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United States District Court, Northern District of Illinois, E.D

October 19, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Warehouse, Mail Order, Office, Technical and Professional Employees, Local 743, I.B.T. ("Local 743") has moved that Columbia Rustproof, Inc. ("Columbia") be held in contempt for failure to comply with this Court's September 24, 1981 memorandum opinion and order (the "Order"). Columbia counters by seeking dismissal of the contempt proceeding and other relief. For reasons stated in this memorandum opinion and order Local 743's motion is denied and Columbia's motion for dismissal (but not for other relief) is granted. But for other reasons also expressed in this opinion, such dismissal may give Columbia only temporary — and cold — comfort.


Local 743 initially sued Columbia for enforcement of a February 10, 1981 arbitration award (the "Award").*fn1 After the parties had briefed the issues, the Order granted Local 743's motion for summary judgment and ordered Columbia "to comply with the arbitrator's award" (Order 5).

In July 1982 Local 743 moved for issuance of a rule to show cause why Columbia should not be held in contempt for having failed to comply with the Order.*fn2 Local 743 cites two acts of noncompliance:

    1. Columbia did not permit employee Ira Jones ("Jones") to return to
  won until November 5, 1981, despite the Award's February 10 order for his
  rein statement.

    2. Columbia refused to pay Jones for losses he incurred as a result of
  the delayed reinstatement ("back wages").

Local 743 also seeks an award of attorney' fees for having to pursue the issue.

Columbia denies it has failed to comply with the Award or the Order. Specifically Columbia asserts:

    1. It has afforded Jones the continuing opportunity to perform the work
  the arbitrator ruled must be made available to him.

    2. Neither the Award nor the Order required the payment of "back wages"
  to Jones.

Columbia asks not only for dismissal of the contempt proceeding*fn3 but also for attorney's fees for having to defend this matter.

This Courts Civil Contempt Power

Local 743 invokes this Court's civil contempt power.*fn4 Two requirements must be met before that power can be brought into play:

    1. There must have been disobedience of "an operative command capable
  of "enforcement'."

    2. That command, if in substance an injunction, must comply with
  Fed.R. Civ.P. ("Rule") 65(d).*fn5

H.K. Porter Co. v. National Friction Products Corp., 568 F.2d 24, 26-27 (7th Cir. 1978), citing and quoting from International Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 74-76, 88 S.Ct. 201, 206-208, 19 L.Ed.2d 236 (1967).

This Court's Order commanded the only thing sought by Local 743: compliance with the Award. It did not in terms repeat the individual requirements imposed by the arbitrator, but rather spoke in terms of approving and enforcing the Award as entered. Thus, though the Order was an "operative command" of this Court `capable of "enforcement,'" it is necessary to look to the Award to determine Columbia's compliance with that command.*fn6

Columbia's Alleged Disobedience

It is not clear on the present limited record whether Columbia in fact disobeyed the Order. Two issues are posed:

1. Jones's reinstatement after the date of the Order; and

2. "back wages" after the date of the Award.

1. Alleged Failure To Reinstate Jones

By definition compliance or noncompliance with the Order can be measured only prospectively from its date of entry, September 24, 1981. On that score the record is in dispute.

In the affidavits accompanying its memoranda, Local 743 said Jones was not reinstated until November 5, 1981. Columbia on the other hand submitted an affidavit and documents suggesting*fn7 Jones returned to work October 12. Moreover, Columbia's affiant (its Vice President) said Local 743 was on strike until September 15 and all Local 743 members were laid off between September 15 and October 9 (Def.Ex. 1).

Depending on the resolution of that factual dispute, Jones may or may not have been returned to work on the first actual work day after entry of the Order. If he had been, Columbia would not have violated the Order as it affected reinstatement.

More to the point, however, because Jones did go back to work in any event, civil contempt simply does not apply to the reinstatement issue. That obvious fact is confirmed by the relief prayed in Local 743's July 1982 motion:

    (1) payment of back wages, health and welfare benefit contributions
  and attorney's fees and costs; and

    (2) payment of a civil contempt fine until Columbia "purges itself of
  contempt" (that is, pays the requested amounts).

