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Nat'l Metalcrafters v. Local 449

OPINION FILED JUNE 27, 1984.

NATIONAL METALCRAFTERS, A DIVISION OF KEYSTONE CONSOLIDATED INDUSTRIES, INC., PLAINTIFF-APPELLEE,

v.

LOCAL 449, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS AFL-CIO ET AL., DEFENDANTS (CARL BARCONI, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, Carl Barconi, was found guilty of contempt in the circuit court of Winnebago County for violating a temporary restraining order (TRO) and was sentenced to a 60-day term of imprisonment. He appeals contending (1) that his right to due process was violated as the rule to show cause issued against him failed to advise him of the specific misconduct with which he was charged; (2) that the evidence did not establish that he had prior notice of the TRO which he was found to have violated; (3) that the penalty imposed was excessive; (4) that he was deprived of his right to a trial by jury; and (5) that the trial court did not state whether it found beyond a reasonable doubt that he violated the TRO.

In April 1983, defendant, Local 449, United Automobile, Aerospace and Agricultural Implement Workers AFL-CIO, called a strike against plaintiff, National Metalcrafters, a division of Keystone Consolidated Industries, Inc., after expiration of the parties' collective bargaining agreement. The company filed a complaint for injunction and on May 3, 1983, a TRO was issued which enjoined the union, its officers, unnamed striking employees, and any other persons acting in concert therewith, from

"(1) Physically, through the use of their own bodies or vehicles, blocking the entrance to the Plants and preventing or interfering with ingress and egress thereto of Plaintiff's vehicles, common carrier vehicles and the vehicles of other persons doing business with Plaintiff; threatening damages to employees of Plaintiff or their property at plant entrances, at the employees' homes, or on the way to and from work."

Defendant, Carl Barconi, was not named in the petition for TRO or in the writ which was issued, nor was he personally served with either document.

Thereafter, on May 19, 1983, the company filed a petition with the trial court for the issuance of a rule to show cause against the union, certain of its officers, and against Carl Barconi to show cause why they should not be held in contempt of court for violation of the TRO. The petition stated that the court had entered a TRO on May 3, 1983, which enjoined mass picketing and violence; while it did not state the nature of the violations committed by Barconi, it did incorporate several affidavits and photographs as describing the separate violations charged against Barconi, the union, its officers and other strikers. The petition did not state whether it sought a criminal or civil contempt finding and it was personally served on Barconi on May 25, 1983.

In the affidavits, Thomas Lawrence described an incident alleged to have occurred on May 11 in which his truck was stopped by pickets when he attempted to drive into the company's plant and a striker jumped upon it, threatened to kill him and tried to pull his arm from the steering wheel. The affidavit did not identify the striker, but it described him and attached to it were copies of photographs of a group of pickets who were present that day at the plant entrance, one of whom was Barconi. An affidavit by Arnold Belcher described a similar incident, which was alleged to also have occurred on May 11, and identified Barconi as the man who jumped upon the running board of his truck as he drove into the company's plant. It stated Barconi yelled obscenities at him and beat on the window on the driver's side with his hand. Belcher identified Barconi from the same pictures referred to in Lawrence's affidavit.

At a hearing on May 27, 1983, at which counsel for Barconi was present, the court issued a rule against him to show cause why he should not be held in contempt for violation of the TRO. The rule did not state when or in what manner defendant was alleged to have violated the TRO, nor did it indicate whether the contempt charged was civil or criminal. The original date of June 9, set for the contempt hearing was continued at the request of counsel for the union and Barconi for the purpose of filing responsive pleadings; none was filed by Barconi. Prior to the contempt hearing, the company was given leave to file supplemental affidavits and exhibits in support of its show cause petition, and they were filed at a hearing on June 6, at which Barconi's counsel was present.

One of the affidavits then filed was by Roger Bourgord, an employee of the company. He alleged that on May 26, 1983, he and another employee waited at a public parking garage for the company bus to take them to work; the garage was being picketed by a large number of strikers, one of whom was Barconi. Before the two left in the bus, Barconi approached them and stated, "I ought to break both your necks. I'm just the guy to do it." It alleged Barconi also shouted obscenities at them.

Evidentiary hearings were held on June 15, 16 and 23, 1983, on the separate rules to show cause against Barconi, the union and its officers. Many witnesses were called by the company who testified to threats and violence against employees, damage to employee property and mass picketing at the plant which blocked ingress and egress. While most of the testimony concerned conduct which did not involve Barconi, three witnesses were called by the company to testify as to his claimed violations of the TRO. Company employee Arnold Belcher testified that at 9 a.m. on May 11 he was driving a semitruck towards gate No. 4 at the company's plant. As he reached the gate he slowed the truck because the path was blocked by a group of pickets. Barconi then jumped up onto the fuel tank on the driver's side of the truck, hit the window on that side with his fist, and called Belcher a "sorry mother fucker." Defendant rode on the truck for 30 to 40 feet before he jumped off as it went through the gate. Thomas Lawrence testified about a similar incident which occurred one hour later that same day. Lawrence, a driver for a common carrier which did business with the company, was attempting to drive his truck into the same plant gate when he also was stopped by strikers blocking the road. Before he could proceed, Barconi opened the driver's door and jumped onto the truck's running board, grabbing Lawrence by the left arm. When Lawrence advised defendant he was part of management, defendant told him to get out of there. As Lawrence started to move the truck forward, Barconi grabbed his left arm with both hands twisting it back and forth as the two men struggled. Lawrence stated he avoided being pulled out of the truck and that during the struggle Barconi threatened to kill him if he entered the plant. When Lawrence then drove forward through the gate he stated that Barconi jumped clear. As a result of this occurrence, Lawrence sought medical attention for a bruise and cut on his left arm and hand. He notified the police and signed a criminal complaint against Barconi which was pending at the time of the contempt hearing.

Roger Bourgord testified, in similar terms as stated in his earlier affidavit, that he had been threatened by Barconi while he waited in the Metro Centre Concourse parking garage for the company bus to take him to work. He quoted Barconi as saying to him and another employee, "I ought to break both your necks and I'm just the guy to do it." After uttering obscene words Barconi left.

Union president Stanley Meyer was called by the company as an adverse witness. He testified that he was present in court when the TRO was issued on May 3 and had then received a copy of it. He further stated that during the strike the union held weekly membership meetings and, at least one of them, he advised the members present of the TRO and urged them to obey it. While the witness assumed Barconi had attended the meeting where the TRO was discussed, he could not say for sure. The day after the TRO was issued Meyer went down to the picket line and advised the strikers present of its terms; he did not observe Barconi on the picket line at that time.

Jerry Field, union vice-president, was also called as an adverse witness and testified that each of the union's five picket captains had been advised of the terms of the TRO and instructed to advise the pickets at the plant of those terms. One of the picket captains was among a group of pickets, which included Barconi, who were photographed at gate No. 4 of the plant on May 11, approximately 1 1/2 hours before the altercation involving Barconi.

Barconi did not present any evidence at the hearing. The trial court dismissed the rule to show cause against the two union officers in their individual capacities and found both the union and Barconi in contempt for having violated the TRO. The trial court did not state whether its contempt findings were civil or criminal and noted as to Barconi that he had received notice of the TRO May 3, 1983, and violated it on May 11, by interfering with entry into the plant of trucks driven by Lawrence and ...


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