Richard Ahearn v. International Longshore and Wa, et al

Filing

FILED OPINION (DOROTHY W. NELSON, CONSUELO M. CALLAHAN and RANER C. COLLINS)EGT s amicus motion and Appellant s request for judicial notice are granted. Each side shall bear its own fees and costs on appeal. AFFIRMED IN PART; REVERSED IN PART; Judge: RCC Authoring. FILED AND ENTERED JUDGMENT. [8691932]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

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,

No. 11-35848
D.C. No.
3:11-CV-05684RBL

v.

OPINION

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

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
April 10, 2013—Seattle, Washington
Filed July 5, 2013

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2 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Raner C. Collins, District Judge.*
Opinion by Judge Collins

SUMMARY**

Labor Law
The panel affirmed in part, and reversed in part, the
district court’s orders finding Locals 21 and 4 of the
International Longshore and Warehouse Union in contempt
and ordering it to pay compensatory damages, arising when
the Union engaged in protest activities at a grain terminal
operated by Export Grain Terminal, LLC, and Export Grain
filed charges against the Union with the National Labor
Relations Board.
The panel held that Section 303 of the Labor Management
Relations Act was not Export Grain’s sole remedy for
obtaining damages resulting from unlawful labor activities.
The panel further held that the district court did not abuse its
discretion when it awarded compensatory damages to Export
Grain, and that the record supported the amount of damages
awarded to Export Grain and the NLRB. In addition, the
panel held that Export Grain’s participation in the civil

*

The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 3
contempt proceedings did not exceed the statutorily limited
role under Section 160(l) of the National Labor Relations Act
given to charging parties in an action before the NLRB. The
panel also held that the district court abused its discretion
when it awarded compensatory damages to Burlington
Northern Sante Fe and the various law enforcement agencies
that responded to the scenes of the Union’s protests, because
those entities were not parties to the underlying NLRB
actions.

COUNSEL
Emily M. Maglio (argued), Robert S. Remar, and Eleanor I.
Morton, Leonard Carder, LLP, San Francisco, California;
Robert H. Lavitt, Schwerin, Campbell, Barnard, Iglitzin &
Lavitt, LLP, Seattle, Washington, for RespondentsAppellants.
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,
Missouri, for Amicus Curiae EGT, LLC.

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4 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
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”),

1

Section 10(j), 29 U.S.C. § 160(j), provides:
The [NLRB] shall have power, upon issuance of a
complaint [that a person or entity is engaging in an
unfair labor practice], to petition any United States
district court . . . for appropriate temporary relief or
restraining order.”
Section 10(l), 29 U.S.C. § 160(l), provides:
Whenever it is charged that any person has engaged in
unfair labor practice . . . the preliminary investigation
of such charge shall be made forthwith and given
priority over all other cases except cases of like
character in the office where it is filed or to which it is
referred. If, after such investigation, the officer or
regional attorney to whom the matter may be referred
has reasonable cause to believe such charge is true and
that a complaint should issue, he shall, on behalf of the
[NLRB], petition any United States district court . . . for
appropriate injunctive relief pending the final
adjudication of the [NLRB] with respect to such matter.

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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

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6 AHEARN V. INT’L LONGSHORE & WAREHOUSE 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

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AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 7
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

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8 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
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.

2

The NLRB originally asked the Court for $292,697.65. The Union
objected, arguing that some of the documents provided by the NLRB as
proof of its damages either pre-dated or post-dated the contumacious
behavior. Noting this, the district court deducted $42,000 from the
NLRB’s requested damages: “I reviewed the attorney fees, I reviewed the
times that they are accounting for them. I did not do a detailed evaluation,
but took $50,000 . . . $42,000 off the top.”

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AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 9
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.

