NLRB v. LOCAL 282, INTERNATIONAL BRO. OF TEAMSTERS, ETC., Docket 29149.

• Decision Date: 18 May 1970
• Docket Number: Docket 29149.
• Citation: 428 F.2d 994
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

428 F.2d 994 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.

Docket 29149.

United States Court of Appeals, Second Circuit.

May 18, 1970.

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Hans J. Lehmann, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul Elkind and Seth D. Rosen, Attys., N.L.R.B., Washington, D. C., for petitioner.

Cohen and Weiss, New York City (Bruce H. Simon, New York City, of counsel), for respondent.

Before WATERMAN, SMITH and ANDERSON, Circuit Judges.

WATERMAN, Circuit Judge:

In 1965 this court, as the result of an illegal secondary boycott by Local 282 of the International Brotherhood of Teamsters, broadly enjoined Local 282 from engaging in any more such boycotts in the future.¹ 344 F.2d 649. We stated that "We are of the opinion that an order of this scope was justifiable in view of the union's likely future violations of 8(b) (4) (B)." Id. at 653. On September 30, 1968, the National Labor Relations Board filed an original motion with us seeking to have Local 282 held in civil contempt for staging four secondary boycotts in violation of the injunction. The union denied the prohibited conduct and interposed several legal defenses. We then appointed Hon. Richard H. Levet, United States Senior District Judge, as a Special Master to hold hearings, to take testimony, and to make findings of fact in the premises. The Special Master, after giving the parties opportunities to file requests for findings of fact and conclusions of law, filed his report and his suggested conclusions of law. He has found that the union had violated the injunction in three of the four instances that the Board had charged. From this report both parties take exceptions.

We hold at the outset, contrary to the union's assertion, that this court's injunction forbidding the union to engage in future secondary boycotts is an enforceable injunction. We so hold on alternative grounds. First, we hold that the union's challenge to the validity of the injunction on the ground that it is overbroad is barred by res judicata. To the best of our knowledge, the question whether a party cited for civil contempt may in that proceeding collaterally attack the validity of the permanent injunction he is claimed to have violated presents a case of first impression. As has been stated in one Note,

Almost no case law exists in this area for a simple reason: if the enjoined defendant appeals and his case is pressing, he will often be able to have the injunction stayed by supersedeas, if the appeal itself does not automatically stay it; if he cannot make the showing necessary for a stay, he is unlikely to risk a contempt citation by violating the injunction; thus, the situation only arises when a defendant violates the injunction without bothering to appeal. Note, Developments in the Law — Injunctions, 78 Harv.L.Rev. 994, 1080 (1965).

Two cases, however, have held that a defendant in an action of criminal contempt is estopped from contesting the validity of a permanent injunction from whose issuance he took no appeal. Bullock v. United States, 265 F.2d 683, 690 (6 Cir.), cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260 (1959); Jennings v. United States, 264 F. 399, 403 (8 Cir. 1920). We recognize that a party facing charges of civil contempt has a right to challenge the validity of a temporary injunction which he violated whereas a party facing charges of criminal contempt does not. See United States v. United Mine Workers, 330 U.S. 258, 294-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947). However, where, instead of a temporary injunction, a permanent injunction is violated, the interest in enforcement consists not only of the need to maintain respect for court orders and for judicial procedures, but also of the need to avoid repetitious litigation. This latter interest, the interest which the doctrine of res judicata serves in all of its applications, militates in favor of barring collateral attacks upon permanent injunctions in civil contempt proceedings as well as in criminal ones. Here Local 282 could have sought review of the breadth of the injunction we issued by a petition for a rehearing, by a petition for a writ of certiorari, or conceivably by a petition for a writ of prohibition. These remedies do not appear to have been attempted and, of course, the litigation of issues which have been or could be litigated in a given case should reach repose when final judgment in that case is entered.

Alternatively, even if relitigation of the issues were not barred by res judicata, we hold that the injunction we issued was a valid one. Contrary to the union's assertion, the injunction is not void for overbreadth. The Supreme Court pronounced the standard for judging the permissible breadth of an injunction in labor cases as follows:

The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the party in the past. NLRB v. Express Publishing Co., 312 U.S. 426, 436, 61 S.Ct. 693, 85 L.Ed. 930 (1941).

