The opinion of the court was delivered by: WERKER
The petitioner filed a petition for the purpose of obtaining a judgment:
1. Staying and permanently enjoining the respondent from making any and all attempts to organize or represent the customer service employees of petitioner.
2. Requiring the respondent to abide by the determination of the NLRB declaring the customer service employees as being managerial.
3. Granting to petitioner such other and further relief as the court may deem just and proper.
Jurisdiction is found under the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 152(3), (11); 158(a)(1), (5); 159; 159(c) and 164(a).
By decision and order dated August 20, 1975, the Regional Director of the National Labor Relations Board, Region 2 found "that the duties and authority of the three customer service production men in issue establish them as managerial." This decision and order has not been appealed by The Corporate Printing Company, Inc. ("the Company") or the New York Typographical Union No. 6, International Typographical Union ("the Union") although the proceeding had been brought by the Company to establish these employees as supervisors.
The petitioner filed an order to show cause for an order enjoining the Union from exercising any organizational activity concerning its customer service employees and granting petitioner such further relief as the court deems proper. Both the Company and the Union agreed upon the hearing of the order to show cause that the facts recited in the aforementioned Decision and Order were correct and that no changes had occurred since the Order. They further indicated that in view of this fact no evidentiary hearing was required. I adopt the findings of fact recited in the Decision and Order. There is also no dispute that the employees involved are managerial.
Respondent here has entered into a contract with petitioner which provides inter alia at paragraph 111.
111. In the event the Union should claim representation rights for units of employees not covered by this Contract and not represented by any other union, the parties agree that the Union may submit authorization cards signed by such employees to a third party, mutually agreed upon by the parties, for comparison with the Employer's payroll. If it is determined that a majority of such employees have authorized the Union to represent them, the Employer shall recognize the Union as the bargaining agent for all employees in such classification. If the parties are unable to agree upon a third party to make signature comparisons, the New York State Board of Mediation is authorized to make such comparisons and certification."
On or about May 3, 1976, the respondent requested the New York State Mediation Board to determine the validity of signature cards of the customer service employees of petitioner.
These managerial employees of the petitioner cannot be a part of a bargaining unit represented by respondent because under the Act they are excluded from the protection of the Act with respect to representation or bargaining. Managerial employees were placed in this position by the Supreme Court in its interpretation of the Act in NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S. Ct. 1757, 40 L. Ed. 2d 134 (1974).
The case of Florida Power & Light Co. v. Local 641, IBEW, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974) cited by respondent is inapposite for the reason that in that case the Florida Power & Light Company had consented to its supervisory employees retaining union membership. Here the employer has not done so. This is the option ...