Opposition Brief — Bethlehem Mines Corp. v. United Mine Workers of America

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INDEX

Page

BCounterstatement of the Facts ....... 1

I. An Award of Attorney's Fees

is Consistent with this Court's...

Decision in The Boys Markets,

Inc. v. Retail Clerks Union

Local 770,398 U.S. 235 (1970),

the Congressional Policy Under-

lying the Federal Labor Sta-

tutes and the "Accommodation

DOCGREME” concccctdscsevveccsose §

II. Fees Were Properly Awarded

Following the Summary Re-

versal of the Injunction

Orders by the Court of

BEES fecavcastecscvssacvcecs 13

III.» Respondents were Entitled to

Recover Fees Against Peti-

tioners Under Section 7 of

the Norris-LaGuardia Act Re-

gardless of the Limitations

in and Amount of the Bond

DE Set ewsreatedbacwecacase Be

I cid a ace Buea eae emake ae

oat «

* TABLE OF CASES AND AUTHORITIES

CASES:

Atomic Oil Co. v. Bardahl Oil Co.,

i i 7° 1100 (CLA. 10,

gait Eaten abigty pea ara

— Sa Inc. 4 Retail Clerks,

- . * 70 re fe fe fee ee ee eh ee

Brotherhood of RR. Trainmen v.

Chicsgo River & I.R. Co., 353

Cinderella Theatre Co. v. Si

riters al Union, 6 F fee.

-D. ch., PererrerTT

~= 4 J. & E. Ry. v. Brotherhood

° RB. Trainmen, 502 F.2d 540

oe , eee ee eee eee eee eee

Gartner v. Soloner, 384 F.2d 348

. 3, ee |

Heiser v. Woodruff, 128 F.2d 178

A. 10,

Houston & No. Tex Motor Fr. Lines

ov F. Supp ex., j

eee ee ee eee ere ere ee

International Ladies Garment Workers

ee ca pepbeliy Garment Co.,

i 24a 2 C.A. 5) cert.

denied, 352 U.S. 852 (19555) .....

Kahan v. Rosenstiel, 424 F.2d 161

TC.A. 3 1970), cert, denied

Te Gi, GOP acioctrecenncerstéccs

il

a.

- 333 =

Lawrence Vv. St. Louis-S.F. Ry. ’

2758 U.S. 225 (1929) eee eee eee eens

‘I wadison Shipping Corp. v. National

Maritime Scr Soh F. Supp. 22

TE.D. Pa., 1962) “eee ee ee eee “**ee

Janssen v. Shown, 53 F.2d 608

. o DO» “ee ee eee “eee ee ee eee

Meeker v. Stuart, 289 F.2d 902

. oD.Cee 1961) eee ee eee re ee .

Milk Wagon Drivers’ Union v. Lake

Valley Co., 311 U.S. 91 (1940) ...

Mills v. Electric Auto-Lite Co.,

U.S. a ne fe fe fe eee e erm emhUcrmCUc eo hme

Mitchell v. Riegel Textile, Inc.,

259 F.2d 954 (C.A.b-C., 1958) ....

Newman v. Ca Park Enterprises,

590 U.S. re

Public Service Commn. v. Brashear

reign Lines, 312 u.s. 631

,} Russell v. Farley, 105 U.S. 433

J ) ere fe fe feereeeeeee © eft ff fe ef © ref fe © ©

'] Rutland Ry. Corp. v. Brotherhood

of Locomotive Eng., 307 F.2d 21

. * -—*9 7 .

Sinclair eet ie Co. v. Atkinson,

- iv -

aa v. Ticonic Nat'l Bank,

Be 161 1939) “eee eee eee enee

United Motors Service v. Tropic-

Aire, 57 F.2d 479 (cA. Se 1932).

United States v. — 312

te ie Se BE GEEED coecocccece

~ Ry. Co. v. System

deration, 300 U.S. 515 (1937)..

STATUTES:

Clayton Act, 28 U.S.C. 382 (1940)..

Coal Mine Health and Safety Act

of 1969, 30 U.S.C. 801, et seq. .

Labor-Management Relations Act,

Section 301 (29 U.S.C. 185) .....

Norris-LaGuardia Act:

Section 1, 29 U.S.C. 101

Section 4, 29 U.S.C. 104

Section 7, 29 U.S.C. 107

Section 8, 29 U.S.C. 108 ........

Section 9, 29 U.S.C. 109 ........

Section 10, 29 U.S.C. 110

Railway Labor Act, 45 U.S.C.

Se ee ee

-~ YF «=

Page

MISCELLANEOUS:

F. Frankfurter & N. Greene,

The Labor Injunction (19350) ...... 6,16,26,

30-31

Federal Rule of Civil Procedure 65 . 7,18,19,

24,25,

26,27

H.R. Rept. No. 669, Rept. of House

Comm. on Judiciary on H.R. 53515

(March 2, 1932) ......ceeeeeeeneee 30

H.R. Rept. No. 793, House Conf. Rept.

to Accompany H.R. 5315 (March 14,

S9FTE) ccccccccecee besawnnte eter o* 30

7 Moore's Federal Practice (2d ed.). 23,25-26,

28

Note, Accommodation of the Norris—

LaGuardia Act to Other Federal

TT

Statutes, 72 Harv. L. Rev. 35%

“ee eeeeeeeeeeeeeneeneeeeeeeee 9

Note, The New Federal Law of Labor

Injunctions, 79 Yale L.J. 1593,

i i Vcc eeceheneenecces 48,36

Remarks of Senator Norris, 75 Cong.

Rec. 4508 (Feb. 23, 1952) ........ 16,31

Remarks of Senator Taft, 195 Cong.

Rec. 6603 (SO™ Cong., ist Sess.,

June ya 1947 ) “eeeeeeveeeeeeeenvreeee g

S. Rept. No. 163 of Comm. on

Judiciary on S. 935 (72d Cong.,

ist Sess., Feb. 4, 1932) .......-. 30

c+

a 7 Eat BPO = oS

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

No. 71-1490

BETHLEHEM MINES CORPORATION

and

REPUBLIC STEEL CORPORATION,

Petitioners,

Ve

UNITED MINE WORKERS OF AMERICA, et al.,

Respondents,

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

COUNTERSTATEMENT OF THE FACTS

Petitioners' Statement omits full

description of the first round of proceed-

ings which gave rise to respondents! mo-

tion for attorneys fees. On Sunday night,

June 21, 1970, the coal miners employed

by petitioners refused to enter their

mines because of petitioners' failure to

|

i)

!

provide safe working conditions undergrou

and the failure of the United States Bure

of Mines to require petitioners to confor

to the health and safety standards estab-

lished in the 1969 Federal Coal Mine Heal

and Safety Act, 350 U.S.C. 801, et seq.

