The opinion of the court was delivered by: LEVET
This is an application for a temporary injunction to enjoin and restrain the respondent, its officers, agents, representatives, servants, employees, attorneys, etc. from certain acts hereinafter mentioned.
The petitioner, who is Regional Director of the Second Region of the National Labor Relations Board, alleges that the respondent is a labor organization within the meaning of Sections 2(5), 8(b) and 10(l) of the National Labor Relations Act, 29 U.S.C.A. 141 et seq., and has its principal office in this judicial district and is engaged here in transacting business and in promoting and protecting the interest of its employee members.
The petition further alleges that on or about May 29, 1957, Chesterfield Farms, Inc. a so-called Class B milk distributor, on behalf of itself and seven other Class B milk distributors, filed a charge with the Board alleging that the respondent was engaging in unfair labor practices within the meaning of Section 8(b), subsections (4)(A) and (B) of the Act, and that on or about June 4, 1957, the Home Milk Delivery Association (hereinafter also called Home Milk Deliverers), an association of Class C milk dealers, filed a charge with the Board alleging that the respondent has engaged in and is engaging in unfair labor practices within the meaning of the said section of the Act.
It is further stated in the petition that the charges were referred to the petitioner for investigation and were investigated by the petitioner and under his supervision. Petitioner states and alleges that there is reasonable cause to believe that the said charges are true and that a complaint of the Board based thereon should issue against the respondent pursuant to Section 10(b) of the Act. The petition sets forth the acts and conduct which are, it is alleged, violations of the said Act. These alleged violations are in effect as follows:
1. Certain Class B dealers consisting of Chesterfield Farms, Inc., Whitestone Farms, Inc., Columbia Farms, Inc., York Creameries, Inc., Broadlea Dairies, Inc., Pine Crest Farms, Inc., Maplewood Farms, Inc., and Lakewood Farms, Inc., are engaged in the sale and distribution of milk, primarily to home deliverers, known as Class C dealers. All of the employers referred to above are signatories to the Milk Industry Collective Bargaining Agreement.
2. During the month of April, 1957, fluid milk for human consumption valued at approximately $ 14,000,000 was brought to the milk pasteurizing and bottling plants of employers, known as Class A dealers, from the New York milkshed which comprises the states of New York, Pennsylvania, New Jersey, Vermont and New Hampshire. Of this $ 14,000,000, approximately $ 3,500,000 in fluid milk was brought to New York City from the states of Pennsylvania, New Jersey and Vermont.
3. Home Milk Deliverers consists of about 40 of the approximately 350 home delivery dealers in the City of New York. These dealers are licensed by the State and City of New York as Class C dealers. Under such license each Class C dealer is restricted to a single home delivery route and to the use of a single truck. Approximately 600,000 people in the City of New York are serviced at their homes by Class C dealers.
4. Respondent has as members and represents the employees of employers, including Class A and Class B dealers, who are signatories of the Milk Industry Collective Bargaining Agreement.
5. A substantial number of Class C dealers employ drivers and helpers in connection with the operation of their home delivery routes. Since on or about May 8, 1957, respondent has demanded that those Class C dealers who have employees sign a contract with it covering the drivers employed by said Class C dealers. At no time material herein has respondent been certified by the Board as the collective bargaining representative for the employees of Class C dealers.
6. Since on or about May 8, 1957, respondent, in furtherance of its said demand in paragraph 5 hereof, has engaged in, and by picketing, orders, appeals, instructions and other means, has induced and encouraged the employees of Sunshine Farms, Inc., Gold Medal Farms, Inc., and of other Class A dealers, of Chesterfield Farms, Inc., Whitestone Farms, Inc., and of other Class B dealers, to engage in strikes or concerted refusals in the course of their employment to use, handle, transport, load, unload, store or otherwise work on goods, products or commodities or to perform services.
7. Objects of respondent's acts and conduct set forth in paragraph 6 hereof are: (a) to force or require Sunshine Farms, Gold Medal Farms, Chesterfield Farms, Whitestone Farms and other Class A and Class B dealers, to cease doing business with members of Home Milk Deliverers and other Class C dealers, and with each other; and (b) to force or require the Class C dealers to recognize and bargain with respondent as the representative of their employees although not certified as such under the provisions of Section 9 of the Act.
