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October 17, 1969

Sidney Danielson, Acting Regional Director, Second Region, National Labor Relations Board, for and on Behalf of National Labor Relations Board, Petitioner
Painters District Council No. 20 et al., Respondent

Lasker, D.J.

The opinion of the court was delivered by: LASKER


This proceeding is before the court on a petition filed by the Acting Regional Director of the Second Region of the National Labor Relations Board ("the 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 charges filed with the Board against respondent by Uni-Coat Spray Painting, Inc. ("Uni-Coat"). These charges allege that respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(i)(ii)(B) of the Act, which section proscribes so-called secondary boycotts and other secondary pressures to cause one person to cease doing business with another person, as set forth in 29 U.S.C.A. § 158(b)(4)(i)(ii)(B).

 Section 10(l) of the Act provides that where a charge has been filed alleging a violation of Section 8(b)(4)(B), if the Board "has reasonable cause to believe such charge is true," it shall petition a United States District Court for appropriate injunctive relief pending final adjudication by the Board. A hearing on the issues raised by this petition and answer was held on September 16, 1969, and the following facts, which are basically not in dispute, were adduced.

 Respondent Painters District Council No. 20 of Westchester and Putnam Counties, New York ("the District Council") has a collective bargaining agreement with various painting contractors of Westchester County, including Uni-Coat. Rule 9(a) of Article III of that agreement provides, in pertinent part, that " The spraying of acoustic ceilings and wall surfaces or decorative effects which it is impossible to brush, shall be permitted upon receiving permission from District Council No. 20."

 Baker-Firestone, Inc. ("Baker-Firestone") is the general contractor for the construction of a garden apartment complex on Kings Ferry Road in Montrose, New York. The actual construction work is being performed by subcontractors, although certain Baker-Firestone employees are employed at the job site in a supervisory capacity. Sometime prior to July, 1969, Rocco Gallo, vice-president of Uni-Coat, personally contacted Jack Hon, Baker-Firestone's project engineer for the Montrose job, to discuss the possibility of Uni-Coat acting as painting subcontractor. Gallo informed Hon that if Uni-Coat were hired, it would be able to paint with a particular product known as Qualiware. Hon, who had had some prior favorable experience with Qualiware, hired Uni-Coat as the painting subcontractor on the Kings Ferry job. The contract between Baker-Firestone and Uni-Coat, dated May 21, 1969, specified that Qualiware was to be used for interior painting while Benjamin Moore Company paint or its equivalent was to be used on the exterior. The contract also stated that Qualiware was to be applied in accordance with the manufacturer's specifications.

 In order to be able to use Qualiware on construction projects, Uni-Coat had secured a license from D.A.W. Rainbow Painting Company, Inc. ("D.A.W."), a Missouri corporation, which invented and holds title to Qualiware, and a contract from Qualiware Sales Corporation ("Qualiware Sales"), a Missouri corporation, the company that sells Qualiware under an exclusive license from D.A.W. Gallo, Uni-Coat's vice-president, had first become interested in Qualiware after reading a D.A.W. advertisement in one of the trade magazines. Soon thereafter, he traveled to St. Louis to take a firsthand look at the product. Duly impressed, Gallo negotiated with Donald Williams, president of D.A.W. and Qualiware Sales, for the aforesaid licensing agreement. Both this agreement, dated April 17, 1969, and the contract with Qualiware Sales provided that Uni-Coat's right to use Qualiware was conditioned upon its adherence to the manufacturer's specifications for the product. Qualiware is manufactured for D.A.W. by St. Louis Mfg. Co. ("St. Louis Mfg.") under an exclusive license agreement from D.A.W. in accordance with D.A.W.'s standards and specifications, which provide, inter alia, that Qualiware is to be applied only by spraying.