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10 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
II.
We first consider whether Section 303 of the LMRA is
EGT’s sole remedy for obtaining damages 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
district court of the United States . . . and shall
recover the damages by him sustained and the
cost of the suit.
29 U.S.C. § 187(b). Subsection (a) allows private employers
to recover damages caused by secondary picketing, as defined
by Section 8(b)(4), 29 U.S.C. § 158(b)(4). Section 8(b)(4),
commonly referred to as the “secondary boycott” provision,
prohibits labor organizations from “picketing against an
employer with whom it does not have a dispute, with an
object of forcing that secondary employer to cease doing
business with a primary employer.” NLRB v. Local 3, Int’l
Bhd. of Elec. Workers, 471 F.3d 399, 402 (2d Cir. 2006)
(“Local 3”) (quotation marks omitted).
In the underlying NLRB action in this case, EGT alleged
that the Union picketed outside of its facility for the purpose
of getting EGT, the secondary employer, to cease doing
business with the Port of Longview, the primary employer.
The district court declined the NLRB’s petition to enjoin
secondary picketing, and the parties have since entered into
a settlement agreement that addresses EGT’s allegations. The
district court did not award relief for secondary picketing

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under Section 8(b)(4), and the district court did not cite
Section 8(b)(4) or Section 303 in awarding compensatory
damages to EGT.
The Union nonetheless urges us to follow the Second
Circuit’s holding in Local 3, where the Second Circuit
declined to award civil contempt damages to third-party
employers when the employers were not complainants in the
underlying Section 303 action and had not brought their own
Section 303 claims against the union. 471 F.3d at 408. In
reaching this conclusion, the Second Circuit cited the lack of
any authority to the contrary and its prior decision in New
York v. Operation Rescue National, 80 F.3d 64, 71 (2d Cir.
1996), where the court vacated the award of compensatory
damages to third-party abortion clinics that had been injured
by anti-abortion protestors’ violation of an injunction. Local
3, 471 F.3d at 408.
We reach a different conclusion, for several reasons.
First, civil contempt proceedings serve two purposes: (1)
coercing compliance with a court order; and (2) compensating
the prevailing party. McComb v. Jacksonville Paper Co.,
336 U.S. 187, 191 (1949); Whittaker Corp. v. Execuair Corp.,
953 F.2d 510, 517 (9th Cir. 1992). As the charging party,
EGT is a “prevailing party” for purposes of the NLRA and
therefore is entitled to compensation for its actual damages.
29 C.F.R. § 102.8 (“The term party . . . shall mean . . . any
person filing a charge or petition under the act . . . .”); cf.
EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1514–15 (11th
Cir. 1987) (female victims of sex discrimination who were
represented by the EEOC in the underlying action were
“parties” to that action).

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12 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
Second, we are not convinced that Local 3 stands for the
broad proposition that employers who are eligible to seek
remedies under Section 303 are never entitled to civil
contempt damages for injuries related to secondary protest
activities. No case has ever cited Local 3 for such a broad
proposition and Local 3’s reasoning does not suggest such an
expansive holding.
Third, Section 303 states only that private employers
“may sue” for damages caused by unfair labor practices, not
that they must do so. 29 U.S.C. § 187(b). Nothing in the
LMRA or the NLRA suggests otherwise. As for Operation
Rescue, that case is inapposite because it did not involve
private employers who were eligible for Section 303 relief.
80 F.3d at 64. Finally, it is not clear that EGT could seek
relief under Section 303 in this case, as the district court did
not award injunctive relief under Section 8(b)(4).
III.
We now turn to whether the record supports the amount
of compensatory damages awarded to EGT. A party moving
for civil contempt must prove that the non-moving party has
violated a court order by clear and convincing evidence. FTC
v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1211 (9th
Cir. 2004). The Union does not dispute the district court’s
finding of contempt, but rather argues that there was
insufficient proof of the injured parties’ alleged damages to
support the amount of the compensatory damages.
The Union argues that a clear and convincing standard
should apply, while the NLRB advocates for a preponderance

