JACKSON, Circuit Judge: By statute, certain federal employers are required to engage in collective bargaining with their employees’ representatives whenever there is a management-initiated change to the “conditions of employment affecting such employees.” Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7103(a)(12); see also id. §§ 7102(2), 7103(a)(14). Congress has defined “conditions of employment” to include “personnel policies, practices, and matters . . . affecting working conditions,” with certain enumerated exceptions. Id. § 7103(a)(14). And from the mid-1980s until the policy statement challenged here, the Federal Labor Relations Authority (“FLRA”) interpreted these statutory provisions to require collective bargaining over any workplace changes that have more than a de minimis effect on such working conditions. In September of 2020, the FLRA adopted a new threshold for when collective bargaining is required. Under the agency’s new standard, the duty to bargain is triggered only if a workplace change has “a substantial impact on a condition of employment.” U.S. Dep’t of Educ., 71 F.L.R.A. 968, 971 (2020). The petitioners are public-sector labor unions that challenge the FLRA’s decision to alter the bargaining threshold; they maintain that the FLRA’s new standard is both inconsistent with the governing statute and insufficiently explained, and is therefore arbitrary, capricious, and contrary to law. In the opinion that follows, we hold that the FLRA’s decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). We therefore grant the unions’ petitions for review and vacate the FLRA’s policy statement. BACKGROUND Before the fall of 2020, it was the longstanding view of the FLRA that, despite certain federal employers’ clear statutory duty to engage in collective bargaining over “conditions of employment,” 5 U.S.C. § 7103(a)(12), some public-sector management decisions were not subject to bargaining if they had only a “de minimis impact” on such conditions. Dep’t of Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. 403, 407 (1986); see also Dep’t of Health & Human Servs. Soc. Sec. Admin. Reg. V, 19 F.L.R.A. 827, 834 (1985) (McGinnis, concurring); Dep’t of Health & Human Servs. Soc. Sec. Admin. Chi. Region, 15 F.L.R.A. 922, 924 (1984). The de minimis impact exception, the FLRA explained, “derive[s] from the Latin phrase ‘De minimis non curat lex,’ which . . . mean[s] that the law does not care for, or take notice of, very small or trifling matters[.]” Dep’t of Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407 & n.2 (quoting De Minimis Non Curat Lex, BLACK’S LAW DICTIONARY (5th ed. 1979)). In other words, the FLRA read 5 U.S.C. § 7103(a)(12) and (14) to imply a narrow exception to the statute’s collective bargaining requirement; one that pertained to management decisions that had only a trivial effect on conditions of employment. In October of 2019, the United States Departments of Education and Agriculture jointly requested that the FLRA issue a general statement of policy changing the impact threshold at which collective bargaining becomes mandatory. See 5 C.F.R. § 2427.2 (providing for general statements of policy or guidance). The Departments alleged several problems with the longstanding de minimis standard. For instance, they asserted that the de minimis policy was insufficiently concrete to permit consistent application, causing unnecessary litigation. They also asserted that “effective and efficient government would be promoted by the establishment” of a clearer standard, and they maintained that the ideal standard would be one under which only a “substantial change”—or, rather, a change having a “substantial impact” on conditions of employment—triggers the duty to bargain. Request for General Statement of Policy or Guidance at 3–4, J.A. 3–4. On September 30, 2020, the FLRA adopted the Departments’ proposed standard over a dissent and without soliciting public comment. In a four-page policy statement, the FLRA announced that “an agency will not be required to bargain over a change to a condition of employment unless the change is determined to have a substantial impact on a condition of employment.” Dep’t of Educ., 71 F.L.R.A. at 971. The FLRA stated that the “more than de minimis” test for determining when the duty to bargain is triggered is “not the appropriate standard,” id., in part because that test had resulted in bargaining “whenever management has made any decision, no matter how small or trivial” and is also “unpredictable,” id. at 969. The FLRA further faulted the initial agency decision to adopt the de minimis standard on the grounds that it was insufficiently explained. Id. at 970. With respect to the substantial-impact test, the FLRA suggested that this new standard would create “a line that [was] meaningful and determinative[,]” and noted that substantial impact is the governing bargaining threshold in the private sector. Id. The FLRA’s dissenting member argued that the agency’s adoption of a new bargaining threshold was an unjustifiable departure from past precedent and that there was a clear legal basis for the agency’s prior adoption of the de minimis standard. See id. at 972 (DuBester, dissenting). The dissent also maintained that the substantial-impact test was contrary to the governing statute, id. at 973, and that the FLRA’s policy change was not sufficiently reasoned or explained, id. at 973– 76. The petitioners in these consolidated cases—the American Federation of Government Employees, AFL-CIO, the National Treasury Employees Union, and the American Federation of State, County and Municipal Employees, AFL-CIO—are labor unions that represent employees of government agencies that the FLRA’s policy change covers. Each filed a timely petition for review of the FLRA’s policy statement, and we consolidated the petitions. The unions have standing as employee representatives whose “bargaining position” would be “fundamentally diminished” under the FLRA’s new interpretation, see Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 853 (D.C. Cir. 2006), and we have jurisdiction over their petitions for review, see 5 U.S.C. § 7123(a). The unions challenge the FLRA’s policy statement on two grounds, both of which implicate APA standards. First, they argue that the new substantial-impact threshold rests on an impermissible reading of 5 U.S.C. §§ 7103(a)(12) and (a)(14); they contend, in particular, that removing management- initiated changes whose effects are more than de minimis but less than substantial from the scope of collective bargaining is contrary to the plain and unambiguous language of these statutory provisions. Second, the unions assail the FLRA’s policy statement adopting the substantial-impact standard as arbitrary and capricious. See 5 U.S.C. § 706(2)(A). In this regard, according to the unions, the FLRA’s explanation for dispensing with its old policy and adopting the new one was insufficient to support the policy change. DISCUSSION Our analysis begins with the petitioners’ arbitrary and capricious challenge. The petitioners also challenge the substantial-impact exception as contrary to the statute and unsupported by any canon that would justify its treatment as “inherent in most statutory schemes by implication.” See Ass’n of Admin. Law Judges v. FLRA (AALJ), 397 F.3d 957, 962 (D.C. Cir. 2005) (quoting Env’t Def. Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996)). Because we hold that the policy is unreasoned, we need not and do not reach the statutory claim. Cf. Shays v. FEC, 414 F.3d 76, 97 (D.C. Cir. 2005) (declining to assess a claim about the meaning of a statutory provision where the failure of the challenged action under the arbitrary and capricious standard offered a sufficient basis for decision). Under the arbitrary and capricious standard, “we must ensure that the [FLRA] ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” AFGE v. FLRA (AFGE 2020), 961 F.3d 452, 456 (D.C. Cir. 2020) (alterations in original) (quoting Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)). The key question is, at its core, whether the FLRA “engage[d] in reasoned decisionmaking.” Fred Meyer, 865 F.3d at 638 (internal citations omitted); see also FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). And while the FLRA certainly “may depart from its precedent,” in so doing, it “must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed.” AFGE 2020, 961 F.3d at 457 (quoting Nat’l Fed’n of Fed. Emps. v. FLRA, 369 F.3d 548, 553 (D.C. Cir. 2004)). The agency must also show that “the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better” than the previous policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). With these standards in mind and for the reasons explained below, we conclude that the FLRA’s decision to abandon its longstanding precedents and adopt the substantial-impact standard was not sufficiently reasoned in several critical respects. A The first problem with the FLRA’s reasoning is that its policy statement falls short on explaining the purported flaws of the de minimis standard. To start, the policy statement’s description of the problem it seeks to solve is inconsistent. At the beginning of its substantive discussion, the FLRA laments that “[it] has effectively extended the bargaining obligation under the de minimis test to . . . trigger[] an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial.” Dep’t of Educ., 71 F.L.R.A. at 969. The policy statement explains that this purportedly ubiquitous misapplication of the de minimis standard to require bargaining in any and all circumstances has “drained” that standard “of any determinative meaning[.]” Id. In the preceding paragraphs, however, the policy statement’s background section highlights its concern that the de minimis standard is “unpredictable” and “has created uncertainty,” citing several examples of cases in which the FLRA concluded that a workplace change was de minimis and thus beyond the scope of bargaining. Id. at 969 & n.14; see also id. at 970 n.18 (explaining that the FLRA forewent solicitation of public comments “because we are well aware of the confusion sown by nearly thirty-five years of our caselaw”). It is not at all clear how the de minimis standard could both lead inexorably to the conclusion that all management decisions “no matter how small or trivial” must be subject to bargaining and at the same time yield unpredictable results, including, by the FLRA’s own telling, many instances in which the duty to bargain was not triggered. See id. at 969 & n.14. Yet that is how the FLRA’s policy statement reads: the existing standard both purportedly subjects every minor decision to review and is unworkable because it is impossible to predict. Even looking past this apparent contradiction, the FLRA’s claim that the de minimis standard’s unpredictability has “created uncertainty that has negatively impacted labor- management relations” is unconvincing on its own terms. Id. at 969 (internal quotation marks omitted). As evidence of the “vast differences of opinion among arbitrators, judges, and the [FLRA itself] as to what matters affect conditions of employment sufficiently to require bargaining,” the FLRA cites four pairs of decisions that involve purportedly similar facts in which the FLRA found certain management-initiated changes to be more than de minimis (and thus subject to bargaining) and others to be de minimis (and thus not). Id. at 969 & n.14. But closer inspection reveals that these divergent results are readily explained by distinguishable contexts. See id. at 973 (DuBester, dissenting) (“[T]he cases cited by the majority simply reflect the inherently fact-dependent nature of the de minimis exception.”). Take, for instance, the policy statement’s citation to two decisions about office and seating arrangements that the agency now claims were contradictory. In Social Security Administration, Baltimore, Maryland, the FLRA concluded that “changes in seating assignments . . . including the movement of four employees (one-fourth of all [bargaining] unit employees) and one employee[’]s[] loss of access to a window” when considered together were “sufficient to support the . . . conclusion that the changes in seating arrangements were more than de minimis.” U.S. Dep’t of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. 655, 668, 688 (1990)). In GSA, Region 9, on the other hand, the FLRA determined that an employer’s decision to temporarily move a single employee to another building—after her union suggested that such a temporary move would benefit the employee—had, in light of “equitable considerations,” only a de minimis impact on her working conditions. 52 F.L.R.A. 1107, 1108–09, 1111–12 (1997). To describe these decisions is to distinguish them. And the latter decision, GSA, Region 9, indeed expressly distinguished the former as being about a “permanent relocation[] of employees that w[as] instituted by agency management for operational reasons,” rather than a temporary move at the employee’s union’s suggestion. See id. at 1112 (citing U.S. Dep’t of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. at 655). The FLRA’s summary assertion that these decisions were irreconcilable and thus evidence of the de minimis exception’s unpredictability thus lacks merit. The FLRA’s other examples are more of the same. For instance, the agency speciously summarizes one of its decisions as holding that “[r]equiring [an] employee to give up a ‘second’ office while keeping [his] primary office” was “more than de minimis” and another as determining that “moving an employee permanently to a vacant office [was] held not to be more than de minimis.” Dep’t of Educ., 71 F.L.R.A. 969 n.14 (first citing U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & Missile Sys. Ctr., Detachment 12, Kirtland Air Force Base, N.M., 64 F.L.R.A. 166, 173–74 (2009); and then citing Nat’l Treasury Emps.’ Union, Chapter 26, 66 F.L.R.A. 650, 653 (2012)). But these decisions too are readily distinguishable on their facts. U.S. Department of the Airforce concerned an employer’s decision to downsize the workspace of a trainer who was a member of the relevant collective <mask>. 64 F.L.R.A. at 173–74. In that case, the FLRA held that the employer’s decision to downsize the trainer’s primary office at the same time it took away a second workspace that he had used to conduct certain face-to-face training and store equipment— changes made on short notice and without relocation assistance—when viewed alongside problems with the new workspace, constituted a more-than-de minimis change. See id. In stark contrast, National Treasury Employees’ Union, Chapter 26, was not about the reassignment of a union employee at all; instead, it concerned a union’s challenge to an employer’s decision to assign an employee outside the bargaining unit to a vacant workstation in the same office as employees in the bargaining unit. 66 F.L.R.A. at 652–53. Unsurprisingly, the FLRA held that the mere presence of an employee outside the bargaining unit in the same office as unit members had only a de minimis effect on the union employees’ conditions of employment. Id. at 653. Once again, the FLRA’s evidence of an irretrievably broken standard falls flat. As this court observed once before, “there is little indication that the de minimis exception” has created the sort of “confusion” the FLRA now claims. AALJ, 397 F.3d at 963. Rather than demonstrate such confusion, the examples that the FLRA cites to frame the problem it seeks to address seem to us to demonstrate rigorous application by the FLRA of a fact- intensive standard to varying factual contexts. Put another way, far from demonstrating the de minimis standard is unworkable, the FLRA’s policy statement simply appears to demonstrate how it works. B The FLRA’s condemnation of the de minimis test also fails to grapple with the agency’s own past policy choices and this court’s decisions upholding them. In the policy statement under review, the FLRA insists that the agency’s initial adoption of the de minimis threshold back in 1985 was insufficiently explained and reasons that this initial failure supports the 2020 policy change. In this regard, the FLRA explains that the agency had used a substantial-impact standard for a few years before it adopted the de minimis threshold in 1985. And it calls the decision to discard the substantial-impact standard in favor of the de minimis threshold “specious” for failing to “provide any rationale as to why the substantial impact standard was incorrect.” Dep’t of Educ., 71 F.L.R.A. at 970 n.24. The FLRA further suggests that if a rigorous statutory analysis had been done in 1985, the agency would have discovered that “the de minimis standard is inconsistent with the purposes of the Statute.” Id. at 971. Thus, the FLRA seeks to cast its policy change as merely correcting thirty-five-year-old procedural and interpretive errors. That rationale cannot withstand scrutiny. It is true that before it adopted the de