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, Regional Director of the Second Region of the National Labor Relations Board (hereinafter called the '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. § 141 et seq. (hereinafter called the 'Act'), and has its principal office in this judicial district and is engaged here in transacting business and in promoting the interest of its employee members.
The said Director petitions this court for and on behalf of the Board, pursuant to Section 10(l) of the Act, as amended (61 Stat. 149, 73 Stat. 544, 29 U.S.C. § 160(l) for appropriate injunctive relief pending the final disposition of the maters involved herein pending before the Board on a charge alleging that respondent has engaged in, and is engaging in, acts and conduct in violation of Section 8(b)(7)(a) of the Act.
The petitioner further alleges that on January 11, 1965, Kane-Miller Corp. (hereinafter called 'Kane-Miller'), pursuant to provisions of the Act, filed a charge with the Board alleging that respondent above named, a labor organization, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(7)(a) of the Act. A copy of said charge was attached as Exhibit 1 and made a part of the petition; and that the said charge was referred to petitioner as Regional Director of the Second Region of the Board. This charge against the respondent herein was as follows:
'Since on or about January 9, 1965, the above-named labor organization by its agents and representatives, has threatened to picket, has picketed and caused to be picketed Kane-Miller Corp., an Employer, with an object of forcing or requiring said Employer to recognize or bargain with said labor organization as the representative of its employees and of forcing or requiring the Employees of said Employer to accept or select said labor organization as their collective bargaining representative when the Employer has lawfully recognized in accordance with the Act, another labor organization and a question concerning representation may not appropriately be raised under Section 9(c) of the Act.'
The petitioner also states and alleges that he has reasonable cause to believe that the said charge is true and that a complaint of the Board based on said charge should issue against respondent pursuant to Section 10(b) of the Act. The petitioner, it is stated, has reasonable cause to believe, and believes, that the respondent is engaged in and is engaging in acts and conduct in violation of Section 8(b)(7)(a) of the Act affecting commerce within the meaning of Section 2(b) and (7) of the Act.
The petitioner thereafter sets forth the acts and conduct which are in violation, it is stated, of the said Act. These, in addition to the aforesaid allegations of the nature of the respondent-organization and its principal place of business, which are admitted, are as follows (paragraph 5 of petition):
'(c) Kane-Miller is engaged at Yonkers, New York, in the business of purveying food products to institutions, hotels, steamships and restaurants. In the operation of its business, Kane-Miller annually ships products valued at more than $ 50,000 to customers outside the State of New York.
'(d) On May 25, 1964, Kane-Miller and Thorman, Baum & Co., Inc. (herein called Thorman-Baum) executed a contract of purchase and sale to take effect January 9, 1965, whereby Kane-Miller acquired certain of the assets of Thorman-Baum with respect to the latter's fresh and frozen fruit and vegetable purveying business. Notice of the pending liquidation of Thorman-Baum's business was given to respondent.
'(e) Respondent, until the expiration of its collective bargaining contract with Thorman-Baum on January 8, 1965, has been the collective bargaining representative of Thorman-Baum's employees in a unit of chauffeurs, warehousemen and helpers.
'(f) Respondent is not currently certified as the representative of any Kane-Miller's employees.
'(g) Since prior to 1939, Kane-Miller has recognized Local Union No. 445, International Brotherhood of Teamster, Chauffeurs, Warehousemen and Helpers of America (herein called Local 445), a labor organization within the meaning of Section 8(b)(7) of the Act, as the collective bargaining representative of its employees in a unit composed of chauffeurs, drivers, warehousemen, and helpers, and has had successive collective bargaining contracts with Local 445, the most recent of which is effective from June 30, 1962 to July 1, 1965, and contains a valid union security clause.
'(h) Notwithstanding the aforesaid, respondent, since on or about August 27, 1964, has demanded that Kane-Miller recognize and bargain with it as the representative of those employees of Kane-Miller, be they former Thorman-Baum employees or otherwise, who were to fill additional positions made necessary by the aforesaid acquisition of Thorman-Baum's fresh and frozen fruit and vegetable purveying business.
'(i) In furtherance of the aforesaid demands, respondent, on or about January 15, 1965 and since said date has picketed and caused Kane-Miller to be picketed.
'(j) On December 11, 1964, respondent filed a charge with the Board alleging, inter alia, that Kane-Miller engaged in unfair labor practices in violation of Section 8(a)(2) of the Act, but said charge was subsequently withdrawn.
'(k) Except as set forth in subparagraph (j) above, no charge has been filed with the Board under Section 8(a)(2) of the Act alleging that Kane-Miller unlawfully recognized or entered into the current contract with Local 445, and at no time material herein could a question concerning representation of Kane-Miller's employees composed of chauffeurs, drivers, warehousemen and helpers appropriately be raised under Section 9(c) of the Act.
'(l) An object of respondent's acts and conduct set forth in subparagraph (i) above was and is to force or require Kane-Miller to recognize or bargain with respondent as the representative of Kane-Miller's chauffeurs, drivers, warehousemen and helpers, notwithstanding that respondent is not currently certified as the representative of such employees, Kane-Miller has lawfully recognized in accordance with the Act another labor organization as the representative of such employees, and a question concerning the representation of such employees may not appropriately be raised under Section 9(c) of the Act.'
