On Appeal from various Injunctive Orders and an Adjudication in Civil Contempt, United States District Court for the Eastern District of Wisconsin. - No. 75-C-64 Robert W. Warren, Judge.
Rives, Senior Circuit Judge,*fn* Swygert and Pell, Circuit Judges.
In issue in this appeal is the propriety of the district court's grant of injunctive relief under 29 U.S.C. § 160(j). Also in issue is the propriety of the district court's findings of civil contempt for violations of its temporary restraining order and injunction.
The present proceedings arose out of a labor dispute between the defendant union*fn1 and the Milwaukee Independent Meat Packers Association resulting in an economic strike by the Union. On January 28, 1975, the Association filed an amended unfair labor practice charge alleging that the Union was unlawfully restraining and coercing employees in the exercise of their rights guaranteed in 29 U.S.C. § 157 by threatening and committing violent acts. The Association alleged that these acts violated 29 U.S.C. § 158(b)(1)(A). Following an investigation of the charge, the Board's Regional Director concluded that there was reasonable cause to believe that the Union was engaging in unlawful activities. On February 7 he notified the Union by telephone of his intention to seek injunctive relief and on February 10 issued a complaint and filed a petition with the district court.
The petition alleged jurisdiction under section 160(j) and sought a temporary restraining order pending a hearing at a time set by the court for the Union to show cause why an injunction should not be entered. The petition alleged that there was reasonable cause to believe that the Union restrained and coerced employees of the Association in the exercise of their rights "by engaging in violence and threats of violence against nonstriking employees of the Association, supervisory personnel of the Association; blocking of ingress and egress at the premises of Association members; damaging the property of the Association, of nonstriking employees of the Association, and of supervisory personnel; following the vehicles of nonstriking employees and by other conduct . . . ." The petition then indicated when and where the various illegal acts took place but did not identify the participants by name. Sixty-four affidavits were filed to support the allegations in the petition. Finally, it was alleged that upon information and belief it might fairly be anticipated that the illegal acts would continue unless enjoined. The Board moved the court to consider the request for injunctive relief without oral argument or an evidentiary hearing after the Union had an opportunity to file an answer, affidavits, and memoranda.
Immediately upon filing the petition, counsel for the Board appeared before Judge Warren and orally requested the entry of a temporary restraining order. Counsel for the Union was present; but since the Union had not been served, the matter was continued until February 11 at 4:15 p.m. The Union was served at approximately 11:50 a.m. on February 11, although counsel for the Union had been given a courtesy copy of the documents the previous day.
At the hearing on February 11, the Union moved for the scheduling of an evidentiary hearing on the grounds that it was required by statute. This motion was denied, and the Union then moved to postpone the hearing until February 13 on the grounds that the Union had not been given reasonable notice so that it could properly defend. This motion was denied and so was a motion to strike the affidavits and exhibits filed by the Board. After hearing arguments of counsel, the court found that it had jurisdiction to enter a temporary restraining order, that there was "rather clear evidence of gross violations of human rights, to say nothing of the unfair and improper labor practices," that there was widespread violence which had not been controlled, that the violence was apparently continuing, and that there was imminent danger that additional, substantial, and irreparable injury would result if the Union were permitted to continue its actions pending a hearing on the petition. The judge indicated that he would enter an order but invited discussion on how long it should last before a hearing was held on the temporary injunction.
Counsel indicated that the Board could submit a brief within three days, but counsel for the Union indicated that he wished the opportunity for discovery before the hearing. Counsel for the Union also raised the problem of the ten-day time limit in Fed. R. Civ. P. 65 for temporary restraining orders. The court indicated that it did not believe it was bound by the ten-day time limit in Rule 65 because the proceedings were not ex parte but that the order would indicate that the Union's request for discovery was a good cause for the extension.
Counsel for the Board renewed his motion that the injunction issue be determined on the basis of affidavits and memoranda rather than on an evidentiary hearing but indicated that the Board would be willing to stipulate to the admission of the transcript of the hearing to be held before an administrative law judge on the merits of the case. The court indicated that it would wait until after receiving the briefs to determine whether an evidentiary hearing would be held.
