F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R I C H A R D L

. A H E A R

N , Reg ional Director of the Nineteenth Reg ion of the National L abor Relations B oard, for and on behalf of the National L a bor Relations B oard,

Petitioner-Appellee

,

v

.

I N T E R N A T I O N A L L O N G S H O R

E A N D W A R E H O U S E U

N I O N , L O C A L S 21
A N D 4, Respondents-Appellants

. N o. 11-35848

D.C. No. 3:11-CV-05684- RB L

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Ronald B . L eig hton, District J udg e, Presiding

Arg ued and Submitted April 10, 2013—Seattle, W ashing ton

F iled J uly 5, 2013A H E A R N V

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B efore: Dorothy

W . Nelson and Consuelo M. Callahan, Circuit J udg es, and Raner C. Collins, District J udg e. *

Opinion by

J udg e Collins

SUMMARY * *

Labor Law

The pa n e l affirmed in part, and reversed in part, the district c ourt’s ord er s finding L ocals 21 and 4 of the I nternational L ong shore a n d W are house Union in contempt and ordering it to p ay c o mpensatory damag es, aris i n g when the Uni on e ng ag ed in protest activities at a g rain terminal operated by Ex port Grain T erminal, L L C, and Ex p o r t G r a in f iled charg es ag ainst the Union with the National L a b o r Relations B oard.

The panel held that Section 303 of the L abor Manag ement Relatio n s Act was not Ex port Grain’s sole remedy for obtaining damag es resulting from unlawful labor activities. The panel further held that the district court did n ot a buse its discretion when it a

warded compensatory damag es to Ex port Grain, and that the record supported the amount of damag e s awarded to E x port Grain and the NL RB

. I n a d d ition, the panel h e l d that Ex p ort Grain’s participation in the civil

* T h e Ho n o rab le Ran er C. Co l lin s, Un ited States District J u d g e f o r th e District o f

A rizo n a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A H E A R N V

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contempt p roceeding s did not ex ceed t h e statutorily limited role under Section 160(l) of the National L abor Relations A ct g iven to c harg ing p a

r ties in an action before the NL RB

. The panel also held that the district c ou r t a b used its discretion when it awarded compensatory d amag es to B urling ton Northern Sante F e and the various law enforcement ag encies that responded to the scenes of the Union’s protests, because those e ntities were not p a rties to the underly ing NL RB actions.

COUNSEL

Emily M. Mag lio (arg

ued), Robert S. Rema r , a n d Eleanor I

. Morton, L eonard Carder, L L P, S a n F rancisco, California; Robert H. L avitt, Schwerin, Campbell, B arn a r d

, I g litz in & L avitt, L L P, S e at tle, Washing ton, for RespondentsAppellants.

Kay ce R. Compton (arg u ed), L afe E. Solomon, A cting General Counsel, Elinor L

. Merberg

, Assistant General Counsel, Celeste J

. Mattina, Deputy General Counsel, L aura T. Vaz q u ez , Deputy A ssistant G eneral Counsel, and B arry J

. Kearney
, Associate General Counsel, National L abor Relations B oard, W ashing ton, D.C., for Petitioner-Appellee.

Richard J

. Pautler, Thompson Cob u rn L L P, St. L ouis, Missouri, for Amicus Curiae EGT, L L C.A H E A R N V

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OP INION

COL L I NS, District J udg e:

Appellants L ocals 2 1 and 4 of the I n ternational L ong shore and W arehouse Union (“Union”) eng ag ed in protest activities
at t h e site of a g rain terminal operated by Ex p ort Grain Terminal

, L L C (“EGT”). EGT filed charg es ag ainst the Union with Appellee, the National L abor Relatio n s Board (“NL RB ”).

W h ile the NL RB action w as p e n din g, t h e N L RB soug ht injunctive relief ag ainst the Union pursuant to Sections 10(j) and 10(l) 1 of the N ational L abor Relations A c t (“NL RA”),

1 Sectio n 1 0 (j ), 2 9 U.S.C. § 1 6 0 (j ), p ro v id es:

T h e [NL RB ] sh all h av e p o w e r , u p o n issu an ce o f a

co m plain t [th at a p erso n o r en tity is en g ag in g in an

u n f air lab o r p ractice], to p etitio n an y Un ited St a t e s d istrict co u

rt

. . . f o r ap pro p riate tem

po rary r elief or restrain in g o rd er.”