Within hours, the nation's major ste

producers, owners of "captive" coal mines

filed suits under Section 501 of the Labo

Management Relations Act, 29 U.S.C. 185,

the United States District Court for the

Western District of Pennsylvania to enjoi

the walkouts. Hearings on the cases con-

menced on June 23, 1970, at which time un

eee Te ee

signed counsel urged alternatively that t

; Norris-LaGuardia Act, 29 U.S.C. 101, et s

:

deprived the court of jurisdiction and tl

3

defendants were prepared to prove, pursu-

ant to 29 U.S.C. 143, the existence of

"abnormally dangerous" working conditions

in the coal mines in question,

; Refusing to hear the miners' eviden

: the district court at the beginning of tl

second day of hearings announced that it

would enjoin the walkout. When regular

United Mine Workers counsel retired to

chambers with company counsel to work ou

the terms of the orders, undersigned

LE ee IP OE EOE ELLIS ET 8 RETO,

prs

Ly

_

~ 3 =

counsel was retained as counsel by various

UMWA local unions. Not surprisingly, when

court reconvened, the orders which union

and company had agreed to did not enjoin

the districts or international, but did en-

join the locals, their officers and members

and required the miners to return to work

regardless of dangerous conditions then

prevailing. On behalf of the locals and

certain individuals, undersigned counsel

noticed appeals within hours and promptly

moved in the Court of Appeals for summary

reversal.

Two days later, the Court of Appeals

heard emergency argument, and on June 30,

less than a week after the injunctions

were entered, the Court of Appeals unani-

mously granted summary reversal and re-

manded the cases to the district court.

(A copy of that decision is appended

hereto as Respondents' Appendix. The

Court of Appeals decision is highly rele-

vant for it reveals the context within

which the request for fees was made, that

the motion was occasioned by an egregious

abuse of federal equity powers in a labor

dispute -- the very sort of abuse that

a

the Norris-LaGuardia Act was designed to pr

vent and redress.)

Shortly after remand, undersigned coun

sel filed their motion for fees pursuant tc

Section 7 of the Norris-LaGuardia Act, 29

U.S.C. 107. The same district judge whose

decision had been summarily reversed there-

after ruled that his original injunction

orders had not been erroneously or improvi-

dently entered and that the motions : for

fees were premature.

On February 3 and 28, 1972, the Unite

States Court of Appeals unanimously reverse

.the district court holding, that all counsel

were entitled to fees. 2/ 3/

sions are reported at 456 F.2d 483 and 456

F.2d 1233.

Those deci-

1/ A month after counsel herein filed a

motion for fees, regular UMWA counsel, the

same counsel who had worked out the terms

of the orders and failed to promptly seek

summary reversal, filed identical motions

for fees.

i 2/ Judge Kalodner dissented in part ar-

; guing that, defendants could recover fees

3 in excess of the injunction bonds only by

2 commencing an ancillary action.

+ Petitioners herein, along with the

other steel producers involved in the

original appeals, United States Steel

[Footnote continued on following page.7

|

WW

!

I. AN AWARD OF ATTORNEY'S FEES IS

CONSISTENT WITH THIS COURT'S

DECISION IN THE BOYS MARKETS,

INC, V. RETAIL CLERKS UNION,

LOCAL 770, 398 U.S. 235 (1970),

THE CONGRESSIONAL POLICY UNDER-

LYING THE FEDERAL LABOR STATUTES

AND THE "ACCOMMODATION DOCTRINE"

-

Boys Markets holds that in certain

carefully limited circumstances the prin-

cipal anti-injunction section of the

Norris-LaGuardia Act -- Section 4 (29

U.S.C. 104) -- should be relaxed so that

a union's contractual no-strike obligation

may be specifically enforced. Despite the

explicit limiting language of this Court

that its holding was "a narrow one" which

did not "underscore the vitality of the

Norris-LaGuardia Act", petitioners never-

theless initially contend that as a direct

result of Boys Markets, every other pro-

vision of the Act, particularly those in-

volving procedural safeguards, should

3/ {Footnote continued from preceding page.7

Corporation and Jones & Laughlin Steel Corpo-

ration, have filed a Petition for Writ of

Certiorari involving the February 3, 1972

opinion entered by the Third Circuit (No.

71-1409).

et ye

likewise be considered of no effect when-

ever an employer launches a lawsuit under

S 301 of LMRA, 29 U.S.C. 185. Not sur-

prisingly, there is nothing in the way of

authority or policy to support such a wooder

and heavy-handed proposition,

Apart from Section 4's ban on injunc-

tions, the bulk of the Norris-—LaGuardia: Act

is designed to correct the many procedural

abuses that infected administration of the

labor injunction in the federal courts dur-

ing the first third of me ane This

tently recognized that procedural abuse was

Court : and commentators have consis-

the chief evil to be remedied, and that in

the eyes of the Act's draftsmen, "Emphasis

upon procedural safeguards in the use of

the injunction must therefore rank first."

F, Frankfurter and N. Greene, The Labor

Injunction 202.(1930). Accordingly, 8 7

of the Act creates a protective procedural

scheme -- including curbs on ex parte in-

junctions, specific findings required from

the court, and provision for full and

A/ See, e.g., Milk Wagon Drivers' Union

v. Lake Valley Co., 311 U.S. 91, 102 (1940)

and Boys Markets, 398 U.S. at 250.

5/ See, e.g., Note, The New Federal Law

of Labor Injunctions, 79 Yale L.J. 1593,

1594 (1970).

St bit aed iat Vv" wot ee a ee ee oe

—

complete hearing after notice -- to control

any application for injunctive relief in a

labor dispute, Section 7 also provides

that the damage caused by wrongful issuance

of an injunctive order, including attorney's

fees and other costs of a successful defense,

shall be borne by the moving party.

The present case is an apt illustra-

tion of the continuing need for scrupulous

adherence to the procedural safeguards of

§ 7. Here the district court in a trun-

cated hearing accomplished nearly every

procedural error available, and ordered

coal miners to return to work in unsafe

mines, only to be reversed -- and chasti sed

severely ---by a unanimous Court of Appeals

in less than’ a week.

