concurring in part and dissenting in part:
I concur in the result as to defendant-appellant Louis D. Moscatiello and appellants Robert E. Goldman, B-Drywall Finishers, Joseph Ianno, Woodworks Construction Company, Harold Heustein, Improved Drywall, Inc. and Robert Vergara. It is clear that all persons charged with contempt are entitled to notice that they are defendants in a contempt proceeding, as well as adequate time to prepare a defense, except in the limited circumstances envisioned by Fed.R.Crim.P. 42(a) where instant action is necessary to protect the judicial institution itself. See Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 110 (2d Cir.1987), and cases there cited. Since no such notice was provided here, reversal as to the contemnors other than Local 530 would plainly be required, in my view, even in the absence of Rule 43(a) of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, upon which the majority relies.
I am unable to concur, however, in the majority’s decision to uphold the finding of contempt against Local 530. The injunction under review prohibited Local 530 from “asserting jurisdiction over, and from causing or permitting [its] members to perform work at,” specified jobsites. In response to the injunction, Local 530 terminated its supervisory activities at the affected jobsites, sent letters to its members *399advising them of the injunction and asking that it be obeyed, and notified the relevant contractors.
In the affidavit supporting its contempt motion, Local 1974 alleged that Local 530 “not only caused and permitted its members to work on [affected] jobsites but, in addition, asserted jurisdiction” over those sites. The Report and Recommendation of Magistrate Caden, however, stated as Local 1974’s sole contention concerning Local 530 that “Local 530 ... caused and permitted members of Local 530 to perform work on certain prohibited jobsites,” and aside from two peripheral footnotes, the Report and Recommendation addressed only that issue. In adopting the magistrate’s recommendations, furthermore, the district court relied upon and addressed only the “cause or permit” language as the basis of Local 530’s violation. The court found Local 530 in contempt for failing to (1) ascertain that certain of its members continued to work at the prohibited jobsites, and (2) discipline or expel those members.
This appeal, therefore, presents us with the question whether the “cause or permit” language of the injunction under review is sufficiently clear and precise as a matter of law to serve as the basis for a contempt adjudication on the facts here presented. For the reasons stated below, I part company with the majority’s answer to this question. As a prelude, however, I am moved to address the majority’s additional assertion that Local 530 is in any event guilty of “asserting jurisdiction” over the affected jobsites, thereby rendering the contempt ruling sustainable on that alternative theory-
As indicated above, that theory does not underlie the determination we are now reviewing. To be sure, we may consider any argument or theory finding support in the record that serves to sustain a correct district court decision. See, e.g. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157-58, 82 L.Ed. 224 (1937); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). We may even raise a “decisive theory” sua sponte. See Arlinghaus v. Ritenour, 622 F.2d 629, 638 (2d Cir.) (citing Cold Metal Process Co. v. McLouth Steel Corp., 126 F.2d 185, 189 (6th Cir.1942) (dictum)), cert. denied, 449 U.S. 1013, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980). As Judge Friendly said in Arlinghaus, however:
[Ajppellate courts must tread cautiously over terrain that the parties have failed to explore on appeal. Any issue injected into the appeal by the court itself must have been adequately presented below, and the parties must have had a full opportunity to develop the relevant facts. In addition, the appellate court should have the benefit of thorough briefing before considering a decisive issue or rationale.
622 F.2d at 638 (citation omitted).
It seems to me that the considerations outlined by Judge Friendly counsel us to refrain from adopting the “asserting jurisdiction” theory in the present circumstances. First, we obviously lack the guidance of briefing or argument with respect to it. Second, the points advanced by the majority in support of the theory do not present a strong argument for its adoption. These points are as follows:
(a) Some Local 530 members continued as members in good standing of Local 530, i.e. they were paying dues to Local 530 to insure their union benefits and perquisites, while working at the prohibited sites;
(b) Local 530 collected the checkoff dues and fringe benefit payments directly from the contractors for the Local 530 union members working at the prohibited jobsites;
(c) After the injunction was issued, Local 530 collected 945 hours worth of dues checkoffs and fringe benefit payments directly from one of the contractors, Woodworks. (Local 530 claims that this was due to Woodworks accounting errors).
Point (a), I believe, speaks to the “cause or permit” issue, not to the question whether jurisdiction was asserted by the union. Point (b), as far as I can tell, is referring to the same situation as point (c), but in much more general terms. The record before us does not warrant any such generalization. *400Point (c) itself is certainly a correct statement, but whether those 945 hours — out of a total of 110,159.4 — justify a finding of contempt on the “asserting jurisdiction” theory or, on the contrary, illustrate substantial compliance with the injunctive order should not, I suggest, be determined by us sua sponte at this stage, especially in the context of (1) an assertion by Local 530 that the collection resulted from an accounting error by a third party, and (2) the absence of any consideration of, or findings of fact concerning, this issue by the magistrate or the district court.
I now turn to the heart of my disagreement with the majority. While I accept the premise that it was within the district court’s authority to require Local 530 to take the dual steps of policing the jobsites and disciplining errant members found thereat, I do not share the view that these steps were actually required by the injunction under review with the clarity and precision necessary to sustain the finding of contempt and resulting $542,863.37 damage award.
A finding of contempt for violating an injunction is proper only if (1) the order is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the defendant has not been reasonably diligent and energetic in attempting to accomplish what was ordered. Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). See, e.g., Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 116 (2d Cir.1988) (“No one may be held in contempt for violating a court order unless the order is clear and specific and leaves no uncertainty in the minds of those to whom it is addressed.”) (citing International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967), and Powell v. Ward, 643 F.2d at 931); Sanders v. Air Line Pilots Ass’n, Int’l, 473 F.2d 244, 247 (2d Cir.1972) (normal standard of specificity is that party enjoined must be able to ascertain from four corners of order precisely what acts are forbidden). Furthermore, “[t]he longstanding, salutary rule in contempt cases is that ambiguities and omissions in orders redound to the benefit of the person charged with contempt.” Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir.1971).
The first element of the Powell rule, requiring that an injunction be “clear and unambiguous,” builds upon the requirements of Fed.R.Civ.P. 65(d) that an injunction “be specific in terms” and “shall describe in reasonable detail ... the act or acts sought to be restrained.” In my judgment, this element has not been satisfied.
Local 530 clearly took actions calculated to comply with the plainly stated command of the district court, i.e., to withdraw from the affected jobsites. While it is true that the union had originally opposed the injunction on the ground that it would enjoin members of Local 530 from performing “any work” at the jobsites, this does not establish that Local 530 understood the injunction to forbid its members from working on those jobsites in a non-Local 530 capacity, much less as requiring Local 530 to police those sites and take disciplinary action against offending workers. It is not clear, furthermore, that such actions were contemplated by the spirit and purpose of the injunction, the primary objective of which was to ensure removal of Local 530 from jurisdictional authority over the affected sites. This is far from a toothless remedy; indeed, Local 530 experienced immediate and obvious financial reverses as a result of this removal.
“The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.” International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967). In this case, Local 530 has been found guilty of failing to take steps which the district court injunction did not require with precision and clarity. I therefore respectfully dissent from the de-*401cisión to uphold the finding of contempt against Local 530.