Sectio n 1 0 (l), 2 9 U.S.C. § 1 6 0 (l), p ro v id es:

W h en ev er it i s ch arg ed th at an y p erso n h as en g ag ed in

u n f air lab o r practice

. . . th e p relim i n a r y i n v estig atio n

o f su ch ch arg e sh all be m ad e f o rth w ith an d g iv en p rio rity o v er all o t h e r cases ex cep t cases o f lik e ch aracter in t

h e o f f ice w h ere it is f

iled o r to w

h ich i t is ref erred

. If

, af ter su ch in v estig atio n , th e o f f i cer or reg io n al atto rn ey to w

h o m th e m atter m ay b e ref erred h as reaso n ab le cau se to b eliev e su ch ch arg e is tru e an d th at a co m

p lain t sh o u ld issu e, h e s h all, o n b eh alf o f th e [NL RB ], p etitio n an y Un i ted States district co u rt

. . . f or ap pro p riate in

j u n ctiv e r e l ief p en d in g th e f in al ad j u d icatio n o f t

h e [NL RB ] w ith resp ect to su ch m atter.A H E A R N V

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29 U.S. C

. § § 151–169. The d istrict court issued both a temporary restraining order and a preliminary injunction prohibiting the Union f rom eng ag ing in certain protest activities. The Union continued to eng ag e in these activities,

so the d istrict court found the Union in c ontempt and ordered it to p ay compensatory damag es to the NL RB , EGT, various law enforcement ag encies, and B urling ton Northern Santa F e (“B NSF ” ).

On a ppeal, the Union a

r g ue s that the district court’s contempt awards should be vacated b ecause the court did not h ave discretion to award compensatory damag e s to thi r d parties, or to award d a m a ges to the charg ing party in an underly ing l a b o r a ction where Section 303 of the L abor Manag ement R e l a t i o n s Ac t ( “ L M R A ” ), 29 U .S.C. §§ 141–187, alleg edly p rovided the sole remedy

. The Union also arg ues that it w as entitled to h e ig htened procedural protections during the civil contempt proceeding s because the damag es were criminal, not civil, sanctions.

W e conclude that th e d istrict c o urt did not abuse its di s c r e t ion when it a

warded compensatory damag e s to E G T, and that the record supported the amount of damag es awarded
to EGT. However, we conclude that t h e district abused its discretion when it awarded compensatory damag es to B NSF and the v arious law enforcement a g encies that responded to the scenes of the Union’s protests, because these entities were not partie s t o the underly ing NL RB action. W e therefore affirm in part and reverse in part.

I.

The events underly ing this appeal arose out of a dispute between the U nion and E G T concerning whether UnionA H E A R N V

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members would operate an EGT gr a i n terminal located on land th a t EGT was leasing from the Port of W ashing ton (“Port”). T he Union claimed that under the t e r ms of a collective barg aining ag r eement between the Union a nd the Port, EGT w as required to hire Union members. EGT rejected the Union’s attempts to e nforce the collective bar ga i n ing ag reement, and informed the Union that it was g oing to h ire non-Union members to operate the gr a in terminal.

B e g inning in J une 2011, Union members beg an picketing
at EGT’s terminal site. EGT filed charg es ag a inst the Union with the NL RB
, which pursued injunctive relie f a gainst the Union pursuant to S e c t ions 10(l) and 10(j) of the N L RA. Specifically

, the NL RB petitioned for a temporary restraining order and preliminary injunction, alleg ing that, starting in J une 2011, Union members picketed at the EGT facility with sig ns. T he NL RB claimed that Union members coerced people into refusing to perform services for EGT throug h threats and harassment.