minimis exception in 1985 the FLRA had applied a substantial-impact standard like the one at issue here, apparently as a carryover from the executive-order regime that governed public-sector labor relations before the enactment of the Labor-Management Relations Statute in 1978. But the mere fact that the FLRA briefly used a substantial- impact standard soon after the agency’s creation does not provide inherent support for the present decision to discard thirty-five years of intervening precedent and return to that past policy. Indeed, Executive Order 11491, which governed before the Labor-Management Relations Statute, did not require bargaining at all. Instead, it directed agencies to “meet . . . and confer in good faith with respect to personnel policies and practices and matters affecting working conditions, so far as may be appropriate,” Exec. Order No. 11,491 § 11(a), 3 C.F.R. (1966-1970), which is in marked contrast to the Labor-Management Relations Statute’s requirement that agencies bargain over “any condition of employment,” 5 U.S.C. § 7114(b)(2); see also Nat’l Fed’n of Fed. Emps. v. FLRA, 369 F.3d 548, 554 (D.C. Cir. 2004) (“Congress passed the Federal Labor Relations Act to encourage collective bargaining between federal employees and their employers.”). And the FLRA has itself recognized that the Labor-Management Relations Statute is more protective of collective bargaining than was the Executive Order and practice thereunder. See Dep’t of Educ., 71 F.L.R.A. at 974 & nn. 42–44 (DuBester, dissenting). Furthermore, the FLRA’s characterization of its earlier decisions as lacking explanation for its adoption of the de minimis exception is misleading. In fact, as the dissenting Commissioner points out, id. at 974–75 (DuBester, dissenting), those earlier decisions expressly considered the question, and in light of Congress’s clear purpose of expanding public-sector bargaining rights, the mid-1980s FLRA specifically “rejected the ‘substantial impact’ test” in favor of the de minimis exception, Dep’t of Health & Human Servs. Soc. Sec. Admin. Chi. Region, 15 F.L.R.A. at 924. What is more, the agency explained back then that it was rejecting the substantial-impact threshold both because the de minimis test struck the correct balance between government efficiency interests and labor rights, see Dep’t of Health & Human Servs. Soc. Sec. Admin. Reg. V, 19 F.L.R.A. at 834 (McGinnis, concurring), and because “[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations also demands that the [FLRA] not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations,” Dep’t of Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. at 406–07. And the FLRA has since reiterated the view that the de minimis standard is “the appropriate threshold” under the relevant statutory provisions. Soc. Sec. Admin. Off. of Hearings & Appeals, 59 F.L.R.A. 646, 653 (2004), aff’d, AALJ, 397 F.3d at 964. To be sure, the FLRA’s reasons for replacing the substantial-impact standard with the de minimis exception back in the mid-1980s were not tidily arranged in a single decision. But the FLRA’s present assertion that the agency had offered no “explanation or rationale to support the change” from the substantial-impact test to the de minimis standard, Dep’t of Educ., 71 F.L.R.A. at 970, is simply incorrect. Notably, even if the FLRA had failed to provide an adequate explanation for its adoption of the de minimis standard more than thirty-five years ago, any such failure would not absolve the agency of its present-day responsibility to explain its decision to jettison the precedents that apply the de minimis threshold. The FLRA cannot point to a latent and unchallenged purported defect in the original adoption of its prior policy and offer that as an independent basis for adopting a new one. Rather, the decision to adopt a new policy must be sufficiently explained on its own terms, because “[i]n administrative law, as elsewhere, two wrongs do not make a right.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 928 (D.C. Cir. 2017). We have long held that “we cannot condone the ‘correction’ of one error by the commitment of another,” id. (quoting Gray v. Mississippi, 481 U.S. 648, 663 (1987)), and we decline to do so here. Finally, to the extent that the FLRA now asserts that the de minimis standard must go because it is categorically “inconsistent with the purposes of the [Labor-Management Relations] Statute,” Dep’t of Educ., 71 F.L.R.A. at 971, that contention is plainly contrary to this court’s past interpretation of the statute. In AALJ, for instance, a union challenged the FLRA’s application of the de minimis exception to a new category of management decisions. The agency argued the exception was inherent in the statute, and thus urged us to hold that collective bargaining was not required for a de minimis change to conditions of employment. We agreed, concluding that an exception for de minimis effects on conditions of employment is “inherent in” the statute and thus “neither contrary to the text nor unreasonable in light of” the Labor-Management Relations Statute’s purpose. AALJ, 397 F.3d at 959, 962. Our holding in AALJ is a clear recognition of the appropriateness of a de minimis exception to the duty to bargain, as a matter of law. Thus, when the FLRA nevertheless reached the conclusion that the de minimis test is not “appropriate” for determining whether the duty to bargain is triggered, Dep’t of Educ., 71 F.L.R.A. at 971, it not only ignored its own decisions outlining the reasons for its adoption of the de minimis exception in the first place, but also “departed from precedent” that had expressly decided that the de minimis exception is consistent with the Labor-Management Relations Statute, AFGE 2020, 961 F.3d at 459. For this reason, too, we conclude the need for the policy change “is not sensibly explained.” Id. (internal quotation marks omitted). C Up to this point, we have focused on the deficiencies in the FLRA’s reasons for its conclusion that the de minimis standard was so problematic that it needed to be changed. Beyond the various ill-defined reasons that the FLRA offers for departing from the de minimis threshold, the policy statement under review also undertakes to explain why the FLRA now prefers the substantial-impact standard. The FLRA points to two principal reasons for this decision. And, once again, neither is sufficiently explained. The FLRA first heralds the substantial-impact standard’s bona fides by suggesting that it draws “a line that is meaningful and determinative” for agencies and their employees seeking to navigate labor negotiations. Dep’t of Educ., 71 F.L.R.A. at 970. And in its brief the FLRA further contends that its finding that the new standard will be more predictable and administrable is “precisely the sort of predictive judgment” to which this court must defer. FLRA Br. 63. But neither the FLRA’s challenged decision nor its brief on review analyzes the relative administrability of the substantial-impact and de minimis standards. This is a critical “gap in [the FLRA’s] reasoning[.]” AFGE 2020, 961 F.3d at 459. And the FLRA simply ignores the guidance and elaboration provided in its own opinions. See, e.g., Dep’t of Health & Human Servs. Soc. Sec. Admin. Region V, 19 F.L.R.A. at 834–35 (McGinnis, concurring) (identifying five factors informing application of the de minimis standard). It is especially striking that the FLRA does not provide a comparative analysis of the two standards or in its policy statement even argue that the substantial-impact standard used by the National Labor Relations Board (NLRB) in the private- sector context has in fact led to more predictable results, since, as noted above, the FLRA frames inconsistent application as the principal problem the new standard is designed to fix. There is no obvious reason to expect that labor unions and employers will disagree less frequently about whether any given management decision has a “substantial impact” on conditions of employment than they previously did over whether such a decision had a more than de minimis effect. But see Dep’t of Educ., 71 F.L.R.A. at 971. Indeed, these two standards share many characteristics that might lead one to expect just as much disagreement—and, for that matter, just as many “differences of opinion among arbitrators, judges, and the [FLRA] as to what matters affect conditions of employment sufficiently to require bargaining[,]” id. at 969 (internal quotation marks omitted)—when the substantial-impact threshold is applied. See also id. at 973–74 (DuBester, dissenting) (“The majority fails to explain how adoption of its new standard will produce decisions that are any less fact- dependent than those applying the current standard.”). Thus, the new standard that the FLRA has adopted is not the sort of “common sense” measure for “advanc[ing the decision’s stated] goals”—here, predictability and streamlined administration—that we have found adequate to withstand arbitrary and capricious review. Free Access & Broad. Telemedia, LLC v. FCC, 865 F.3d 615, 618 (D.C. Cir. 2017). To address this obvious shortcoming, the FLRA argues for the first time in its brief that the new substantial-impact standard will have more predictable results because the FLRA will be able to draw on fifty years of NLRB decisions applying the substantial-impact test. The FLRA does not explain in its brief or otherwise why the NLRB’s substantial-impact decisions would be easier to apply than the FLRA’s own thirty- five years of precedents using the de minimis test. But, regardless, this argument is forfeit because it was not raised “where it counts”—i.e., in the challenged decision itself. AFGE 2020, 961 F.3d at 457; see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“[C]ourts may not accept appellate counsel’s post hoc rationalizations for agency action.”). What remains is the FLRA’s bald assertion that its own “determination that the substantial impact test would draw a line that is [more] meaningful and determinative is precisely the sort of predictive judgment to which this [c]ourt accords heightened deference.” FLRA Br. 63 (internal quotation marks omitted). We fully recognize that we must defer to expert agencies’ “reasoned predictions about technical issues[.]” BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 (D.C. Cir. 2008). But there is nothing technical about the predictability assessment that the FLRA makes here, and we are not bound by the FLRA’s conclusory and counterintuitive assertions about the consistency with which its new standard is likely to be applied in subsequent adjudications, especially when the record contains no factual basis for making such a forecast. With respect to its consistency concern, the FLRA must at least explain why and how it has concluded that the substantial- impact threshold is “better” than the standard it was relinquishing. Fox Television, 556 U.S. at 515. It has failed to do so. The FLRA’s final tack is to invoke the NLRB’s longstanding use of a substantial-impact standard in the private-sector context, as an independent reason for the FLRA’s adoption of the same collective bargaining threshold. The FLRA’s policy statement asserts that, because “collective bargaining in the public sector” under the Labor-Management Relations Statute “must be narrower” than in the private sector, “[i]t is incongruous . . . [to apply] a standard more lenient than the test applied by the [NLRB] . . . to determine whether a change requires bargaining.” Dep’t of Educ., 71 F.L.R.A. at 970. In its brief, the FLRA adds that it is not just permitted but indeed required to consider NLRB precedents when it administers parallel provisions of its statute; in this regard, it points to our instruction that “when the [FLRA] departs from a familiar principle rooted in private sector precedent, it should either identify ‘practical distinctions between private and governmental needs’ that justify the departure, or offer some evidence in the language, history, or structure of the statute suggesting that Congress intended a different result.” AFGE v. FLRA (AFGE 1988), 853 F.2d 986, 992 (D.C. Cir. 1988) (citation omitted). But NLRB precedent cannot save the FLRA’s unreasoned and unreasonable determination to import the substantial- impact standard. To start, the FLRA flips the controlling question on its head. Unlike in AFGE 1988, we are not being called upon to review a decision to part ways with NLRB precedent in the first instance. Instead, we are evaluating the FLRA’s recent departure from its own longstanding precedents that since the 1980s have struck a balance that is different from the NLRB’s decisions. In other words, the baseline for our review is the FLRA’s longstanding and repeatedly reaffirmed decision to diverge from NLRB policy, which makes AFGE 1988’s explanation of what the FLRA must do to rationalize a new departure from NLRB precedent inapposite. The FLRA’s decision to adopt the NLRB’s substantial- impact test also fails to account for the agency’s own past assessments of how the differences between the public-sector and private-sector bargaining contexts inform the appropriate bargaining threshold. We have previously cautioned that the FLRA must “be careful to appreciate fully those distinctions between the private and public sectors that might necessitate a different legal analysis and conclusion” with respect to collective bargaining, since “the bargaining status of any given subject is determined by different statutory provisions and by different policy considerations.” Library of Cong. v. FLRA, 699 F.2d 1280, 1287 (D.C. Cir. 1983). The FLRA apparently took those distinctions into account in its 1986 decision in Department of Health & Human Services Social Security Administration, when it acknowledged the NLRB’s substantial-impact standard was “similar[]” to the FLRA’s de minimis exception, 24 F.L.R.A. at 406 n.1, but nevertheless opted to apply the de minimis standard. Critically, that decision highlighted “[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations[,]” and observed that this context “demands that the [FLRA] not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations.” Id. at 406–07 (emphasis added); cf. Library of Cong., 699 F.2d at 1287 & n.33 (explaining that “[t]he scope of collective bargaining is far broader in the private sector,” in terms of the categories of conditions subject to bargaining, since the Labor-Management Relations Statute “exclu[des] from the scope of federal sector bargaining [] matters provided for by federal statute, such as the pay rate or hours of employment”). Thus, the FLRA has held in the past that the relative substantive narrowness of the public-sector bargaining mandated under the Labor-Management Relations Statute in fact supports the de minimis standard notwithstanding the NLRB’s more stringent bargaining threshold. See Dep’t of Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407. That conclusion is precisely the opposite of the one that the FLRA reached here. The agency now ignores its earlier balancing of the factors unique to public-sector bargaining and fails to address the reasons that it previously found persuasive when it decided to select a test that differs from the one that pertains to private-sector bargaining. We conclude that, whatever the virtues of the FLRA’s present analysis concerning the statutory scheme for public- sector bargaining relative to its private-sector counterpart (which we do not here decide), the FLRA must acknowledge that in the past it reached the opposite conclusion about the need for congruity between the public- and private-sector bargaining thresholds. Thus, “[i]t is not enough” for the agency to now rest on abstract invocations of the “narrowness” of public-sector bargaining or “rely vaguely on [it]s general duty to interpret the statute with government efficiency in mind.” AFGE 1988, 853 F.2d at 993. Rather, the FLRA’s adoption of the substantial-impact threshold after it previously and specifically rejected that standard must be built on a more “solid foundation,” id., including an explanation of the agency’s view of why the new approach better comports with all of the provisions that Congress enacted to govern collective bargaining in the public sector. See, e.g., 5 U.S.C. § 7101(a)(1)(B) (finding that collective bargaining “contributes to the effective conduct of public business”). The FLRA’s failure to address its previous balancing of the Labor-Management Relations Statute’s priorities—a balancing that led it to adopt a different policy than that of the NLRB—is yet another indication that the FLRA has not, in fact, “engage[d] in reasoned decisionmaking.” Fred Meyer, 865 F.3d at 638; see 5 U.S.C. § 706(2)(A). CONCLUSION The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious for the reasons explained above. Consequently, the unions’ petitions for review are granted and the FLRA’s September 30, 2020 general statement of policy is vacated. So ordered.