8. As a result of respondent's activities set forth in paragraph 6 hereof, none of the Class C dealers at Chesterfield Farms was able to obtain milk for its customers on June 5, 1957; 12 of the 27 Class C dealers at Whitestone Farms, Inc. were unable to obtain milk and that, as a result thereof, upon information and belief, more than 100,000 consumers did not receive home delivery of milk on June 5, 1957.
9. Upon information and belief, unless restrained, there is imminent danger that substantial and irreparable injury will unavoidably result to the Class A, B and C dealers and to the general public.
10. That it may be fairly anticipated that unless restrained, respondent will continue and repeat its acts and conduct hereinabove set forth, or similar or like conduct in violation of Section 8(b), subsections (4)(A) and (B) of the Act. That to avoid the serious consequences referred to above, it is essential, appropriate and in accordance with the provisions of Section 10(l) thereof, that, pending the final disposition by the Board of these matters, respondent be enjoined and restrained from the commission of the acts and conduct above alleged, similar acts and conduct, or repetition thereof.
The petitioner contends that the acts complained of violate Section 8(b), subsections (4)(A) and (B) of the Act, 29 U.S.C.A. § 158(b)(4)(A) and (B). This section is as follows:
'(b) It shall be an unfair labor practice for a labor organization or its agents --
'(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title; * * *'
The petitioner further states that the court is authorized and permitted to grant the relief sought for under Section 10(l) of the Act, 29 U.S.C.A. § 160(l), which reads in part as follows:
'(l) Whenever it is charged that any person has engaged in an unfair labor practice with the meaning of paragraph (4)(A)(B), or (C) of section 158(b) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law: * * *'
Now, after hearing the petitioner's counsel, counsel for the charging parties, and counsel for the respondent, and after the presentation of all relevant testimony submitted, and for the purposes of this motion only, I find that the essential elements of the allegations of the petition heretofore stated by me have been sustained and in addition and in amplification thereof I find as follows:
1. Certain dealers, to wit, Chesterfield Farms, Inc., Whitestone Farms, Inc., Columbia Farms, Inc., York Creameries, Inc., Broadlea Dairies, Inc., Pine Crest Farms, Inc., Maplewood Farms, Inc., and Lakewood Farms, Inc., are engaged in the sale and distribution of milk primarily to home deliverers. Chesterfield and Whitestone have their place of business in the County of The Bronx, New York, and the remaining dealers above mentioned have their businesses in the County of Kings, City and State of New York. These dealers are known as Class B dealers.
2. Another group of dealers is known as Class C dealers. These dealers are engaged as home deliverers in the sale and distribution of milk of the aforesaid Class B dealers in the County of The Bronx and elsewhere in the City of New York under certain licenses whereby such dealers are each restricted to a single home delivery route and the use of a single truck.
3. The Class B dealers above mentioned are all signatories to a certain Milk Industry Collective Bargaining Agreement, a copy of which was marked in evidence as Exhibit 2 in this proceeding. In the month of April, 1957, fluid milk for human consumption valued at approximately $ 14,000,000 was brought to milk pasteurizing and bottling plants of certain employers known as Class B dealers from the New York milkshed which comprises the states of New York, Pennsylvania, New Jersey, Vermont and New Hampshire, of which $ 14,000,000 approximately $ 3,500,000 in value in fluid milk was brought to the City of New York from the states of Pennsylvania, New Jersey and Vermont.
4. Respondent's members include employees of employers, including Class A dealers, who bottle and pasteurize milk for the Class B dealers above mentioned, and the employees of the Class B dealers, both of which dealer groups are signatories to the said Milk Industry Collective Bargaining Agreement.
5. Certain members of the Class C dealers above mentioned employ drivers and helpers in connection with the operation of their respective home delivery routes. Since on or about May 8, 1957, respondent had demanded that said Class C dealers who have employees sign a contract with the respondent covering the drivers employed by the said Class C dealers, although at no time mentioned herein has the respondent been certified by the Board as the collective bargaining representative for the employees of Class C dealers.
6. The respondent-union conceded that its members working for employers under the Milk Industry Collective Bargaining Contract -- that is, particularly Class B dealers -- declined to handle material and milk products destined to Class C dealer employers and with respect to certain Class B dealers and that the union so instructed and advised its employees.