According to the petition, the Union’s picke t i n g a nd trespassing resulted in the de struction of EGT property a nd the harassment of its employ e es and contractors, including but not limited to: brea k i n g a nd/or stealing sig n s; tearing down g ates; pushing rail cars ou t of their respective rail sheds; verbally and phy sically a ssaulting EGT employ ees a nd contractors; impeding ing ress and e g ress to and from the EGT f a c ility ; h arassing and threatening bodily harm and/or d e a t h
to EGT employ ees a n d other individuals who crossed the picket lines; blocking the rail lines so that railway cars were

u n able to make scheduled d e liveries to EGT; damag i n g vehicles, including throwing eg g s at, pushing

, spitting on, a nd key ing v ehicles driven by EG T employ ees; placing p lasticA H E A R N V

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bag s filled with feces outside of the EGT ad m i n istration building ; following E GT e mploy ees and contractors as they left the facility ; dropping a black trash bag filled w ith 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 restrain i n g order (“TRO”), prohibiting the unions from eng ag ing in “picket line violence, threats and property damag es, mass p icketing and blocking o f ing ress and eg ress at the [ EGT f acility ] ” and from “restraining or coercing e mploy e e s of EGT, General [ Construction]

, or any o ther person doing business in relation to the EGT facility . . . .”

The NL RB alleg es that o n Septe m b e r 7, 2011, “several hundred people acting in concert with the U n i o ns” picketed

on the r ailroad tracks in Vancouver, W ashing ton, blocking a B NSF train that was headed for the EGT facility with a corn delivery

. The picketers allowed the train to pass seven hours later. However, th e t r a i n was stopped ag ain by Union picketers outside o f the Port of L ong view

. The picketers refused to allow the train to make its delivery to EG T ’s facility

. The train w a s a b l e to d e liver the corn only a fter police o f ficers from the Cowlitz County Police Department, the Cowlitz County She r r i ff’s Department, and the K elso County Police Department ar r e s ted several picketers a nd cleared the tracks.

T he NL RB also a lleg es that at a pprox imately 4:0 0 a

. m

. the nex t day

, “over 100 cars converg ed on E GT’s facility

, ” and that p icketers “armed with g ardening shears, ba s eb all bats, broken broom sticks, and metal pipes” approached EGT’s facility

. A ccording to the N L RB
, the picketers brokeA H E A R N V

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w i n d o ws, threatened the on-duty security g uards, and thre w rocks at the g uards. One security g u ard was pulled from his

car by t h e p r o testors and threatened with a metal pipe. His

car was then driven int o a d rainag e ditch. At some point during this demonstration, the picketers dumped the corn load from the B N SF train onto the railroad tracks, cut the a ir hoses and broke the metal coupling s that c o n nected th e train cars, knocked down a portion of the f ence surrou n d ing the EGT facility

, and damag e d the lig h ts on the EGT convey or sy stem. L ater that same day

, the district court g ranted t h e N L RB ’s
pe t ition for preliminary injunction, enjoining the same conduct described in the September 1, 2011, TRO.

On September 1 5, 2 0 1 1
, a f ter taking testimony a

nd hearing arg u ments from b oth parties, the district court f ound the Union in contempt of the TRO. On September 3 0, 2011, after reviewing the ex hibits sub m i tted by the NL RB
, the district court awarded the NL RB $250,000 to be apportioned
p r o r a ta between the NL RB
, EGT, B N SF
, L ong view Police Department, Kelso Police Department, Cowlitz County Sheriff’s Office, and W ashing ton Stat e P atrol. 2 The Court awarded p ro-ra t a compensatory damag es in the following
amounts: NL RB : $56,601. 06; B NSF : $11,189.02; EGT: $117,112.70; L ong view Police: $17,024.65; Kelso Police: $3,022.39; Cowlitz County Sheriff: $34,520.74; W ashing ton State Patrol: $10,529.44.

2 T h e NL RB o rig in al l y a s ke d t h e Co u rt f o r $ 2 9 2 ,6 9 7 .6 5

. T h e Un io n

o b j ected

, arg u in g th at so m e o f t h e d o cu m en ts p ro v i d e d b y th e N L RB as p ro o f o f i t s d am ag es eith er pre- d ated o r p o st- d ated th e co n tu m acio u s b eh av io r. No tin g th is, th e d i strict co u rt d ed u cted $ 4 2 ,0 00 f ro m th e NL RB ’ s req u ested d am ag es: “ I rev iew ed th e atto rn ey f ees, I rev iew ed th e tim es th at th ey are acco u n tin g f o r th em

. I d id n o t d o a detailed ev alu atio n , b u t to o k $ 50 ,0 0 0 . . . $ 42 ,0 0 0 o f

f th e to p .”A H E A R N V

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The Cou r t s ubsequently set a prospective fine schedule: (1) $25,000 for any future violations of the preliminary injunction by the Unio n ; ( 2 ) $5,000 for any violations b y Union officers; and (3) $2,500, per person, for a ny violations by individuals.

