The opinion of the court was delivered by: CARTER
1. The Nature of the Proceedings
This proceeding is before the court on the petition of Sidney Danielson, Regional Director of the Second Region of the National Labor Relations Board (Board) pursuant to Section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 160(l), for a preliminary injunction pending the final disposition of unfair labor practice charges within the meaning of Section 8(b)(4)(i)(ii)(B) of the Act, 29 U.S.C. § 158(b)(i)(ii)(B) filed with the Board by M. Slavin & Sons, Ltd. (Slavin), Huntington Fish Supply (Huntington) Inc., Two Cousins Fish Market, Inc. (Two Cousins). Ralph Fiori and Fiorentino Fiori d/b/a Fiori Brothers Fish Dealer (Fiori), B&B Fish and Clam Co. (B&B), Sunrise Seafood Inc. (Sunrise) and Quality Fish Co. (Quality) -- the charging parties -- against United Seafood Workers Smoked Fish & Cannery Union, Local 359, AFL-CIO. The unfair labor practices charged are secondary boycotts and other secondary pressures to force the charging parties to cease doing business at the New York Fulton Fish Market (Fulton) or to require the charging parties to recognize or bargain with Local 359 as representative of their employees.
The petition was filed in this court on November 5, and on the same day a temporary restraining order was signed prohibiting respondents from inducing any employees of the charging parties to engage in a strike and also prohibiting them from inducing the fish wholesalers or purveyors at Fulton to refuse to do business with the charging parties. In its original form the effective termination date of the order was November 10. Since November 8th and 9th were an intervening Saturday and Sunday and November 11th was a holiday, which pursuant to Rule 6, F.R. Civ. P. are excluded from computation when the temporary restraining order is less than seven days, the order was modified to extend to November 13th. An answer to the petition was filed on November 10th.
On November 11th and 12th, an evidentiary hearing was held. The petitioner, the charging parties and the respondent were afforded a full opportunity to be heard and to present evidence and argument bearing on the issues in dispute in respect of both the facts and the law.
The pertinent facts follow. Local 359 is an unincorporated labor organization and the collective bargaining representative of employees of Newport Fish Co. (Newport), Caleb Haley Fish Co. (Caleb Haley), Frank W. Wilkinson Co. (Wilkinson), Joe Monani Fish Co. (Monani), BLCF, Inc., a/k/a Beyer Lightning (Beyer), Lockwood & Wynant Fish Co. (L&W), Blue Ribbon Fish Co. (Blue Ribbon), R. J. Cornelius (Cornelius), Booth Fisheries (Booth), T&S Fish Co. (T&S), LaRocca Fish Co. (LaRocca), C. J. Wadman, Inc. (Wadman), Commercial Fish & Lobster, Inc. (Commercial), M. P. Levy Fish Co. (Levy), Royal Fish Co. (Royal), Joseph H. Carter (Carter), ACA Fish Distributors, Inc. (Distributors), Strand Fish Co. (Strand), Messing Fish Co. (Messing), T.G. Fish Co. (T.G.), Orient Point Shellfish Co. (Orient), Crown Fish Co. (Crown) and Benny's Express (Benny's). All are purveyors and dealers in the wholesale fish industry in and around Fulton and except for Distributors and Benny's, are, together with other purveyors and dealers, parties to a collective bargaining agreement with Local 359. The employees of the above purveyors and dealers, with the exceptions indicated, whose duties encompass the movement of fish from their respective employer to customers, including handling, delivery, loading and unloading, have been and are members of Local 359 and have been and are represented by Local 359. No dispute exists between any of the employees so represented and the employers and dealers who are parties to the collective agreement and no dispute exists between these aforesaid employers with any other persons at Fulton or with Local 359 in respect to any terms and conditions of employment of any of the employees working at Fulton represented by Local 359. The membership in Local 359 totals some 850-900 members, 700 of whom are employed at the Fulton Market.
