Metropolitan Opera Ass'n v. Hotel Empl. Union

• Decision Date: 15 September 2000
• Docket Number: Docket No. 00-7763
• Citation: 239 F.3d 172
• Parties: (2nd Cir. 2001) METROPOLITAN OPERA ASSOCIATION, INC., Plaintiff-Appellee, v. LOCAL 100, HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, HENRY TAMARIN, individually and in his capacity as President of Local 100, Hotel Employees and Restaurant Employees International Union and DENNIS DIAZ, individually and in his capacity as Organizer of Local 100, Hotel Employees and Restaurant Employees International Union, Defendants-Appellants. August Term 2000 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 172

239 F.3d 172 (2nd Cir. 2001)

METROPOLITAN OPERA ASSOCIATION, INC., Plaintiff-Appellee, v. LOCAL 100, HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, HENRY TAMARIN, individually and in his capacity as President of Local 100, Hotel Employees and Restaurant Employees International Union and DENNIS DIAZ, individually and in his capacity as Organizer of Local 100, Hotel Employees and Restaurant Employees International Union, Defendants-Appellants.

Docket No. 00-7763

August Term 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 15, 2000

Decided: February 02, 2001

Appeal from a preliminary injunction in the United States District Court for the Southern District of New York (Preska, J.), vacated.

DEBORAH E. LANS, Esq., Morrison Cohen Singer & Weinstein, New York, NY, (Vincent J. Pentima, Esq., Klett Rooney Lieber & Schorling, Philadelphia, PA, and Sharon E. Grubin, General Counsel, Metropolitan Opera, New York, NY, on the brief) for Plaintiff-Appellee.

MICHAEL ANDERSON, Esq., Davis, Cowell & Bowe, San Francisco, California (Joseph J. Lynett, Esq., Herrick, Feinstein, New York, NY, on the brief) for Defendants-Appellants.

ARTHUR EISENBERG, Esq., Christopher Dunn, Esq., New York, NY, on the brief, for amicus curiae New York Civil Liberties Union Foundation.

JAMIN B. RASKIN, Professor of Law, Washington College of Law, American University, Washington, D.C., Hillary Richard, Esq., Laurie Edelstein Esq., Brune & Richard, New York, NY, on the brief, for amici curiae Global Exchange, United Students Against Sweatshops and Harvard Progressive Student Labor Movement.

Before: WALKER, Chief Judge, LEVAL and PARKER, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge:

In this appeal, appellant Hotel Employees and Restaurant Employees Local 100 ("the Union" or "Local 100") challenges an injunction entered by the district court prohibiting the Union from publicly implicating the Metropolitan Opera ("the Met") in a labor dispute that the Met claimed involved only the Union and the Met's food service provider, RAPERA, Inc. ("Restaurant Associates" or "RA"). RA provides food service and concessions during Met performances and intermissions, and is the direct employer of the workers the Union seeks to organize.

The Met commenced this action in New York State Supreme Court, and on May 4, 2000 obtained a temporary restraining order ("TRO") against the Union's activities. Shortly thereafter, the Union removed the case to the United States District Court for the Southern District of New York and moved to dissolve the TRO. On June 9, 2000, after a hearing, the district court (Loretta A. Preska, District Judge) denied the motion to dissolve the TRO, and continued it as a preliminary injunction. See Metropolitan Opera Ass'n, Inc. v. Local 100, 2000 WL 872829 (S.D.N.Y. June 1, 2000). The injunction prohibits the Union and its members generally from "threatening or harassing" and "engaging in fraudulent or defamatory representations regarding" the Met, its donors, officers, patrons, or directors. The district court also granted the Met's motion to hold defendants in contempt of the TRO for various acts that took place after May 4, and ordered the Union to pay the Met $10,000 in fines to compensate it for "its damaged reputation and good will." The Union now appeals from the order granting the preliminary injunction.

In seeking to vacate the injunction, the Union makes three primary arguments: (1) the district court erred in holding that the only "labor dispute" that would trigger the Norris LaGuardia Act's (NLA) anti-injunction provision was between the Union and RA, and not between the Union and the Met, see 29 U.S.C. §§ 104, 113; (2) the district court erred in concluding that, even if the NLA applied, it had jurisdiction to issue the injunction under the NLA's "unlawful acts" exception because the Union's activities were defamatory, see 29 U.S.C. § 107; and (3) the injunction contravenes the First Amendment and traditional libel law as a prior restraint against defamatory speech, and is impermissibly vague because it makes "no attempts to draw a boundary line between permissible free speech and a contempt of court." Appellants' Brief at 55.