No order of reinstatement was of course needed or sought.

2. Alleged Failure To Compensate Jones for "Back Wages"

Because the Order mandated compliance with the Award, any civil contempt determination arising out of Columbia's nonpayment of "back wages" (really a misnomer, for what is at issue are wages from the date of the Award to the date of Jones "s reinstatement) must rest on the Award's having ordered such payment. In that respect the Award is both conditional and non-literal.

From the Award it appears Local 743 brought two Jones-related grievances before the arbitrator. They involved Columbia's alleged employment of a junior worker while Jones, a senior worker, was laid off during two separate periods in 1980. As to the first layoff period the arbitrator found for Jones and ordered that he be made whole for his lost time. That has been done and is not in dispute.

As for the second layoff period Jones's grievance was denied. However there was a controversy about whether the job being filled by the junior employee had changed in nature after Jones had declined it. Hence the arbitrator, "to give Jones the benefit of the doubt that the job has changed dramatically since it was offered to him, " ordered Columbia to permit Jones to return to work "if he is willing to perform the work now performed by junior employee Travis."*fn9

Two questions must therefore be answered in the affirmative before Columbia's "refusal" to pay Jones "back wages" could be said to violate the Award (and thus the Order) and thereby give rise to a possibility of civil contempt:

    1. Did Columbia refuse Jones reinstatement after he
  specifically agreed to take the job described?

    2. Did the Award call for "back wages" (really
  future compensatory damages) between the date of such
  refusal and the later date of actual reinstatement?

Local 743 has not provided the Court with those affirmative answers.

On the first of the two questions the parties vigorously contest Jones's willingness to take the job.*fn10 Were that the only issue it might be resolved by a present hearing before this Court. But the second question too is not answered by specific language in the Award (as the Award did in its "make whole" provisions dealing with Columbia's prior violations).

It might perhaps be argued that such "back wages" (really future damages in case of Columbia's noncompliance) were really implicit in the Award. Indeed that seems the most logical reading of the Award. See Lynchburg Foundry Co. v. United Steelworkers of America, Local 2556, 404 F.2d 259, 262 (4th Cir. 1968). But Columbia has correctly pointed out that the collective bargaining agreement in Lynchburg (id. at 260) specifically contemplated such compensation, while this Court has not been furnished any showing on that subject here.

In any event the lack of a literal provision in the Award, coupled with the uncertainty identified at n. 6 of this opinion, leads this Court to deny Local 743's motion for civil contempt. That does not however leave Local 743 without remedy, for this Court (like every court) retains the inherent power to enforce its own judgments. Local 743 may return to this Court with a motion for such enforcement — not by way of civil contempt, but via a further order implementing the Order — armed either with a confirmation as to the meaning and purpose of the Award from the arbitrator*fn11 or with a supplemental showing to enable this Court to decide those questions. If Local 743 pursues the former course, it would likely be in the parties' interest to address the factual question (see n. 10) before the arbitrator as well.

Attorney's Fees

No award of attorney's fees can now be made to Local 743, given the present denial of its motion for contempt. If the further proceedings for enforcement of the Order indicate the appropriateness of such an award (under one or both of this Court's inherent power, see Roadway Express Co. v. Piper, 447 U.S. 752, 765-66, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980), or 28 U.S.C. § 1927) this Court may then consider whether time spent on the current motion (though it was mistaken as to remedy) should be considered.

As for Columbia's like prayer, nothing in its conduct or presentation justifies making an exception to the American Rule in its behalf. Even at best Columbia does not come to this stage of the present action with clean hands.*fn12


Local 743's motion for a finding of civil contempt is denied without prejudice to possible further enforcement proceedings referred to in this opinion. Columbia's motion for dismissal of the civil contempt proceedings is granted, but its motion is denied in all other respects.

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