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of the evidence standard.3 We need not resolve which
standard applies, since the district court’s award meets both
standards. Specifically, the record shows that the district
court reviewed the various affidavits, declarations, and photos
submitted by the NLRB before awarding damages. The court
heard testimony from witnesses who were present at the
demonstrations. The Union had an opportunity to crossexamine these witnesses and respond to the evidence
submitted by the NLRB. The Union was given the chance to
submit its own evidence in opposition to the award. The
district court considered the Union’s objections to the
NLRB’s proposed damages and overruled them. The Union
made the court aware that some of the dates on the NLRB’s
proof of damages pre-dated or post-dated the contumacious
conduct and objected to the inclusion of these costs in the
final contempt award. The court took this into account and
adjusted the final damages by deducting nearly $50,000 from
the NLRB’s requested damages. These procedures, as well
as the evidence itself, support the district court’s contempt
award.
These facts also show why the district court’s contempt
award is civil, not criminal, and therefore did not require the
heightened procedural protections that attach to criminal
contempt proceedings. Whether a contempt sanction is civil

3

Every circuit to have considered this issue has adopted a
preponderance standard. See FTC v. Kuykendall, 371 F.3d 745, 751 (10th
Cir. 2004) (en banc); McGregor v. Chierico, 206 F.3d 1378, 1387 (11th
Cir. 2000); In re Gen. Motors Corp., 110 F.3d 1003, 1018 (4th Cir. 1997);
Graves v. Kemsco Grp., Inc., 864 F.2d 754, 755 (Fed. Cir. 1988) (citing
Seventh Circuit standard). But see Gregory v. Depte, 896 F.2d 31, 40 (3d
Cir. 1990) (Becker, J., concurring and dissenting) (“[C]ivil contempt
awards . . . must be vacated if they appear to us excessive, or unsupported
by clear and convincing evidence.”).

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or criminal is determined by examining “the character of the
relief itself.” Int’l Union, United Mine Workers of Am. v.
Bagwell, 512 U.S. 821, 828 (1994) (quotation marks and
citation omitted). In Bagwell, the Supreme Court explained
that a sanction generally is civil if it coerces compliance with
a court order or is a remedial sanction meant to compensate
the complainant for actual losses. Id. at 829. A criminal
sanction, in contrast, generally seeks to punish a “completed
act of disobedience.” Id. at 828 (quotation marks and citation
omitted). The Supreme Court recognized that the line
between civil and criminal contempt is blurred where
“[c]ontempts involving out-of-court disobedience to complex
injunctions” are at issue. Id. at 833–34. As a result, noncompensatory sanctions for violations of complex injunctions
required heightened procedural protections including a jury
trial and a beyond reasonable doubt burden of proof. Id.
However, the Court made it clear that Bagwell “leaves
unaltered the longstanding authority of judges . . . to enter
broad compensatory awards for all contempts through civil
proceedings.” Id. at 838.
Here, the district court’s contempt awards are civil, not
criminal, because they sought to coerce the Union and its
members to comply with the court’s injunctions and to
compensate injured parties for actual losses caused by the
Union’s and its members’ contumacious conduct. See FTC
v. Kuykendall, 371 F.3d 745, 752 (10th Cir. 2004) (“[W]here
the sanctions sought in contempt proceedings are solely to be
used to compensate injured [parties], the proceedings are civil
in nature.”). The contempt awards, in other words, are
“justified by other considerations central to the contempt
power” and did not “take on a punitive character.” Bagwell,
512 U.S. at 831. Moreover, the damages were paid directly
to the harmed parties, not the court. See Hicks on Behalf of