Approx imately one w eek later, on Se p t e mber 21, 2011, the NL R B a lleg es that several Union officers and members blocked the railroad tracks leading to the EGT f acility

, which prevented a

nothe r BN SF train from making a delivery

. Nearly 100 law e nforcement officers f rom several departm e n t s responded to the scene and arrested several picketers.

The district court h e l d t h e U nion in contempt of the preliminary injunction for t h i s incident. After briefing

, the
court awarded the N L R B $64,764.38 in c ompensatory damag es. The NL RB orig inally soug ht $71,960.38.

On appeal, we must determine w hether Section 303 of the L MRA wa s EGT’s sole remedy for collecting damag es. I f Section 303 is not E GT’s sole re m edy

, then w e must determine whether the re c o r d supports the a mount o f compensatory d a m a g es awarded to EGT. W e must also decide w hether EGT’s partic i pation in the contempt proceeding s ex ceeded the statuto r i l y limited role g iven to charg ing parties i n a n action before the NL RB

. F inally

, we

mu s t consider whether the law e nforcement ag encies a nd B NSF were entitled to c ompensatory damag es even thoug h they were not parties to the underly ing NL RB action.A H E A R N V

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II.

W e f irst consider whether Section 3 03 of th e L MRA is E G T’s sole remedy for obtaining damag es resulting f r o m unlawful labor activities. W e conclude that it is not.

Section 303(b) provides:

W h oever shall be injured in hi s b u s iness o r property by reason [ of] any viol a t i o n o f subsection (a)

. . . may su e t h e refor in any district court of the U nited States

. . . and shall

recover the damag es b y him sustained and the cost of the suit.

29 U.S.C. § 187(b). Subsection ( a) a llows private employ ers to recover damag es 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 boy cott” provision, prohibits labor org aniz a tions from “ picket i n g ag ainst an employ er with whom it does not have a dispute, with an object of forcing that secondary employ er to cea s e d oing business with a primary e mploy er.” N L RB v. Local 3, I

nt’l Bhd. of Elec

. W

o r k e r s , 471 F .3d 399, 402 (2d Cir. 2 006) ( “Local 3” ) (quotation marks omitted).

I n the u nderly ing NL RB action in this case, EGT alleg ed that the Union picketed outside of its f acility for the purpose of g ettin g E GT, the secondary employ er, to cease doing business with the Port of L ong v iew, the primary e m ploy er. The district court declined the NL RB ’s petition to e n join secondary picketing

, and the parties have s i n c e entered into

a settlement ag reement that addresses EGT’s alleg ations. The district court d id not award r e lief for secondary picketingA H E A R N V

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u n der Section 8(b)(4), and the d istrict court did not c it e Section 8(b)(4) or Section 303 in a w arding c ompensatory damag es to EGT.

The U nion nonetheless urg es us to follow the Second Circuit’s h o lding in Local 3
, where the Second Circuit declined to award civil contempt dama ge s to third-party employ e rs when the employ ers were not complainants in the underly ing Section 303 action and had not broug ht their o wn Section 30 3 claims ag ainst the union. 471 F .3d a t 408. I n reaching this conclusion, the Second Circuit cited the lack o f
any a uthority to the contrary a nd its prior decision in New Y o rk v. Operation Rescue National

, 80 F .3d 64
, 71 (2d Cir. 1996), where the court v a c a t e d the award of c ompensatory damag es to third-party abortion c linics that had been injured by anti-abortion protestors’ violation of an injunction. Local 3 , 471 F .3d at 408.