 On or about June 30, 1969, prior to commencing work at the Montrose job site, Uni-Coat demonstrated the application of Qualiware to representatives of the respondent union in order to secure the requisite permission from District Council No. 20 to spray wall surfaces. Following the demonstration, which took place at Baker-Firestone's job site, the District Council concluded that Qualiware could be properly applied on the job by being rolled and/or brushed, as well as sprayed, and therefore, pursuant to Rule 9 of the collective bargaining agreement, refused to authorize spray painting. On or about July 3, 1969, at the request of Uni-Coat, a second meeting took place - this time in the District Council's headquarters - between respondent's representatives and those of Uni-Coat, Baker-Firestone, D.A.W. and Qualiware Sales. At this meeting Donald Williams, president of D.A.W. and Qualiware Sales, stated that Qualiware could not be properly rolled or brushed and that if it was not sprayed he could not guarantee the job or the materials used therein. Respondent, for its part, continued to oppose the application of Qualiware by spraying and at no subsequent time was permission ever granted.

 On the morning of July 7, 1969, Uni-Coat appeared at the Montrose job site and commenced spray painting eleven model apartments. Although the painting subcontract called for the spraying of some 210 dwelling units, the eleven model apartments were the only ones ready to paint at the time. At about 11:00 a.m. Uni-Coat notified respondent that it was on the job, and around noon District Council members began picketing the construction site. They carried signs bearing the following legend:

"The Painting Contractor on This Job Does Not Observe The Contract With District Council 20, AFL-CIO."

 Uni-Coat ceased painting at 1:30 p.m., having completed the kitchens in the eleven model apartments. Respondent informed Hon, project manager for Baker-Firestone, that the picketing would continue until respondent received assurances that no further spraying would occur. Hon then delivered identical letters to Uni-Coat and District Council 20, directing Uni-Coat to stop work on the job until a mutually satisfactory resolution of the problem could be effected. The picketing ceased at around 4:00 p.m. Prior to that time, one delivery truck had refused to cross the picket line and on the following day the electricians and plumbers failed to report for work. They returned the next day after Hon informed their employers that the picketing had stopped. The evidence is conflicting and inconclusive as to the occurrences between July 7th and July 21st.

 On July 21st, pursuant to instructions from Hon, Uni-Coat, apparently without notifying respondent, returned to the job site to complete the spraying of the eleven model apartments. Uni-Coat departed later that afternoon, with the doors and some touching up remaining to be done. This work was never completed by Uni-Coat, who did not return to the job thereafter. No picketing took place on this day.

 From July 22nd through July 24th, however, members of the District Council picketed the job site, carrying signs similar to those used on July 7th. During this period various building trades employees employed by other employer-subcontractors failed to report or otherwise refused to work. On the evening of July 24th, a meeting was held between respondent's representatives and those of Baker-Firestone. At that meeting, Baker-Firestone inquired as to what could be done to stop the picketing, and respondent stated that its objection was to the spraying being done by Uni-Coat and not to Uni-Coat itself. The District Council and Baker-Firestone then signed a written statement by which Baker-Firestone undertook, in pertinent part, to dismiss any painting contractor who did not adhere to the terms of the District Council's trade agreement. There was no further picketing after July 24th. Subsequently, Baker-Firestone terminated the services of Uni-Coat. In the middle of August, 1969, Baker-Firestone hired Hochberg Brothers, a painting contractor in Dobbs Ferry, New York, to complete the painting of the eleven model apartments left unfinished by Uni-Coat.

 * * *

 It is clearly not a court's function under Section 10(l) to make an ultimate determination as to whether the charges being heard by the Board are true or whether an unfair labor practice has in fact been committed. Any final adjudication of such matters lies clearly within the Board's province. The court's responsibility is to determine whether the Regional Director had reasonable cause to authorize issuance of a complaint and, if so, whether the injunctive relief sought by the motion is "just and proper." 29 U.S.C.A. § 160(l). As Judge Wyzanski has stated:

"What a court must do is to appraise the whole situation, exercising the best judgment it can as to what is the general scope of the facts likely to be proved before the Board, what are the issues of law, and how clear it is what rule of law would be and should be applied by the Board." Alpert v. ...

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