The opinion of the court was delivered by: EDELSTEIN
This is a petition for a preliminary injunction pursuant to Section 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l) as amended, 29 U.S.C.A. § 160(l) (Supp.1962). The petitioner, the Regional Director, seeks a preliminary injunction against the respondent, pending a final disposition by the Board, of an unfair labor practice charge filed on September 5, 1962, by the New York Times Company (hereinafter called the Times). The Times filed a charge alleging that the respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(i)(ii)(d) of the Act, 29 U.S.C. § 158(b)(4)(i)(ii)(d), as amended, 29 U.S.C.A. § 158(b)(4)(i)(ii)(d) (Supp.1962).
An Order to Show Cause why such a preliminary injunction should not be granted was issued on September 21, 1962, and was returnable to this court on September 27, 1962. The Order to Show Cause was placed on the motion calendar for that day and the parties appeared, at which time petitioner requested a hearing. Respondent, by its counsel, did not file an answer to said petition, but raised issues at a preliminary conference which it developed more fully at the hearing. A hearing on the issues raised by the petition and by the respondent's opposing contentions was held that day. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present evidence bearing on the issues and to argue on the evidence and the law. The petitioner's case consisted of the testimony of three witnesses: John Murphy, Assistant Manager of Industrial Relations for the Times; John J. Kelly, a supervisory employee in the Times mail room, -- the situs of this dispute -- ; and Raymond Cooper, also a mail room supervisor and a member of the rival union, the New York Mailers Union No. 6, International Typographical Union, AFL-CIO, which will be referred to hereafter as the Mailers. The respondent's only witness was Carl Levy, respondent's business agent. Respondent also introduced a copy of the collective bargaining agreement between it and the Times. Respondent called the court's attention to provisions 2(c), 2(h), and 16. The respondent claims that the jurisdictional dispute that is the subject of the unfair labor practice complaint, and of this petition, should be resolved by arbitration, or by the respondent's own grievance procedures and not by this court.
The court has fully considered the petition, the evidence, and the arguments of counsel. Upon the entire record, the court makes the following findings of fact and conclusions of law:
1. Petitioner is Regional Director of the Second Region of the Board, an agency of the United States, and filed the petition herein for and on behalf of the Board.
2. On or about September 5, 1962, the New York Times, pursuant to the provisions of the Act, filed a charge with the Board alleging that the Newspaper and Mail Deliverers' Union of New York City and Vicinity, a labor organization, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(i)(ii)(d) of the Act.
3. The aforesaid charge was referred to petitioner as Regional Director of the Second Region of the Board.
4. There is, and petitioner has, reasonable cause to believe that:
(a) Respondent, an unincorporated association, is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(b) Respondent maintains its principal office in New York City, and at all times material herein respondent has been engaged within this judicial district in transacting business and in promoting and protecting the interests of its employee members.
(c) The Times is engaged in the business of printing and publishing a daily newspaper called The New York Times. It holds membership in and subscribes to various interstate news services and advertises nationally sold products. Its gross volume of business exceeds $ 1,000,000 per annum.
(d) Members of respondent and members of New York Mailers Union No. 6, International Typographical Union, AFL-CIO work in the mail room of the Times where a complex of automatic equipment and conveyor belts are used to stack, wrap and tie bundles of newspapers and deliver them to the trucks. The mail room extends from West 43rd Street to West 44th Street with loading platforms on both streets. Since 1950 the equipment used in connection with the loading operations on the 44th Street side has included a so-called Jampol belt which conveys the bundles of newspapers, after they leave a wire tying machine, onto truck loading conveyor belts which lead to the delivery trucks at the loading platform. The bundles are directed to the proper truck loading conveyors by means of deflectors. The Jampol belt is operated by a set of push-botton controls, attached to the Jampol belt structure, which start, reverse and stop the belt. The deflectors are set manually. Since the Jampol belt was put into operation on the 44th Street sign the work of operating the Jampol buttons and the setting of the deflectors has been performed by members of respondent on papers bound for suburban and nationwide delivery. Such work tasks have been performed by members of Mailers on papers destined for New York City delivery.
(e) On or about August 20, 1962, the Times put a Jampol belt into operation on the 43rd Street side of the mail room to facilitate loading operations on that side of the building. In conformity with the practice in effect on the 44th Street side, the Times assigned respondent's members the work of operating the Jampol belt and setting the deflectors on papers bound for suburban delivery. To members of Mailers it assigned such work on papers bound for city delivery.
(f) Respondent has not been certified by the Board as the bargaining representative for employees performing the work of operating the Jampol control buttons or setting the deflectors on the 43rd Street side. Nor has the Board issued an order directing the Times to bargain with respondent as the representative of the employees performing such work.
(g) Since on or about August 29, 1962, respondent, through its business agent, Carl Levy, has demanded that the work of operating the Jampol buttons and setting the deflectors on papers bound for city delivery on the 43rd Street side be assigned to its members rather than to members of Mailers, and respondent has ...