on the same day the union obtained a show cause order as to why the TRO should not be vacated. On April 24, the company obtained an order to show cause why the union should not be held in contempt, the strike not having been terminated. Both orders were returnable on April 26.
On April 26, after a hearing, the Court released an order continuing the TRO and stated that the issue of contempt would be considered "at the appropriate time." The next day when the union refused to return to work, there was a conference with the District Judge, after which the Court signed an order entitled "Final Order Upon Contempt Proceedings," holding the union in contempt and fining them $50,000, to be paid to the company.
A hearing on the contempt was held on the afternoon of April 28, but it is clear that the union's counsel was not given an adequate time in which to prepare. The District Judge reserved a ruling on the vacation of the TRO. The next day the union returned to work but the District Court ordered that the fine stand. A hearing was held on April 30 on the request for a preliminary injunction, and it was issued on June 11.
As noted earlier, the Court of Appeals did not enter into a serious discussion of the jurisdictional issues. However, the Court carefully discussed the merits in overturning the contempt conviction on the basis that the lack of a hearing
In the present case, the error is even more egregious than in Emery Air Freight. Here, the record is not only inadequate, it does not exist. While there was a hearing on the preliminary injunction, and Peabody claims that this retroactively cured the failure of the District Court to hold a hearing on the contempt, we agree with the Court in Emery Air Freight that the error could not be cured by a subsequent hearing. We note, too, that the motion to reconsider the contempt fines, which the company claims caused the District Court to reconsider the contempt order, was made by Peabody when it asked that the contempt fines be reconsidered and increased. Thus, it does not appear, here, on the facts, that the District Court adequately reexamined the finding of contempt after the hearing on the preliminary injunction.
The contempt order is vacated and the judgment of the District Court is reversed. The cause is remanded for further proceedings not inconsistent with the foregoing.
"Nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent, nor shall anything in this chapter be construed to make the quitting of his labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service, without his consent; nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter."