McLeod v. CHEFS, COOKS, PASTRY COOKS AND ASSISTANTS, ETC.

• Decision Date: 09 February 1960
• Citation: 181 F. Supp. 742
• Parties: Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. CHEFS, COOKS, PASTRY COOKS AND ASSISTANTS, LOCAL 89, HOTEL AND RESTAURANT EMPLOYEES UNION, AFL-CIO and Waiters and Waitresses, Dining Room Employees, Local 1, Hotel and Restaurant Employees Union, AFL-CIO, Respondents.
• Court: U.S. District Court — Southern District of New York

181 F. Supp. 742

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. CHEFS, COOKS, PASTRY COOKS AND ASSISTANTS, LOCAL 89, HOTEL AND RESTAURANT EMPLOYEES UNION, AFL-CIO and Waiters and Waitresses, Dining Room Employees, Local 1, Hotel and Restaurant Employees Union, AFL-CIO, Respondents.

United States District Court S. D. New York.

February 9, 1960.

Jacques Schurre, Washington, D. C., for National Labor Relations Board, petitioner.

Boudin, Cohn & Glickstein, New York City, for respondent, Local 89. Jerome B. Lurie, New York City, of counsel.

Pinto & Stein, New York City, for respondent, Local No. 1. Benjamin D. Stein, New York City, of counsel.

Saxe, Bacon & O'Shea, New York City, for Stork Restaurant, Inc., the Charging Party Thomas Bolan, Maurice N. Nessen, New York City, of counsel.

DAWSON, District Judge.

This proceeding comes before the Court upon the petition filed by the Regional Director of the National Labor Relations Board, pursuant to § 10(l) of the National Labor Relations Act, as amended (hereinafter called the "Act"), § 160(l) of Title 29 U.S.C.A. § 151 et seq., for a temporary injunction restraining the respondents, pending final disposition of the matter before the National Labor Relations Board, from picketing the Stork Restaurant, Inc., a restaurant in New York City commonly known as and hereinafter referred to as "the Stork Club."

The charge alleges that respondents engaged in an unfair labor practice within the meaning of § 8(b) (7) (C) of the Act, which prohibits certain types of picketing under certain circumstances. The particular section of the Act is part of the Landrum-Griffin Act which became effective on November 13, 1959. The petition is predicated upon the conclusion of the Board that it has reasonable cause to believe that respondents engaged in unfair labor practices and that a complaint of the Board, based upon the charge, should issue. An order to show cause was issued by this Court, a hearing held and testimony taken.

The Court makes the following findings of fact:

(1) The Stork Club is a restaurant in New York City. For several years past the volume of its business has exceeded $1,000,000 a year, and also for several years past the volume of its supplies purchased outside the State of New York was approximately $300,000 a year. The Stork Club, as a result, is found as a fact to be engaged in interstate commerce.

(2) Respondents are labor organizations engaged in this district in transacting business and promoting the interests of their members.

(3) Since on or about January 9, 1957, respondents have demanded that the Stork Club recognize them and bargain with them as the representatives of certain employees of the Stork Club. On January 7, 1957 a substantial number of the employees of the Stork Club went on strike, and the respondents began picketing the premises. It is admitted by the attorneys for the respondents that among the objectives of such picketing was "to obtain recognition by Stork as the legally designated collective bargaining representatives of Stork's employees." The attorneys for the respondents admit that picketing for this objective continued at least until January 13, 1960. Whether it continued for this objective thereafter is one of the issues before this Court.

(4) Respondents have not been certified as the representatives of employees working at the Stork Club and, although the picketing has continued for several years, no petition for an election to determine the representatives of the employees for bargaining purposes has been filed under the provisions of the Act.

(5) The Landrum-Griffin Act, which added § 8(b) (7) (C) to the Act, became effective on November 13, 1959.

(6) On or about January 6, 1960 the Stork Club executed and filed with the National Labor Relations Board a charge that the respondents were engaged in unfair labor practices in violation of said § 8(b) (7) (C) of the Act.

