National Maritime Union v. Aquaslide "N' Dive Corp.

• Decision Date: 06 August 1984
• Docket Number: Nos. 83-2313,83-2391,s. 83-2313
• Citation: 737 F.2d 1395
• Parties: Page 1395 737 F.2d 1395 117 L.R.R.M. (BNA) 2122, 101 Lab.Cas. P 11,160 NATIONAL MARITIME UNION, Plaintiff-Appellant Cross-Appellee, v. AQUASLIDE 'N' DIVE CORPORATION, Defendant-Appellee Cross-Appellant. NATIONAL MARITIME UNION, Plaintiff-Appellant, v. AQUASLIDE 'N' DIVE CORPORATION, Defendant-Appellee, v. Daniel GARZA, Humberto Garcia and Baldemar Aquirre, Appellants. United States Court of Appeals, Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1395

737 F.2d 1395

117 L.R.R.M. (BNA) 2122, 101 Lab.Cas. P 11,160

NATIONAL MARITIME UNION, Plaintiff-Appellant Cross-Appellee v AQUASLIDE 'N' DIVE CORPORATION, Defendant-Appellee Cross-Appellant.

NATIONAL MARITIME UNION, Plaintiff-Appellant v AQUASLIDE 'N' DIVE CORPORATION, Defendant-Appellee, v. Daniel GARZA, Humberto Garcia and Baldemar Aquirre, Appellants.

Nos. 83-2313, 83-2391.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1984.

E. Dale Robertson, J.A. Magallanes, Brownsville, Tex., for Nat. Maritime Union.

R. Glenn Jarvis, Mark A. Schwarz, Mark A. Twenhafel, McAllen, Tex., Eduardo Rodriguez, Brownsville, Tex., for Aquaslide N Dive Corp.

Appeals from the United States District Court for the Southern District of Texas.

Before GARZA, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The National Maritime Union, representing workers at Aquaslide's Brownsville facility, struck Aquaslide. The facility remained open, and there was tension between the striking workers and those workers who continued on the job. First the NMU and then Aquaslide filed complaints in the district court seeking preliminary injunctions against alleged acts of harassment and other misconduct. Jurisdiction was alleged under the Norris-LaGuardia Act, 29 U.S.C. Secs. 101 et seq., 107, and under the pendent jurisdiction of a federal court hearing claims concerning a labor dispute. After a hearing, the court issued a preliminary injunction enjoining both parties from committing certain belligerent acts.

Each side soon filed motions to show cause why the other should not be held in contempt for violating the terms of the preliminary injunction. A hearing was held, and all parties agreed to treat the motions as civil contempt proceedings and to waive jury trial.

The district court pushed aside disputes over obscene language at the strike site, concluding that this violation did not warrant the imposition of monetary sanctions against either party. More seriously, the court heard about incidents in which strikers had pelted workers' automobiles with rocks, causing $733.57 in property damage for which Aquaslide reimbursed its employees. Finding that the national union was chargeable with the acts of its local officers and members, the court imposed a compensatory fine against NMU of $733.57 and attorneys' fees and costs of $9550.45. The court also amended its preliminary injunction to prohibit explicitly various forms of conduct conducive to violent confrontations at the strike site.

Continued confrontations at the strike site led Aquaslide to file a second motion to show cause why three NMU members--Garcia, Aguirre, and Garza--should not be held in contempt for continuing to violate the terms of the preliminary injunction. Though the motion was treated as a criminal contempt proceeding, respondents' request for a jury trial was denied by the district judge with an assurance that the punishment in the event of conviction would not exceed six months imprisonment. Garcia, Aguirre, and Garza were convicted of contempt and sentenced to 160 days imprisonment, which sentence was probated on condition that the respondents stay away from the strike site for 160 days. The court also amended further its preliminary injunction to specify the permitted placement and conduct of strikers picketing the Aquaslide plant.

The NMU appeals from the imposition of the compensatory fine and attorney fee award. Garcia, Aguirre, and Garza appeal from their criminal contempt convictions. Aquaslide cross-appeals seeking a larger award of attorneys' fees. We reverse the judgment against the NMU for lack of jurisdiction, concluding that the Norris-LaGuardia Act is not a jurisdiction creating statute; and we reverse the convictions of Garcia, Aguirre, and Garza, for denial of their demanded right to a jury trial. ¹

I

The NMU challenges the district court's subject matter jurisdiction to issue the preliminary injunction governing the parties' conduct at the strike site. That court took jurisdiction after considering the five elements established by 29 U.S.C. Sec. 107 as prerequisites to the issuance of an injunction in a case growing out of a labor dispute. ²

Section 107, however, was not intended to expand federal jurisdiction in labor cases, but rather to limit the circumstances under which an injunction may be issued in those cases where the federal court already has jurisdiction by virtue of some federal question or diversity; Sec. 107 does not itself introduce a federal question into a dispute that would otherwise be governed exclusively by state law. Brown v. Coumanis, 135 F.2d 163 (5th Cir.1943); Brown & Sharpe Mfg. Co. v. All the Individual Members of Lodges 1088 and 1142, etc., 535 F.Supp. 167, 169 n. 2 (D.R.I.1982).

