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Case Summary: United States Steel Corp. et al. v. Fraternal Association of Steel Haulers et al., Nos. 79-1055, 79-1145, 79-1168 (3d Cir. July 10, 1979)

Factual and Procedural Background

This opinion arises from enforcement and subsequent litigation concerning a consent permanent injunction entered in 1971 that enjoined the appellants (various Fraternal Association entities and individual owners/operators of steel-hauling rigs) from interfering with, obstructing, or delaying equipment and shipments belonging to the appellee steel manufacturers and their customers. The injunction specifically prohibited violations of federal statutes, including the Sherman and Clayton Acts.

The underlying dispute began with a withdrawal of rigs by members of the Fraternal Association of Steel Haulers (FASH) in April 1970, conduct that the district court previously found involved organized withdrawal of services and accompanying incidents of violence and vandalism. That controversy produced a preliminary injunction in May 1970 and a consent permanent injunction in September 1971. A second large-scale withdrawal and shutdown organized by FASH occurred in 1978 (beginning in November 1978), again accompanied by numerous incidents of trucking violence and significant shipment interruptions. Appellees returned to the district court seeking contempt adjudications for violation of the 1971 injunction; appellants moved to modify or vacate the injunction under Fed. R. Civ. P. 60(b).

After an evidentiary hearing the district court concluded that FASH had intentionally contravened the 1971 injunction, adjudged FASH and nineteen individuals in contempt, and denied the motion to vacate or dissolve the injunction. Later the district court found that the shutdown had ended and that contemnors had purged themselves of contempt. The appeals before this court raised (1) whether the contempt adjudications were appealable, (2) whether the district court abused its discretion in refusing to dissolve the consent injunction under Rule 60(b), and (3) whether the district court erred in sua sponte modifying the injunction to exempt certain FASH members from its terms.

Legal Issues Presented

  1. Whether the district court's adjudications of contempt (without imposition of punitive or coercive sanctions, and after a finding that contemnors had purged themselves) were immediately appealable.
  2. Whether the district court abused its discretion in refusing to modify or dissolve the 1971 consent injunction under Fed. R. Civ. P. 60(b), given appellants' contention that changed circumstances and labor-related developments justified relief.
  3. Whether the district court erred in sua sponte modifying the 1971 injunction to exempt certain FASH members (those who leased rigs to carriers whose employees were represented by Special Haulers) from the injunction's terms.

Arguments of the Parties

Appellants' Arguments

  • Appellants (FASH and individual members) argued that they were labor organizations or included bona fide union components (notably "Special Haulers") and thus were protected by statutory labor protections such as § 13(c) of the Norris-LaGuardia Act and the labor exemptions, which they contended should preclude the injunctive relief and contempt adjudications based on antitrust theories.
  • In seeking relief under Fed. R. Civ. P. 60(b), appellants argued that circumstances had changed since 1970–1971 (including collective-bargaining developments and NLRB certifications for some units) sufficiently to constitute "exceptional circumstances" justifying modification or dissolution of the 1971 consent injunction.
  • Appellants further contended that intervening law (they cited Illinois Brick Co. v. Illinois) precluded injunctive relief on the theory that appellees were too remote from the effects of the work stoppage.

