The opinion of the court was delivered by: HULBERT
Petitioner, on behalf of the National Labor Relations Board (hereinafter called the Board), seeks injunctive relief pursuant to section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(l), pending the final adjudication of the charges filed with the Board against the respondent union. The charges allege that respondent, Local 1175, has engaged in, and is engaging in, conduct in violation of section 8(b)(4)(A) of the Act, 29 U.S.C.A. § 158(b) (4)(a), by conducting a so-called secondary boycott. The petitioner, after investigating the charges, states that he believes them to be true and that 'a complaint of the Board, based thereon, should issue against the respondent, pursuant to Section 10(b) of the Act.'
The facts that form the basis for the charge, as set forth in the petition and supporting affidavits, are for the most part admitted by respondent in its answer. The legal conclusion to be drawn from the facts, namely, whether there is reasonable cause to believe that the union has engaged in a secondary boycott, is keenly contested.
As a prerequisite to the granting of injunctive relief sought by the Board, the Court must find that there is reasonable cause to believe that a violation of the Act, as charged, has been committed. Douds v. Local 1250, Retain Wholesale Dept. Store Union of America, C.I.O., 2 Cir., 170 F.2d 695. In other words, the petitioner must make out a prima facie case that respondent has violated the secondary boycott section of the Act. Styles v. Local 760, Int. Brotherhood of Electrical Workers, A.F.L., D.C.TENN., 1948, 80 F.Supp. 119, 122. The Court must then find that injunctive relief would be 'just and proper'. Section 10(l) of the Act; Douds v. Local 294, Int. Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F.L., D.C.N.D.N.Y. 1947, 75 F.Supp. 414.
The charging party in the proceedings before the Board is the Montoya Trading Corp., a New York corporation engaged in the operation and servicing of cigarette vending machines, principally in cafes and grills in the New York and New Jersey area. The respondent, Local 1175, a labor organization within the meaning of the Act, has a closed-shop contract with the Cigarette Merchandisers Association, an association of concerns in the business of selling cigarettes by means of vending machines. Montoya is not a member of the association, nor are its employees members of Local 1175.
The association, it appears, had agreements with a majority of the bars and grills in the New York City area, and when Montoya entered the field it offered certain inducements to win contracts with establishments that were former customers of members of the association. It apparently has persuaded a number of them to cease doing business with the association and to enter into agreements with Montoya.
Under the agreements with the bars and grills, Montoya installs cigarette vending machines. The proprietor agrees to keep the machine in his establishment for the term of the contract (generally one to three years), and further agrees not to sell cigarettes through any other medium. Montoya agrees to keep the machines there for the period of the contract, and to keep it in good repair and stocked with cigarettes.
As soon as Montoya began to do business with establishments formerly serviced by Local 1175 men, it met with the resistance of Local 1175. The union felt aggrieved because its members were compensated, in part, on the volume of cigarettes sold through the machines of their employers, and to the extent that Montoya's machines replaced those of the employers of members of Local 1175, there was a potential source of injury to earnings of Local 1175 men. Furthermore, Local 1175 men were no longer needed to service and repair the machines replaced by Montoya.
The respondent, mainly through its business agent, one Samuel Lavergata, approached the proprietors of establishments which had replaced the machines owned by members of the association with those of Montoya. The proprietors were told that unless Montoya's machines were removed immediately the establishment would be picketed by Local 1175. At one establishment, Lavergata stated: 'If I put a picket line out here, you will get no beer or deliveries of any kind, and no union men will come in.' When the Montoya machine was not removed, Local 1175 began picketing. The pickets were sometimes withdrawn when the machine was turned to the wall or placed in such other manner that it could not be used; at other times picketing continued even though the Montoya machine was out of use. The presence of the picket lines interfered with the running of the picketed taverns and with the receipt of delivery of supplies- there is evidence that the pickets attempted to induce the bartenders not to work while picketing was carried on, and also to induce deliverymen not to make deliveries to picketed establishments. Some union deliverymen refused to make deliveries at all, others delayed deliveries until they could check with their union.
This pattern of conduct by Local 1175 was followed, in general, at several establishments that installed Montoya machines.
When picketing started, the picket signs carried the following legend: 'The Cigarette Machine of This Establishment is Unfair to Organized Labor. Confectionery and Tobacco Jobbers Employees' Union, Local 1175, R.C.I.A. affiliated with American Federation of Labor.' Sometime later the legend on picket signs was changed to read: 'This Establishment is Unfair to the Members of Confectionery and Tobacco Employees' Union, Local 1175, Affiliated With American Federation of Labor.'
The affidavits of the proprietors of several of the picketed taverns state that they never had any dealings with either Local 1175 or with the union that represents the service men employed by Montoya, United Coin Machine Employees Union, Local 254, C.I.O. They further state that while picketing continued, the business of their taverns was adversely affected.
The Board relies on the wording of section 8(b)(4)(A) of the Act, which ...