The alleged loss of <mask> positions does not, by itself, constitute a violation of clause (v). Petitioners must also show that the loss of a particular bargaining unit position was the result of a particular assignment of WEP participants who performed, in whole or in part, the work normally performed by a specific Parks Department employee in such a position. Petitioners have not done so.


Plaintiff and some 21 others are entitled to declaratory and injunctive relief in this action. However — while plaintiff did commence this action as a class action on behalf of herself and "all other instructional personnel employed by the Board of Education of the Gates Chili Central School District, similarly situated” — it does not appear, from the papers before this court, that plaintiff has yet moved for class certification (CPLR 902), nor is it clear that the alleged class is sufficiently large to warrant such relief. However, defendant La Marca, as the exclusive collective bargaining agent, owes a duty to the nonunion members of plaintiff’s <mask>, and his understanding of this is implicit in his answering papers in this action. While such other nonunion members have not formally appeared, and class certification has not been granted, any relief afforded plaintiff herein should be equally available to the other nonunion members of her bargaining unit. Defendant La Marca is accordingly directed to notify the court, within 20 days after this decision, whether he will stipulate to comply with the direction of this court with respect to the other nonunion members of plaintiff’s bargaining unit. In the event that he does not so stipulate, this decision shall be without prejudice to plaintiff’s right to move to reopen the judgment, to move for class certification, and shall further be without prejudice to the right of each nonunion member of plaintiff’s bargaining unit to be joined or to intervene in this action individually; and further, in such event, defendant La Marca shall mail a copy of the decision herein, and of all subsequent orders and other papers in this *257action, to each such nonunion member of plaintiffs bargaining unit at his last known business address.