Since the Express Publishing case the courts have upheld injunctions forbidding acts against unnamed persons so long as, at the time the injunction issued, there was reason to fear that future violations would result from a pattern or plan of illegal activity already instituted. See, e. g., McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949); NLRB v. Milk Drivers, etc., Local Union No. 584, 341 F.2d 29 (2 Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965); NLRB v. Local 294 etc., 298 F. 2d 105 (2 Cir. 1961); NLRB v. Sun Tent-Luebbert Co., 151 F.2d 483 (9 Cir. 1945), cert. denied, sub nom. Merchants & Manufacturers Ass'n of Los Angeles v. NLRB, 329 U.S. 714, 67 S.Ct. 44, 91 L.Ed. 620 (1946). In those cases where injunctions have been found overbroad, it has been held that there was no evidence that the enjoined party had proceeded in the past or would proceed in the future to violate any labor rights other than those of the particular parties named in the decree. See, e. g., Communications Wkrs. of America, AFL-CIO v. NLRB, 362 U.S. 479, 80 S. Ct. 838, 4 L.Ed.2d 896 (1960); NLRB v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930 (1941); International Brotherhood of Teamsters, etc., Local No. 554 AFL-CIO v. NLRB, 262 F.2d 456 (D.C.Cir. 1958).

In this case we found in our previous opinion, 344 F.2d 649, 652 (2 Cir. 1965), on adequate evidence, that Local 282 was an "incorrigible secondary boycotter" and that it was likely to commit future violations of Section 8(b) (4) (B). This finding is sufficient to meet the requirements of Express Publishing Co. Despite this, the union argues that there must be a showing that it has a scheme to violate the rights of a contractually related group of employers before it can be broadly enjoined, cf. NLRB v. Milk Drivers, etc., Local Union No. 584, 341 F.2d 29 (2 Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965). We find no such rule in the cases or in the congressional policy. Unless broad injunctions of this sort are permissible, an unscrupulous union can continue with relative impunity to use illegal coercion against employers. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949).

The union also advances the ancillary argument that this court possessed no reliable evidence that Local 282 was an "incorrigible secondary boycotter" at the time this court issued its injunction. The judgments cited in the opinion,² 344 F.2d 649, 652-653, in which Local 282 had previously been found guilty of secondary boycotting, included consent judgments in two instances. The union contends that a court cannot rely upon a history of consent decrees to justify the issuance of an injunction of the scope of the one we issued.

We do not agree that this court, in issuing its injunction against Local 282, only used facts inferable from consent judgments for purposes of collateral estoppel. Of course as a usual rule such a use of consent judgments, unless based upon factual findings or stipulated facts, is undesirable and impermissible, see, generally, 1-B Moore's Federal Practice ¶ 0.3333 (1965); Note, The Consent Judgment as an Instrument of Compromise and Settlement, 72 Harv.L.Rev. 1314, 1320-1321 (1959). Moreover, both the NLRB and the courts have held on occasion that facts not otherwise established except by a consent judgment itself will not adequately establish a proclivity for unlawful action so as to justify a broad injunction prohibiting such action. See NLRB v. Local 926, International Union of Operating Engineers, 267 F.2d 418 (5 Cir. 1959); Teamsters' Local 327 (Greer Stop Nut Co.), 160 N.L.R.B. 1919 (1966); Local 92, Int'l Ass'n of Bridge, etc. Workers (R. N. Hughes Constr. Co.), 138 N.L.R.B. 428, 429 n. 2 (1962). In those cases, indeed, there were no findings of fact apart from the consent decrees themselves, decrees which contained nonadmission clauses, to indicate that the prohibited activity had indeed occurred previously. In the present case the consent decrees in all of the cases relied upon by us when we issued the injunction were entered only after a trial examiner and the NLRB had in each case found from evidence adduced at hearings that unfair labor practices had occurred. Such findings, even though not affirmatively reconfirmed or confessed by Local 282 in this court, are perfectly adequate to demonstrate Local 282's proclivity to engage in secondary boycotts.

The union contends that the NLRB is obligated to seek...