Our holding in Brown v. Coumanis controls this case, for we stated there that the Norris-LaGuardia Act

does not undertake to establish for employers any new substantive rights, nor put within the protection of federal courts all labor disputes, even though the conditions of the Act are met. Its purpose is not to enlarge federal jurisdiction, but, in the matter of using injunctions, to restrict it.... The Norris-LaGuardia Act does not vest power in a court of the United States to do anything it could not previously have done.

135 F.2d at 164 (footnote and citations omitted). Thus, federal jurisdiction must be established by reference to some federal constitutional or statutory right of action. Thereafter, having taken subject matter jurisdiction over the dispute, the federal court must look to Norris-LaGuardia to determine the scope of its injunctive power. See, e.g., Procon, Inc. v. Wukasch, 526 F.Supp. 597 (E.D.Tex.1981) (jurisdiction established by diversity of citizenship); Local 553, Transport Workers Union of America v. Eastern Air Lines, Inc., 544 F.Supp. 1315 (E.D.N.Y.), aff'd, 695 F.2d 668 (2d Cir.1982) (jurisdiction established under the Railway Labor Act); Day-Brite Lighting Div., etc. v. International Bhd. of Elec. Workers, 303 F.Supp. 1086 (N.D.Miss.1969) (jurisdiction established under the Labor Management Relations Act).

In Scott v. Moore, 680 F.2d 979 (5th Cir.1982) (en banc), rev'd sub nom United Bhd. of Carpenters & Joiners v. Scott, --- U.S. ----, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), an employer and his nonunionized employees who were injured in a union-backed protest against the use of nonunion labor attempted to state a claim under 42 U.S.C. Sec. 1985(3) (the Ku Klux Klan Act). This court's determination that the suit could be maintained was reversed by the Supreme Court, which held that Sec. 1985(3) does not reach conspiracies motivated by an economic or commercial animus. Of significance here, however, is the fact that this court unanimously recognized, at least implicitly, that the Norris-LaGuardia Act could not itself be relied upon as a ground of jurisdiction if jurisdiction was lacking under Sec. 1985(3).

The majority opinion in Scott noted that "[t]he Norris-LaGuardia Act was passed for the purpose of limiting the circumstances and conditions under which injunctive action could be taken against labor organizations in the context of a labor dispute." 680 F.2d at 985. Section 107 is thus not an affirmative grant of jurisdiction, but only an assurance that "[t]he Norris-LaGuardia Act does not divest the district court of jurisdiction to enjoin ... violent conduct ...." Id. at 986 (emphasis added). ³ The principal dissenting opinion agreed that "[t]he patent purpose of the Norris-LaGuardia Act was to limit stringently the jurisdiction and authority of federal courts to enjoin labor disputes." Id. at 1005 (Rubin & Williams, JJ., dissenting). Finally, Judge Garwood dissented separately on the ground that no action could be maintained under Sec. 1985(3), and then noted that this determination made it unnecessary to consider any of the issues relating to Norris-LaGuardia, id. at 1022, 1025 (Garwood, J., dissenting); this consideration was pretermitted because Norris-LaGuardia could under no circumstances be itself a basis of federal jurisdiction.

Here, Norris-LaGuardia was the only jurisdictional basis invoked by the parties. ⁴ As Norris-LaGuardia is not a source of federal jurisdiction, the district court should have dismissed the complaint, and the grant of injunctive relief was erroneous. Our present task, therefore, is to determine what effect the invalidity of the injunction has on the civil contempt judgment against the NMU and the criminal contempt judgment against Garcia, Aguirre, and Garza.

II

An unresolved challenge to its jurisdiction to enter an injunction does not end a court's authority to enforce that injunction by the contempt power. Thus, in Carter v. United States, 135 F.2d 858 (5th Cir.1943), we affirmed a contempt conviction stemming from violation of a restraining order which we had vacated in a companion decision. We held that even an injunction that is ultimately invalidated for lack of jurisdiction is, while the jurisdictional question is pending, a "lawful order," violation of which is punishable as contempt. This analysis was endorsed by the Supreme Court in United States v. United Mine Workers of America, 330 U.S. 258, 292, 67 S.Ct. 677, 695, 91 L.Ed. 884 (1947), see also United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319 (1906), and has been consistently applied in this and other circuits. United States v. Hall, 472 F.2d 261, 265 (5th Cir.1972); Stewart v. Dunn, 363 F.2d 591, 598-99 (5th Cir.1966); Bigelow v. United States, 267 F.2d 398 (9th Cir.), cert denied, 361 U.S. 852, 80 S.Ct. 113, 4 L.Ed.2d 91 (1959).

Here, there was no challenge raised in the district court as to that court's jurisdiction to enter an injunction governing the conduct of strikers and workers at the Aquaslide plant site. Indeed, it was the NMU that first invoked the Norris-LaGuardia Act as a source of jurisdiction for the district court,...