The New York City Collective Bargaining Law (Administrative Code of City of NY, tit 12, ch 3 [NYCCBL]) holds that it is an improper practice for a public employee organization “to breach its duty of fair representation to public employees” (NYCCBL § 12-306 [b] [3]). It is well established that the duty of fair representation is breached “only when a union’s conduct *822toward a member of the collective <mask> is arbitrary, discriminatory, or in bad faith” (Vaca v Sipes, 386 US 171, 190 [1967]). “[irresponsible or grossly negligent conduct may [not] form the basis for a union’s breach of the duty of fair representation” (Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430, 432 [3d Dept 1987] [internal quotation marks omitted], affd 73 NY2d 796 [1988]). Instead, “there must be a showing that the activity, or lack thereof, which formed the basis of the charges against the union was deliberately invidious, arbitrary or founded in bad faith” (Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359, 360 [1st Dept 1998] [internal quotation marks and citation omitted]). “[A] union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness . . . as to be irrational” (Air Line Pilots v O’Neill, 499 US 65, 67 [1991] [internal quotation marks and citation omitted]).


Of the several articles alleged to be violated, the respondents present only section 2 of article 6 to support their position in this proceeding. It provides that: "All professional employees within the <mask> agree to perform their employment in a responsible and professional manner; therefore no professional employee shall be discharged, reduced in rank, or deprived of fringe benefits except for just cause.” Utilizing the language of this section, the Association contends that the failure to rehire Moriarity and appoint him on tenure at the end of his probationary period constitutes a "discharge” and that the reasons given do not establish "just cause” for such discharge.


Although urging that the merits are not now an issue, the respondent nevertheless argued them. The second phase of the case required me, therefore, to go into the merits of the application as if the matter were before me as an original proposition, and this I did. Without question, the board’s findings are supported by substantial evidence and accordingly are conclusive, and the board’s determination may not be disturbed since it is not arbitrary or capricious or contrary to law. But it is claimed by the respondent that, shortly after the commencement of the representation proceeding, an employers’ association — which had been quiescent after 1943 — became reactivated, that during its prior existence it was the <mask> for its members, and that the revived organization is now the proper bargaining unit, not the single employer before the board. However, there is no explicit statement in the answering affidavit that the purported reactivated association is authorized to bargain collectively for and on behalf of its members.


The petitioner has alleged that he is owed payment for accrued unused compensatory, vacation and sick time earned prior to November 6, 1992, when he was a patrolman and sergeant in the collective <mask>, and unused vacation time since that date as Chief. He contends that section 207-m of the General Municipal Law requires the respondent to furnish all forms of benefits available to his subordinates, which include payment for unused benefit time. He further contends that the respondent has denied him his due process and equal protection rights under the New York State and United States Constitutions.


Petitioner contends that PERB’s decision to conduct a "secret mail ballot” was arbitrary and capricious. Petitioner argues that PERB failed to consider the feasibility of an on-site election. Petitioner contends that an on-site election would have been feasible and the preferred method since the 108 workers in the proposed <mask> reported to work at one location over three shifts. Petitioner argues that a mail ballot should be utilized only when the employees eligible to vote "worked a variety of shifts in scattered locations” (Mc-*999Dermott & Co. v National Labor Relations Bd., 571d 850, 855).


To understand what that means requires a brief overview of SFP § 13-218.1. The crux of that provision is the requirement that a unit of State government that is subject to the general procurement law must communicate with its employees’ collective <mask>. More specifically, at least 60 days before the issuance of a solicitation for a service contract, the unit must provide the exclusive representative of the employees who may be affected by the service contract with written notice and, since the enactment of H.B. 158, a reasonable opportunity to meet and discuss alternatives to the service contract. SFP § 13-218.1(b)(1). It is clear, then, that the Universities must similarly give affected employees advance written notice and a reasonable opportunity to meet and discuss alternatives. Although the timeline need not necessarily be identical (i.e., 60 days), S.B. 342 obligates the Universities to include in their procurement policies a notice-and- conferral requirement that resembles this statutory timeline if at all practicable. That is, if the Universities depart from that timeline in their policies, they must be able to explain why there was no practicable way to provide 60 days’ notice.


PERB, over the Nursing Home’s objection, authorized an election by "secret mail ballot”. The Nursing Home wanted an on-site election. The Nursing Home, as requested, provided PERB with a list of the names and addresses of the employees who were included in the proposed <mask>. Ballots were mailed by PERB to such unit members on July 20, 1990. Ballots, in order to be counted, were required to be returned by mail and received in the Latham, New York, post office addressed to PERB not later than 9:00 a.m. on August 9, 1990. The ballots were counted by PERB at 11:00 a.m. on August 9, 1990. The initial tally showed 42 votes in favor of union representation and 40 votes against union representation.


“such assignment would not result in (i) the displacement of any currently employed worker or loss of position (including partial displacement such as reduction in the hours of non-overtime work, wages or employment benefits) or result in the impairment of existing contracts for services or collective bargaining agreements; (ii) the employment or assignment of a participant or the filling of a position when . . . the employer has terminated the employment of any regular employee or otherwise reduced its workforce with the effect of filling the vacancy so created with a participant assigned pursuant to this section; . . . (iv) the performance, by such participant, of a substantial portion of the work ordinarily and actually performed by regular employees; or (v) the loss of a <mask> position as a result of work experience participants performing, in part or in. whole, the work normally performed by the employee in such position” (Social Services Law § 336-c [2] [e]). I


The remedy formulated by the administrative law judge directed Grower to cease and desist from failing to provide information and from failing to bargain. He also directed Grower to make information available to the Union and to make the <mask> members whole for all losses in wages and fringe benefits they reasonably suffered as the result of Grower's refusal to bargain, for the period of September 27, 2012, to May 24, 2013 (i.e., the date of the first mandatory mediation session), plus interest.


Delta-Sonic seeks to avoid each of these alternative resolutions of this case by interposing two arguments. First, Delta-Sonic protests that the secondary employer activity upheld in Morton (supra) involved customers and suppliers of the employer with whom the union had its primary dispute. The peaceful persuasion was directed at reducing the customers’ and suppliers’ business with the primary employer, not at reducing the customers’ and suppliers’ business with the outside world. Delta-Sonic suggests that a ruling of this court permitting the peaceful handbilling proposed by the Council here would be unprecedented, and would permit unions to select employers as union targets for consumer boycotts on the basis of their economic importance to the community, the ability of such a <mask> to garner press coverage, or other factors wholly unrelated to the targeted company’s involvement in the union’s dispute.


In this instance, petitioner has already exercised its judgment not to engage in the secondary <mask>. As a matter of Federal policy, this freedom of choice must be available to it notwithstanding the hot cargo clause in its agreement with respondent. Respondent, therefore, cannot compel, through arbitration, the 'specific performance called for in the hot cargo clause since it would violate the declared Federal policy on this matter.


An examination of the <mask> cases relied on by the plaintiff or cited within them as authority discloses a common element making for illegality which is absent here: acts tending to create a monopoly. In Klor’s v Broadway-Hale Stores (359 US 207), the defendant chain-store and the defendant manufacturers conspired to limit the plaintiff retailer’s ability to compete with the chain-store, in part, by refusing to deal with the plaintiff. In Northern Pacific Ry. Co. v United States (356 US 1), the railroad sold or leased its land only to those who agreed not to ship their produce or manufacturers over the lines of any other railroad. In Eastern States Retail Lumber Assn, v United States (234 US 600), the defendant conspired to prevent wholesalers from selling to the competitors of the defendant members. In Fashion Guild v Trade Comm. (312 US 457), a case frequently cited by the courts, an organization of creative fabric and clothing designers con*581spired to destroy the competition of those who copied unprotected designs by boycotting those retailers who undertook to sell the copies. In the American Tobacco Co. v United States (328 US 781, 786), the court proceeded on the assumption that "a combination or conspiracy to monopolize has been established”. In United States v Patten (226 US 525, 542), "it was a conspiracy to run a corner in the [cotton] market”. In Kiefer-Stewart v Seagram & Sons (340 US 211), a liquor manufacturer declined to sell well-known branded products to those who did not follow its pricing policy. And in Binderup v Pathe Exch. (263 US 291), the defendant motion picture distributors refused to lease films to an exhibitor in an effort to put him out of business for refusing to allow the defendants to participate in his redistribution business.


There smoulders among us an unlawful condition both distressing and disgraceful. In Harlem, negro leaders, civic, political and clerical, and the local branch of an association dedicated to promoting the lot of their fellows, including elimination of racial discrimination, are fomenting racial discrimination against white men. To the respondent John H. Young and to those individuals and the groups who are led by Young and his fellows, its implications, the sting and degradation, are meaningful. (Sokolsky, Negro Question Has World-Wide Impact, Neiv York Journal-American, Dec. 8,1960; Lewis, Court Broadens Desegregation, Sunday Neiv York Times, Dec. 11, 1960, p. 6E.) They have been its victims. His fellows will not be named, for they are not brought into this proceeding. But as Negroes they know fully what racial discrimination is. And yet as men of dark skin they agitate by word and action— *819speech, print, <mask> and picketing: — to deprive white men of their livelihoods solely because they are white skinned, so as to replace these victims with their selected Negroes. The respondent here and his absent fellows may well ponder the late Governor Alfred E. Smith’s paraphrase distinguishing mortal and venial sin — “ venial to kid the other fellow, mortal to kid yourself”. In that setting, Father Robert I. Gannon’s dislike of the word “ tolerance ”, saying that he wanted acceptance, not just tolerance, should give much food for thought.


