Ahearn v. Int'l Longshore

• Decision Date: 05 July 2013
• Docket Number: No. 11–35848.,11–35848.
• Citation: Ahearn v. Int'l Longshore & Warehouse Union, 721 F.3d 1122 (9th Cir. 2013)
• Parties: Richard L. AHEARN, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner–Appellee, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCALS 21 AND 4, Respondents–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

721 F.3d 1122

Richard L. AHEARN, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner–Appellee,

v.INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCALS 21 AND 4, Respondents–Appellants.

No. 11–35848.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2013.

Filed July 5, 2013.

Emily M. Maglio (argued), Robert S. Remar, and Eleanor I. Morton, Leonard Carder, LLP, San Francisco, CA; Robert H. Lavitt, Schwerin, Campbell, Barnard, Iglitzin & Lavitt, LLP, Seattle, Washington, for Respondents–Appellants.

Kayce R. Compton (argued), Lafe E. Solomon, Acting General Counsel, Elinor L. Merberg, Assistant General Counsel, Celeste J. Mattina, Deputy General Counsel, Laura T. Vazquez, Deputy Assistant General Counsel, and Barry J. Kearney, Associate General Counsel, National Labor

Relations Board, Washington, D.C., for Petitioner–Appellee.

Richard J. Pautler, Thompson Coburn LLP, St. Louis, MO, for Amicus Curiae EGT, LLC.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:11–CV–05684–RBL.

Before: DOROTHY W. NELSON and CONSUELO M. CALLAHAN, Circuit Judges, and RANER C. COLLINS, District Judge.^*

OPINION

COLLINS, District Judge:

Appellants Locals 21 and 4 of the International Longshore and Warehouse Union (“Union”) engaged in protest activities at the site of a grain terminal operated by Export Grain Terminal, LLC (“EGT”). EGT filed charges against the Union with Appellee, the National Labor Relations Board (“NLRB”).

While the NLRB action was pending, the NLRB sought injunctive relief against the Union pursuant to Sections 10(j) and 10( l ) ¹ of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151– 169. The district court issued both a temporary restraining order and a preliminary injunction prohibiting the Union from engaging in certain protest activities. The Union continued to engage in these activities, so the district court found the Union in contempt and ordered it to pay compensatory damages to the NLRB, EGT, various law enforcement agencies, and Burlington Northern Santa Fe (“BNSF”).

On appeal, the Union argues that the district court's contempt awards should be vacated because the court did not have discretion to award compensatory damages to third parties, or to award damages to the charging party in an underlying labor action where Section 303 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §§ 141–187, allegedly provided the sole remedy. The Union also argues that it was entitled to heightened procedural protections during the civil contempt proceedings because the damages were criminal, not civil, sanctions.

We conclude that the district court did not abuse its discretion when it awarded compensatory damages to EGT, and that the record supported the amount of damages awarded to EGT. However, we conclude that the district abused its discretion when it awarded compensatory damages to BNSF and the various law enforcement agencies that responded to the scenes of the Union's protests, because these entities were not parties to the underlying NLRB action. We therefore affirm in part and reverse in part.

I.

The events underlying this appeal arose out of a dispute between the Union and EGT concerning whether Union members would operate an EGT grain terminal located on land that EGT was leasing from the Port of Washington (“Port”). The Union claimed that under the terms of a collective bargaining agreement between the Union and the Port, EGT was required to hire Union members. EGT rejected the Union's attempts to enforce the collective bargaining agreement, and informed the Union that it was going to hire non-Union members to operate the grain terminal.

Beginning in June 2011, Union members began picketing at EGT's terminal site. EGT filed charges against the Union with the NLRB, which pursued injunctive relief against the Union pursuant to Sections 10( l ) and 10(j) of the NLRA. Specifically, the NLRB petitioned for a temporary restraining order and preliminary injunction, alleging that, starting in June 2011, Union members picketed at the EGT facility with signs. The NLRB claimed that Union members coerced people into refusing to perform services for EGT through threats and harassment.