The procedural safeguards of 8 7 and

other provisions of the Act U are in no

6/ The protedures of Federal Rule 65 are

less strict in many particulars. See 25-27,

infra, e

7/ ~£E.g., § 8, 29 U.S.C. 108 (clean hands

requirement); 3 9, 29 U.S.C. 109 (limiting

the scope of labor injunctions); § 10, 29

U.S.C. 110 (expedited appeal).

‘“ — eee

Si rit 8 ee Sak >»

ey oes

way undercut by'the holding or rationale of

Boys Markets. There the Court decided a

narrow question: whether Norris-LaGuardia's

flat ban on labor injunctions should yield

to the pro-arbitration policy of the subse-

quently enacted LMRA, when suit is brought

to enforce a union's no-strike promise, and

when the strike is over an arbitrable griev-

ance. Boys Markets answers in the affirma-

tive, but the opinion takes great pains to

limit any conflict with the neticiwe of

Norris-LaGuardia. 8/ Only "the anti-

injunction section" of Norris-LaGuardia --

or "§ 4" -- is affected by the decision,

596 U.S. at 250, 251.

"Our holding in the present

case is a narrow one. We do

not undermine the vitality of

the Norris-LaGuardia Act * *

Nor does it follow from what

we have said that injunctive

relief is appropriate as a mat-

ter of course in every case of

a strike over an arbitrable

grievance." Id., at 253-254.

8/ Five times the Court repeats that

the judicial duty is to "accommodate",

"reconcile", and "harmonize" Norris-

LaGuardia and § 301 of LMRA. 398 U.S.

at 241, 299,. 250, 252.

BLATANT NA La ETTORE ti LL AMELIA LMT LOY LIL LT MPI IT

‘

Boys Markets does not gratuitously "repeal"

the other sections of Norris-LaGuardia, any

we than Congress did when providing for

enforcement of collective bargaining agree-

ments in the federal courts. 2 But that

is precisely what petitioners urge.

Boys Markets takes its place in a long

line of cases 10/ that strive to achieve

accommodation between particular provisions

of Norris-LaGuardia and "ostensibly incon-

sistent provisions" of later labor legis-

lation. 398 U.S. at 250. Obviously there

is no occasion for invoking the Accommoda-

tion Doctrine -- nothing to "harmonize" or

"reconcile", id. at 241, 251, and no reason

9/ See Sinclair Refining Co. v. Atkinson,

370 U.S. 195, 223 (1962)(dissenting opin-

ion adopted by the Court in Boys Markets):

"Congress, clearly, had no intention of

abandoning wholesale the Norris-LaGuardia

policies in contract suits ..." See

also Remaxgks of Senator Taft, 93 Cong.

Rec. 6603 (80 Cong., ist Sess., June 5,

1947).

10/ See generally Note, Accommodation of

the Norris-LaGuardia Act to other Federal

Statutes, 72 Harv. L. Rev. 354 (1958).

- ae

-— ie

for Norris-LaGuardia to give way -- absent

an insistent clash of provisions or poli-

cies. In the case of 8 301 of LMRA, nei-

ther letter nor spirit collides with the

attorney's fee provision or the other pro-

cedural safeguards of Norris-LaGuardia's

8 7. The Boys Markets opinion itself as-

sumes that the procedural provisions retain

"vitalityn No court has held otherwise,

and recent commentary has properly judged

that after Boys Market there is greater

1i’ The Court's opinion expressly invokes

Norris-—LaGuardia's "clean hands" require-

ment, § 8, 29 U.S.C. 108, to show that the

Act itself favors arbitration. In stating

the findings that must be made before an

injunction may issue in an employer's con-

tract suit, the Court follows § 7 of Norris-

LaGuardia. See 398 U.S. at 254. The Court

of Appeals noted that the finding required

by 8 7(e) (public officers unable to pro-

tect employer properly) would not be ap-

propriate in the usual contract enforce-

ment case, and to that limited extent § 7

must be "accommodated to the policy under-

lying § 301" and relaxed accordingly. See

Petitioners' Appendix E, at 48-49.

RTGS RATIOS SIS RT ee ea

|

need for the procedural protections of

In a strictly analogous situation,

the lower courts have continued to enforce

Norris-LaGuardia's procedural safeguards --

including the attorney's fee provision 13/

-- in employer suits brought under the Rail-

way Labor Act even though this Court has

held that accommodation of the two enact-

ments necessitates relaxation of Norris-

LaGuardia's anti-injunction section. 15/

An arid notion of "uniformity" is all

that petitioners offer to justify judicial

12/ See Note, The New Federal Law of Labor

Injunctions, 79 Yale L.J. 1593, 1602 (1970)

("The Court should . . . resolve procedural

questions in favor of the union... .").

13 See, Elgin, J. & E. Ry. v. Brotherhood

of RR. Trainmen, 3502 F.2d ci:0 [C.ms Fe

1962) (§ 7 attorney's fee provision ap-

plied in Railway Labor~Act suit). See

also Rutland Ry. Corp. v. Brotherhood of

Locomotive Eng., 507 F.2d 21 (C.A. 2,

1962) (8 8 "clean hands" provision applied).

14 Brotherhood of RR. Trainmen v. Chicago

iver & I.R. Co., 353 U.S. 30 (1957). In

subsequent cases, however, the courts have

followed the Norris-LaGuardia procedural

safeguards ... ." Note, The New Federal

Law of Labor Injunctions, 79 Yale L.J.

1593, 1606, n. 61 (1970).

a

- 12 -

repeal of the attorney's fee provision, 42/

It is true that some states have attorney's

fee provisions in their "little Norris-

LaGuardia" enactments, and that others do

not. But no principle of federal law re-

quires federal equity practice to conform

to those state procedures that are least

protective of employees' rights. Congress

has an obviously legitimate interest in

legislating to guard against and to redress

abuse of federal injunctive powers. Cer-

tainly in the case of attorney's fees, the

difference between federal and state prac-

tice could not possibly result in the phe-

nomenon that troubled the Boys Markets

Court, “a wholesale dislocation in the al-

location of judicial business between the

state and federal courts." 398 U.S. at 247,

The situation at hand is squarely covered

by the sensible language of Boys Markets:

15/ The notion that employer suits are

unduly "chilled" by the provision is dis-

cussed by the Court of Appeals, Petitioners’

Appendix E, at 49-50, and properly dis-

carded.

