Ahearn v. International Longshore & Warehouse Union, Locals 21 & 4

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD L. AHEARN, Regional No. 11-35848

Director of the Nineteenth Region of

the National Labor Relations Board, D.C. No.

for and on behalf of the National 3:11-CV-05684-

Labor Relations Board, RBL

Petitioner-Appellee,

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

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.

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 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,

Missouri, for Amicus Curiae EGT, LLC.

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.

AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 5

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

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

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

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.”

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.

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

AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 11

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).

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

AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 13

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 cross-

examine 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.”).

14 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION

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, non-

compensatory 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

AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 15

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

16 AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION

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

AHEARN V. INT’L LONGSHORE & WAREHOUSE UNION 17

(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.

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)).

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.

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.