W e reach a different conclusion, for several reasons. F irst, c ivil contempt proceeding s serve two purposes: (1) coercing compliance with a court orde r; and (2) compensating the prevailing party

. McComb v. Jacksonville Pa p e r Co.
, 336 U.S. 187, 191 (1949); W h ittaker Corp. v. E

x ecuair Corp.
, 953 F .2d 510, 517 (9th Cir. 1992). A s the c harg ing party , E GT is a “prevailing party ” for purposes of the N L RA a nd there f o re is entitled to c o mpensation for its actual d amag es. 2 9 C

. F. R

. § 102.8 (“The term party

. . . shall mean

. . . a n y person filing a charg e or petition und e r t h e a c t

. . . . ”); c f

. EEOC v. Guardian Pools, I n c. , 828 F .2d 1507, 1514–15 (11th Cir. 1987) ( female victims o f sex discrimination w h o we re rep r e sented by the E E OC in the underly ing action were “parties” to that action).A H E A R N V

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Second, we are not convinced that Local 3 stands for the broad proposition tha t employ ers who are elig ible to seek remedies under Section 303 a re never entitl ed to civil contempt damag es for injuries related to secondary pro t e s t activities. N o case has ever cited Local 3 for such a br o a d proposition and Local 3 ’s r easoning does not sug g est such an

ex p ansive holding

.
Third, Section 30 3 states only that private employ ers “may sue” f or damag es c aused by

unfair labor practices, not that they must do so. 29 U.S.C. § 187(b). Not h i n g in the L M R A or the NL RA sug g ests otherwise. As for Operati o n Rescue
, that case is inapposite because it di d n o t involve
p r i vate employ ers w ho were elig ible for Section 303 r elie f. 80 F

. 3d at 64. F inally

, it is not c lear that EGT could seek relief under Section 303 in this case, a s the district court did not award injunctive relief under Section 8(b)(4).

III.

W e now turn to whet h e r t h e record supports the amount of compensatory damag es awarded to EGT. A party moving for civil contempt must prove that the non-moving p arty has violated a c ourt order by clear and convincing evidence. FTC

v. Enforma Natural Prods., Inc.
, 362 F .3d 12 0 4
, 1 2 1 1 (9th Cir. 2004). T h e U n ion does not d ispute the district court’s finding of contempt, b u t rather arg ues that there was insufficient proof o f the injured parties’ alleg ed d a m ages to support the amount of the compensatory damag es.

The Union arg u es that a clear a nd convincing standard should apply

, while the NL RB advocates for a preponderanceA H E A R N V

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of the e vidence standard. 3 W e need not r esolve which standard applies, since the district court’s award m eets both standar d s

. Specifically

, the record shows that the district
court reviewed the various a f fidavits, declaration s , a

n d p h o t o s submitted b y the NL RB b efore awarding damag es. The court heard test i m ony from witnesses who w ere present at the demonstrations. The Union had an opp o r t u nity to crossex a mine these witnesses and respo n d to the evidence submitted by the NL RB

. The Union was g iven the chance to submit its o wn evidence in opposition to the award. The di s t rict court considered the Union’s objections to the NL RB ’ s proposed d amag es and overruled them. The Union made the court aware that some o f t h e d ates on the N L RB ’s proof of damag es pre-dated or pos t

- d a ted the contumacious

c o nduct and objected to the inclusion o f these costs i n t h e final contempt award. The court took this into acc o u n t a nd adjusted the final damag es b y d educting nearly $50,000 from the NL RB ’s r equested damag es. T h ese procedures, a s w ell

as the evidence itself, support the district court’s c o n tempt award.

Th e se facts also show why the district court’s contempt award is civil, not criminal, a nd therefore did not require the heig htened procedural protections that attach to criminal contempt p roceeding s. W hether a contempt sanction is civil

3 Ev ery circu it to h av e co n sid ered t h i s i s s u e h a s ad o pted a p rep o n d eran ce stan d ard

. S ee FTC v. K

u yken d a ll

, 3 7 1 F.3 d 7 4 5
, 7 5 1 (1 0 th Cir. 2 0 0 4 ) (en b an c); M

cGreg o r v. Ch i erico , 2 0 6 F.3 d 1 3 7 8 , 1 3 8 7 (1 1 th Cir. 20 0 0 ); In re Gen