In Claiborne, the local chapter of the NAACP demanded action from the city officials of Hattiesburg, Mississippi, to end racial discrimination, threatening a <mask> of white merchants. When their demands were not met, the boycott began. In striking down a judgment against the NAACP under Mississippi law, the Supreme Court first noted the associational character of the boycott which brought it within the protection of the First Amendment.19 The court then observed as follows (_US _, _, 102 S Ct 3409, 3424): “Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” The boycott was successful, at least to the extent of substantially reducing the business of the white merchants — i.e., causing direct *809economic harm to persons other than those from whom action was directly demanded. Nevertheless, and in a situation where prior restraint was not involved, the Supreme Court held that boycott activity protected, citing, inter alia, Organization For Better Austin v Keefe (402 US 415, supra).


The above conclusions are based upon my finding of the following facts: The school year of 1966-1967 marked a change of interest and participation of parents in the affairs of some of their local neighborhood schools. The Board of Education had previously determined through studies that in certain communities, specifically disadvantaged areas, the performance of pupils in those schools was far below the level of pupils in other communities and that there was a definite correlation between the school’s performance and parents’ involvement in the subject schools. The board began an intensive campaign to generate greater parental and communal interest and association in the affairs of those schools where heretofore there had been apathy and a lack of concern and participation. In 1966 the voice of the Harlem community was sounded. Demand was made that the community should have unlimited domination over school personnel with the right of transfer, dismissal, appointment and assignment without regard to examinations, merit system or eligible lists. And in the early part of 1967, at P. S. 36-125 Manhattan, the parents of the Harlem community and others protested against certain aspects of the school and its program and conducted a full <mask> of the school by withdrawing the children from attendance. Protests against the continued service of the principal were so strong that at one point a group in the community had to all intents and purposes locked her in her office. Eventually she asked to be relieved as principal of the school.


The reply of the field workers to the execution of the agreements criticized in Englund was to initiate strikes against the growers on behalf of the UFW. Strike activity was extended to growers subsequently contracting with the Teamsters and has continued until after commencement of this action (see 23 Amer UL Rev 145). A labor dispute though it may encompass some jurisdictional issues is not thereby divorced from the protections of section 807 where the controversy also involves the negotiation of terms and conditions of employment (Nash v Mennan, 279 App Div 609, affd 303 NY 956; see, also, Dinny & Robbins v Davis, supra). Evidence introduced at trial indicates that the efforts of the UFW constitute a bona fide attempt to achieve the improvement of working conditions (see Jones v Demoulas Super Markets, 365 Mass —, supra). In this regard it may be noted that the union’s interest in representing field laborers preceded the execution of the Teamster-grower agreements. Indeed, active *278organizing among grape harvesters dates as far back as 1966 (Englund v Chavez, 8 Cal 3d 572, supra; Almac’s Inc. v Rhode Is. Grape <mask> Committee, 110 R.I. 36, supra; 23 Amer UL Rev 145; 25 Labor LJ 85).


The Attorney-General has reason to believe that there may have been an illegal collective <mask> of the plan, which illegal boycott forced the State to increase its reimbursement rate. The Attorney-General subsequently commenced an investigation of this possible boycott pursuant to his authority under section 343 of the General Business Law. In connection with his investigation, the Attorney-General issued the subpoena herein at issue to PSSNY who thereupon filed the instant motion to quash.


In Englund, the court declined to issue an injunction against UFW picketing demanded by more than 35 lettuce and other vegetable growers under contract with the Teamsters. The growers predicated relief on California’s Jurisdictional Strike Act (Cal Labor Code, § 1115 et seq. [hereafter the Act]) which proscribes strikes and other concerted union activities arising from a jurisdictional dispute. The court grounded its decision on findings that in 1970 the growers in question had entered into five-year contracts with the Teamsters without any prior consultation with the field workers for *276whose benefit the bargaining agreements were ostensibly being consummated and without a good faith belief that the Teamsters represented a majority or even a substantial number of the laborers involved. Indeed, when the field workers were finally advised of the collective bargaining agreements signed on their behalf, "most of the workers refused either to join the Teamster’s union or to sign or ratify the Grower-Teamster agreements” (Englund v Chavez, supra, 8 Cal 3d, at p 579). Therefore, UFW <mask> activities are not subject to attack on the ground that UFW sought to compel employers to bargain collectively in spite of the expressed wish of the majority of workers to be represented by a rival labor organization (cf. Pleasant Val. Packing Co. v Talarico, 5 NY2d 40, supra; Dinny & Robbins v Davis, 290 NY 101, supra; Florsheim Shoe Store Co. v Shoe Salesmen’s Union, 288 NY 188, supra; Metzger Co. v Fay, 4 AD2d 436, supra; it appears that a majority of the contracts examined in Englund were still in force at the time picketing commenced against Waldbaum).


In International Organization of Masters, M. & P. (this defendant) v. N. L. R. B. (351 F. 2d 771, 774, 775, 777), the court made a positive finding that defendant MM&P was a “labor organization ” under the Act guilty of a secondary <mask> even though it was acting on behalf of a local not .so recognized and not subject to the Act. The determinative factor was the international character of defendant’s organization in which it had members who were not supervisors. Having “ employees ” in its union, it was a “labor organization” responsible as any other labor union involved in a secondary boycott. Defendant’s contention that it “was a ‘labor organization ’ insofar as the activities of Local 3 were involved but not such an organization when operating on behalf of its other locals ” was rejected by the court as “it is not inconsistent to hold the parent responsible as a ‘ labor organization ’ if it be an organization in which ‘ employees ’ otherwise have participated, despite the fact that the parent may have engaged in the illegal activities solely for the benefit of its non-‘ employee ’ local * * * It would be anomalous indeed to hold that MMP may be liable for the secondary boycott but that its picketing Local 47 though acting as its ‘ agent ’, may not be. ’ ’


"We found in our investigation that our principal must be removed * * * Our principal is very insensitive to the needs of our community, which happens to be totally black. She made very racist statements during the <mask>. She is a racist. She must go. We cannot have racist people around our children * * * She made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made. "Our children are afraid of her. I think discipline is fine. The child must respect the principal; he or she must respect the teachers. But I mean there is no sense — and our children feel as though they are on a plantation. And there is no reason in 1981 why we should have a principal making such *468racist statements. The teachers of the school have brought to most of our attention that it has been run as a dictatorship, and we do not need a dictatorship in our children’s school * * * They’re being degraded and put down, and it’s all because of a dictatorship with Miss Stevens. "We have exposed the Mollison pollution * * * Since 1975, the quality of education has gone down at Mollison School and Miss Stevens has sat and watched it. She did nothing about it * * * Miss Stevens is insensitive to the children, the parents and the community. We can no longer allow her to destroy our children’s minds.” The Seventh Circuit affirmed the District Court’s finding that such statements are necessarily those of an opinion. It rejected plaintiffs claim that a statement of this nature is libel per se, and further rejected plaintiffs claim that it was actionable because it marked her as unfit to be a principal. The court in Stevens (supra) rationalized the usage of such terms in a realistic approach to contemporary political discourse:


Subdivision (a) of section 10 of the Wagner Act (49 U. S. Stat. 453) vested “exclusive” jurisdiction in the National Board to prevent any of the unfair labor practices the law defined. The word “ exclusive ” was omitted from the Act as amended in 1947 because Title III of the Taft-Hartley Act (§ 301 et seq.; U. S. Code, it. 29, § 185 et seq.) provided for private damage actions for breach of collective bargaining agreements and violation of the so-called secondary <mask> sections of the new law.


In the Bellows case it was held that the store owners who purchased the sign which had been hung by members of a certain union were not parties to a labor dispute between that union and another union which picketed the store with placards setting forth that the maintenance of such sign was unfair to it. Chief Judge Crane held that “ This constituted a secondary <mask> and was illegal,” and further that “ There was here no such unity of interest with'the manufacturer as was developed in the Goldfinger case,” citing Goldfinger v. Feintuch (276 N. Y. 281). It is clear that there is a distinction on the facts between the Bellows case and the instant case. In the former the sign had been sold outright and was installed prior to the picketing while here we are dealing with a burglar alarm system which was installed not as an outright sale but under a leasing agreement with title continuing in the lessor (the firm against which the strike was called), and providing for continuing maintenance and servicing by the lessor. True, the complaining witness Berkowitz herein was not in the same line of business as the National Wiring and Protective Company, Inc., but can it be said that there was not a unity of interest between the two in so far as the leasing agreement is concerned? If the complainant chose to obtain the advantage of a leasing agreement providing for continuous service of the character herein disclosed, is he to be free from whatever burden may flow in case of a labor dispute between his lessor and the latter’s employees who are engaged in the maintenance and servicing of the leased property? In short, is this a case of secondary boycott? If not, the complainant must sustain any incidental inconvenience and damages arising out of a bona fide labor dispute in which the picketing is orderly and peaceful.


Thirdly, the underlying subject matter of the LILCO case, namely, the Arab oil <mask> and the resultant oil shortages, was the object of much media coverage and public concern. The existence and purpose of the lawsuit, as well as its possible financial ramifications, were also widely reported at the time. In such a highly charged environment, and with all those factors considered, it is conceivable that a challenge to the venue of that action could have been made on the basis of prejudicial pretrial publicity as well as upon the claim that a substantial percentage of the prospective jurors had a potentially significant personal interest in the outcome of the lawsuit. In the instant case, however, the court is not faced with a subject of great notoriety and public interest, nor is there presented the question of adverse pretrial publicity.