Appellees' / Cross-Appellants' Arguments

  • Appellees (the steel manufacturers) argued for enforcement of the 1971 consent injunction and contended that FASH's 1978 shutdown intentionally violated the injunction and combined businessmen and union elements in a way that restrained interstate commerce in violation of the Sherman and Clayton Acts.
  • On cross-appeal the appellees contended that the district court erred in modifying the injunction to exempt certain FASH members; they maintained the record did not support an exemption because the allegedly unionized members had acted in concert with non-labor businessman members.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046 (3d Cir. 1970) Previous appellate treatment of the dispute, background characterization of parties and earlier findings that FASH had not shown it was solely a labor organization. Used as the prior decision and factual summary informing the court's understanding; the court noted the 1971 permanent injunction was identical in material respects to the 1970 preliminary injunction reviewed in this opinion.
S.E.C. v. Naftalin, 460 F.2d 471 (8th Cir. 1972) Establishes that civil contempt adjudications are not appealable absent imposition of a sanction or coercive order; appellate finality requirements. Relied on to support dismissal of the appeal from the contempt adjudication for lack of an appealable final order because no sanctions were imposed and contemnors had purged themselves.
American Saint Gobain Corp. v. Armstrong Glass Co., 418 F.2d 571 (6th Cir. 1969) Cited similarly for appealability principles regarding contempt adjudications. Referenced as supporting authority for the limitation on immediate appealability of civil contempt determinations absent operative sanctions.
International Silver Co. v. Oneida Community, Ltd., 93 F.2d 437 (2d Cir. 1937) Appealability distinction between interlocutory and final contempt adjudications. Cited in the discussion that contempt without coercive or punitive consequence lacks finality for § 1291 purposes.
Doyle v. London Guarantee Co., 204 U.S. 599 (1907) Distinction between criminal contempt (vindication of court's authority) and civil contempt (remedial, to secure compliance or enforce private rights) relevant to appealability. Used to explain why civil contempt is appealable only when the court exercises punitive or coercive authority; supported the conclusion that the contempt adjudication here was interlocutory.
Alexander v. United States, 201 U.S. 117 (1906) Principle that civil contempt becomes appealable only when punitive or coercive sanctions are imposed. Applied to conclude the adjudication without coercive or punitive orders did not produce an appealable order.
Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797 (1945) Principle that a combination of businessmen and a labor organization to restrain trade violates antitrust laws; labor status alone is not necessarily insulating when combined with businessmen. Invoked to explain why FASH had previously failed to establish an entitlement to antitrust immunity and why combining businessmen with union activity remains subject to antitrust sanctions.
Mayberry v. Maroney, 529 F.2d 332 (3d Cir. 1976) and Mayberry v. Maroney, 558 F.2d 1159 (3d Cir. 1977) (Maroney II) Rule 60(b) relief is extraordinary; the language of subsections (5) and (6) does not confer unlimited discretion and relief must be predicated on "exceptional circumstances." Applied to hold that appellants bore a heavy burden under Rule 60(b) and did not show the exceptional circumstances required to modify the consent decree.
United States v. ITT Continental Baking Co., 420 U.S. 223 (1975) Consent decrees are judicial acts but have attributes of contracts voluntarily undertaken. Used to emphasize the heightened difficulty of obtaining Rule 60(b) relief from consent decrees entered by deliberate choice of the parties.
United States v. Armour Co., 402 U.S. 673 (1971) Reinforces that consent decrees have contractual attributes and that modification is not lightly granted. Cited to support the proposition that parties who voluntarily accept consent decrees face a heavy burden to obtain relief.
Vecchione v. Wohlgemuth, 558 F.2d 150 Illustrates that a movant who accepted a consent decree bears a heavier burden under Rule 60(b). Referenced to highlight the formidable burden on appellants who chose the consent decree route.
United States v. Swift Co., 286 U.S. 106 (1932) Court has power to modify consent decrees, but modification requires showing that dangers once substantial have become attenuated to a shadow. Applied to frame the stringent standard appellants had to meet to obtain relief from the 1971 injunction.
Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114 (3d Cir. 1979) Affirms that Rule 60(b) relief is extraordinary and that substantial circumstances must have changed. Relied upon as support for requiring a high showing to modify an existing injunction.
Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972) Standard governing review of factual findings for clear error: findings must have some minimum evidentiary support. Applied in reviewing the district court's factual findings about FASH's status (businessmen vs. labor organization) and in concluding those findings were not clearly erroneous.
Local 24, Int'l Bhd. of Teamsters v. Oliver (Oliver I), 358 U.S. 283 (1959) Labor law precedent considered when assessing labor organization claims against injunctions based on antitrust theory. Discussed (with American Federation of Musicians v. Carroll) as previously distinguished from the instant case; the court reaffirmed its prior view that Oliver I and Carroll were not controlling here.
American Federation of Musicians v. Carroll, 391 U.S. 99 (1968) Labor-law precedent relating to exemptions from antitrust restraints in certain labor contexts. Discussed as part of the prior analysis; the court maintained substantial distinctions between those cases and the present factual context.
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) Addressed by appellants as allegedly precluding injunctive relief for appellees as too remote from the effects of the work stoppage. The court held that appellants' reliance on Illinois Brick was foreclosed by subsequent Third Circuit authority (Mid-West Paper Products), and thus Illinois Brick did not justify modification.
Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573 (3d Cir. 1979) Interprets the effect of Illinois Brick in this circuit, holding that Illinois Brick does not preclude injunctive relief in the circumstances at issue. Relied upon to reject appellants' contention that Illinois Brick precluded injunctive relief in this case.
Los Angeles Meat Drivers Union v. United States, 371 U.S. 94 (1962) Holds that labor immunity does not protect combinations of businessmen and unions that result in illegal restraints of trade. Applied to reject any argument that labor-protection statutes insulated Special Haulers (or other FASH elements) if they acted in combination with businessman members to restrain trade.