BOLT LEN RINE NENTS A ET SRNR EIEN HEGEL PDT TAME TOE, SOAS ARO E EL CRP NA BRETT LF y ae

—

» 3 =

"/-u_/niformity - . . could hardly

require, as a practical matter,

that labor law be administered

identically in all courts, for un-

doubtedly a certain diversity

exists among state and federal

systems in matters of procedur: t

and remedial detail ... ." id.,

at 246,

II. FEES WERE PROPERLY AWARDED

FOLLOWING THE SUMMARY RE-

VERSAL OF THE INJUNCTION

ORDERS BY THE COURT OF

APPEALS

Petitioners ask the Court to decide

whether, in the circumstances of this case,

there was a "final decision" in the injunc-

tive proceedings below, rendering the mo-

tion for attorney's fees timely. Two

separate panels of the Court of Appeals

unanimously agreed that the injunctive

phase of this lawsuit 16 has long since

been terminated "for all practical pur-

poses." See Petitioners' Appendix E, at

43 and 45. The issue turns wholly on the

16/ The pendency of respondents' counter-

claims below in no way affetts the final-

ity of the injunctive side of the proceed-

ing. That is the holding of Madison Ship-

ping Corp. v. National Maritime Union,

204 F. Supp. 22, 23 (E.D. Pa., 1962), a

case mistakenly cited by petitioners.

=

ae : —

—

17

—

particular facts of the instant case,

and falls far short of the level of signifi-

cance that would warrant review by this

Court.

There is no conflict between the cases

cited by petitioners and the Court of Ap-

peals' holding below. The principle of

petitioners' cases is that a defendant's

motion to recover damages caused by wrong-

ful preliminary restraint might be deferred

when a lawsuit is moving on for trial of

the plaintiff's request for a permanent

17/ After the erroneous preliminary injunc-

tions were vacated by the Court of Appeals o

June 30, 1970, the employers renewed their

request for preliminary relief and the mat-

ter came on for de novo hearing on July 9.

By that time, however, there was no case to

be heard -- the stoppages complained of had

ceased, and none were anticipated. The

parties so stipulated and the cause was

continued indefinitely. In the ensuing

period of almost two years petitioners

have never sought to bring the action back

to life. Should they ever do so, they

j would have to contend with § 7 of Norris-

LaGuardia, 29 U.S.C. 109, which says that

every labor injunction "shall include only

a prohibition of such specific act or

acts as may be expressly complained of in

the bill of complaint... ." See

Virginian Ry. Co. v. System Federation,

300 U.S. 515 (1937).

LEAP RENIN, IRS INME RES AT = 2, BYP OR RE or

=7"

injunction, 49/ But the injunctive proceed-

ings in the present case came to final rest

almost two years ago, and there never will

be a trial on permanent injunctive relier,22/

In Norris-LaGuardia cases, moreover,

there are special reasons not to postpone

a defendant's motion for fees pending de-

cision of the employer's request for perma-

nent injunctive relief, in the event such

relief is in fact pursued. 20/ The very

reason for special safeguards to control

the labor injunction lies in the fact that

wrongful preliminary restraint usually

i8/ Lawrence v. St. Louis-S.F. Ry., 278

U.S. 228, 233 (1929), speaks only of "dis-

cretion" to defer tie motion. In Janssen

v. Shown, 53 F.2d 608 (C.A. 9, 1931), the

preliminary restraint was never adjudged

erroneous, but was simply withdrawn after

a time by consent of the parties. And in

Meeker v, Stuart, 289 F.2d 902 (C.A.D.C.,

1961), also not involving a labor dispute,

the Court of Appeals' five-sentence af-

firmance contains not a word on the issue

under discussion.

19/ Respondents needn't argue that the

case is "moot" -- indeed, respondents' own

counterclaims are pending below -- but only

that the injunctive side of the case has

yveen "finally determined.” Petitioners'

mootness cases are beside the point.

20/ Petitioners cite but one case involv-

ing a labor dispute -- and that one mis-

cited. See note 16, supra.

a.

spells doom for the union's cause, even if

- 16 -

later corrected, and thus the preliminary

proceedings "make the issue of final relief

a practical nullity." F. Frankfurter and

N. Greene, The Labor Injunction 200 (1930), =

As the Act's sponsor said during floor debate

in the Senate,

" . . . defendants in these cases

are financially unable to defend

themselves in court. Most of

the injunction proceedings never

go beyond a restraining order or

at best beyond a temporary in-

junction." Remarks of Senator

Norris, 75 Cong. Rec. 4508

(Feb. 23, 1932).

In short, the clear intent of Congress is

; that 8 7 damages for wrongful preliminary

restraint be recoverable at the earliest

point compatible with orderly judicial de-

cisionmaking. And see Mills v. Electric

Auto-Lite Co., 396 U.S. 375 (1970) (ap-

proving “interim award" of attorney's fees

j before final judgment); Kahan v. Rosenstiel,

: 424 F.2d 161 (C.A. 3, 1970), cert. denied,

sub nom., Glen Alden Corp. v. Kahan, 398

U.S. 950.

eT eae

21/ See*also Note, The New Federal Law of

Labor Injunctions, 79 Yale L.J. 1593, 1594

(1970) ("in practice the temporary restrain-

ing order usually defeated the union's

cause"),

a a a i A RT a ae

Ris 17 ~

SJ

III. RESPONDENTS WERE ENTITLED TO RE-

COVER FEES AGAINST PETITIONERS

UNDER SECTION 7 OF THE NORRIS-

LAGUARDIA ACT REGARDLESS OF THE

LIMITATIONS IN AND AMOUNT OF THE

BOND POSTED

Petitioners' final arguments amount to

a paradoxical contention: even though § 7

of Norris-LaGuardia grants attorney's fees

to a successful defendant and even if § 7

is fully applicable here, nonetheless there

can be no recovery of attorney's fees in

this case. The petition offers two reasons

for this result -- that the injunction

bonds prepared and filed by petitioners (a)

did not happen to mention attorney's fees

and (b) together the bonds posted total an

amount less than the reasonable fees stipu-

lated and awarded below.22/

The purported conflict between Courts

of Appeals on the two points just noted is,

in fact, spurious. Only one of the circuit

court decisions invoked by petitioners --

International Ladies Garment Workers U. v.

Donnelly Garment Co., 147 F.2d 246 (C.A. 8),

22/ Fees and expenses of about $11,350 were

stipulated as reasonable by the parties.

Petitioners' four injunction bonds total

$4,000.

