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July 31, 1956

FARRAND OPTICAL CO., Inc., Plaintiff,

The opinion of the court was delivered by: LEVET

This is a motion by plaintiff for a preliminary injunction. Plaintiff is a corporation organized under the laws of the State of New York and engaged in the manufacture and sale of optical goods which are shipped in interstate commerce. It is alleged that more than 80% of plaintiff's present production consists of bombsights and related equipment for the B-52 Bomber of the United States Air Force and that plaintiff is the sole producer of such bombsights and the only manufacturer presently equipped to produce them. Defendant is an unincorporated labor organization maintaining its principal office in the Borough of Bronx, City of New York, and is the bargaining representative of plaintiff's employees.

In this action, which was commenced on July 18, 1956, plaintiff seeks to obtain a judgment permanently enjoining defendant (a) from representing that there exists a strike or labor dispute; (b) from picketing; and (c) from violating the terms of a written agreement dated July 6, 1956. Plaintiff also seeks money damages.

On August 1, 1953, the parties entered into a collective bargaining agreement which was to have expired on July 31, 1955, but which had been extended and is still in effect. Paragraph XX of said agreement contains a prohibition against strikes during the life of the agreement. Nevertheless, on May 16, 1956, nearly all of plaintiff's maintenance and production employees went out on strike because of certain problems relating to conditions of employment between plaintiff and its employees. The basic matter which was in dispute concerned the question of seniority. Other issues which were involved related to the discharge of the shop chairman, the allocation of overtime and the amount of time the union representatives would be permitted to spend on grievances. After numerous negotiations and with the assistance of the Federal Mediation and Conciliation Service and the City Labor Department, an agreement was signed on July 6, 1956 by plaintiff and defendant which purported to settle the dispute.

 By an independent oral statement of defendant's officer, defendant contends that the agreement of July 6, 1956 was conditioned upon ratification by the employees and that the employees have not ratified the agreement. Plaintiff asserts that although the representatives of the union suggested that the agreement should be subject to ratification by the employees, this suggestion was rejected. In any event, it does not appear that the terms of the agreement were ever formally presented to the employees for ratification, although the vice-chairman of the shop committee states in his opposing affidavit that the men in the shop declined to ratify the proposed settlement at a meeting on July 9, 1956, and that, therefore, it never became effective. As another ground for its argument that the agreement never became effective, defendant asserts that compliance with paragraph one of said agreement was a condition precedent to the efficacy of the agreement and that there had been no compliance with the terms of said paragraph, which reads as follows:

 '1. The Employees of the Company who are members of the Union will return to work not later than July 10, 8 A.M., it being understood that the strike will be deemed to have ended at that time, and that prior to that time the Union will order all of its members who are scheduled to return to work to report for work. It is further understood that this Agreement shall not become effective unless and until this Paragraph is complied with.' (Emphasis supplied.)

 It is undisputed that the workers did not return to work on July 10th, as set forth in the aforesaid paragraph, and that defendant did not order them back to work. Hence, defendant argues that the agreement never became effective. Plaintiff alleges that there is no labor dispute involved since the agreement of July 6, 1956 resolved all the matters which were in dispute and that no new questions have developed subsequent to the signing of said agreement.

 There is no allegation of violence or that the public officers charged with the duty to protect plaintiff's property are unable or unwilling to furnish adequate protection.

 Pending the trial of this action, plaintiff has moved for an order enjoining defendant (a) from representing that there exists a strike by plaintiff's employees or a labor dispute between plaintiff and such employees; (b) from picketing the premises of the plaintiff or any of its customers, suppliers or other person; and (c) from violating the terms of the agreement of July 6, 1956.

 Jurisdiction is predicated on the provisions of Section 301(a) of the Labor Management Relations Act of 1947 (Taft-Hartley Act), 29 U.S.C.A. § 185(a), which provides:

 'Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.'

 From the above language, plaintiff concludes that an action to enjoin the violation of a contract between an employer and the bargaining representative of its employees is a suit 'for violation' of contracts, within the meaning of the statute.

 However, the defendant asserts that the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., precludes this Court from enjoining it from picketing plaintiff's premises. The pertinent sections of the Norris-LaGuardia Act are 101 and 113(c). Title 29 U.S.C.A. § 101 states:

 'No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or ...

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