Court's Reasoning and Analysis

The court's analysis proceeded in three principal parts corresponding to the appeals and cross-appeal.

1. Appealability of the Contempt Adjudication (No. 79-1168)

The court first observed that the district court had not imposed punitive or coercive sanctions and later found that the contemnors had purged themselves. Relying on authority distinguishing criminal from civil contempt and on precedent holding that civil contempt is appealable only when the contemnor refuses to comply and the court imposes punitive or coercive measures, the court concluded the contempt adjudication lacked the "operativeness and consequence" needed to make it a final appealable decision under 28 U.S.C. § 1291. The court therefore held the contempt adjudication interlocutory and dismissed that appeal for lack of jurisdiction.

2. Motion to Modify/Dissolve the Consent Injunction under Rule 60(b) (No. 79-1145)

The court reviewed the Rule 60(b) standard and emphasized that relief under subsections (5) and (6) is extraordinary and requires a showing of "exceptional circumstances." Consent decrees carry attributes of contracts voluntarily undertaken; when parties freely accept a consent decree rather than litigate, the burden to obtain relief is particularly heavy. The court applied these principles to the record evidence and factual findings of the district court.

Factually, the district court found, and the appellate court found not clearly erroneous, that FASH and its officials continued to present themselves (in attitude and conduct) as businessmen who invested capital in the hauling business and sought collectively to negotiate rates to cover equipment costs. The record included out-of-court statements by FASH's president emphasizing capital investment and "people with capital investments," and letters referring to independent truckers and other small businessmen. Some FASH components (Special Haulers) had collective-bargaining agreements or NLRB certifications before 1971, but the evidence did not show a meaningful change since the earlier proceedings; the record did not establish that altered circumstances removed the substantial dangers that had justified the 1971 injunction.

The court also rejected appellants' argument that intervening Supreme Court authority (Illinois Brick) precluded injunctive relief, explaining that this contention was foreclosed by the Third Circuit's subsequent decision in Mid-West Paper Products. Because appellants did not meet the heavy, exceptional-circumstances burden required to modify the consent decree, the district court did not abuse its discretion in refusing Rule 60(b) relief.

3. Cross-Appeal: District Court's Modification of the Injunction to Exempt Certain FASH Members

The court turned to the district court's sua sponte modification of the injunction, which had exempted FASH members who leased rigs to carriers represented by Special Haulers. The court held that such an exemption was unsupported by the record. Even assuming certain Special Hauler units were bona fide unions, the evidence indicated those units met and acted in concert with the businessman members of FASH, and some members with no-strike contracts nonetheless participated in the shutdown. The court emphasized the settled principle that labor protections do not insulate a combination of businessmen and a labor union from antitrust sanctions (citing Los Angeles Meat Drivers). Because the record did not show that exempted units neither joined nor cooperated with the businessman faction, the modification could not stand.