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Feiock v. Feiock, 485 U.S. 624, 632 (1988) (“If the relief
provided is a fine, it is remedial when it is paid to the
complainant, and punitive when it is paid to the court . . .”).
Thus, the Union was not entitled to a jury trial or a
heightened burden of proof.
Finally, the Union argues that the court abused its
discretion in denying its request for discovery. It is true that
the contempt proceedings occurred within a short timeframe.
However, “courts in civil contempt proceedings may proceed
in a ‘more summary fashion’ than in an ‘independent civil
action.’” Kuykendall, 371 F.3d at 756 (citation omitted).
Moreover, in this case, the Union did not give the “district
court or this court any reason to believe they would have
found any significant evidence had they been given more
time or discretion to conduct discovery.” Id.
For the foregoing reasons we uphold the amount of
compensatory damages awarded to the NLRB and EGT.
IV.
We next determine whether EGT’s participation in the
civil contempt proceedings exceeded the limited role given to
a charging party under the NLRA. Section 160(l) of the
NLRA provides that only the NLRB can pursue an injunction
against unfair labor practices. 29 U.S.C. § 160(l). However,
the statute allows a charging party “an opportunity to appear
by counsel and present any relevant testimony.” Id.
The Union claims that EGT’s statements of attorneys’
fees include legal research and analysis and do not specify
“whether the fees were incurred in order to present evidence
or to make prohibited legal arguments concerning the

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contempt findings.” However, the record shows that EGT’s
participation in the contempt hearings was limited to
questioning witnesses regarding the damage caused by the
Union at the EGT facility and entering exhibits into evidence.
EGT did not “petition the court independently,” nor did it
seek “relief different than that sought by [the NLRB].” Retail
Clerks Union v. Food Emp’rs Council, Inc., 351 F.2d 525,
529 (9th Cir. 1965). Where the charging party “merely
supported the original petition for injunctive relief,” id., by
presenting evidence of contumacious behavior and the
resulting damages, such participation does not violate
§ 160(l).
V.
The Union argues that the district court abused its
discretion by awarding compensatory damages to BNSF and
the various law enforcement agencies that responded to the
protests, on the ground that these entities were not parties to
the underlying NLRB action. We agree.
As discussed above, a court may impose civil contempt
sanctions to (1) compel or coerce obedience to a court order,
and/or (2) compensate the contemnor’s adversary for injuries
resulting from the contemnor’s noncompliance. Whittaker
Corp., 953 F.2d at 517. The key is that contempt sanctions
are available as compensation when they are awarded to the
prevailing party in the litigation. See Gompers v. Buck’s
Stove & Range Co., 221 U.S. 418, 444–45 (1911)
(“Proceedings for civil contempt are between the original
parties, and are instituted and tried as a part of the main
cause.”); Northside Realty Assocs., Inc. v. United States,
605 F.2d 1348, 1356 (5th Cir. 1979), superseded by statute as
recognized in United States v. City of Jackson, 359 F.3d 727

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(5th Cir. 2004) (explaining that civil contempt sanctions seek
“to compensate the prevailing party for losses or damages
caused by the other’s noncompliance”) (footnote omitted). In
this case, neither the law enforcement agencies who
responded to the picketers nor BNSF were parties to the
litigation.
Nor does the district court’s award serve the first purpose
of civil contempt sanctions—to compel compliance with a
court order. As with compensation, typically a contempt
order seeks to compel compliance by parties to a litigation.
See Northside Realty Assocs., 605 F.2d at 1356 (civil
contempt sanctions seek “to coerce the derelict party into
compliance with the original injunction”) (emphasis added).
However, in limited circumstances courts have allowed civil
contempt sanctions to be awarded to non-parties where doing
so was directly necessary to enforce an injunction. For
example, in the principal case upon which the NLRB relies,
McComb, the Supreme Court held that the district court had
the power to award back pay to employees of the defendant
company, because doing so was necessary to enforce the
district court’s injunction against the company to pay its
employees a minimum wage and overtime. 336 U.S. at
193–94. That is, the award to third parties was necessary to
enforce the injunction against a party to the litigation.
The same has been true in other cases in which courts
have allowed contempt sanctions to be awarded to third
parties.4 In contrast, courts have refused to allow non-parties

4

For example, courts regularly order employers to pay amounts due
employees under earlier injunctions. But as the Third Circuit has noted,
“[t]hese opinions speak primarily in terms of purging the employers of
their contempt, not of making the injured employees whole.” Roe v.