- 18 =

cert. denied, 325 U.S. 852 (1945) -- in-

volved a labor dispute. The others, not

within the ambit of Norris-LaGuardia, 22/

do not clash with the holding of the Court

of Appeals below, and despite some sweep-

ing language, Donnelly may readily be

distinguished. The Donnelly court held

that the injunction bonds in that case had

been posted with specific reference to the

Clayton Act, and could not be construed to

cover attorney's fees since that Act

excludes fees as an element of injunction

damages. Id, at 253. Significantly, the

very bond provision which led the Donnelly

court to its conclusion, the bond provi-

sion in the Clayton Act, 28 U.S.C. 382

(1940), was repealed in 1948 because sub-

section (c) of Rule 65 of the Federal

Rules contained nearly identical language.

Furthermore, the subsequent broad amend-

ments to subsection (e: of Rule 65 in 1948

insured that injunctions issued in labor

disputes pursuant to Rule 65 were required

to conform with the requirements of the

237 United Motors Service v. Tropic-Aire,

57 F.2d 479 (C.A. 8, 1932), focus Of major

reliance by petitioners, is a patent in-

fringement case decided some three weeks

before Norris-LaGuardia was enacted.

LENE OP RF EE RE I ae EN AE NN EH ARM BINT «

|

b

Norris-LaGuardia Act, Thus, Donnelly is

distinguishable because it pre-dated the

repeal of the Clayton Act bond provision

and the adoption of the broad amendments

to subsection (e) ef Rule 65, both of

which greatly clarified the confusing

and conflicting state of the law which

existed when Donnelly was decided,

The Donnelly court also denied re-

covery in excess of the bonds because

the claimants were estopped by their

failure ever to protest the amount of

the many bonds posted, though the liti-

gation there lasted eight years, yielded

a bill of some $103,000 in defense fees

and costs, included a trip to the Supreme

Court because of defendants' own pointless

attempt to empanel a three-judge court,

and produced four separate restraining

orders with separate bonds before defen-

dants pressed their claim for fees. Id,

at 248-50, 253. Here, by contrast, the

bonds were not posted pursuant t° a

statute that excluded fees from

a

"oe

24 ' ,

recovery, 24/ and there is no basis for

finding respondents estopped to challenge

the amount of the bonds. 25/

24 The bonds are conditioned to pay

costs and damages," and as the court

below noted, "There is nothing in the

record specifying on what authority the

bonds were required...." Petitioners'

Appendix E at 51-52. Respondents were

not given an opportunity to examine the

bonds prior to their filing. Id. at 42.

25/ After the preliminary injunctions

were issued on June 24, 1970, respondents

immediately sought review in the Court of

q Appeals: emergency argument was held on

' June 26, and the orders vacated on June 30,

: Thereafter, respondents promptly filed

q their motions for fees. Delaying the

é appeal, in order to protest the amount of

: the injunction bonds in the trial court,

would have been unconscionable in light

of the unsafe conditions in the mines

where the men had been ordered to resume

work. In any event respondents took

every reasonable step to mitigate their

damages and cannot be said to have slept

on their rights.

ee Ml talons Se ee ee

—_

~~

More broadly, it is significant that

Donnelly's many dicta have not been fol-

lowed by any other Court of Appeals in any

Norris-LaGuardia case, nor reaffirmed by

the Eighth Circuit, in the 27 years since

the case was decided. The decision has,

for every practical purpose, been strictly

limited to the peculiar factual situation

involved, The opinion's restrictive pro-

nouncements concerning award of attorney's

fees may be traced, as the principal

opinion of the court below makes clear, to

outmoded notions of the limited powers of

a federal equity court, and are all the

more discredited in light of this Court's

recent reaffirmation of the federal equity's

nonstatutory powers to award fees. See

Mills v. Electric Auto-Lite Co., 396 U.S.

375, 393 (1970).

(a) Petitioners advance the conten-

tion that an injunction bond conditioned

to pay "costs and damages" cannot be read

to cover attorney's fees. This proposi-

tion runs counter to common sense when,

as here, such fees are made a recoverable

element of damages by statute, And

indeed, as the court below took pains to

i

De bang 6 EL tt tetanic Oil th

|

fo

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t

show, such a position is not supported by

petitioners' own authority.

What we have is authority to the

effect that attorney's fees are not normally

recoverable by a wrongfully enjoined defen-

dant, a rule of federal common law that

concededly operates vnless changed by

statute. Petitioners' cases merely state

this rule; they do not say that the words

"costs and damages" “ae fail to

embrace attorney's fees. Such deci-

sions are beside the point in a case in-

27/ for the

volving a labor injunction,

26/ Aside from Donnelly, discussed supra

at text, petitioners' major case is Heiser

v. Woodruff, 128 F.2d 178 (C.A. 10, T9423),

involving a bankruptcy proceeding. In

Heiser the court denied attorney's fees to

the wrongfully restrained party, even

though the injunction bond in that case

expressly specified that attorney's fees

were covered. Plainly Heiser did not turn

on "construction" of the terms of the bond,

but involved application of a federal rule

of damages that has no place in a case

controlled by the Norris-LaGuardia Act.

27/ Any number of cases not involving

labor disputes follow Heiser, and peti-

tioners cite a few. Apart from Norris-

LaGuardia or some other statute, Heiser

of course states the law.

SOTA ES. 4 PIP OREO ag Soe eel oS eS Ce a ee

77

hole point of 8 7 of Norris-LaGuardia was

0 change the federal common law and render

ittorney's fees recoverable in every case

nvolving wrongful restraint in a labor

lispute,

The sensible ruling of the court below

s that an injunction bond for "costs and

lamages," in a case involving a labor dis-

ute, “should be construed to include all

he elements of damage which are recover-

ible under 8 7" of Norris-LaGuvardia. This

s an application of black-letter law:

",../T/7he general federal rule is that

attorney's fees are not recoverable

under Zin june tion? bonds. A federal

statute may, of course, provide that

in situations covered by it the bond

is_to include attorney's fees; and

attorney's fees would then be recover-

able...." (Emphasis supplied. )

Moore's Federal Practice, para. 65.10,

p. 1658-59 (2d ed.). See also Donnelly,

upra, at 253 ("the language of the

tatute is written into the bond, though

mitted by inadvertence or intention");

lgin, J. & E. Ry. v. Brotherhood of R.R.

rainmen, 302 F.2d 540 (C.A. 7, 1962)

Norris-LaGuardia case); Local Union No.