Holding and Implications

Holding:

The court issued the following dispositive rulings:

  • The appeal from the adjudication of contempt (No. 79-1168) is dismissed for lack of an appealable order.
  • The judgment of the district court is affirmed in all respects except that the district court's January 9, 1979 modification of the 1971 consent injunction is vacated.
  • The 1971 consent decree (the permanent injunction) is reinstated in all respects.

Implications:

The immediate legal consequences are that (1) contempt adjudications absent coercive or punitive sanctions and after a finding of purge are not treated as final, appealable orders; (2) the district court did not abuse its discretion in refusing to grant extraordinary relief under Rule 60(b) because appellants failed to demonstrate exceptional circumstances or a meaningful change in their status since entry of the consent decree; and (3) the district court erred in exempting certain FASH members from the injunction where the record did not establish that those units acted independently of the businessman components. The decision directly reinstates the 1971 consent injunction as the governing decree between the parties. The opinion does not announce any newly fashioned, controlling precedent beyond its application of established standards to the facts of this dispute.

Costs

The court ordered appellants to bear the costs in Nos. 79-1055 and 79-1168, and ordered appellees to bear the costs in the appeal at No. 79-1145.

Prepared from the opinion of the United States Court of Appeals for the Third Circuit, Aldisert, Circuit Judge, dated July 10, 1979. This summary is based exclusively on material contained in the provided opinion text.

UNITED STATES STEEL CORPORATION, BETHLEHEM STEEL CORPORATION, JONES LAUGHLIN STEEL CORPORATION, WHEELING-PITTSBURGH STEEL CORPORATION, NATIONAL STEEL CORPORATION, REPUBLIC STEEL CORPORATION AND YOUNGSTOWN SHEET TUBE COMPANY v. FRATERNAL ASSOCIATION OF STEEL HAULERS, A/K/A FRATERNAL ASSOCIATION OF SPECIAL HAULERS, WILLIAM J. HILL, NATIONAL CHAIRMAN; FRATERNAL ASSOCIATION OF STEEL HAULERS OF WESTERN PENNSYLVANIA, WILLIAM J. HILL, CHAIRMAN, MILTON E. SCHAUDT, EXECUTIVE VICE PRESIDENT, DAVID HAUGH, SECRETARY, R. H. WILSON, ROBERT W. SCHWIRIAN, CLYDE MOSTOLLER, HARRY LUDWIG, E. E. STONER AND PAUL BURNS, INDIVIDUALLY AND AS MEMBERS OF A CLASS REPRESENTING OWNERS OF STEEL HAULING RIGS, APPELLANTS IN No. 79-1055. UNITED STATES STEEL CORPORATION, BETHLEHEM STEEL CORPORATION, JONES LAUGHLIN STEEL CORPORATION, WHEELING-PITTSBURGH STEEL CORPORATION, NATIONAL STEEL CORPORATION, REPUBLIC STEEL CORPORATION AND YOUNGSTOWN SHEET TUBE COMPANY, INTERVENING PLAINTIFFS, APPELLANTS IN No. 79-1145,

OPINION OF THE COURT

ALDISERT, Circuit Judge.

These appeals emanate from a permanent injunction entered by consent in 1971, which enjoined the appellants from interfering with, obstructing or delaying any equipment belonging to appellee steel manufacturers, their customers, or to those serving them. The appellants were specifically enjoined from violating any prohibitions contained in any Act of Congress, particularly the Sherman and Clayton Acts. We must decide whether the district court's adjudications of contempt are appealable and whether the court misused its discretion in refusing to dissolve the 1971 permanent injunction. Appellees have cross appealed, contending that the court erred in modifying the injunction to exempt certain members of FASH from its terms. We hold that the findings of contempt are not appealable, that the court correctly refused to dissolve the injunction, and that it was error to modify the injunction.

The individual appellants at Nos. 79-1055 and 79-1168 are owners of specially equipped tractor-trailers commonly referred to as steel hauling rigs. The organizational appellants, generally known as the Fraternal Association of Steel Haulers (FASH), are associations whose members are owners and drivers of rigs. Some owners drive their own equipment; others, called fleet owners, do not. The owner-operators and fleet owners lease their equipment and furnish drivers to the common carriers of steel products who are certified by federal or state regulatory bodies, and for this service they receive a percentage of the gross revenue of the carrier.