(7) Shortly thereafter, and on or about January 13, 1960, the officials of the unions, and their attorneys, knowing that the aforesaid charge had been filed, met and discussed the situation with reference to the Stork Club. The officials of the respondent unions were advised by their attorneys that under the Act, as amended, they were no longer entitled to picket the Stork Club to seek to obtain recognition as the bargaining representatives of the employees of the Stork Club. They determined, nevertheless, to continue picketing but also sent a letter to the National Labor Relations Board, and to the Stork Club, stating that they had decided "to cease picketing the Stork Restaurant, Inc. for the purpose of obtaining recognition and to withdraw their demand therefore" and that they had decided to continue picketing the Stork Restaurant, Inc. for the following purposes:

"1. To advise the public (including consumers) that Stork Restaurant, Inc. does not employ members of, or have a contract with, the two Unions.

"2. To advise the public (including the consumers) that the Stork Restaurant, Inc. dictatorially discharged certain employees for their membership in the Unions and interfered with the right of its employees freely to select collective bargaining representatives.

"3. To advise the public (including the consumers) that the standard union wages, hours and working conditions do not prevail in the Stork Restaurant, Inc."

(8) The picketing continued. At the sole entrance to the Stork Club on East 53rd Street, New York City, two to four pickets are present and have been present at substantially all hours of the day and night during which the Club is open, including the hours during which deliveries of supplies would customarily be made. The pickets carried, and still carry, sandwich type signs which read substantially as follows:

"To The Public The Stork Club Discharged Employees Because They Joined • • • Chefs, Cooks,

Pastry Cooks,

& Asst's Union

Local 89 AFL-CIO" "To The Public The Stork Club Does Not Have A Contract With Chefs, Cooks,

Pastry Cooks,

& Asst's Union

Local 89 AFL-CIO" "Stork Club Employees Do Not

Enjoy Union Wages Hours &amp Working Conditions"

(9) A result of the presence of pickets outside the premises of the Stork Club has been to induce individual employees of other persons, in the course of their employment, not to deliver goods to the Stork Club. The testimony of three truck drivers employed by different employers to deliver supplies of beer and brandy to the Stork Club was that when they saw the pickets outside the Stork Club, in January of this year, they drove away without making their deliveries. These truck drivers did not stop to read the signs carried by the pickets. They saw that picketing was being carried on by a labor organization and that was sufficient for them to refuse to cross the picket line and to refuse to make deliveries. The testimony of the Managing Agent of the Stork Club was that he has not been getting regular deliveries of the provisions needed for the restaurant and that "we had to buy two trucks and hire truck drivers to pick things up all over town."

(10) The picketing is still continuing and as far as the unions are concerned will, unless enjoined, continue.

Discussion

In the light of the above facts, the application of the law must be considered.

Once a petition has been filed by the Labor Board it is the role of this Court to ascertain whether the Board had "reasonable cause to believe" that the charge was true. Douds v. Milk Drivers & Dairy Employees Union, 2 Cir., 1957, 248 F.2d 534, 538. It is not necessary for the Court, in order to grant relief, to find that the charges are true and that there has been, in fact, a violation of the law. The only question before the Court is whether the Board had reasonable cause to believe that there had been a violation of the law. It has been held that the requirement placed upon the Board is met by a showing of sufficient evidence to demonstrate that there was basis for the Board's finding. Douds v. International Longshoremen's Association, 2 Cir., 1957, 242 F.2d 808, 810.

The statute under which the charge is filed is a relatively new one.^* Any precise reading of this statute shows that in order for the picketing to be deemed an unfair labor practice, certain facts must be found. They are (1) that an object of the picketing was to force or require the employer to recognize or bargain with a labor organization; (2) that either a valid election for the determination of bargaining representatives had been held within the preceding twelve months, or that a petition had not been filed under § 9(c) of the Act for a determination of bargaining representatives within a reasonable time, not exceeding thirty days from commencement of the picketing. However, even when the picketing is for bargaining or recognitional purposes and no petition for an election has been filed, picketing is not prohibited if it is for the purpose of truthfully advising the public that an employer does not employ members of or have a contract with a labor organization, "unless the effect of such picketing is to induce any other individual employed by any other person, in the course of his employment, not to pick up, deliver or transport any goods, or not to perform any services."

There seems to be no serious dispute that picketing has been in effect for several years and is now continuing; that no petition has been filed under § 9(c) of the Act; and the effect of the picketing has been to induce employees of other employers, particularly truck drivers, not to deliver goods to the Stork Club. The respondents do not seriously contest these points. They urge, however, that the picketing cannot...