68, Painters v. Barker Painting Co.,

4 F.2d 879 (C.A.D.C., 1928).

Be:

» «

Petitioners say they meant to post

their bonds "pursuant to" Federal Rule 65,

and that their subjective intent rules out

any possibility of construing the bonds in

line with the applicable federal statute,

Obviously the "intent" of employers seeking

labor injunctions cannot determine the

matter. 28/ No such litigant will seek to

extend his liability nor will he admit that

the Norris-LaGuardia Act has any bearing on

his cause. Likewise, the Act's mandatory

language concerning attorney's fees carinot

depend on the trial judge's happening to

announce that the bond is "pursuant to"

the Act. The whole purpose of the Act is

to control abuse of the labor injunction

by the federal judiciary, and it makes no

sense to say "that the court which issues

an injunction should have the power to

foreclose recovery on the injunction bond."

Atomic Oil Co. v. Bardahl Oil Co.,

28/ What effect such "intent" may have on

a surety's liability, as distinct from

that of a principal, is not at issue here.

~— . @& ee 6 «tlleeehCCO be od

Kb

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b

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19 F.2d 1097, 1100 (C.A. 10, 1969), 22/

ud see 7 Moore's Federal Practice, para.

5.09, p. 1655 (failure to require proper

curity is “legal error and...ground for

ypellate reversal").

in any event, a bond posted "pursuant

" Federal Rule 65 presumably is affected

‘part (e) of that Rul e20/

-) was added to ellay any fears that the

: "Subdivision

7 Under petitioners’ approach, the more

‘roneous an injunction, the more it is

oof against injunction damages. A judge

o erroneously thinks that Norris-LaGuardia

es not bar a labor injunction in the case

hand, is obviously likely to compound

e error by concluding that the Act also

S no bearing on the injunction bond's

verage.

/ "These rules do not modify any statute

of the United States relating to

temporary restraining orders and pre-

liminary injunctions in actions

affecting employer and employee...."

65(e), Fed. R. Civ. Proc. Originally

le 65(e) specifically mentioned the

rris-LaGuardia Act; the 1948 amendment

oadened the Rule's language to its

esent scope.

Rule might modify the law relating to

labor injunctions." Id., para. 65.02,

p. l6ll. 31/

(b) Petitioners contend that the

total face amount of their injunction bonds

sets the upper limit of any recovery under

8 7 of Norris-LaGuardia. They point to

cases holding that injunction damages in

excess of the injunction bond are not

normally recoverable. Once again the

point may readily be conceded: in the

ordinary, nonstatutory case, federal

equity does not award damages beyond the

; bond. This judge-made limitation on

injunction damages has generally been

317 Rule 65(c), relating to injunction

security, was taken "bodily" from the

Clayton Act. 7 Moore's Federal Practice,

para. 65.02, p. 1610. It is well known

that Norris-LaGuardia was drafted with

the shortcomings of the Clayton Act in

mind. See F. Frankfurter and N. Greene,

supra, at 184-85. In particular,

Tage Oe ee?

",,..the Norris-LaGuardia Act requires

a bond that is more extensive in

coverage than the Clayton Act, upon

which 65(c) is based. Among other

things the bond covers ‘a reasonable

attorney's fee.'"

idles eal ncats i rhe SN REM cS RRS Ca

7 Moore's Federal Practice, at 1658 n. 1.

&

A aR a ia eae <P TE AL SERENE EAT ITE Se a

—7—

followed in cases where the only source of

injunction security is Federal Rule 65(c) 22/

There are, however, many well recog-

nized exceptions to the general limitation.

Prior to the development of modern equity

practice, it was sometimes thought that

federal equity lacked power to award

injunction damages apart from an injunc-

tion bond, owing to traditional limitations

on the chancellor's power to award any sort

of damages. See Russell v. Farley,

105 U.S. 433, 437 (1881). Today such

doubts are no longer entertainable.

Federal equity courts can and do exercise

the power to award injunction damages

quite apart from the jurisdictional

fiction of a bond coerced by the court.

"Under long settled equity practice,

courts of chancery have discretionary

power to assess damages sustained by

parties who have been injured because

of an injunctive restraint ultimately

determined to have been improperly

granted."

32/ That the bonds in the present case

may have been posted "pursuant to" Rule

65, as petitioners allege, would in no

way limit the effect of Norris-LaGuardia's

§ 7.

Public Service Commn. v. Brashear Freight

Lines, 312 U.S. 621 (1941). Thus, in

Brashear Freight this Court approved the

award of injunction damages in excess of

the injunction bonds posted. See also

Mitchell v. Riegel Textile, Inc., 259 F.2d

954 (C.A.D.C., 1958). And this Court has

recently reaffirmed that the power to award

attorney's fees is not dependent on bond or

statute but is inherent in a court of

equity. Mills v. Electric Auto-Lite Co.,

396 U.S. 375, 393 (1970). See also

Sprague v. Ticonic Nat'l Bank, 307 U.S.

161, 166 (1939); 7 Moore's Federal Prac-

tice, para. 54.77, at 1352-53.

As the court below explained in de-

tail, the Donnelly dicta concerning limits

on injunction damages may be traced to a

narrow and mistaken view of a federal

court's equitable powers. And every other

Court of Appeals decision cited by peti-

tioners simply follows the applicable rule

for ordinary, nonstatutory uses.

In cases involving labor injunctions,

however, § 7 of the Norris-LaGuardia Act

displaces the ordinary rule of injunction

iainattna EN ba 6 aDAER Mec Une is inet Kabat!

damages, and authorizes full recovery of

reasonable attorney's fees though in

as ELL IO LL AL SN EOE ELL EE LE IL

7"

» 2 -

excess of the bond approved by the issu-

ing court. as This result -- the only

reasonable interpretation of the language

of § 7 -- is also fully in keeping with the

legislative history and the broad remedial

purpose of the Act. See Houston & No. Tex

Motor Fr. Lines, Inc. v. Local No. 745,

Teamsters, 27 F. Supp. 262, 264 (N.D. Tex.,

1939); Cinderella Theatre Co. v. Sign

Writers' Local Union, 6 F. Supp. 830, 831

(E.D. Mich. 1934).

/ contemplates that the em-

Section

ployer 34/

seeking a Jabor injunction must

"undertake" to reimburse all costs and

damages suffered by a wrongfully enjoined

party, and must also post "security in an

amount to be fixed by the court." 35/ As

33/ The Court of Appeals was unanimous

in holding to this effect. The narrow

point that troubled Judge Kalodner is not

raised in the petition.

34/ The surety's liability is another mat-

ter, not at issue here.