The petitioner further states:
'(6) It may fairly be anticipated that, unless enjoined, respondent will continue or repeat the acts and conduct set forth in paragraph 5, subparagraphs (i) and (l) above, or similar or like acts and conduct in violation of Section 8(b)(7)(a) of the Act. It is therefore essential, appropriate, just and proper, for the purpose of effectuating the policies of the Act, and in accordance with the provisions of Section 10(l) thereof, that, pending final disposition of the matters involved herein pending before the Board, respondent be enjoined and restrained from the commission of the acts and conduct above alleged, similar acts and conduct, or repetitions thereof.
'(7) No previous application has been made for the relief herein sought.'
The respondent filed an answer to the said petition. A hearing on the issues raised by the petition and answer was duly held commencing March 9, 1965 and continuing to March 11 and 12, 1965.
During the hearing the court allowed the petitioner to amend its petition by adding the following sentence to paragraph 5(j):
'On February 25, 1965, respondent filed a new charge with the Board again alleging inter alia, that Kane-Miller engaged in unfair labor practices in violation of Section 8(a)(2) of the Act. Petitioner refused to issue a complaint on said charge and so notified respondent by letter dated March 1, 1965.'
The respondent filed an answer consisting of nine separate defenses. The Fourth, Fifth, Sixth and Seventh defenses were stricken by the court. The respondent, by an amendment to the answer, raised a defense directed to the above amendment of the petition (i. e., to paragraph 5(j)).
The gist of respondent's opposition to a preliminary injunction appears to be set forth in its brief after trial, which presented the following points:
'POINT I 'PETITIONER'S APPLICATION FOR INJUNCTIVE RELIEF IS PREMATURE. THE GENERAL COUNSEL HAS NOT DETERMINED WHETHER A COMPLAINT SHOULD ISSUE ON RESPONDENT'S 8(a)(2) CHARGE.'
'POINT II 'KANE-MILLER IS SUCCESSOR TO COEMPLOYER WITH AND AGENT OF THORMAN BAUM AND THORMAN BAUM IS AGENT OF KANE-MILLER.'
'POINT III 'THE BARGAINING UNIT UNDER THE KANE-MILLER -- LOCAL 445 AGREEMENT DOES NOT PROVIDE FOR OR COVER ORDERMEN, FREEZERMEN OR HELPERS AND DRIVERS WORKING ON FRESH AND FROZEN FRUIT AND VEGETABLES AND A QUESTION CONCERNING REPRESENTATION OF EMPLOYEES IN THE THORMAN BAUM DIVISION MAY APPROPRIATELY BE RAISED.'
'POINT IV 'PETITIONER HAS NO REASONABLE CAUSE TO BELIEVE THE 8(b)(7)(a) AGAINST RESPONDENT IS TRUE.'
Now, after hearing the petitioner's counsel and counsel for the respondent, after the presentation of all relevant testimony submitted, after opportunity had been had to examine and cross-examine witnesses, after receiving proposed findings of fact and conclusions of law from the petitioner and from the respondent, and after considering the petition, answer, evidence, arguments and memoranda and upon the entire record, 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. Kane-Miller and Its Purchaser.
(a) Kane-Miller is a corporation engaged in purveying food to institutions. (37) Kane-Miller's sales orders have been and are distributed to a radius of 150 miles, to New Jersey, Connecticut, upstate New York, Massachusetts, Pennsylvania and at certain times to Maine. (61) Kane-Miller deals with Local 445, IBT as a collective bargaining agency in respect to its employees, i.e., warehousemen, chauffeurs and helpers. (37) The Kane-Miller warehouse is now located at 1120 Saw Mill River Road, Yonkers, New York. (38) On or about May 25, 1964, Kane-Miller entered into a contract to purchase certain of the assets of Thorman, Baum, which conducted a business on 14th Street in New York City. (41; Ex. 4) The contract, Exhibit 4, was consummated by a bill of sale and the payment of the purchase price on January 9, 1965 (42, 43), which amounted to a total of $ 550,000, of which about $ 240,000 was paid in checks to Thorman, Baum and the balance (in checks) to its creditors. (44, 231, 232)
(b) The substance of this contract (Ex. 4) was as follows:
(1) The seller (Thorman, Baum) was to sell to Kane-Miller certain assets of the Thorman, Baum business, including merchandise inventory and usable supplies, furniture, machinery and equipment;
(2) Also sold were the private labels, brand names and trademarks owned by the seller, the seller's telephone numbers, the right to use the name, 'Thorman, Baum' as the name of a division or department of the purchaser, the right to use the name, 'Tested Best Frozen Food.' The accounts receivable were also sold.
(3) Paragraph 9 of the agreement was as follows:
'Notwithstanding any provisions in this contract to the contrary, it is expressly agreed that the Purchaser assumes no obligations of the Seller, which are of a labor relations nature, whether arising out of the existing collective bargaining contract between the Seller and Local Union No. 202, I.B of TC.W & H of A. dated January 18, 1963, or otherwise; the parties acknowledge that because the Purchaser has a collective bargaining contract with Local Union No. 445, L.B. of T.C.W & H of A. covering an appropriate bargaining unit, the interests of preserving industrial peace would not be served by the Purchaser's assumption of any obligations of the Seller which are of a labor relations nature.' (Ex. 4)
(4) Employment agreements with Harry Gruntwagin, Maurice H. Kasov, Morris Schwartz and Maxwell Treewater were to be delivered at closing. (Paragraph 10)
(5) The purchaser agreed to give at closing certain stock option agreement to the four persons just mentioned. (Paragraph 11)
(c) Prior to the time of the consummation of Thorman, Baum's sale to Kane-Miller, i.e., on January 9, 1965, Thorman, Baum's contract with Local 202, which had been Thorman, Baum's collective bargaining unit for many years, had expired, (233, Ex. 10) and at that time ...