According to the petition, the Union's picketing and trespassing resulted in the destruction of EGT property and the harassment of its employees and contractors, including but not limited to: breaking and/or stealing signs; tearing down gates; pushing rail cars out of their respective rail sheds; verbally and physically assaulting EGT employees and contractors; impeding ingress and egress to and from the EGT facility; harassing and threatening bodily harm and/or death to EGT employees and other individuals who crossed the picket lines; blocking the rail lines so that railway cars were unable to make scheduled deliveries to EGT; damaging vehicles, including throwing eggs at, pushing, spitting on, and keying vehicles driven by EGT employees; placing plastic bags filled with feces outside of the EGT administration building; following EGT employees and contractors as they left the facility; dropping a black trash bag filled with manure from an aircraft onto EGT property; and dropping nails on the road leading to the entrances to the facility.

On September 1, 2011, after a hearing on the merits, the district court issued a temporary restraining order (“TRO”), prohibiting the unions from engaging in “picket line violence, threats and property damages, mass picketing and blocking of ingress and egress at the [EGT facility]” and from “restraining or coercing employees of EGT, General [Construction], or any other person doing business in relation to the EGT facility....”

The NLRB alleges that on September 7, 2011, “several hundred people acting in concert with the Unions” picketed on the railroad tracks in Vancouver, Washington, blocking a BNSF train that was headed for the EGT facility with a corn delivery. The picketers allowed the train to pass seven hours later. However, the train was stopped again by Union picketers outside of the Port of Longview. The picketers refused to allow the train to make its delivery to EGT's facility. The train was able to deliver the corn only after police officers from the Cowlitz County Police Department, the Cowlitz County Sherriff's Department, and the Kelso County Police Department arrested several picketers and cleared the tracks.

The NLRB also alleges that at approximately 4:00 a.m. the next day, “over 100 cars converged on EGT's facility,” and that picketers “armed with gardening shears, baseball bats, broken broom sticks, and metal pipes” approached EGT's facility. According to the NLRB, the picketers broke windows, threatened the on-duty security guards, and threw rocks at the guards. One security guard was pulled from his car by the protestors and threatened with a metal pipe. His car was then driven into a drainage ditch. At some point during this demonstration, the picketers dumped the corn load from the BNSF train onto the railroad tracks, cut the air hoses and broke the metal couplings that connected the train cars, knocked down a portion of the fence surrounding the EGT facility, and damaged the lights on the EGT conveyor system. Later that same day, the district court granted the NLRB's petition for preliminary injunction, enjoining the same conduct described in the September 1, 2011, TRO.

On September 15, 2011, after taking testimony and hearing arguments from both parties, the district court found the Union in contempt of the TRO. On September 30, 2011, after reviewing the exhibits submitted by the NLRB, the district court awarded the NLRB $250,000 to be apportioned pro rata between the NLRB, EGT, BNSF, Longview Police Department, Kelso Police Department, Cowlitz County Sheriff's Office, and Washington State Patrol.² The Court awarded pro-rata compensatory damages in the following amounts: NLRB: $56,601.06; BNSF: $11,189.02; EGT: $117,112.70; Longview Police: $17,024.65; Kelso Police: $3,022.39; Cowlitz County Sheriff: $34,520.74; Washington State Patrol: $10,529.44.

The Court subsequently set a prospective fine schedule: (1) $25,000 for any future violations of the preliminary injunction by the Union; (2) $5,000 for any violations by Union officers; and (3) $2,500, per person, for any violations by individuals.

Approximately one week later, on September 21, 2011, the NLRB alleges that several Union officers and members blocked the railroad tracks leading to the EGT facility, which prevented another BNSF train from making a delivery. Nearly 100 law enforcement officers from several departments responded to the scene and arrested several picketers.

The district court held the Union in contempt of the preliminary injunction for this incident. After briefing, the court awarded the NLRB $64,764.38 in compensatory damages. The NLRB originally sought $71,960.38.

On appeal, we must determine whether Section 303 of the LMRA was EGT's sole remedy for collecting damages. If Section 303 is not EGT's sole remedy, then we must determine whether the record supports the amount of compensatory damages awarded to EGT. We must also decide whether EGT's participation in the contempt proceedings exceeded the statutorily limited role given to charging parties in an action before the NLRB. Finally, we must consider whether the law enforcement agencies and BNSF were entitled to compensatory damages even though they were not parties to the underlying NLRB action.

II.

We first consider whether Section 303 of the LMRA is EGT's sole remedy for obtainingdamages resulting from unlawful labor activities. We conclude that it is not.

Section 303(b) provides:

Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) ... may sue therefor in any ...