35 The court below noted that the em-

ployer's 8 7 "undertaking" is a strict

condition precedent to issuance at any

labor injunction and is implied by law

whenever injunctive relief has been

granted,

~ We

framed by the Senate, the employer's lia-

bility under 8 7 was entirely open-ended

-- the provision required "an undertaking

with adequate security sufficient to recon-

pense those enjoined for any loss, expense,

or damage... ." S. Rept. No. 163 of

Comm. on Judiciary, on S. 935 at p. 6 (72d

Cong., ist Sess., Feb. 4, 1932). The Con-

ference adopted the present language, so

that the provision as enacted "expressly

gives the court the power to fix the amount

of the security in the undertaking filed by

the complainant." H.R. Rept. No. 793, House

Confer. Rept. to accompany H.R. 5315, it

p. 7 (March 14, 1932)(emphasis added).

The amount of security fixed by the court

dali) ak aoe 8 Sh a

plainly does not determine the amount of

the primary obligation, and the "undertak-

a ing" continues to run to the full extent

of recoverable damage. See also H.R. Rept.

ee

No. 669, Rept. of House Comm. on Judiciary

on H.R. 5315, at p. 9 (March 2, 1932).

Section 7 reflects congressional dis-

St La SSS eh dae

satisfaction with the injunction bond pro-

ees

vision of the Clayton Act, which limited

injunction damages to the bond and did not

make room for attorney's fees. F.

Frankfurter and N. Greene, supra, at

EERE SE ERIE NE LI TREN EPL UPS SIND IRIE

_——

184-85. It also reflects awareness that

the ordinary injunction bond would in all

likelihood not adequately compensate a

wrongfully enjoined party in a labor dis-

pute. Id. at 200-201. Section 7 must be

read in light of this background and the

remedial objective of lessening the impact

of unequal resources in judicial contests

between employer and employee,

"Laboring men are not finan-

cially able to pay the expenses

which are necessary to make

proper defenses. They are con-

fronted with corporations having

unlimited means .. ., and in

such cases, if they have to try

their case before a judge who

is unsympathetic, it is neces-

sary for their cases to be ap-

pealed. The harsh way in which

the men are treated and the

severity of these terrible in-

junctions break them down, even

before trial ...."

Remarks of Senator Norris, 75 Cong. Rec.

4508 (Feb. 23, 1932).

Petitioners' construction of the Act

would, as the court below noted, leave the

new statutory liability for full injunc-

tion damages wholly dependent on "the un-

bridled discretion of these same district

court judges against whom the whole statute

——

was directed." Such a construction would

fly in the face of this Court's admonition

that the Norris-LaGuardia Act "must not be

read in a spirit of mutilating narrowness,"

United States v. Hutcheson, 312 U.S. 219,

235 (1941)(Frankfurter, J.). It would like-

wise be out of harmony with many recent de-

cisions of this Court and the Courts of Ap-

peals broadly construing other attorney's

fees provisions in order to effectuate re-

medial congressional policy. See, e.g.,

Newman v. Piggie Park Enterprises, 390 U.S.

400 (1968); Lee v. Southern Home Sites

Corp., “t44 F.2d 143, 144-148 (C.A. 5,

1971); Gartner v. Soloner, 384 F.2d 348,

355 (C.A. 3, 1967).

CONCLUSION

For all the foregoing reasons, the

petition for writ of certiorari to the

United States Court of Appeals for the

Third Circuit should be denied,

Respectfully submitted,

Joseph A, Yablonski

Clarice R. Feldman

1812 N Street, N.W.

Washington, D.C. 20036

Kenneth J. Yablonski

505 Washington Trust Bldg.

Washington, Penna. 15301

Attorneys for Respondents,

Local Union 1197, UMWA,

Edward Monborne, Charles

Krawitz and Mike Trbovich

—"

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 19,038-19,041

UNITED STATES STEEL CORPORATION

Vs

UNITED MINE WORKERS OF AMERICA, et al.

JONES & LAUGHLIN STEEL CORPORATION

Ve

UNITED MINE WORKERS OF AMERICA, et al.

BETHLEHEM MINES CORPORATION

Ve

UNITED MINE WORKERS OF AMERICA, et al.

REPUBLIC STEEL CORPORATION

Ve

UNITED MINE WORKERS OF AMERICA, et al.

PRESENT: Winter, Aldisert and Gibbons,

Circuit Judges.

——~ oe

u

MEMORANDUM SUR ORDER "

The plaintiffs, steel producers and

owners of coal mines, applied for a pre-

liminary injunction to restrain what they

described in their verified complaints as

illegal work stoppages. Following a hear-

ing, at which a minimum of sworn testimony

own F£ OO

was adduced, the court directed the appel- !

lants “to return to their employment,

process all grievances and complaints as :

to safety consistent with the provisions

of the collective bargaining agreements,

and to cease and not picket or cause to

be picketed the coal mines where they are

employed, or any other coal mine of any

other company in which labor dispute

exists as a result of safety complaints."

We reverse and remand the cause be-

cause we find that the parties were ef-

fectively denied the opportunity to develop

their respective positions by erroneous

rulings of the court. Because we sum-

oot ® Ole!

marily reverse and remand we deem it ap-

propriate to set forth our reasoning.

aaa Re S

_ =r . —_ =

| ——————

»~ £3 @

The district court repeatedly

urged counsel to "cut corners", to avoid

"technicalities", and, while verbalizing

a willingness to permit all to be heard,

nevertheless, by persistent comment and

rulings, prevented it.

The rulings of the district court in

controlling the introduction of testimony

were governed by its view of the applicable

law which it announced in open court at an

early stage of the proceedings:

THE COURT: I will enunciate a new

rule. Let the Supreme

Court see if they want

to reconsider and fol-

low my rule. That's

how simple it is.

I think under these

circumstances -- this

is my rule -- that

where a person has a

collective bargaining

agreement and the men

picket c. do not go to

work and they do not

i/ A written opinion of the district

court was filed. It is a refinement of

an oral opinion delivered in open court,

which the trial judge stated was prepared

by him at the conclusion of the first day

of the hearing.

- A4 - i. ,

tell their employer what

their complaint is, it is

the duty of the court to

enforce that contract and

to direct them to go back

to work.

That is my ruling.

You can take that through

the United States Court

of Appeals and the Supreme

Court of the United States,

They might say no, that

is not the rule.

We cannot accept this simplistic

distillation of the intricacies of labor

law, a field fraught with "technicalities"

imposed by statute, court precedent, the

substantive law of contracts, and the "new

common law -- the common law of a particu-

lar industry or of a particular plant." 2/

This approach ignores the vital

necessity in all requests for labor in-

junctions to accommodate the anti-

injunction provisions of the Norris-

LaGuardia Act, 29 U.S.C.A. § 104 and Sec-

tion 30i(a) of the Labor-Management Re-

lations Act, 29 U.S.C.A. § 185, which

permits suits for violations of labor

2/7 United Steelworkers of America v.

