The opinion of the court was delivered by: BYERS
This is a plaintiffs' motion, based upon an order to show cause granted and made returnable on January 8, 1954 for a temporary injunction or for remand of the controversy to the court from which it was removed.
At the conclusion of argument on that day, the temporary stay contained in the order to show cause was vacated and both sides were given until January 12th at 3:00 P.M. to file briefs and affidavits.
The complaint and supporting affidavits were served on the 7th inst. in an action brought in the Supreme Court of New York, Kings County, and on that day an order to show cause was granted by a Justice of that court, returnable on the following day, for a temporary injunction directed against picketing at the 29th Street pier and others; also interference with the performance of their duties by longshoremen and other employees of the plaintiff on piers leased or worked by the plaintiffs; and misrepresentation, orally or in writing, that the plaintiff, Universal, etc. Company, unfairly discharged the defendant, Joseph Schelero; also from molesting any person, whether a member of the defendant Brotherhood of Marine Engineers, S.I.U. (to be called B.M.E.) in the performance of their duties on the piers, ships, etc. of the plaintiffs, and from attempting to induce, persuade or intimidate any employees of the plaintiffs or any member of the defendant associations to fail or refuse to report for work or perform their normal services.
At the call of that motion, it appears that the defendants had caused the case to be removed to this court, according to a petition, later to be referred to; thus the present status of this controversy.
The complaint and eight supporting affidavits (except as to those of Isbrandtsen and Giardino) and the opposing affidavit of the defendant Schelero, and of Bovarski, Erato, Tomburello, et als, constitute the factual basis upon which this motion is to be decided.
The complaint discloses that the plaintiff first named (to be called Isbrandtsen) is a New York corporation engaged in the business of shipping, which leased and operated the 29th Street pier (Brooklyn), and that the other plaintiff (to be called Universal) is under contract with Isbrandtsen to perform the latter's stevedoring work, including the loading and discharge of cargo from vessels at the said pier.
The defendant, International Longshoremen's Association, A.F. of L. (to be called I.L.A., A.F.L.) is an unincorporated labor organization, having its offices and place of business in Brooklyn, and the defendant, Brotherhood of Marine Engineers S.I.U. (to be called B.M.E.) is a similar association, also having an office in Brooklyn. As to the latter the complaint alleges that it is a party to a collective bargaining agreement with Isbrandtsen concerning the hours, wages, terms and conditions of employment of the latter's engineers, and which agreement contains a specific provision prohibiting any strike, lock-out or work stoppage. It is asserted that any action of B.M.E. to refuse to supply power 'if longshoremen try to work would be in contravention of their collective bargaining agreement and a violation of laws governing the operation of ships.'
It is further alleged that prior to October 1, 1953 there was in existence a collective bargaining agreement between the plaintiffs and I.L.A. as it then was, governing wages and employment conditions of longshoremen, which by its terms expired September 30, 1953.
Since October 1, 1953 and until the present time, there has been no collective bargaining agreement in existence governing the terms and conditions of employment of longshoremen in the Port of New York.
The present controversy centers upon the discharge by Universal on December 14, 1953 of the defendant Schelero, who was then in its employ performing miscellaneous duties; also he was the shop steward representing longshoremen who were members of I.L.A., A.F.L. That discharge was for cause as the plaintiffs allege, and the fact of discharge is not denied, but the opposing papers assert that it was due to his activities on behalf of I.L.A., A.F.L. in opposition to those of the then recently formed union known as I.L.A. Ind.
It seems to have been assumed in the presentation of this motion that these two unions are striving for recognition as the bargaining agent of the longshoremen in the Port of New York, but up to the present time neither has been so certified.
Throughout the discussion it is necessary to remember that as at December 14, 1953 and ever since there has been in existence no collective bargaining agreement.
It was conceded at argument that the plaintiffs are engaged in interstate commerce, and that the picketing of which they complain has not been accompanied by violence.
The conduct which the plaintiffs seek to enjoin is this peaceful picket by the I.L.A., A.F.L., and also the action of B.M.E. in refusing to supply power to the deck of ships or to shift ships with main engines if any longshoremen should try to work in unloading two named ships at the 29th Street pier, unless the defendant Schelero is rehired by Universal, as appears from the affidavit of the defendant Wilbur Dickey, paragraph 3, in which the following occurs:
'He (Brovarski, a general organizer of the I.L.A., A.F.L.) told me that this was a valid picket line which was set up by the workers in the pier themselves to protest the unfair discharge of one of their coworkers, Schelero, and while they had no particular dispute with Isbrandtsen, they did have this beef with the Universal, etc.'
The result of the complaint of activities has been that longshoremen (five gangs on January 2nd and seven on January 3rd) who reported at the pier in question, refused to perform their tasks after listening to arguments by Schelero; and the members of B.M.E. have made it clear that they intend to abide by the instructions issued to them hereinafter to be quoted.
This means that if the longshoremen continue their present conduct, two ships at the 29th Street pier will remain idle as they have been since the 3rd and 4th days of this month.
The question for decision of the motion to remand is clearly shown to be:
Is this court to rely upon the allegations of the complaint as defining the matters in issue between the parties, or is it to look to the opposing affidavits to discover whether the discharge of Schelero and the refusal to hire him is a form of camouflage to conceal the real nature of the controversy, which is actually a purpose on the part of the plaintiffs as employers to exert their influence in favor of one union against another, and at a time when the National Labor Relations Board (on the complaint of Schelero) is ...