The court entered an order enjoining the Union, its officers, representatives, agents, servants, employees, and all members and persons acting in concert or participation with it from committing various specified acts and from "in any other manner restraining or coercing employees of the Association or other persons seeking to do business with the association in the exercise of their rights as guaranteed under Section 7 [29 U.S.C. § 157] of the Act." It also ordered the Union to provide specific instructions to its members and representatives to refrain from such acts. The order established a briefing schedule and was by its terms to run until February 28. The following day the order was reduced to writing by the court with minor changes in form. The mandatory portion of it is set forth in an appendix to this opinion. On February 24 the Union filed a notice of appeal regarding this order. This appeal is No. 75-1377.
A hearing was convened on February 28. Various documents had been filed including an answer to the petition, memoranda of law, and a renewed motion by the Union for an evidentiary hearing. At the hearing the Board moved to extend and broaden the temporary restraining order to limit the number of pickets. Counsel for each of the parties then stated their views at some length. The court denied the motion to expand the scope of the restraining order; scheduled a hearing on the preliminary injunction for March 7; determined that the hearing would be based on the transcript of the hearing before the administrative law judge, the briefs of the parties, and their arguments; and extended the original restraining order through March 14. On February 28 the Union filed a notice of appeal regarding this extension. This appeal is No. 75-1378.
On March 5 the Regional Director filed a petition for civil contempt against the Union; Edmund Bobrowicz, the Union's financial secretary-treasurer; Harding Bond, Union President; Larry Pultz, Mike Bobich, and Oscar Smith, picket captains; and all other persons acting in concert with the Union. The petition alleged that the persons involved had knowledge of the restraining order and that the order was in full force and effect. The petition charged the individuals with various acts restrained by the order and the Union with failing to give the members instructions as required by the order. The petition prayed for an order directing the parties to comply with the restraining order and for such other relief as the court deemed proper. At the beginning of the hearing on the restraining order, Board counsel suggested that the court order fines against the Union and the named individuals for each future violation. The Respondents sought a jury trial under 18 U.S.C. § 3692, but the Court denied this motion. An evidentiary hearing was held on the civil contempt issues which lasted four days. At the conclusion of the hearing on March 20 the court entered an order detailing findings of facts and conclusions of law. The court found that picket captains are picket line agents of the Union, that the named picket captains had received notice of the terms of the restraining order, and concluded that they were acting in contempt of the order. The court ordered them removed from the picket line for the remainder of the period the restraining order covered. The specific conduct the court found to violate the restraining order included: recording license plate numbers of nonstriking employees and job applicants; blocking the entrance and pounding with hands upon vehicles; threatening named persons by, e.g., telling them that a former job applicant no longer had any legs, and that a driver of a semi crossing the line had his windows shot out; and threatening others by telling them, e.g., that they could be identified through their license plates, that they knew where they lived, and that they would be gotten that night. The court found that the named parties participated in some of these activities and failed to prevent others. The court found that the Union by failing to control and curtail the misconduct had ratified it. It therefore fined the Union $500.00, "such fine being a civil fine of a compensatory nature . . . ." The court ordered the Union to remove another picket captain who was not named in the contempt petition but who the court found had notice of the restraining order and engaged in misconduct. The court expressly made no finding of contempt against Edmund Bobrowicz or Harding Bond in their individual capacities. The Respondents filed a notice of appeal on the same day the order of contempt was entered. This is appeal No. 75-1379.
As indicated earlier, a hearing on the preliminary injunction was scheduled for March 7. This was continued by stipulation of the parties until March 10 and the efficacy of the outstanding order was extended from March 14 to March 17. The Union reserved its right to challenge the validity of the underlying order.
On March 10 a hearing was held at which the Board urged that a preliminary injunction be entered which was broader in scope than the restraining order. The Union opposed this and the matter was taken under advisement. In response to a motion by the Board, on March 17 the court entered an order extending the restraining order to continue through March 21. The court indicated that the intervening contempt hearing was good cause for the extension.
