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September 24, 1981

Alvin P. BLYER, Acting Regional Director, Region 2 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,

The opinion of the court was delivered by: SOFAER


The National Labor Relations Board in this case seeks a preliminary injunction against picketing by the respondent New York Coat, Suit, Dress, Rainwear, and Allied Workers' Union, International Ladies Garment Workers' Union ("ILG"), pursuant to Section 10(l) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(l ) (1976). An injunction will issue under section 10(l ) according to the following procedure and standards: if, after preliminarily investigating a charge of an unfair labor practice under NLRA sections 8(b)(4), 8(b)(7), or 8(e), the NLRB official:

has reasonable cause to believe such charge is true and that a complaint should issue, he shall ... petition ... for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief ... as it deems just and proper....

 The section under which the Board is proceeding in this case is NLRA section 8(b)(4)(D), 29 U.S.C. § 158(b)(4)(D) (1976), known as the "assignment of particular work" clause, which provides that

(it) shall be an unfair labor practice for a labor engage in ... a strike ... or to threaten, coerce, or restrain any person..., where in either case an object thereof is ... forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class.

 Also involved in this case is a provision with which the courts of this Circuit are quite familiar, namely, the proviso in NLRA section 8(e) that exempts unions that service the garment industry from certain provisions of the Act. By its terms the garment-industry proviso applies to the unfair labor practices proscribed by section 8(e) ("hot cargo" agreements) and by section 8(b)(4)(B) (secondary boycotts). It does not, by its terms, apply to activity alleged to be unlawful under section 8(b)(4)(D), the assignment-of-work clause, and the Board's theory in this case rests on the argument that the section 8(e) garment-industry proviso does not immunize activity that otherwise constitutes an unfair practice under section 8(b)(4)(D).

 The full extent of the Board's argument is unclear. The Board has not been willing in this proceeding to take the position that it will find a violation of section 8(b)(4)(D) in every work-assignment dispute that involves the garment industry. The Board may well adopt that position someday, but it has not articulated such a policy at this time.

 Regardless of the NLRB's present or future interpretation of the garment-industry proviso, however, the full scope and impact of the proviso has not yet been definitively ascertained by the courts. Even so, it is established that the provision applies to more than sections 8(e) and 8(b)(4)(B). Danielson v. Joint Bd. of Coat, Suit & Allied Garment Workers' Union, I.L.G.W.U., 494 F.2d 1230, 1233-39 (2d Cir. 1974), held that the proviso applied to a practice alleged to be unlawful under section 8(b)(7) of the Act. Moreover, the parties point to no cases holding that a union claiming the protection of the garment-industry proviso could not invoke that clause in an 8(b)(4)(D) context. On the contrary, this case is a good example of why the garment-industry proviso should be held applicable to at least some forms of conduct alleged to be unlawful under section 8(b)(4)(D), and in particular to bona fide efforts to obtain so-called Hazantown or jobbers agreements, which prohibit the company from doing business with nonunion contractors.

 The facts in this case are as follows. Prior to June 1, 1981, Tahari, Ltd. ("Tahari"), the employer, had what has been characterized as a sham jobber's agreement with Journeymens and Production Allied Services of America and Canada International Union, Local 157 ("Local 157"). Even the Board appears to recognize that it was an unenforced agreement, for the Board has not invoked that agreement in challenging respondent's conduct. Some of Tahari's contractors had agreements with the ILG; others had agreements with the New York Joint Board, Amalgamated Clothing & Textile Workers Union ("Amalgamated"); still others were nonunion shops, despite the then-extant jobber's agreement with Local 157.

 The distribution of Tahari's work among Amalgamated, ILG, and nonunion shops prior to June 1 is hotly disputed. The Board has not yet adjudicated this matter. It has held no hearings and made no findings on this issue. The employer has submitted affidavits indicating a distribution of work primarily to Amalgamated, with some work to ILG, and some nonunion work. The ILG has submitted a contrary affidavit, based on detailed work sheets from Tahari business records, alleging a radically different distribution of work for the weeks prior to June 13. No party has offered witnesses on this issue.

 In a section 10(l ) proceeding, the district court must not substitute itself for the Board by holding a full-fledged trial and making definitive factual findings. In any event, no hearing is necessary here. The undisputed facts permit a full evaluation of the legal issues presented for resolution. The record shows that the ILG had at least twenty percent of Tahari's work, that a significant amount of work was nonunion, and that at most sixty percent to eighty percent was in Amalgamated shops.

 On June 1, 1981, ILG demanded that Tahari sign its standard jobber's agreement. At that time, ILG disclaimed any interest in representing Tahari employees represented by Local 157. On June 2, after Tahari refused to sign the jobber's agreement, ILG began picketing Tahari and some of its contractors. On June 17, ILG extended its picketing to four Tahari contractors represented by Amalgamated. Later on the day of June 17, Tahari and Amalgamated entered into a jobber's agreement. On June 24, Tahari filed a charge with the NLRB that ILG picketing was outlawed by the work-assignment clause, section 8(b)(4)(D), of the Act.

 On July 8, ILG sent a telegram to Tahari disclaiming any intention to force it to assign to ILG shops work performed by Amalgamated contractors. That this telegram was sent is uncontroverted, and it relates to a second factual dispute in this case: the extent to which ILG sought work that had been assigned to Amalgamated before June 17. The Board has offered witnesses to testify that the ILG sought Amalgamated work and was unwilling to disclaim all Amalgamated work, particularly man-tailored ladies' jackets. On the other hand, the ILG insists that it has always been willing to disclaim taking any work previously assigned to Amalgamated and that it had invited Amalgamated to participate in its efforts to obtain a jobber's agreement from Tahari which ILG asserts it would not have done had it intended to take work away from Amalgamated.

 Here, again, it is important to observe that this Court does not sit in proceedings of this kind as a substitute for the Board, ready to resolve factual disputes going to the heart of the Board's theory as to why an unfair labor practice is being committed. The Board attorney argued in this case that ILG wanted to take work away from Amalgamated and that the ILG remains unwilling to commit itself not to take work from ...

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