The appellees, cross-appellants in No. 79-1145, are steel manufacturers who engage the certified carriers for the transportation of their products. The freight rates they pay are based on published tariffs approved by the Interstate Commerce Commission or, in intrastate operations, by the appropriate state regulatory agencies.

The characterization of the parties is taken from an opinion on a previous aspect of this dispute before us in United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046, 1047 n.1 (3d Cir. 1970):

An owner-operator who leases his complete rig to the carrier receives 75% of the gross revenue paid by the steel producer to the carrier. Of the revenue received, the owner-operator allocates 26% for the services of the driver, and the remaining 49% is allocated for the cost of equipment rental. From this 49% the owner must pay the monthly finance charges for his rig, insurance, maintenance, and overhead expenses. Whatever remains is profit to him.

The permanent injunction dated September 10, 1971 was entered by consent and is identical in all material respects to a preliminary injunction entered by the district court on May 15, 1970, which we reviewed in United States Steel Corp. v. Fraternal Association of Steelhaulers, 431 F.2d 1046 (3d Cir. 1970).

FASH is more than one organization. Described by the district court as "a `siamese' triplet of three separate yet combined entities," it is first a national federation of associations formed to promote "the mutual protection and advancement of the interests and general welfare of independent tractor-trailer owner-operators, drivers, and allied occupations in the general business of hauling and transporting steel and steel products." App. at 2289a-1. In addition, the term FASH may refer to the Fraternal Association of Steel Haulers of Western Pennsylvania, chartered as a Pennsylvania not-for-profit corporation in 1968, for the purpose of promoting the "desires of persons connected with the steel hauling industry whether such persons be owners of vehicles, drivers of vehicles, or owner-operators." Id. at 2282a. A third facet of FASH is the Fraternal Association of Special Haulers (Special Haulers), described by William J. Hill, President and Chairman of all the defendant associations, as "the union part of FASH." Id. at 2294a-32. By the time the permanent injunction was entered in 1971, Special Haulers had entered into two collective bargaining agreements with common carriers and had been certified by the National Labor Relations Board as a collective bargaining representative for employees of Tryon Trucking Company. Since then, Special Haulers has entered into collective bargaining agreements with two or three additional carriers.

Appendix at 2789a.

The factual background which led to the 1970 preliminary injunction and the consent 1971 permanent injunction has been previously summarized by this court:

The confrontation between the parties was precipitated in April, 1970, when members of FASH decided to withdraw their rigs from service to the carriers. In addition, FASH members sought by concerted action to dissuade other truckers from supplying service to and from appellees' mills and plants. FASH contended that the withdrawal of services resulted from its disaffection with the Teamsters Union which had represented a majority of its members in past negotiations with the carriers. Appellees, however, insist that FASH's actions were designed to force the steel producers to pay higher tariffs to the carriers, thus increasing the proportionate share of FASH members.
Following the withdrawal of rigs in April, 1970, FASH established marshalling areas throughout Western Pennsylvania where other steel haulers were invited by FASH members to pull off the highway and participate in discussions. In many instances, these invitations resulted in shootings, arson, rock throwing, tire slashing, and other assorted acts of wanton vandalism.
This then was the background that precipitated the filing of the complaint for injunctive relief. The companies charged that the individual appellants and FASH combined and conspired to restrain interstate commerce in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2 and Sections 4, 12 and 16 of the Clayton Act, 15 U.S.C.A. §§ 15, 22 and 26. In opposing the request for the injunction, appellants argued that they are trade unionists and, accordingly, come within the anti-injunction protection of § 13(c) of the Norris-LaGuardia Act, 29 U.S.C. § 113(c).