While we agree that the injunction presents serious questions under the First Amendment and libel law, we hold that the injunction is impermissibly vague because it fails to provide the Union with adequate notice of what conduct is being enjoined. We do not reach the merits of the Union's other arguments. Whether the Norris-LaGuardia Act poses a "jurisdictional" bar to the injunction need not be addressed as a threshold question. Unlike questions that affect the court's constitutional power to act under Article III, which should be resolved before proceeding to the merits, see U.S. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998), the NLA issue involves a statutorily defined claim that stands in pari materia with the claims we address here.

BACKGROUND

A. The Dispute

RA operates under a multi-year, exclusive contract with the Met to provide concessions in connection with performances. This contract will expire, unless renewed, on July 31, 2001. In January, 1999, the Union began an organizing drive among employees of RA who work the concessions at the Met. RA resisted and the National Labor Relations Board ("NLRB") took enforcement action against RA based upon evidence that RA surveilled and interrogated employees and threatened to delay any proposed representation election. On April 10, 2000, RA and the NLRB General Counsel settled that case.

Beginning in 1999, in part because of continued RA intransigence, the Union solicited the Met's help in influencing RA to "abandon its anti-union campaign and accept a neutrality/card-check process." A card-check process permits a Union seeking to organize workers to bypass the traditional NLRB election process, and instead to collect cards from individual workers voting in favor of unionization. When a majority of the workers has checked its cards, the Union can represent the workers. During this process the employer promises to remain neutral by not hiring "union busters" or speaking against the Union.

The Met sought to avoid involvement in what it claimed was purely a dispute between RA and the Union. Unable to gain the Met's support, the Union initiated a campaign of public criticism directed at the Met, and its directors, donors, and patrons for their alleged support of "unfair labor practices" and failure to help resolve the dispute in the Union's favor. The Union's activities included chanting and distributing pamphlets in front of the Met, sending letters to Met directors and donors, and asking donors to discontinue their contributions. At rallies before Met performances, union demonstrators chanted slogans like "shame on you" or "no more lies, give us the right to organize." Pamphlets distributed to Met patrons contained such statements as "Met Opera out of tune with food service workers' rights," "we are the only Met Opera workers without a union," and "find out what they are doing at the Met to the people who will be serving your meal." Typical letters stated that the Met or one of its Directors is "at the center of a troubling labor dispute," or is "engaged in a bitter, high profile labor dispute," or that the donor, by contributing to the Met, is "supporting unfair labor practices." In one letter to an executive of the Boy Scouts of America, the Union stated that Paul M. Montrone, the President of the Met and a member of a committee of the Boy Scouts of America, was

at the center of a troubling labor dispute. Mr. Montrone has so far refused to meet with the workers. . . . The bartenders, buspersons, cashiers, cooks, dishwashers and waiters at the Met are fighting for their rights. . . . As the President of the Metropolitan Opera, Mr. Montrone is in a position to help resolve this labor dispute quickly and fairly.

While some of these letters mentioned RA by name, many referred to RA only as the Met's food service provider.

One leaflet criticized Scully & Scully, a small donor to the Metropolitan Opera Guild's annual auction, in the following language: "Scully & Scully: Supporting unfair labor practices and union busting tactics . . . . Scully & Scully is in a position to help end such abuse of hard working New Yorkers. Tell Scully & Scully not to contribute to the Met Opera Guild's auction this year." The Union distributed other leaflets during multiple visits to Forest Laboratories, whose Chairman and CEO is a Managing Director at the Met. One leaflet asked, "Have you experienced or witnessed any of these at Forest Laboratories?" followed by a list of violations and ethical lapses, including, among other things: price fixing or collusion; corruption; bribery; FDA problems; harassment; physical abuse; and unwelcome sexual conduct.

B. The District Court Decision

In deciding to continue the state court TRO as a preliminary injunction, the district court held that the controversy between the Union and the Met was not a "labor dispute" under the Norris-LaGuardia Act (NLA), 29 U.S.C. § 101 et seq., and therefore, the NLA's anti-injunction provisions did not apply. The district court held in the alternative that even if the conflict were a "labor dispute," the Norris-LaGuardia Act's "unlawful acts" exception permitted the injunction. See 29 U.S.C. § 107. Finding no barrier to an injunction under the NLA, the district court concluded that a preliminary injunction was necessary to prohibit the Union from defaming, harassing or threatening the Met, and that such an injunction would not violate the First Amendment, because it aimed "to redress a private wrong and not to suppress public opinion." Finally, the district court held the Union in civil contempt of the TRO, based upon multiple leaflets, letters, and actions taken by the Union subsequent to the May 4 TRO that ...