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18 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
to be awarded contempt sanctions when doing so would not
directly serve to enforce an injunction. See, e.g., Operation
Rescue, 80 F.3d at 71–72 (state lacked standing to seek civil
contempt sanctions on behalf of abortion clinics disrupted by
protestors; “[t]he damages award in this case was designed
solely to reimburse the [clinics] for harm to their interests,”
not enforce the injunction against the protestors or
compensate the state); Roe, 919 F.2d at 873–74 (district court
lacked power to award contempt sanctions to non-party
abortion clinic disrupted by enjoined protestors; “[a] court
should only deviate from th[e] rule [that contempt
proceedings are between the parties to a case] and award
damages to non-parties when such an order directly compels
adherence to a prior decree”); Northside Realty Assocs.,
605 F.2d at 1350–51 (district court lacked power to award
contempt sanctions to minority purchasers who were denied
mortgages by real estate agency enjoined from engaging in
discriminatory practices). Indeed, this case is very much like
Operation Rescue; in both cases, the plaintiff (New York or
the NLRB) lacks standing to seek contempt sanctions on
behalf of third parties (abortion clinics or law enforcement
agencies or BNSF) aggrieved by the defendants’ (abortion
protestors’ or Union members’) violations of a court
injunction.
In this case, the district court enjoined 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

Operation Rescue, 919 F.2d 857, 872 (3d Cir. 1990) (citing Usery v.
Fisher, 565 F.2d 137, 139–40 (10th Cir. 1977); Hodgson v. A–1
Ambulance Service, Inc., 455 F.2d 372, 374–75 (8th Cir. 1972); Fleming
v. Warshawsky & Co., 123 F.2d 622, 626 (7th Cir. 1941)).

Page: 18 of 20

Case: 11-35848

07/05/2013

ID: 8691932

DktEntry: 50-1

AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 19
employees of EGT, General [Construction], or any other
person doing business in relation to the EGT facility.” The
district court’s compensatory damages awards to the law
enforcement agencies who responded to the picketers and to
BNSF did not and could not help enforce this injunction.
Rather, those awards were entirely retrospective and
compensatory.
The NLRB points out that contempt sanctions may be
awarded to non-parties where a statute expressly permits it.
See, e.g., City of Jackson, 359 F.3d at 737 (allowing contempt
sanctions to third party victims of housing discrimination
because the Fair Housing Amendments Act (“FHAA”),
42 U.S.C. § 3614(d)(1)(B), provides that courts “may award
such other relief as the court deems appropriate, including
monetary damages to persons aggrieved”). However, no such
statutory provision exists in the NLRA. The NLRB suggests
that an award to the law enforcement agencies and BNSF is
consistent with NLRA’s purpose to deter violations of its
provisions, and cites Kuykendall, 371 F.3d at 764 (“[N]o
reason exists to believe Congress intended to withhold [in the
FTC Act] the traditional remedy of compensation to those
consumers victimized by the defendants’ violations of the
Permanent Injunction.”). But the NLRB’s reasoning would
apply to any statute, and, unlike the sanctions awarded to
consumers in the FHAA and FTC Act cases above, the
sanctions in dispute in this case were awarded to law
enforcement agencies and a railway, not to the unions and
workers the NLRA seeks to protect. See NLRB v. Nash-Finch
Co., 404 U.S. 138, 144 (1971) (discussing NLRA’s purpose).
In short, we find no authority for, and therefore vacate,
the district court’s award of contempt sanctions to the law
enforcement agencies and BNSF.

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Case: 11-35848

07/05/2013

ID: 8691932

DktEntry: 50-1

20 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION
VI.
For the foregoing reasons, we AFFIRM the district
court’s award of compensatory damages to EGT and
VACATE the award of compensatory damages to BNSF,
Longview Police Department, Kelso Police Department,
Cowlitz County Sheriff’s Office, and the Washington State
Patrol.5 Each side shall bear its own fees and costs on appeal.
AFFIRMED IN PART, REVERSED IN PART.

5

EGT’s amicus motion and Appellant’s request for judicial notice are
granted.

Page: 20 of 20