431 F.2d at 1047.

A second massive withdrawal of these rigs from service in a campaign sponsored by FASH, this time in 1978, precipitated the present proceedings. The FASH National Committee decided on July 29, 1978 to organize a shutdown of steel hauling rigs. Thereafter President Hill and other national officers traveled throughout steel producing areas from Chicago to Philadelphia to promote the shutdown which eventually began on November 10-11, 1978 and substantially cut shipments at the appellees' mills. For one company alone, some $67 million of steel product shipments sat unshipped after twenty days of the shutdown. App. at 2407a.

As in 1970, the withdrawal was accompanied by many acts of violence and vandalism. Testimony by Major Homer Redd of the Pennsylvania State Police established that there were 260 incidents of trucking violence on Pennsylvania highways during the first month of the shutdown, including rock-throwing, shootings, threats, and tire and air hose slashings. The officer also testified that there are very few incidents involving trucks during normal times. Id. at 555a-56a.

In a radio interview on November 1, 1978, President Hill summarized the goals of his association:

We would like to get every steel hauler in the nation into our organization whether you call it a trade association, you could call it a union, whatever you want. . . . [W]hen I talk about price, that's charging the mills what they're going to haul steel for and our people are the people with capital investments, they are the people that have investment and responsibility for their equipment. They are people who have to maintain that equipment. But they have nothing to say on what a load of steel will be hauled for, the price a load of steel will be hauled for from here to Chicago. It's the middleman, the broker, the guys that have a certificate with the ICC that have no capital investment that is saying we'll charge you 10 cents per hundred weight to haul this load of steel.

Id. at 2291a-1 (emphasis added).

The shutdown continued until appellees returned to the district court asking that the appellants be held in contempt of the 1971 consent injunction. At the same time appellants sought to have the terms of the injunction modified under Fed.R.Civ.P. 60(b). After an evidentiary hearing on the various motions, the district court found that FASH intentionally contravened the 1971 order without first seeking proper modification of it and concluded that FASH attempted to circumvent the judicial process by organizing and conducting the shutdown notwithstanding the prohibition of the 1971 order. The court adjudged that FASH and nineteen named individuals were in contempt, and as to each individual, it outlined the specific evidence supporting its adjudication. Id. at 2805a-07a, 2741a-59a.

The court also dealt with the principal defense raised by FASH, that is, that it is a labor organization engaged in a dispute concerning wages, hours and working conditions and is consequently exempt from the antitrust laws upon which the injunction was based. On this question, the district court concluded that the evidence before it was substantially the same as in 1970 — that FASH members considered themselves to be and are businessmen who sought collectively to negotiate their own rates and cover their costs of operation. E.g. id. at 2792a-93a, 2797a. It also found that FASH aimed its activities directly at steel manufacturers. Id. at 2801a-02a. Based on these findings, the court denied appellants' motion to vacate or dissolve the injunction and adjudged FASH and the nineteen individuals in contempt.

A combination of businessmen illegally restraining trade offends the antitrust laws of the United States. FASH failed in its efforts to skirt the sanctions of these laws in 1970 because it could not prove, first, that it was solely a labor organization, and, equally important, that it was a labor organization which did not combine with businessmen to restrain trade. Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). See discussion in United States Steel Corp. v. Fraternal Association of Steelhaulers, 431 F.2d 1046 (3d Cir. 1970).

By amended order of January 22, 1979, the district court found that the FASH shutdown had ended and that FASH and its officers and members had purged themselves of their contempt of the 1971 injunction. App. at 2819a-20a.

I.