On March 21 the court entered a concise and well reasoned decision and order on the preliminary injunction.*fn2 The court indicated that the standard to determine whether to enter an injunction was whether reasonable cause existed to believe that the alleged unfair labor practices have been committed. The court indicated that the Board had come forth with evidence of violence, including property damage and personal injury, threats of violence to nonstriking employees and other persons attempting to cross the picket line, obstruction of ingress to and egress from the Association member plants, and other misconduct. According to the court, the Union did not deny the occurrence of the various acts of misconduct as alleged but rather argued that the misconduct was not attributable to it. The court found that although sufficient agency might not exist to charge the Union with each instance of misconduct which occurred away from the picket line, numerous instances occurred concerning which there was reasonable cause to believe the Union was responsible. The court indicated that injunctive relief was appropriate because a reasonable apprehension existed that the Board's ultimate order might be a nullity if the status quo were not maintained. The status quo in this case would be the existence of a peaceful strike. The court found that it had every reason to believe that without an injunction, the strike misconduct would resume. It entered a preliminary injunction substantially similar to the temporary restraining order;*fn3 but because it found that there would be no need for further relief if the Union complied with this order, it denied the Board's request to broaden the injunction by limiting the number of pickets at each site, by requiring the Union to relinquish all lists of names and addresses of nonstriking employees, and by prohibiting picket captains Pultz, Bobich, and Smith from all picket line activity for the duration of the strike.
On May 23 the Union moved the court to dissolve the preliminary injunction. The court denied the motion, and the Union filed a notice of appeal the same day. This is appeal No. 75-1563.
I. Validity of Temporary Restraining Order
A. Power to Grant Temporary Restraining Orders
29 U.S.C. § 157 grants employees the right to engage in collective bargaining or to refrain from doing so. Section 158(b)(1)(A) grants the Board power to proceed against union tactics involving violence, intimidation, and threats which tend to coerce employees in the exercise of their rights under section 157. N.L.R.B. v. Driver's Local 639, 362 U.S. 274, 290, 80 S. Ct. 706, 4 L. Ed. 2d 710 (1960). Section 160(j), added to the National Labor Relations Act by the Taft-Hartley amendments in 1947, grants federal district courts jurisdiction to grant "such temporary relief or restraining order as it deems just and proper" at the behest of the Board pending adjudication of an outstanding complaint pending before it.*fn4 Whether to seek an injunction under section 160(j) is discretionary with the Board. Section 160(h) provides that the jurisdiction of a court granting temporary relief or restraining orders under section 160 is not affected by sections 101 through 115 of Title 29, the Norris-LaGuardia Act.
The Norris-LaGuardia Act broadly prohibited federal courts from exercising jurisdiction in labor disputes, though we note that restraint of violence is excepted from its operation. 29 U.S.C. § 107; cf. 29 U.S.C. § 104. Initially in this appeal the Union argued that the procedural limitations of the Norris-LaGuardia Act applied to district courts' actions under section 160(j). In light of the Supreme Court's decision in Muniz v. Hoffman, 422 U.S. 454, 45 L. Ed. 2d 319, 95 S. Ct. 2178 (1975), which held that section 160(h) makes all provisions of the Norris-LaGuardia Act inapplicable to section 160 proceedings, it has now properly abandoned this position.
Section 160(l) is similar to section 160(j) in that it grants district courts jurisdiction to provide relief from certain unfair labor practices. Its primary thrust is directed against secondary boycotts. It differs from section 160(j) in that it does not make the decision to seek relief discretionary with the Board but rather mandates action whenever after investigation a regional attorney has reasonable cause to believe that a charge within the scope of the subsection is true. The district court does not need to wait to act until a complaint has been filed before the Board but may upon petition grant "such injunctive relief or temporary restraining order as it deems just and proper." The subsection only permits temporary restraining orders to be issued without notice in cases where the petition alleges that substantial and irreparable injury will be unavoidable and limits such orders to five days duration.
Sections 160(j) and 160(l) were both enacted in 1947. In Muniz v. Hoffman, supra, the Supreme Court had occasion to quote from the Senate Report indicating the purpose of the sections:
Time is usually of the essence in these matters, and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives -- the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices. S. Rep. No. 105, 80th Cong., 1st Sess., 8 (1947) (Emphasis added.) 422 U.S. at 466-67.
The Union argues that the district court had no power under section 160(j) to enter a temporary restraining order and that as the prerequisites of a preliminary injunction*fn5 were not met, the order ...