Section 12(c) of the agreement provides that “ there shall be no lockout, strike, slow-down, work stoppage, picketing or <mask> pending the processing and/or disposition of any dispute hereunder and the remedies of the parties shall be restricted exclusively to the enforcement of the arbitration award. ’ ’ Incorporated in the collective bargaining agreement is a supplemental agreement which repeats these prohibitions. Section 5(a) thereof provides that ‘ ‘ pending the arbitration of any dispute or grievance, there shall be no strikes, * * * picket lines * * * or any other work interference or suspension of any kind or nature ”. This section further provides that it is the intention of the parties that “ all disputes or grievances * * * shall he settled by peaceable and orderly arbitration.” There is no provision in the agreement which sanctions the use of a picket line, or the right of union employees to refuse to cross a picket line, except section 5(b) which reserves the right of the union to refuse to cross a picket line “ established by any other local union affiliated with the International Brotherhood of Teamsters.”


The complaint alleges, in substance, that plaintiffs time-chartered a vessel from the owner of the vessel, Alcoa International, Inc. (hereinafter “Alcoa”); that between June 22, 1961 and July 12, 1961, defendant engaged in activities in Port Arthur, Texas, which were designed to prevent the loading of the chartered vessel by causing the said vessel to be picketed; that the picketing was secondary picketing and constituted a secondary <mask> in that there was no dispute between either the owner of the vessel or the plaintiffs, who were the charterers On the contrary, it is alleged that the dispute was with a corporation related to the owner of the vessel. As a result of the secondary picketing, it is alleged that the vessel was detained in Port Arthur, Texas, the site of the picketing, and the owner of the vessel has a proceeding in arbitration seeking to require the plaintiffs to pay for the detention of the vessel, claiming that the detention was for the charterer’s account under the chartering agreement. The plaintiff charterers have resisted the claim of the owner on the ground that the picketing was against a corporation related to the owner and therefore for the owner’s account. The said issue is presently in arbitration, in accordance with the chartering agreement. The complaint further alleges that, in the event the charterers are held liable, the damages which they will sustain will have resulted from the wrongful acts of defendant, who should therefore be held liable for such amounts as may be awarded in such arbitration.


Moreover, sister State courts confronted with similar controversies arising from the UFW <mask> have affirmed the product picketing conducted even though the goods boycotted were produced by growers under contract with the Teamsters (Jones v Demoulas Super Markets, supra; Almac’s Inc. v Rhode Is. Grape Boycott Committee, supra; C. Comella, Inc. v UFW Organizing Committee, 33 Ohio App 2d 61, supra).


Defendants state that such action was with respect to a public issue to which they were constitutionally entitled to assemble and speak, and that the Attorney-General has given a strained and sinister meaning thereto without any such intention; that there were no concealed refusals to bid under single contracts and no <mask> of single-contract projects. The Association believed that the single-contract provision in the State Education Law is contrary both to public policy expressed in basic law and to the public good. That they expressed in an opinion, which they claim is all the resolution amounted to, as to the policy which plumbing contractors should pursue in reference to this public matter. Under the head of advocacy, the Association claims its right to petition the Legislature, to influence public agencies to adhere to the separate-contract system and to recommend that contractors insist on separate bidding. The question must come down to whether the action of the defendants was, in fact, an agreement to refrain from participating in public work on any other basis.


Differentiation between the protections accorded a message when conveyed by pure speech means as opposed to ideas transmitted by placard or leaflets accompanying picketing has, as already pointed out, traditionally received judicial and legislative recognition (Hughes v Superior Ct., 339 US 460, *293supra; Wise Shoe Co. v Lowenthal, 266 NY 264 — where the court outlawed picketing requesting customers to cease patronizing a primary employer but allowed the distribution of handbills with the same message; see, also, National Labor Relations Act, US Code, tit 29, § 158, subd [b], par [4], cl [i]; Pleasant Val. Packing Co. v Talarico, 5 NY2d 40, supra). Precedents relevant to the injunction of secondary activity have uniformly involved picketing, and the legitimacy of secondary appeals furthered solely by pure speech means has apparently never been tested in the courts of this State or of Federal jurisdiction. Nonetheless, dicta of recent cases provide support for the proposition that a request conveyed to consumers through pure speech, that is, by communication outside the course of picketing, to cease patronizing a secondary employer would be fully protected by the First Amendment. (Honolulu Typographical Union No. 37 v NLRB, 401d 952, supra; see, also, Labor Bd. v Fruit Packers, 377 US 58, supra.) If so, then even assuming arguendo that the union’s statements expressed on placards or otherwise in conjunction with picketing extend beyond the scope of permissible product <mask> activity and are therefore enjoinable, the same does not necessarily apply to messages conveyed through pure speech means by leaflets or banners unaccompanied by picketing.


The Grand Jury minutes fail to show that the defendant instilled a fear in the victim Sawyer, an assistant vice-president of the Bank of North America, that either a strike action, <mask>, etc., injurious to the bank’s business would occur or that the defendant would use or abuse his position as a public servant as required by section 155.05 (subd 2, par [e], els [vi], [viii]). Sawyer’s Grand Jury testimony is illuminating on this issue.


Part of the antecedent debt was represented by his past-due check, which the plaintiff surrendered to him upon the receipt of the note in suit. This check, like the debt it represented, was at most a voidable and not a void obligation of the infant, was capable of ratification, and could be avoided only by the infant himself. As before remarked, the privilege of the infant is a personal privilege, of which he alone can take advantage ; and contracts can be avoided for the infancy of the contractor only by the contractor himself (see Grey v. Cooper, 3 Doug. 65; Keane v. <mask>, 2 H. Bl. 515; Taylor v. Croker, 4 Esp. N. P. C. 187). The drawer, therefore, of a bill of exchange cannot set up the infancy of the payee and indorser as a defense to the action of the indorsee (Grey v. Cooper, supra); nor can the acceptor set up the infancy of the drawer as a defense to such an action (Taylor v. Croker, supra. And see Haly v. Lane, 2 Atk. 181 ; Schouler Dom. Rel. 2 Ed. marg. p. 538, and cases cited). The infant in the present case did not repudiate his check, nor did he in any way seek to avoid it. On the contrary, he made provision for its payment in the indorsed note of the defendant herein. This check must, therefore, be regarded, for all the purposes of this action, as a valid obligation against its drawer. The effect of its surrender, as declared by the court of *26appeals in the following cases, is to make the plaintiffs bona fide holders of the note in suit, and to entitle them as such to a recovery thereon.


The People contend that the defendants were engaged in an illegal secondary <mask>, which was not part of any labor dispute, citing People v. Fleishman (36 N. Y. S. 2d 559), People v. Bellows (281 N. Y. 67), People v. Muller (286 N. Y. 281) and Goldfinger v. Feintuch (276 N. Y. 281); and that if the question of freedom of speech under the Fourteenth Amendment to the United States Constitution is involved, such constitutional right is not absolute, and is subject to such reasonable regulations as are necessary to promote and preserve the public peace (Near v. Minnesota, 283 U. S. 697; Stromberg v. California, 283 U. S. 359; Whitney v. California, 274 U. S. 357 ; Patterson v. Colorado, 205 U. S. 454; Thornhill v. Alabama, 310 U. S. 88; Carpenters Union v. Ritter’s Cafe, 315 U. S. 722; Cafeteria Union v. Angelos, 320 U. S. 293; Bakery Drivers Local v. Wohl, 315 U. S. 769).


The order of the Board was enforced by the court upon two principles, namely, (a) that they acted as principal for the employees of the ‘ ‘ labor organization ’ ’ who struck and compelled the owner of the towboats to capitulate and (b) that a union in which 1 ‘ employees ’ ’ participate, ‘ ‘ whether local or national ” and irrespective of whether “ the workers on whose behalf the union was acting are all supervisors,” is a “labor organization ’ ’ under the Act and may be held guilty of unfair labor practice (p. 173). See also Local 28, Int. Organization of Masters M & P v. N. L. R. B. (321 F. 2d 376), wherein defendant MM&P was held not subject to the Act as a principal because of its nature as an “ association ’ ’ of supervisors, but was held responsible as an agent taking part in a secondary <mask>.


Plaintiffs claimed that defendants had taken tips from its waiters, failed to pay overtime, failed to provide benefits or *543vacation and fired those who had protested such treatment. Plaintiffs organized a <mask> and picketed in front of defendants’ restaurant while supporters of the restaurant held counterdemonstrations. Plaintiffs allege that during this time defendants posted intimidating and threatening posters. The posters warned “workers’ traitors are going to die” and stated that plaintiff Lam, an “evil-hearted,” “bloodsucker,” “slaveholder” and “big Satan,” forced workers to work two jobs, lose their jobs and was destroying the Chinatown economy. During a television interview and at a fundraiser, defendants allegedly referred to plaintiff Lam as “public enemy number 1 in this community” and stated that plaintiff Lam extorted $40,000 from defendant Chan through the Grand Palace Restaurant. The statements regarding extortion were also made in several local Chinatown newspapers and on posters.


The petitioner contends that the subject matter of the investigation, a possible <mask> by pharmacists of the State’s prescription drug plan, is not within the Attorney-General’s jurisdiction pursuant to article 22 of the General Business Law and, therefore there is no authority or relevancy for the subpoena, and further, that pharmacy as a profession is exempt from the Donnelly Act.