We address first the appeal in No. 79-1168 from the adjudication of contempt. As previously stated, the district court imposed no penalties, and by order of January 22, 1979 specifically found that FASH, its officers and members, had purged themselves of their contempt. It is generally held that, although a sentence for civil contempt may be immediately appealable, until a sentence or sanction has been imposed "the situation is lacking in the elements of operativeness and consequence necessary to be possessed by any judicial order to enable it to have the status of a final decision under § 1291." S.E.C. v. Naftalin, 460 F.2d 471, 475 (8th Cir. 1972), citing 9 J. Moore, Federal Practice § 110.13[4]. See also American Saint Gobain Corp. v. Armstrong Glass Co., 418 F.2d 571 (6th Cir. 1969); International Silver Co. v. Oneida Community, Ltd., 93 F.2d 437, 440-41 (2d Cir. 1937). A distinction is made, for appealability purposes, between criminal contempt proceedings which have for their purpose the vindication of the dignity and authority of the court, and civil contempt proceedings which are intended to enforce the rights of private parties, to compel obedience to orders and decrees made to enforce their rights and to give them a remedy to which the court deems them entitled. Doyle v. London Guarantee Co., 204 U.S. 599, 604-05, 27 S.Ct. 313, 51 L.Ed. 641 (1907). Civil contempt becomes appealable only when the contemnor has refused to comply with the remedial order and the court has exercised its authority either to punish or to coerce compliance. Alexander v. United States, 201 U.S. 117, 121-22, 26 S.Ct. 356, 50 L.Ed. 686 (1906). Accordingly, inasmuch as the court imposed no punitive or coercive order, but in fact determined that the contemnors but in fact determined that the contemnors had purged themselves, we hold that the adjudication of contempt was interlocutory only. We shall dismiss the appeal for lack of jurisdiction for want of a final order.

II.

Appellants next contend in No. 79-1145 that the district court erred in failing to modify the terms of the 1971 injunction pursuant to a motion to modify duly filed under Fed.R.Civ.P. 60(b). We find no merit to this contention.

Rule 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) . . . it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from operation of the judgment." While the language of either provision is broad, neither presents the court with a "standardless residual discretionary power to set aside judgments . . . " Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976) (Gibbons, J., concurring). Instead it is settled that such relief is extraordinary and may be granted only upon a showing of "exceptional circumstances."

Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977) ( Maroney II). We also recognize that while consent decrees are judicial acts, they have many of the attributes of contracts voluntarily undertaken. United States v. ITT Continental Baking Co., 420 U.S. 223, 236, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975); see United States v. Armour Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971). And when, as in this case, the appellants made a free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment, their burden under Rule 60(b) is perhaps even more formidable than had they litigated and lost. See Vecchione v. Wohlgemuth, 558 F.2d 150 (3d Cir.), cert. denied, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977). Although the court has the power to modify a consent decree, United States v. Swift Co., 286 U.S. 106, 115, 52 S.Ct. 460, 76 L.Ed. 999 (1932), a party seeking Rule 60(b) relief bears a heavy burden of showing circumstances so changed that "dangers, once substantial, have become attenuated to a shadow." Id. at 119, 52 S.Ct. at 464; Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1119 (3d Cir. 1979).

FASH argues that it has demonstrate "exceptional circumstances" and relies on certain evidence to support its claim that the court erred in refusing to modify the 1971 injunction. It contends that Special Haulers, the self-styled "union" arm of the organization, has a few collective bargaining agreements with carriers and has been certified as a bargaining agent in several cases before the NLRB. But Special Haulers had collective bargaining agreements and one NLRB certification before it consented to entry of the injunction in 1971. App. at 1747a, 1756a-57a. It next contends that many of its members are covered by a collective bargaining agreement of the International Brotherhood of Teamsters, and that this contract regulates various aspects of the relationship between Teamster contract carriers and owner-operators. FASH Brief at 26-31. The deficiency in this argument is that FASH has not shown those provisions to be different from those that were in effect in 1970 and 1971.

Moreover, because many of the vital trial court determinations were factual in nature and are governed on review by the clearly erroneous standard of Fed.R.Civ.P. 52, FASH must reckon with the finding by the district court, critically adverse to its theory, that although

FASH officials and their counsel maintain and urge that the labor relationship exists now differently from what it was in 1970 and 1971, the evidence throughout the hearing pointed conspicuously to the attitude of the defendants and many of those who testified to the effect that they were businessmen.

App. at 2797a. The court further found that FASH members "invest capital in a business venture." Id. at 2801a. Our own independent review of the record does not persuade us that these findings are "completely devoid of minimum evidentiary support displaying some hue of credibility" or that they bear "no rational relationship to the supportive evidentiary data," Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).

