
    EMERY AIR FREIGHT CORPORATION, Plaintiff, v. LOCAL UNION 295, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., Defendants.
    No. 71 C 452.
    United States District Court, E. D. New York.
    Dec. 19, 1972.
    Howard Franklin Cerny, New York City, for plaintiff.
    David Scribner, New York City, and Herbert A. Simon, Valley Stream, N. Y., for defendants.
   MEMORANDUM and ORDER

BRUCHHAUSEN, District Judge.

The defendant moves for an order to dismiss plaintiff’s application for contempt sanctions as stated in its Notice of Motion.

This matter originated from a labor dispute, between the parties. The Court issued a preliminary injunction, found defendants in contempt, issued a Final Contempt Order and levied a $50,000.00 fine.

On appeal, reported in 2 Cir., 449 F.2d 586, the Court concluded: first, that the Court lacked jurisdiction, under the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., and, accordingly the order. Secondly, because the order, holding appellants in contempt was entered, without a proper hearing, remanded that issue to the district court for reconsideration.

The Court then examined the current vitality of some of the provisions of the Norris-LaGuardia Act, 29 U.S.C. 101 et seq., and discussed the governing law on the subject.

It indicated that the major dispute between the parties was whether a new contract existed and no one regarded that issue as arbitrable.

It held in part at page 591:

“Therefore, under the Norris-LaGuardia Act, and the Boys Markets reading of it, the preliminary injunction was improper because the ‘strike * * * sought to be enjoined * * * [was not] over a grievance which both parties are contractually bound to arbitrate.’ Boys Markets, Inc. v. Retail Clerk’s Union Local 770, 398 U.S. [235] at 254, 90 S.Ct. [1583] at 1594 [26 L.Ed.2d 199] citing Sinclair Refining Co. v. Atkinson, 370 U.S. [195] at 228, 82 S.Ct. 1328, 8 L.Ed.2d 440 (dissenting opinion). * * * Accordingly, the preliminary injunction as granted was improper.”

It is well settled that although temporary restraining orders were improperly entered, they must be obeyed until overturned, and failure to do so is punishable by contempt. In the case at bar the Final Contempt Order and fine were both imposed in violation of defendant’s procedural rights and, therefore, must be set aside and reconsidered.

At the subsequent proceedings on remand, the district court has been admonished to consider the basic questions raised by the appellants. The Court held in part at page 592:

“ * * * However, appellants argue that the contempt found here was civil rather than criminal and that United Mine Workers, [United States v. United Mine Workers] 330 U.S. [258] at 294-295, 67 S.Ct. 677 [91 L.Ed. 884], makes clear that such contempt judgments should be set aside when the order upon which they are based is held on appeal to have been erroneously entered. Moreover, citing In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962), appellants argue that whatever may be the general rule, the Court has made clear since United Mine Workers that if a court is ‘without jurisdiction’ to enter a restraining order, the order is void and violations may not be punished even as a criminal contempt. Since compliance with the Norris-LaGuardia Act is a ‘jurisdictional’ requirement, say appellants, the district court had no ‘jurisdiction’ to enter the orders they allegedly ignored and, therefore, the contempt must be set aside. The questions raised by appellants and by the above-cited eases are substantial.”

The Court further concluded not to decide these delicate issues because it determined that the finding of contempt in the Final Contempt Order and the fine were both imposed in violation of the defendant’s procedural rights.

Finally, the Court held in part at page 595:

“At such proceedings, the court should consider, inter alia, the basic questions raised by appellants and alluded to above.”

This Court has fully reconsidered this matter in the light of the strong suggestions of the Circuit Court and concludes that the district court had no original jurisdiction. Therefore, the motion of the defendant is granted. See also New York Telephone Company v. Communications Workers of America, AFL-CIO, et al., 445 F.2d 39 (2 Cir., 1971).  