The papers in this case make it abundantly clear that the picketing, in the guise of organizational picketing, is in fact recognitional picketing. Its actual purpose is not the organization of employees but rather to coerce the employer to recognize the defendant union as bargaining agent for plaintiff’s employees, without a voice or a vote by such employees in the selection of their bargaining agent. The real purpose of the picketing is clear from the attempts of the defendant union to have plaintiff sign a contract with it as bargaining agent; the threats of a picket line if the plaintiff refused to do so; and the prompt placing of a picket line at the premises where plaintiff was already open for business; and the placing of pickets at buildings on the Thruway not yet completed or open for business. Certainly, the placing of pickets at such buildings could by no stretch of the imagination be regarded as organizational picketing. True, the pickets at such buildings were withdrawn after a complaint was filed by plaintiff with the National Labor Relations Board that the picketing at such buildings constituted a secondary <mask>. However, such withdrawal, under such circumstances, does not alter the ultimate fact, to wit, that the placing of such pickets at such unfinished buildings clearly demonstrated that the purpose of the defendant union was recognitional picketing rather than organizational picketing. At such buildings there were no employees to picket for organizational purposes. Hence, picketing there could have no purpose other than coercion of the plaintiff to recognize the defendant union as bargaining agent. Those picket lines were set up simultaneously with the picket lines still in existence at the buildings where plaintiff is open for business. All the picket lines had a common purpose when originally installed. Its true purpose was thus apparent. That purpose could be nothing but recognition. The withdrawal of the pickets from the unoccupied and uncompleted buildings and the retention of pickets at the places open for business, do not transform the *418original purpose of recognition to one of organization. To permit the original unlawful purpose to be carried out by-continuing a part of the original picket lines, in the guise of organizational picketing, would constitute obeisance to ostensible form and total disregard of reality.


The problem in this ease was how to get the defendant into the courtroom. The court could have secured his presence by the use of force. The defendant in his moving papers asserts that a prisoner <mask> against this court was in progress. (This matter will be discussed separately.) The atmosphere in the prison could well have been tense and confused. To have sent officers into the defendant’s cell to bind and shackle him and deliver him by force could have precipitated a serious riot. The sight of what was taking place could well have had an emotional impact upon the other prisoners with serious consequences. For what it considered sound reasons the pourt refused to employ that method. Mr. Kunstler agreed that the court’s decision not to employ force was both wise and correct under the circumstances.


Matthew F. Coppola, J. By this petition, the Westchester County Pharmaceutical Society, Inc. seeks to quash a subpoena duces tecum served upon it by the Attorney-General. The subpoena seeks information relevant to the Attorney-General’s investigation of whether New York pharmacists participated in a group <mask> of a proposed New York State drug plan. The ground asserted quashing the subpoena is the claim that pharmacists are beyond the scope of the Donnelly Act (General Business Law § 340 et seq.), the statute under which the investigation is proceeding.


In Goldfarb v Virginia State Bar (421 US 773, 788, supra) *545the Supreme Court stated there is a heavy presumption against implicit exemptions. (United States v Philadelphia Nat. Bank, 374 US 321, 350-351.) It gave neither blanket inclusion nor blanket exclusion to the professions, holding that the conduct of mandatory price-fixing was anticompetitive and an unreasonable restraint in interstate commerce, and therefore violative of the act. The court based its decision on the activity and not upon whether it was business, trade or profession. Because of the activity alleged herein, a concerted refusal to deal in the nature of a <mask>, there is no doubt that if the Sherman Act were controlling in this case, it would mandate the denial of this motion. (American Med. Assn. v United States, 317 US 519; United States v Oregon State Bar, 385 F Supp 507.)


whereas, the petroleum companies have eontinuedly robbed the economy of the nation by charging monopoly prices which resulted, for many years, in heavy disbursements of foreign exchange and, in their eagerness to perpetuate their privileges, ignored the laws of the nation and hatched a criminal scheme to <mask> our country, thereby forcing the Revolutionary Government to provide for their intervention.


The court disagrees with the statement of defendant’s counsel, and finds as a fact, that no labor dispute exists either as to the Jones Beach Catering Corporation or as to the Jones Beach State Park and the Long Island State Park Commission. The court finds as a fact that there was an attempt to establish an illegal secondary <mask> against the Jones Beach restaurants by picketing them with signs relating to a strike affecting solely the Brass Rail and the employees of that concern.


The proof here of the surrounding social and industrial con*392ditions, what evils or dangers existed if any, and other important facts from which to determine whether the picketing was peacefully conducted, is meager. Peaceful picketing is entirely lawful if carried on for a lawful purpose (Mills v. United States Printing Co., 99 App. Div. 605; affd., 199 N. Y. 76; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 id. 260); and I should say that, unless there is proof of conspiracy or <mask> or other unlawful means to injure one in his business, inducing customers and others disposed to patronize or trade with another is not unfair or illegal. As the late Chief Justice Taet said in the case of Truax v. Corrigan (supra, 327): “ Plaintiffs’ business is a property right (Duplex Printing Press Co. v. Deering, 254 U. S. 443, 465) and free access for employees, owner and customers to his place of business is incident to such right. Intentional injury caused to either right or both by a conspiracy is a tort. Concert of action is a conspiracy if its object is unlawful or if the means used are unlawful. (Pettibone v. United States, 148 U. S. 197, 203; Duplex Printing Press Co. v. Deering, supra.) ” The learned late chief justice then proceeds to consider whether the means used were illegal; and from what he wrote it may fairly be deduced and inferred that if the means employed constitute “ lawful persuasion or inducing ” and were “ a mere appeal to the sympathetic aid of would-be customers by a simple statement of the fact of the strike and a request to withhold patronage ” (pp. 327, 328), the means might be regarded lawful; but if “ every customer or would-be customer ” is compelled “ to run the gauntlet of most uncomfortable publicity, aggressive and annoying importunity, libelous attacks and fear of injurious consequences, illegally inflicted, to his reputation and standing in the community,” then the law is violated and the intervention of the courts would be warranted. And the late chief justice added, in view of the circumstances in the Truax case: “ Violence could not have been more effective. It was moral coercion by illegal annoyance and obstruction and it thus was plainly a conspiracy.” No one has testified that any violence was used or even threatened here. To appeal peacefully to prospective customers not to patronize a particular business establishment while a strike is in progress, unless accompanied by circumstances tending to a breach of the public peace and good order, or some overt act in furtherance of an unlawful purpose, is fair and proper. Of course, the surrounding circumstances of each case should be given weight and value in determining a particular case as to what constitutes disorderly conduct reasonably tending to a breach of the peace (People v. Nixon, supra, 182, at p. 186); the place where, the manner in which and the tone of speech by which the solicitation and inducing is *393done, are vitally important in all such cases under the penal statute, supra (see, also, People v. Squires, 135 Misc. 214), because, after all, to use a quotation of a distinguished jurist (Brandeis, J., Truax v. Corrigan, supra, dissenting opinion, p. 355), “ It is of the nature of our law that it has dealt not with man in general, but with him in relationships ” in this complex life of ours to-day. The test is what serves best the public interest and not the desires of any individual. There are differences and degrees as to time, place, manner, when and where, and how acts disorderly in their nature might tend to a breach of the public peace; these are the considerations which every record should disclose. (People v. Phillips, 245 N. Y. 401.)


In the Goldfinger case (Goldfinger v. Feintuch, 276 N. Y. 281), Judge Rippey, concurring in part, said: “ Except for the finding of unity of interest, the facts would establish a secondary <mask> and would be illegal. I cannot agree that the plaintiff and the manufacturer were engaged in the same trade or industry.” It is true that the majority opinion took the view that the retailer was in *875the same line of business as well as in unity of interest with the manufacturer, but there was no holding that a unity of interest alone would not have constituted a legal basis for peaceful picketing.


It is clear from these petitions, two of them filed by plaintiff itself, that the parties as well as Local 50 recognize the fact that the National Labor Relations Board is the body invested with primary jurisdiction to compel the cessation of unfair labor practices by either the employer or Local 640. This jurisdiction is exclusive as to acts or conduct which constitute unfair labor practices under the Federal Labor Management Relations Act of 1947 (U. S. Code, tit. 29, § 141 et seq.) or which constitute violations of that act (Garner v. Teamsters’ Union, 346 U. S. 485 ; Weber v. Anheuser-Busch, 348 U. S. 468; Mine Workers v. Arkansas Flooring Co., 351 U. S. 62; Teamsters’ Union v. New York, New Haven A Hartford R. R. Co., 350 U. S. 155). Included in the unfair labor practices which the board possesses jurisdiction to order stopped are peaceful picketing (Garner v. Teamsters’ Union, supra) and conduct amounting to a secondary <mask> (see reference to Capital Service v. Labor Board, 347 U. S. 501, at pages 475 and 476 of Weber v. Anheuser-Busch, supra). Only in exceptional cases may resort be had to a State court instead of to the National Labor Relations Board. Instances of such cases are where the picketing is mass picketing, accompanied by violence, obstructions of streets and highways, and great disorder, in which event the State, under its police power, is permitted to take action through its courts (Allen-Bradley Local v. Board, 315 U. S. 740), or an action for damages for a tort, as to which the Federal act gives no remedy (United Workers v. Laburnum Corp., 347 U. S. 656).


This court cannot agree with the contentions of the petitioner. Although medicine is a profession, the United States Supreme Court has held that individual physicians who engage in or foster a medical <mask> are subject to the proscriptions of the Sherman Antitrust Act (Matter of Hirschorn v Attorney-General of State of N Y., 93 Misc 2d 275, citing American Med. Assn. v United States, 317 US 519). This principle applies with equal force under the Donnelly Act, which has been termed by the Court of Appeals as the "counterpart of the Sherman Act” (State of New York v Mobil Oil Corp., 38 NY2d 460, 463) and by the Appellate Division, First Department, as "New York State’s Little Sherman Antitrust Act” (State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251, 253).


Plaintiffs next contend Defendant's restrictions on permissible locations for speech and expressive activity at the Centers are unconstitutional. They concede these restrictions are content-neutral, but argue they are not reasonable. In addition, Plaintiffs assert they unwarrantedly preclude them from being "outside the entrances of the stores they targeted for their <mask> activity[,]" locations which they claim are "public fora." We disagree.