. Mo t o rs C o rp

. , 1 10 F.3 d 10 0 3
, 1 0 1 8 (4 th Cir. 19 9 7 ); Gra ves v. Kemsco Grp ., In c. , 8 6 4 F.2 d 7 5 4 , 7 5 5 (Fed . Cir. 1 9 8 8 ) (citin g Sev en th Circu it stan d ard ). Bu t see Greg o r y v. Dep te , 89 6 F.2 d 3 1
, 4 0 (3 d Cir. 1 9 9 0 ) (B eck er, J
., co n cu rrin g an d d i ssen tin g ) (“ [C]iv il c o n tem p t

aw ard s

. . . m

u st b e v acated if th ey ap p ear to u s ex cessiv e, o r u n su p p orted b y clear an d co n v in cin g ev id en ce.”).A H E A R N V

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or criminal is determined by ex amining “the character of the relief itself.” Int’l Union, Unit e d M i ne W orkers of Am. v

. Bagwell

, 512 U.S. 821, 828 (1994) (quotatio n marks a nd citation o mitted). I n Bagwell

, the Supreme Court ex p lained that a sanction g enerally is civil if it coerces compliance with

a court order or is a r emedial sanction meant to compensate the complainant for a c t u a l l osses. Id

. at 829. A criminal sanction, in contrast, g enerally seeks to punish a “completed
act of disobedience.” Id

. at 828 (quotation marks and citation omitted). The Supreme Cou r t r e c og niz ed that the line between c ivil and criminal contempt is blurred where “[ c]o n t e m p ts involving out-of-court d isobedience to c omplex injunctions” a

re at issue. Id

. at 8 3 3

– 3 4

. As a result, noncompensatory s a

n ctions for violations of complex injunctions required heig htened procedural protections including a jury trial and a bey ond reasonable doubt b u r d e n of proof. Id

. However, the Court made it clear that Bagwell “leaves

u n a l t e r e d the long standing authority of judg es

. . . to enter broad compensatory awards for all cont e mpts throug h civil proceeding s.” Id . at 838.

Here, the district court’s contempt award s are civil, not criminal, because they soug ht to coerce th e Union and its members to comply w ith the court’s injunctions a n d t o compensate injured p arties for ac tual losses caused by the Union’s and its member s ’ c o ntumacious conduct. See FTC

v. Kuykendall

, 371 F .3d 745, 752 (10th Cir. 2004) ( “[ W ] here the sanctions soug ht in contempt proceeding s are solely to be used to compensate injured [ parties]

, the p roceeding s are civil in nature.”). The contempt awards, in oth er w o r ds, a re “justified by other conside ra t i ons c entral to the contempt power” and did not “take on a punitive character.” Bagwell

, 512 U.S. at 831. Moreover, the damag e s were paid directly
to the har m ed parties, not the court. See Hicks on Behalf ofA H E A R N V

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F eiock v. Feiock

, 485 U.S. 624, 632 (1988) (“I f the relie f provided is a fine, i t i s r emedial when it is paid to the

c o mplainant, and punitive when it is paid to the court

. . .” ). Thus, the Union was not e n t itled to a jury trial o r a heig htened burden of proof.

F inally

, the Union a r g u es that the court abused its discretion in deny ing its request for discovery . I t is true that the contempt proceeding s occurred within a short timeframe. However, “courts in civil contempt proceeding s may proceed in a ‘ more summary fashion’ th a n in an ‘independent civil action.’” Kuykendall

, 371 F .3d a t 756 (citation omitted). Moreover, in this case, the U nion did not g ive the “ district
court or this court a

ny r eason to b e l i e v e they would have found any sig n ificant e v i dence had they been g iven more time or discretion to conduct discovery

. ” Id

.

F or the foreg oing reasons we uphold t h e amount o f compensatory damag es awarded to the NL RB and EGT.

IV.

W e n ex t determine whether EGT’s participation in the civil c ontempt proceeding s ex c eeded the limited role g iven to

a charg ing party u n d er the NL RA. Section 160(l) of the NL RA provides that o nly the NL RB can pursue an injunction
ag ainst u nfair labor practices. 29 U.S.C. § 160(l). However, the statute allows a charg ing party “an opportunity to appear by counsel and present any

relevant testimony .” Id

.