All of the charging parties are engaged in the wholesale and retail fish industry, with gross sales last year ranging, for example, from $1 million for Huntington to $12 million for Slavin. Last year each bought more than $50,000 worth of fish from outside New York and roughly at least one-third of its purchases from Fulton. Each of the charging parties is a non-union operation, and no union is certified by the Board to represent any of the employees of any charging party.
Carmine Romano, Secretary-Treasurer and Business Agent for Local 359 and Anthony O'Connor visited Two Cousins, Huntington, and Fiori in October, 1974, and spoke to management about signing up with Local 359. In each instance they were advised that the decision was for the employees to make, not management. Romano and O'Connor were given the opportunity to talk to the employees of these three charging parties. They either accepted the opportunity and spoke to the men or they refused to do so. In any event, there was no movement by the employees to seek representation by Local 359. When asked to sign up with Local 359 as their employees' bargaining agent without the consent of their employees, Two Cousins, Huntington and Fiori declined. In the summer of this year, at a dinner meeting, Romano gave Herbert Slavin of Slavin a union recognition contract. Slavin offered Romano the opportunity to meet with his employees but this was declined.
Fulton operates Monday through Friday. It opens for business at roughly 4 a.m. The charging parties and others interested in buying fish wholesale at Fulton arrive at the market at 4 a.m., park their trucks in designated areas, go to the stands of the various purveyors and dealers, select the fish they wish to purchase; the fish is then marked as sold to them. At 5 a.m. on Monday and Friday and 6 a.m. on Tuesday, Wednesday and Thursday these purchases may be delivered to the designated parking areas and loaded on the purchasers' trucks. At about the time for delivery the parties return to the various stands to receive their supplies. Journeyman employees -- all members of Local 359 -- take the supplies in hand trucks to the designated areas. There loaders -- all members of Local 359 -- load the supplies onto the trucks.
Action against the charging parties began on October 30th lasting through the dates of the hearing. Representatives from each of the charging parties arrived at Fulton on October 30th and one or more thereafter on October 31, November 3, November 5, November 6, November 7, but with few exceptions no journeyman would deliver the fish they had bought, and if delivered no loader would load it onto the truck. A typical example of the pattern currently in effect against the charging parties is the experience of Herbert Slavin. He testified that he arrived at Fulton at about 4 a.m. on October 31, went to T. G., Caleb Haley, and Blue Ribbon and ordered fish. When he sought to have it delivered, he was told that the journeymen would not deliver and that he had to get the union problem straightened out. On November 3, he returned to Fulton, purchased fish at Carter, Blue Ribbon and Newport. Again, the journeymen refused to deliver the fish to his truck. At times Slavin sought, sometimes successfully, to deliver and load the fish by having his employees do the work of the union journeymen and loaders. In these cases, Romano and O'Connor would order all the union employees of the purveyor who had sold the fish to Slavin to cease work. This action was concerted and uniform, and there was no deviation in the pattern. When on November 5th and thereafter Slavin sought to have his fish delivered under the terms of the court's temporary restraining order, crowds of workers shouting obscenities would gather and physically obstruct the attempted delivery. On occasions the fish was delivered to trucks and loaded by union employees. On at least one such occasion O'Connor ordered the men to unload the trucks and take the supplies back. On another occasion Louis DeMeo, Local 359's President, personally unloaded fish which had been put on the Two Cousin's truck. At times when Slavin undertook to take his own supplies, Romano and O'Connor would order work stoppages by the purveyor from whom Slavin had purchased supplies.
The court's temporary restraining order was served on O'Connor and Romano on November 5th. The last union meeting was held on October 22nd. No meeting was called to explain to the members the court's order. Although there is testimony that Romano told the men to load the fish of the charging parties and they refused, neither he nor any other union official took any action to explain to the men the nature of the court's order and no disciplinary action was taken against the men involved. By contrast, when Slavin or any other charging party would seek delivery through self-help, Romano and O'Connor were swift to retaliate against the purveyor or ...