7. The Class A dealers are receivers of milk from farms and other sources, which milk is bottled and pasteurized and sold to Class B distributors. The Class B distributors sell to the licensed Class C distributors, who are individual routemen permitted by regulations to own only one truck and have only one route.
8. About 40 such Class C dealers are attached to Chesterfield Farms, Inc., having an organization known as Home Milk Delivery Association. On May 17, 1957, one Ignatius Canavan, vice president of the respondent-union, asserted to Carl Littman, secretary and treasurer of Chesterfield Farms, Inc., that all the Class C dealers must be organized and that thereafter none but the C dealers themselves were to come to the platform to get milk unless he, Canavan, permitted them to do so. Thereafter, on or about June 3, 1947, Canavan told Littman that Canavan was not going to permit Chesterfield employees to load the trucks of C dealers and that if the C dealers loaded thereafter there would be trouble. Littman refused to accede to this procedure, stating he would have to remain in business, that the trucks of the C dealers would be loaded even if the C dealers themselves did the loading. Furthermore, Canavan stated to Littman that he would prevent Sunshine Farms, a Class A dealer, from bottling milk the next night for Chesterfield. Although Littman informed Canavan that he felt Canavan's declaration of intention, if carried out, would violate the law, Canavan said it would be done nevertheless. Thereafter, on June 3, 1957, at approximately 7:00 to 7:30 P.M., a picket was posted in front of the premises of Chesterfield Farms. The sign carried by such picket read: 'Join Milk Drivers and Dairy Employees Union, Local 584. IBT of AFL.' On that same sign was appended a typewritten sheet listing the names of 36 C dealers and their license numbers, being the C dealers who were customers of Chesterfield Farms. The other sign carried by the picket read: 'Employees of C Dealers -- Join Milk Drivers and Dairy Employees Union, Local 584, affiliated with International Brotherhood of Teamsters.' Although on June 3, 1957, milk bottled by Sunshine Farms for Chesterfield Farms had already been processed and was on trailers nearby, from which Chesterfield was able to obtain if for the C dealers, on the following day, June 4, 1957, Chesterfield did not obtain milk from Sunshine for Chesterfield's C dealers.
9. On the evening of June 5, 1957, at approximately 10:15, Littman observed Canavan being served with a temporary restraining order issued by this court and heard Canavan tell Brunetti, the union shop steward, to 'resume bottling.'
10. The sole business of Chesterfield is purchasing milk from Sunshine and selling it to the 40 C dealers.
11. If the said C dealers do not obtain their milk for even a few days their routes will disappear and the business of the C dealers and their supplier, the B dealer, Chesterfield and others, will be irreparably damaged and probably destroyed.
12. Sunshine Farms, a subsidiary of the Borden Company, is an A dealer in milk, obtaining it from farms and other sources, some outside the State of New York. It bottles this milk and sells a substantial portion to Chesterfield, a B dealer, who is nearby. Sunshine has approximately 50 to 60 employees, practically all of whom are members of the respondent-union. The company has the same collective bargaining agreement with this union heretofore mentioned.
13. On the 3rd day of June, 1957, at approximately 7:00 P.M., Ignatius Canavan, vice president of the respondent-union, told Richard Johnson, plant manager of Sunshine Farms, Inc., (Class A dealer) and one Brunetti, an employee of and union steward at Sunshine Farms, that Sunshine was not to bottle milk for Chesterfield (Class B dealer) because 'Chesterfield had a dispute with some C dealers buying from Chesterfield.' After Johnson consulted his superiors he acquiesced in the union's instruction and thereafter that evening no milk was bottled for Chesterfield. When Johnson inquired of Canavan what would happen if the employees, in spite of his instruction, bottled the milk for Chesterfield, Canavan said the employees would be taken out. Chesterfield purchases from Sunshine approximately 30,000 quarts of milk a day.
14. Some time in May, 1957, Canavan passed out certain leaflets in the area and told one Max Channing, a member of the respondent-union, employed by Chesterfield as a foreman, that none but the C dealers themselves would be permitted to pull out a loaded truck, contrary to the former practice which permitted either the C dealer or his employee to do so, and that the ...