When this case was previously before us we discussed Local 24, International Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959) ( Oliver I), and American Federation of Musicians v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968), and perceived "substantial distinctions between the issues presented in Oliver I and Carroll and the case at bar." 431 F.2d at 1049. We said then, "On the basis of the record as it now stands, FASH has failed to demonstrate that its primary purpose was to protect the drivers' interest in the gross revenue rather than the owners' interest in the equipment rental." Id. at 1050-51. After we remanded the proceedings in 1970, the record was not augmented prior to the entry of the permanent injunction. Faced with an even more onerous burden in the 1978 hearings, because it was now proceeding as movant in a Rule 60(b) proceeding rather than as a mere defendant in an ongoing equity action, FASH, through National President Hill, failed to help its cause on this issue. As indicated heretofore, Hill emphasized that "our people are the people with capital investments, they are the people that have investment and responsibility for their equipment." App. at 2291a. In a letter to the Small Business Administration, Hill referred to "independent truckers and other small businessmen who are facing bankruptcy due to the nations's increasing recession." Id. at 2295a (emphasis added).

We, therefore, do not find clearly erroneous the district court's rejection of the FASH contention that it had a "philosophical change" since 1970 and that it now represents principally drivers, not owners. FASH Brief at 11. The literature of FASH, its charter and bylaws, the out of court statements of its president and the other objective evidence do not convincingly demonstrate the purported change. Accordingly, we conclude that appellants failed to meet the heavy burden of proof that is required to merit the extraordinary relief that may be granted under Rule 60(b) only upon a showing of exceptional circumstances.

Nor has applicable law changed since 1970. Appellants' contention that Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), precludes injunctive relief on the theory that appellees were too remote from the effect of their work stoppage is now foreclosed by Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573, 594 (3d Cir. 1979).

III.

The cross-appellants' contention is directed at the district court's sua sponte modification of the 1971 injunction to exclude certain FASH members from its terms. The effect of the modification is to make the injunction inapplicable to FASH members who drive for and lease their rigs to a carrier whose employees are represented by Special Haulers for collective bargaining purposes. We hold that there was insufficient evidence in the record to justify the court in granting the extraordinary relief under Rule 60(b).

The central issue is not whether the FASH members belonged to a union certified for collective bargaining purposes. Assuming that members of the Special Haulers faction of FASH were found not to be businessmen but rather legitimate union members, "[i]t is also beyond question that nothing in the anti-injunction provisions of the Norris-LaGuardia Act, nor in the labor exemption provisions of the Clayton Act, insulates a combination in illegal restraint of trade between businessmen and a labor union from the sanctions of the antitrust laws." Los Angeles Meat Drivers Union v. United States, 371 U.S. 94, 99-100, 83 S.Ct. 162, 9 L.Ed.2d 150 (1962) (footnotes omitted).

Immunity from the strictures of the injunction for Special Haulers who had collective bargaining agreements could properly have been granted only to designated Special Haulers if they neither joined nor cooperated with the objectives of the other FASH members deemed by the court to be businessmen. Indeed our examination of the record persuades us that this could not have been shown. For example, the testimony of President Hill was that the Special Haulers met in concert with the "businessmen" members of FASH, and there was evidence that even Special Haulers who had no-strike contracts with their carriers withdrew their rigs from service. Under these circumstances, even adopting the contention that these particular Special Hauler units were bona fide unions, and this is only an assumption, their participation in the work stoppage in concert with non-labor units brought them within the strictures of the antitrust laws. Accordingly, the district court erred in modifying the injunction.

IV.

The appeal at No. 79-1168 will be dismissed for lack of an appealable order. The judgment of the district court will be affirmed in all respects except that the portion of the January 9, 1979 order which modified the consent injunction of 1971 will be vacated, and the 1971 decree reinstated in all respects.

Appellants will bear the costs in Nos. 79-1055 and 79-1168; appellees will bear the costs in the appeal at No. 79-1145.

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UNITED STATES STEEL CORP. v. FRATERNAL ASS'N
(Jul 10, 1979)