Warrior and Gulf Navigation Co., 363

U.S. 574, 579 (1960).

TSS RT TRI

« & <

agreements. Because the collective bargain-

ing agreements here did not contain a "no-

strike" provision, as was the case in The

Boys Markets, Inc. v. Retail Clerk's Union,

Local 770, 38 U.S,L.W. 4462 (1970), it was

necessary for the district court to examine

the applicability of the "settlement of

disputes" doctrine enunciated in Teamsters

Local v. Lucas Flour Co., 369 U.S. 95

(1962). The district court found that the

work stoppages were "strikes" emanating

from grievances over safety conditions

clearly arbitrable under the agreement and

concluded that these findings alone were

sufficient to justify the issuance of an

injunction.

Although the court placed great re-

liance throughout the proceedings on our

recent decision in Local 616, Interna-

tional Union of Electric, Radio and

Machine Workers, AFL-CIO v. Byrd Plastics,

Inc., No. 19,463 (June 19, 1970), we fail

to see its relevancy to the case at bar.

What the district court failed to recog-

nize, both in its opinion and in the

enunciation of its "new rule", is the

admonition in Boys Market that injunc-

tive relief is not appropriate "as a

—_

=

——

warn

AMR GAR ah sth i bi A AS ie one a

OUTER ETE NE LSE AP si cinta eo ae , i

matter of course in every case of a strike

over an arbitrable grievance." The Court

there suggested certain principles for the

guidance of district courts in determining

whether to grant injunctive relief:

A District Court entertaining

an action under §301 may not

grant injunctive relief against

concerted activity unless and

until it decides that the case

is one in which an injunction

would be appropriate despite

the Norris-LaGuardia Act.

When a strike is sought to be

enjoined because it is over a

grievance which both parties

are contractually bound to arbi-

trate, the District Court may is-

sue no injunctive order until

it first holds that the con- )

tract does have that effect;

and the employer should be

ordered to arbitrate, as a

condition of his obtaining an |

injunction against the strike.

Beyond this, the District Court

must, of course, consider whe-

ther issuance of an injunction

would be warranted under ordi-

nary principles of equity --

whether breaches are occurring

and will continue, or have been

threatened and will be commit-

ted; whether they have caused

or will cause irreparable in- ]

jury to the employer; and

whether the employer will suf-

fer more from the denial of an }

injunction than will the union

from its issuance.

s_"

o DD =

Thus, although the plaintiffs should be af-

forded the opportunity of presenting their

case for a breach of the collective bargain-

ing agreement, they should not be relieved

of proving the present necessity for injunc-

tive relief to rectify that breach.

The foregoing, of course, assumes the

existence of a bona fide labor dispute be-

tween employees and employers. But an

examination of the record does not justify

such an assumption. First, the appellants

raise the fundamental question whether the

work stoppage was a labor dispute at all,

but rather a mass protest against the fed-

eral government for its failure to enforce

provisions of the Federal Coal Mine Health

and Safety Act of 1969, Public Law 91-173,

9ist Congress, S 2917, December 30, 1969.

At the hearing, counsel for the appellants

stated: "I don't think it is so mucha |

dispute between a union and employer, so

much as it is a dispute between coal

‘Niners and the United States Government."

Moreover, once being alerted to

this issue, the district court failed to

find whether the matter properly came

within the purview of the machinery re-

lating to "Settlement of Local and District

- AO =

Disputes" or whether, as the agreement pro-

vided, it was “national in character in

which event the parties shall settle such

disputes by free collective bargaining as

heretofore practiced in the industry."

In additicn, a serious question was

presented whether there was a work stop-

page over a bona fide grievance authorized

by any level of union authority -- inter-

national, district, or local. Ai the hear-

ing, the district court received the unsworn

statement from the president of District 5

describing the work stoppage as unauthorized

and as "a political move and an attempt to

embarrass the organization and the coal in-

dustry."

Finally, the district court directed

that the grievance be submitted to arbi-

tration on the basis of "safety complaints"

without making a specific finding as to the

presence or absence of a dangerous condi-

tion. If a dangerous condition were found

to exist, two additional considerations

would be appropriate: (1) whether this was

a proper subject of arbitration under the

contract, and if so, how; and (2) whether

such amounted to “abnormally dangerous

conditions". The latter consideration is

GOLF FE OF BROGAN ICBO

critical to an evaluation and possible appli-

cation of Section 502 of LMRA, 29 U.S.C.A.

$ 143:

[N_/or shall the quitting of

labor by an employee or employ-

ees in good faith because of

abnormally dangerous conditions

for work at the place of employ-

ment of such employee or employees

be deemed a strike under this

chapter.

See Philadelphia Marine Trade Associations

v. N.L.R.B., 330 F.2d 492 (3 Cir. 1964).

We do not intend this discussion to

serve as an outline of all the problems en-

compassed by the proceedings below. We

have set forth these observations solely

to indicate those issues which are discern-

able from an examination of the truncated

record, briefs, and oral argument. While

recognizing that the district court has

wide discretion in the reception of evi-

dence at a preliminary hearing and that

"/ t_/he award of an interlocutory in-

junction by courts of equity has never

been regarded strictly as a matter of

right," Yakus v. United States, 321 U.S.

414, 440 (1944); Scripps-Howard Radio v.

FCC, 316 U.S. 4, 10 (1942), we neverthe-

less believe that it is fundamental that

a

- A1O -

parties to proceedings such as these be

given the opportunity to be heard, properly,

We therefore summarily reverse and

remand these cases to the district court

without prejudice to a request for a hear-

ing de novo on the application for a pre-

liminary injunction. We emphasize that we

have not reached the issue of the merits

of the request for a preliminary injunc-

tion. Our decision is based solely on our

conclusion that the trial court's applica-

tion of erroneous concepts of procedural

and substantive law denied the parties an

adequate opportunity of presenting appro-

priate evidence and argument.

ee eal a neg en a de aa ieee Oe een ete ee eee ee

- Ail -

ORDER

After consideration of appellants'

motion and oral argument thereon, for the

reasons set forth in the foregoing memoran-

dum, IT IS ORDERED,

That the orders of the district

court dated June 25, 1970, be and the

same are hereby reversed and the cause re-

manded to the district court for proceed-

ings not inconsistent with the views set

forth in the memorandum,

Each side to bear its own costs.

BY THE COURT,

/S/ Ruggero Aldisert

Circuit Judge

Dated: June 30, 1970