In the "Tree Fruits” case (supra) the union struck against the packers and warehousemen in Yakima, Washington, which sold Washington State apples to the Safeway retail *1017stores in Seattle, Washington. The union instituted a consumer <mask> against the apples in support of the strike, and placed pickets in front of the customers’ entrances of 46 Safeway stores in Seattle. These pickets wore placards and distributed handbills appealing to the customers and public generally not to buy "Washington State apples”, which was one of a great many food products sold in the stores. The placards stated that nonunion Washington State apples were being sold in the store, and "Please do not purchase such apples” (p 60). The handbill, in major part, asked the public not to buy Washington State apples because they are being packed by nonunion firms, but it clearly and unequivocally made known that "This is not a strike against any store or market” (p 60). Other things were done by the union to indicate that its sole concern was to advise and only request the public not to buy Washington State apples. Picketing was peaceful, noninterfering with ingress or egress into or out of the store or delivery entrances, noninterfering with the store workers, deliverers, deliveries or employees. The picketing hours were considerate of the employees as to the question of crossing picket lines by starting their picketing after the stores opened for business and terminating before the close of the business day. No deliveries were obstructed, and the business of the stores continued otherwise unmolested.


Threats against the manufacturers to withdraw all union men and end all business relations unless the’ demands of the union are complied with constitute no crime; but where the manufacturers are threatened with business annihilation by the malicious use of the <mask>, compelling would-be customers to desist from purchasing from fear, induced by threats that if they do purchase the full power of the union will be used against them to their destruction, the action of the members of the union cooperating therein is illegal. (People v. McFarlin, 43 Misc. 591, 18 N. Y. Crim. 412.)


The complaint and its supporting papers clearly allege organizational activity on the part of the defendant and conduct amounting to a secondary <mask>. The legality or illegality of these acts is covered by section 8 (subd. [b], par. [4], subpars. [i] and [ii] and par. [7]) of the National Labor Relations Act *264(Taft-Hartley Act, U. S. Code, tit. 29, § 158). It is thus clear that this dispute falls within an area which has been pre-empted by the Federal law so as to vest primary jurisdiction with the National Labor Relations Board to compel the cessation of the alleged unfair labor practices of the defendant.


First, defendants urge that the only money paid was for services rendered, the amount paid was the same as that paid *563to the previous contractor, the services were, therefore, clearly worth the amount paid, and consequently no ‘ ‘ property ’ ’ was obtained from the stores within the meaning of section 850 of the Penal Law. The People contend, however, that money was paid by each of the stores in question and that it is immaterial that a quid pro quo was received for the money, citing People v. Fichtner (281 App. Div. 159, affd. 305 N. Y. 864). That case held it to be extortion to obtain money from an alleged shoplifter by threatening him with prosecution, even though the money received was equal to or less than the amount the shoplifter should have paid. Logically that holding may be extended to the instant case, and it was so extended in the charge to the jury. There is, however, a substantial question whether the charge will be upheld in view of the statutory protections which hedge labor’s right to picket. The FicMner case (supra) and the ‘ ‘ property ’ ’ elements of the crime cannot be considered separately from the element which requires that there be a ‘ ‘ wrongful use of force or fear ’ ’ by threat “ to do an unlawful injury ’ ’. As noted above, the theory of the indictment was that the picketing was wrongful and threatened an unlawful injury because General Sanitation and other listed firms though represented to be union were in fact nonunion. The charge was that if those firms were not union the picketing was not advancing unionism, that is, was not for a lawful purpose, but that if they were union the threat to picket could be bona fide. The jury may, therefore, have found defendants guilty on the theory that the firms were union but that the picketing was not in good faith, i.e., was for the illegal purpose of obtaining money. While People v. Hughes (137 N. Y. 29); People v. Barondess (133 N. Y. 649) and People v. Weinseimer (117 App. Div. 603, affd. 190 N. Y. 537), all establish that it is extortion to demand money under threat of a <mask>, strike or other labor sanction, those cases all involved the payment of money in addition to that paid for the service involved. Where, as here, nothing is paid except for services, there would appear to be a substantial question whether the court should not have charged as requested that if the firms were union the threat to picket was lawful and if the payments were for services rendered defendants were not guilty. This was the theory on which the indictment was framed, and in view of the effect that a contrary holding would have on labor’s right to picket for a union shop, there is doubt whether the appellate courts will sustain the judgment on this point.


But the court will not be led down the garden path by absurdity — to declare this matter to have any true legal base as a legitimate labor dispute, thereby entitling the defendants to the benefits or rights allowed by article 22-A of the Labor Law. Not only is fairness in picketing completely lacking in this case, but the coercive methods used by the pickets, their placards, handbills, their shouting at and to customers or prospective customers not to buy from plaintiff but to buy from his competitor around the corner, characterizing and calling plaintiff a murderer, insinuating that plaintiff prescribes to and supports child labor, the misleading and highly equivocal placards which insinuate a strike in plaintiff’s stores without true or clear explanation or delineation, all add up to the illegality and impropriety of the defendants’ picketing of plaintiff’s stores and to its intent at coercion of the plaintiff. This is further clearly indicated by the failure of the defendants’ placards, signs, and handbills to clearly identify plaintiff as a neutral in defendants’ dispute with the primary (unnamed) employer and their failure to in any way clarify the nature of their dispute with the primary employer. (Kaynard v Independent Routeman’s Assn., 479d 1070, 1073; National Labor Relations Bd. v Twin City Carpenters Dist. Council, 422d 309, 314.) The defendants’ appeal to the consumer omits dissemination of that precise type of information deemed essential in "Tree Fruits” (377 US 58, supra) to establish a product rather than a general patronage <mask> of the secondary business (National Labor Relations Bd. v Twin City Carpenters Dist. Council, supra, pp 314, 315) for, a "generally worded” picket sign fails to isolate a dispute and may constitute an appeal for a general boycott against the neutral and secondary party. (Bedding, Curtain & Drapery *1019Workers Union, Local 140, v National Labor Relations Bd., 390d 495.)


It would be ludicrous to suggest the <mask> led to monopolization. By law, with one minor exception, the State, through its designee, the New York Racing Association, runs the only game in town. In the words of the Assistant Attorney-General, "Pari-mutuel betting at racetracks is a completely illegal activity unless permitted by the legislature under very strict controls in this state. The so-called pari-mutuel tax is referred to, even in the pari-mutuel revenue law, as the state’s share of the handle * * * The state is really a partner of the track”. Restraint of trade tending toward monopoly does not exist here.


While petitioner can voluntarily co-operate in a secondary <mask> (Carpenters’ Union v. Labor Bd., supra) it is indicated that it cannot be compelled to do so even though it may be a party to a hot cargo clause. “ There is nothing in the legislative history to show that Congress directly considered the relation between hot cargo provisions and the prohibitions of § 8(b)(4)(A). Nevertheless, it seems most probable that the freedom of choice for the employer contemplated by § 8(b)(4)(A) is a freedom of choice at the time the question whether to boycott or not arises in a concrete situation calling for the exercise of judgment on a particular matter of labor and business policy. Such a choice, free from the prohibited pressures — whether to refuse to deal with another or to maintain normal business relations on the ground that the labor . dispute is no concern of his — must as a matter of federal policy be available to the secondary employer nohuithstanding any private agreement entered into between the parties.” (Carpenters’ Union v. Labor Bd., supra, p. 105; emphasis mine.)


As to the branch of the motion to dismiss the complaint as time-barred, it appears that the action arises under a Texas statute (Rev. Civ. Stat., art. 5154f) making it unlawful for any person or labor union to call, participate in, aid or abet a secondary strike or secondary picketing, or a secondary <mask>. The action was commenced on June 14, 1965, a period of more than three years after the time of occurrence of the acts complained of.


Once it is contracted for and man’s labor is given for compen*323sation, it is fair to assume that the employment on a particular work will continue while there is more work of the same sort to be done, especially where both parties carry out their agreement; but this relationship, necessarily consisting in the exchanging of one thing for another, does not create vested rights in the position with relation to the future work. It has not been claimed that the defendant breached his agreement of employment in any way. The relationship of the employer and the employee and vice versa is not property in se. The relationship is a mere condition incidental to and arising from certain property rights and the interchange thereof. It is a fair inference from all the testimony in this case that the complainant Flynn did that which he had agreed to do with part of the money he received as wages. The defendant made it plain to Flynn that the only way in which he could have kept his job was either by conforming to the first agreement between the parties or entering into a new agreement. Thus, he voluntarily paid back what he owed and continued working for many weeks; and thereby enjoyed the privilege, for such it is — not a vested right — to continue in this gainful occupation. The prosecuting authorities contend that the means selected by defendant to obtain the money constitute unlawful threats to deprive Flynn of his work, by which his right to labor was injured by these compulsory measures. They assert that there was only a color of right on the part of the defendant to discharge complainant, and that since his apparent purpose was unlawful, therefore, the act complained of becomes unlawful, thus bringing the case within the rule of People v. Sheridan (186 App. Div. 211, 212). But the conduct of these parties, taking its legal color and quality more or less from the circumstances surrounding it and the intent or purpose which controls it, as was stated in People v. Hughes (137 N. Y. 29, at p. 39), leads to the inevitable conclusion that the act in question was lawful. Most of the cases cited by the Attorney-General deal with extortion where the individual was threatened that if he did not pay the money demanded employees would be persuaded to absent themselves from work, or to continue a <mask>. The “ intimidating attitude ” and the “ overt act ” were openly combined in these cases, and used by a party who had no contractual relation to the person so threatened. If the case at bar presents an evil practice about which governmental authority may be constitutionally invoked, the remedy is not with the judicial branch of government, but, rather, with the legislative.


An important policy underlying general prohibitions on secondary boycotts is the prevention of the fanning out of labor disputes to third parties not directly involved. In this regard a product <mask> concentrates only on that portion of the secondary employer’s business which would have been disrupted in the event of a successful primary strike (Honolulu Typographical Union No. 37 v NLRB, supra). Or, as the court stated in Tree Fruits (377 US 58, 72, supra): "When *280consumer picketing is employed only to persuade customers not to buy the struck product, the union’s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer’s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally.”