The Union claims that EGT’s statements of attorney s’ fee s i n clude leg a l r esearch and analy sis and do not specify “whether the fees were incurred in order to present evidence

or to make p rohibite d l e gal arg uments concerning theA H E A R N V

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contempt finding s.” However, the record shows that EGT’s participation in the contempt hearing s was limited to questioning witnesses reg arding the damag e caus ed b y the Union at the EGT facility and entering ex hibits into evidence. EGT did not “petition the c ourt independently

, ” nor d id it seek “ relief different than that soug ht by [ the NL RB ] .” Retail Cle r k s Union v. Food Emp’rs Council, Inc.
, 3 51 F

. 2d 525, 529 (9th Cir. 1965). Where the charg ing party “merely supported the orig inal petition for injunctive relief,” id

., b y presenting evidence of contumacious behavior and the resulting damag es, such participation does no t v i olate § 160(l).

V.

The Union arg ues that the district c o urt abused its discretion by awarding compensatory damag es to B NSF a nd the various law enforcement ag e n c ies that r esponded to the protests, on the g round that these entities were not parties to the underly

ing NL RB action. W e ag ree.

As discussed above, a court m a y impose civil contempt sanctions to (1) compel o r coerce obedience to a court order, and/or (2) compensate the c ontemnor’s adversary for injuries

r e s u l ting from the contemnor’s noncompliance. W hittaker Corp.
, 953 F

. 2d at 51 7

. The key is that contempt sanctions

are available as compensation w h e n they are awarded to the prevailing p arty in the litiga t i o n

. See Gompers v. B uck’s Stove & Range Co.
, 22 1 U.S. 418, 444–45 (1911) (“Proceeding s for civil c ontempt a re between the o r i ginal partie s , a n d a

re instituted and tried a s a part of the main cause.”); Northside Realty A s s ocs., I nc. v. United States
, 605 F

. 2d 1348, 1356 (5th Cir. 1979), superseded by statute as recognized in U

nited States v. City o

f J ackson

, 359 F .3d 727A H E A R N V

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(5th Cir. 2004) (ex plaining that civil contempt sanctions seek “to compensate the pr e v a i ling party for losses or damag e s caused by the other’s noncompliance”) (footnote omitted). I n this c ase, neither the law enforcement ag encies w ho responded to the picketers n o r B NSF were parties to the litig ation.

Nor does the district court’s award serve the first purpose of civil contempt sanctions—to compel complianc e with a court order. As with compensation, ty pically a contempt order seeks to compel compl iance b y parties to a litig ation. See Northside Realty Assocs.
, 6 05 F .2d at 13 5 6 ( civil contempt sanctions seek “to coerce the dereli ct p a rty into compliance with the orig inal injunction”) (emphasis added). However, in limited c ircumstances c ourts have allowed civil contempt sanctions to be awarded to non-parties where doing

so was d irectly necessary to enfo rc e a n injunction. F o r

ex a mple, in the principal case upon whic h t h e NL RB relies, McComb

, the Supreme Court held that the district court h ad the power to award back p a y to employ ee s o f t h e defendant
company , because doing so was necessary to enforce the district court’s injunction ag ainst t h e company to pay its employ e es a minimum wag e a n d o vertime. 336 U

. S. at 193–94. That is, the award to third p arties was necessary to enforce the injunction ag ainst a party to the litig ation.

The same has been tr

u e i n other cases in which courts have allowed contempt sanctions to be awarded to third parties. 4 I n contrast, courts have refused to allow non-parties

4 Fo r ex am

ple, co u rts reg u larly o rd er em plo y ers to p ay am o u

n ts du e

em p l o y ees u n d er earlier in

j u n ctio n s. B u t

as th e T h ird Circu it h as n o ted

,
“ [t]h ese o p i n io n s s p e a k p rim arily in term s o f p u rg in g th e em p lo y ers of th eir co n t em

p t, n o t o f m ak in g th e in

j u red em p lo y ees w

h o l e. ” R o e v

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to be awarded contempt sanctions when doi n g so would not directly serve to enforce an i njunction. See, e .g. , O peration Rescue, 80 F .3d at 71–72 (state lacked standing to seek civil contempt sanctions on behalf of abortion clinics disrupted b y protestors; “[ t] he damag e s award in this case was des i g n ed solely to reimburse the [ clinics] for harm to their interests,”
not enforce the injunction ag ainst t h e p rotestors o r compensate the state); Roe
, 919 F

