United States District Court, Northern District of Illinois, E.D
October 19, 1982
WAREHOUSE, MAIL ORDER, OFFICE, TECHNICAL AND PROFESSIONAL EMPLOYEES, LOCAL 743, ETC., PLAINTIFF,
COLUMBIA RUSTPROOF, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
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"
Columbia asks not only for dismissal of the contempt proceeding*fn3
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
be met before that power can be brought into play:
1. There must have been disobedience of "an operative command capable
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
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.*fn8
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
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
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
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.
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
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