The opinion of the court was delivered by: LEIBELL
This proceeding was instituted on March 1, 1951 by the filing of a petition for a injunction under Sec. 10(j) of the National Labor Relations Act, as amended, Title 29 U.S.C.A. § 160(j). Judge S. H. Kaufman signed an order requiring the respondent union to show cause 'why it should not be enjoined and restrained as prayed in said petition.' The prayer of the petitioner was that the 'respondent (union) its agents, servants, employees, attorneys, and all persons in active concert to participation with it' be enjoined and restrained 'from violating Section 8(b) subsection (2) of the Act, in any manner by causing or attempting to cause the Times, Mirror, News, Herald Tribune, Journal-American, or any other newspaper in New York or vicinity to discriminate in any manner against employees in violation of Section 8(a), subsection (3) of the Act.'
The respondent filed its answer on March 8th and the Court held hearings on March 12, 13, 14, 15, 16, 19, 20, 21, 22 and 27, 1951, at which proof was received through the testimony of witnesses and exhibits offered by the petitioner and respondent. On March 27th counsel summed up and made their final arguments. Proposed findings were thereafter submitted.
Section 10(j) of the National Labor Relations Act, of June 28, 1947 provides: '(j) The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any district court of the United States (including the District Court of the United States for the District of Columbia), within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.'
Complaints have been issued by the National Labor Relations Board under Section 10(b), T. 29 U.S.C.A. § 160(b), against the respondent union charging that the union by work stoppages and threats had compelled the publishers of five newspapers, whose plants are located in New York City, to discriminate against non-union men, in the hiring of employees who deliver the newspapers from the printing plants to newsdealers and railroad stations. The complaints issued by the Board charged that the conduct of the union constituted unfair labor practices and was a violation of Section 8(b)(2) of the Act, T. 29 U.S.C.A. § 158(b)(2), which provides.-
'(b) It shall be an unfair labor practice for a labor organization or its agents-
'(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership'.
Subsection (a)(3) of Section 8 of the Act, which is Section 158 of Title 29 U.S.C.A. provides:-
'(a) It shall be an unfair labor practice for an employer-
'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 158(a) of this title as an unfair labor practice) to require as a condition of employment membership therein or or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made. and (ii) if, following the most recent election held as provided in section 159(e) of this title the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization (a) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership:'
This last quoted provision, subsection (a)(3), is the so-called 'union shop' provision. It was impossible for any non-union employee in the delivery division of these newspapers to become a member of the respondent union because of the 'father and son' provisions of its constitution. Respondent is in effect a 'closed union'. A resolution to accord the non-union men a limited form of membership, involving a probationary period of two years, was rejected by the executive committee of the union by a vote of 6-4 and was tabled by the union membership at the suggestion of its president in September 1950.
Prior to the passage of the Taft-Hartley Act, enacted June 23, 1947, the contract between the publishers (acting through a Publishers Association) and the Newspapers Deliverers Union provided for a 'closed shop' at the various newspaper plants. The last contract negotiated on that basis was for the period of July 17, 1945 to July 16, 1948. The Act did not affect existing collective bargaining agreements, but it did apply to future relations between the union and the employer, after the expiration of the agreements.
The Newspapers Publishers Association and the Newspapers Deliverers Union started negotiations for a new contract some time prior to July 1948 but at the expiration date of the old contract (July 17, 1948) no new contract had been concluded.
Under the old contract the publishers had agreed not to hire non-union men if the Union was able to furnish union members willing and qualified to do the work. Because of the need for men in addition to the 'regular situation holders' and the 'regular substitutes' it had been the practice to have union and non-union men 'shape up' at certain hiring hours at the newspaper plants or garages. The men who shaped up were known as 'extras'. The union men in the 'shape up' were hired first and then the non-union men. On many nights, especially on Fridays and Saturdays when sections of the Sunday editions were delivered to newsdealers, more men than the union could supply were required to handle the bundled newspapers and place them in trucks and deliver them to newsdealers and railroad stations. These non-union men could not become members of the union even if they wanted to. The priority given to sons of members and the purpose of the union to limit its membership, kept the available number of union men usually less than the number required by the publishers for the delivery of the newspapers. Thus certain non-union men would shape up with regularity at the hiring hours during the week and others would appear for work on Fridays and Saturdays. This was the practice while the closed-shop provisions were in effect in the old collective bargaining contracts, the last of which expired July 17, 1948.
Since that date, regardless of the provisions of its later contracts with the publishers, the union has through threats of strikes and work stoppages caused the newspaper-publishers to give the preference in hiring to union members over non-union workers regardless of seniority and to limit the employment of ...