. 2d at 873–74 (district court lacked power to a w a rd contempt sanctions to non-party abortion clinic disrupted b y enj o i n ed protestors; “[ a] court should only devia te from th[ e ] rule [ that contempt proceeding s are be t w e en the parties to a case] and award damag es to non-parties when such an order d irectly compels adherence to a prior d ec r ee”); Northside Realty A ssocs. , 605 F .2d at 1350–51 ( district cour t l a cked power to award contempt sanctions to minority purchasers who were denied mortg ag es by real estate a g ency enjoined from eng ag ing in discriminatory practices). I ndeed, this case is very much like Operation Rescue ; in b oth cases, the plain tiff (New York o r t h e NL RB ) lacks standing to seek contempt sanctions on behalf of third parties ( abortion cli n i cs or law enforcement
ag encies or B N SF ) ag g r ieved by the defendants’ (abortion
pro t e s t ors’ or Union members’) violations of a court injunction.

I n this case, the district court enjoined the u n i o n s from
eng ag ing in “picket line violence, threats and property damag es, mass picketing and blocking of ing ress and eg ress at the [ EGT f

acility ] ,” and from “restraining or coercing

Op era tio n Rescu e , 9 1 9 F .2 d 8 5 7
, 8 7 2 (3 d Cir. 1 9 9 0 ) (citin g Usery v. Fish er , 5 65 F

. 2 d 1 3 7
, 1 3 9

– 4 0 (1 0 th Cir. 1 97 7 ); Ho d g so n v. A– 1 Amb u l a n ce S ervice, In c. , 4 5 5 F.2 d 3 7 2
, 3 7 4

– 7 5 (8 th C ir. 1 9 7 2 ); Flemin g v. W a r sh a wsky & Co

. , 1 2 3 F.2 d 6 2 2 , 6 26 (7 t h Cir. 1 9 4 1 )).A H E A R N V

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employ e es of EGT, General [ Co n s t r uction]

, or any other
person doing b u s i n ess in relation to the EGT facility .” The district court’s c o m p e n satory damag e s awards to the law enforcement ag encies w ho responded to the picketers and to BNSF did not and could not help enforce this injuncti o n

. Rather, those awards w ere entirely retrospective a nd compensatory

.

The NL RB points out that contempt san c t i o ns may be awarded to non-parties where a statute ex pressly permits it. See, e.g. , City of

Jackson

, 359 F .3d at 737 (allowing contempt sanctions to third party victims of h o using discrimination b ecause the F air Housing Amendments Act (“F HAA”), 42 U.S.C. § 3614(d)(1)(B ), provides that courts “may award such other relief as the c ourt deems a p propriate, incl uding monetary damag es to persons ag g rieved”). However, no such statutory provision ex ists in the N L RA. The NL RB sug g ests that a n award to the law enforcement a g e n c i e s and B NSF is consistent with NL RA’s purpose to dete r violations of its provisions, and cites Kuykendall

, 371 F .3d a t 764 (“[ N] o

reason ex ists to believe Cong ress intended to withhold [ in the F TC Act] the traditional r emedy o f compensation t o those

consumers victimiz ed by the defendants’ violations of the Permanent I njunction.”). B ut the NL RB ’s reasoning wou l d apply to a

ny statute, and, unlike t h e sanctions awarded to

consumers in the F H AA a nd F TC Act cases ab o v e , the sanctions in d ispute in this case w ere awarded to law enforcement ag encies a

n d a railway

, not to the u n i o n s a nd workers the NL RA seeks to protect. See NLRB v. Nash-Finch Co.
, 404 U.S. 138, 144 (1971) (discussing NL RA’s purpose).

I n short, we find no authority for, and therefore v a c at e, t h e district c ourt’s award o f contempt sanctions to the law enforcement ag encies and B NSF

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VI.

F or the foreg oing r easons, w e AF F IRM the district court’s a ward of c ompensatory damag es to EGT a nd VACATE the award of compensatory damag es to B NSF
, L ong view Police Departme n t , Kelso Police D epartment, Cowlitz County Sheriff’s O f f ice, and the W ashing ton State Patrol. 5 E ach side shall b e a r its own fees and costs on appeal.

AF F IRMED IN P ART, REVERSED IN P ART.

5 EGT ’ s am icu s m o tio n an d A p p ellan t’ s req u est f

o r j u d icial n o tice are g ran ted

.