The opinion of the court was delivered by: RYAN
This petition has been filed by the Regional Director of the Second Region of the National Labor Relations Board pursuant to Section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(l), for a temporary injunction pending the final disposition of the charges now before the Board filed by Automatic Sealing Service, Inc. The charges allege that respondent New York Paper Cutters' & Bookbinders' Union No. 119 has engaged in and continues to engage in unfair labor practices within the meaning of Section 8(b)(4)(i)(ii) (B) and (D) of the Act, 29 U.S.C.A. § 158(b) 4(i)(ii)(B) and (D).
The material facts, as adduced at the hearing held by this Court, establish the following:
Automatic Sealing Service, Inc., a New York corporation, is engaged in New York City in the business of sealing socalled self mailings, such as advertising brochures and circulars, by means of machines which automatically seal the self mailings with a wafer or tab. Small jobs are done on the premises of Automatic, but on large jobs, Automatic customarily sends its own operator and sealing machine to the premises of the customer and the work is performed there. Automatic does a gross business of approximately $ 130,000 annually, of which amount 10% Is derived for services supplied to customers outside the State of New York.
Automatic Sealing Service, Inc., is the parent company of Seal-O-Matic, a company funded by Philip Klein, Secretary-Treasurer, of Automatic, and another, for the purpose of manufacturing and selling throughout the country the seal-o-matic machine. The machine is said to be protected by a patent which is owned by Seal-O-Matic. Automatic has reserved for itself the exclusive franchise to use and employ the patented device and to perform sealing service in the New York area. A policy has been followed by the two companies whereby Seal-O-Matic will not sell or service any sealing machine within the 200 mile radius of New York City. Automatic, as a result, enjoys the exclusive right to perform all sealing services in the New York City area, effectively barring any competition. Certain companies such as McKenzie Bindery and Young Bindery have obtained sealing machines by purchasing them outside New York and have had them then shipped to the city. Success of their operations has been limited, however, by the refusal of Automatic to service these machines when the dyes needed sharpening or had to be replaced.
Over 90% Of Automatic's customers are in the printing and binding business and these customers are members of the Printers League Section of the Printing Industries of Metropolitan New York, Inc., and association which bargains and executes labor agreements on a multiemployer basis. The Printers League Section has a collective bargaining contract with respondent.
Among the members of Association who are customers of Automatic are Bindrite Bindery, Inc., F. M. Charlton Co., Inc., Eff & Zee Bookbinding Co., Esquire Bindery Corp., Fisher Bookbinding Co., Inc., Guide Kalkhoff-Burr, Inc., Lindner Bindery, McKenzie Service, Inc., Pyramid Bindery, Inc., Sender Bindery, Inc., Standard Bookbinding Corp. and Trade Bindery, all of whom have their place of business in New York City and annually ship goods outside the State of New York.
Automatic has assigned the work of operating its sealing machines on and off Automatic's premises to its own employees who are not members of or represented by any labor organization. This labor practice has been carried on for many years. Respondent now has asserted that it has exclusive jurisdiction over the work of operating sealing machines of the kind used by Automatic and has demanded that Automatic or its customers assign the work of operating Automatic's sealing machines to members of respondent. In furtherance and support of its claimed jurisdiction and demand, respondent, since on or about March 15, 1963, engaged in the following acts and conduct:
1. Notified all its members, through its bulletin, 'THE BULLETIN OF 119', including members employed by the companies named above, that all machine sealing of self mailings come under the jurisdiction of respondent and all such machine work must be covered by a member of respondent.
2. Told members of Printer's League Section that respondent's members would not work if an Automatic sealing machine operating in their shop was not 'covered' by a member of respondent.
3. Refused to permit an Automatic sealing machine to be used in the shops of companies named above unless the machine was operated by a member of respondent, and where to member of respondent was qualified to operate the machine, refused to permit employees of Automatic to operate the machine unless a member of respondent stood by.
4. Told Bindrite that its shop would be pulled if it allowed Automatic sealing machines in its shop or continued to do business with Automatic.
As a result of respondent's acts and demands, the Association members have had their sealing work performed on Automatic's premises rather than on their own premises, or have given no further jobs to Automatic.
Respondent has not been certified by the Board as the collective bargaining representative of any of Automatic's employees, nor has the Board issued an order directing Automatic to bargain with respondent as the representative of any of its employees.
The function of the Court on applications for injunctive relief under the Act has been aptly set forth in McLeod v. Newspaper & Mail Deliverers' Union of New York City & Vic., ...