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COSMETICS, INC. v. DAVIS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


February 7, 1972

666 Cosmetics, Inc., Plaintiff,
v.
Leon J. Davis et al., Defendants

Pierce, District Judge.

The opinion of the court was delivered by: PIERCE

MEMORANDUM OPINION

PIERCE, District Judge.

 Plaintiff instituted suit in mid-December, 1971, in New York State Supreme Court, New York County, seeking to enjoin defendants from engaging in certain activities. Shortly thereafter defendants removed the action to this Court pursuant to 28 U.S.C. § 1441 (1970 ed.). Plaintiff has moved under 28 U.S.C. § 1447(c) to remand this case to the State Supreme Court.

 Plaintiff is engaged in the business of selling cosmetics, candy and cigarettes at a retail store located in Manhattan. Defendants are alleged in the complaint to be a labor organization, its president, two officers or business agents and various of its members, representatives, organizers or employees. The complaint charges that defendants caused between five and twenty-five people to congregate and picket at the entrances to plaintiff's store at various times; that these individuals interfered with free access to the store and obstructed the exits; that they shouted at, and insulted, plaintiff's employees and customers, thereby intimidating, threatening and coercing them; that these individuals have attempted to coerce, intimidate and restrain persons from making deliveries to plaintiff; that they have thus created a hazardous and volatile condition in the area of plaintiff's store which threatens the public welfare.

 Defendants apparently premised their removal on subsections (a) and (b) of Section 1441 which permit such action where the District Court would have original jurisdiction of the matter since it is founded upon a claim or right arising under the Constitution or laws of the United States. *fn1" They argue that those portions of the complaint *fn2" which suggest that they have attempted to force persons to cease dealing or doing business with plaintiff set out, at least arguably, a violation of § 8(b)(4)(i) (ii)(B), 29 U.S.C. § 158(b)(4)(i)(ii)(B), *fn3" one of the secondary boycott provisions of the Labor-Management Relations Act of 1947, as amended. Such violations are made actionable in the District Court by 29 U.S.C. § 187. *fn4"

 Plaintiff contends that the complaint does not set forth a violation of § 8(b)(4)(B), that therefore the Federal District Court lacks original jurisdiction over the subject matter and that the case must be remanded. It further asserts that only the State courts are empowered to enjoin mass picketing and threatened violence. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 729, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) and cases cited therein.

 The Court does not agree with defendants' characterization of their activities as alleged in the complaint. Defendants here are engaged in what is commonly referred to as "primary picketing." Rather than constituting an illegal boycott under § 8(b)(4)(B) such activity has traditionally been one of labor's major weapons. It is intended to convey defendants' message to all those approaching the site of plaintiff's store, without regard to whether such individual is a deliverer of supplies, an employee or a potential customer. It is aimed at halting or severely interfering with plaintiff's business operations. See generally United Steelworkers of America v. NLRB, 376 U.S. 492, 499, 11 L. Ed. 2d 863, 84 S. Ct. 899 (1964). To this extent, of course, defendants' actions seek to coerce persons to cease dealing or doing business with plaintiff. But these actions are not similar to those secondary pressures Congress intended to prohibit by § 8(b) (4)(B). See National Woodwork Mfrs. Ass'n. v. NLRB, 386 U.S. 612, 620-33, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967); Cf. United Steelworkers of America v. NLRB, 376 U.S. 492, 500-01, 11 L. Ed. 2d 863, 84 S. Ct. 899 (1964). The mere fact that some neutral employees may incidentally be affected by defendants' picketing at the site of the primary employer's business is not sufficient to bring this activity within the scope of § 8(b)(4)(B). National Woodwork Mfrs. Ass'n. v. NLRB, 386 U.S. 612, 627, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967).

 Since the complaint cannot fairly be construed to allege a § 8(b)(4) violation there appears to be no basis upon which this Court would have original jurisdiction over this complaint. Therefore plaintiff's motion to remand this case to New York Supreme Court, New York County, is granted. *fn5"

 So ordered.


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