Opinion
07-16-1937
INTERNATIONAL TICKET CO. v. WENDRICH et al.
Frederick M. P. Pearse, of Newark, for complainant. Meyer M. Semel, of Newark, for defendants.
Syllabus by the Court.
1. Employees, whether members of ft labor union or not, have a right to strike and to use all lawful means in support of such strike and for the attainment of the lawful objects thereof; but the right is relative,and in exercising it strikers must have due regard to the rights of others.
2. The right to strike does not mean the right to strike with clubs, stones, or other weapons. A legal strike is a peaceable walk out, the voluntary cessation of the striker's employment, in which the employer and those desiring to remain in its employ are left free to continue the operation of the business in a lawful manner and the pursuit of their lawful employment, unmolested.
3. Whenever in the conduct of a strike illegal means are used in support thereof, such as intimidation, threats, and violence, the strike itself becomes unlawful; at least until those illegal acts are discontinued.
4. An employer has the right to run his business on the open shop plan if he desires to do so. He cannot be compelled to adopt the closed shop plan against his will.
5. Such of the employees as are satisfied with their employment have a right to continue that employment unmolested by other employees who are dissatisfied and by others acting in concert with them.
6. The employer has a property right in the services of his employee not to be in fringed by outside interference. There is a corresponding right in the employee to be protected in the exercise of his right to work.
Suit for injunction by the International Ticket Company against Henry Wendrich and others.
Decree for plaintiff.
Frederick M. P. Pearse, of Newark, for complainant. Meyer M. Semel, of Newark, for defendants.
BERRY, Vice Chancellor.
The complainant is engaged in printing amusement, transportation, clothing, and other tickets at 50 Grafton avenue, Newark, N. J. Its plant and equipment have a value of approximately $250,000, and it docs a gross annual business of approximately $300,000. Prior to May 5, 1937, it had more than sixty persons employed at its plant, and on that day a strike of the employees was called by individual defendants representing defendant labor unions, and a large majority of complainant's employees walked out. All of the defendants have participated in the strike activities.
Various acts of intimidation and violence are alleged in the bill of complaint and are amply supported by affidavits. The most outstanding of these acts of violence resulted in one of the complainant's trucks loaded with paper being driven into the Passaic river with consequent serious loss. The defendants uniformly deny any participation in any of the alleged acts of intimidation and violence and claim that the truck in question was overloaded and being driven in violation of law. The defendants Wendrich and Moser admit telephoning the State Motor Vehicle Department, the Police Department of Newark, an inspector of motor vehicles, and the Department of Weights and Measures, complaining that the truck was overloaded. Such concern on the part of these defendants touching a violation of the Motor Vehicle Act, as amended (Comp.St.Supps. § 135—45a et seq.) might, under other circumstances, be highly commendable; but here their object was not enforcement of the law but interference with complainant's business. Moser rather naively suggests that the drivers, Hall and Dochx (who had tried without succcess to escape complainant's striking employees and were finally cornered at the Pennsylvania Railroad freight station, where they left the truck to avoid alleged attempted violence of the strikers) drove the truck into the Passaic river and there abandoned it. It is admitted on behalf of the defendants that complainant's plant has been picketed continuously since the strike was called, although the proofs as to the number of pickets on duty at any one time vary. As to the defendants' participation in the numerous acts of intimidation and violence it may be said, as was said in Bayonne Textile Corporation v. American Federation of Silk Workers, 116 N.J.Eq. 146, at page 165, 172 A. 551, 560, 92 A.L.R. 1450, "the unlawful acts were done in defendants' behalf, and for their benefit, and in aid of the strike promoted by them."
As to the picketing of complainant's plant which defendants seek to justify under the provisions of chapter 207, P.L.1926, p. 348 (Comp.St.Supp.1930, § 107—131a), it is clear that it should be enjoined. The primary object of the strike is the closed shop and hence unlawful. Defendants' affiants stress the fact that the main purpose of the strikeis to compel the complainant to abandon the open shop plan heretofore in vogue and adopt the closed shop plan. Three objects of the strike are stated in defendants' affidavits, higher wages, recognition of the union (whatever that may mean), and the closed shop; but it is insisted by several of the union leaders in their affidavits that the strike will be continued until the closed shop is accomplished. The complainant has already offered concessions with respect to wages and hours of work and has consented to negotiate with the unions with respect to all matters in controversy except the closed shop. The defendants have refused this offer and insist as a condition precedent to any negotiations that the complainants sign a contract providing for the closed shop. In the very recent case of Jordan's Wearing Apparel, Inc., v. Retail Sales Clerks Union, etc., 193 A. 806, Vice Chancellor Stein remarked, "And here we pause to say that an employer cannot be compelled under existing law to enter into contract with any union."
And it seems strange that at this late day it should be necessary to repeat that a strike which has as its object the "closed shop" is unlawful, and that a contract providing for the closed shop is illegal and unenforceable. "The illegality of such contracts is pronounced upon the fundamental principles' of our theory of government, to which monopolies of any kind affecting in any way the utmost freedom of the individual to pursue his lawful trade or business are abhorrent." Baldwin Lumber Company v. Local No. 560, International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, 91 N.J.Eq. 240, 248, 109 A. 147, 150. In Lehigh Structural Steel Company v. Atlantic Smelting & Refining Works, 92 N.J.Eq. 131, at page 136, 111 A. 376, 378, the late Vice Chancellor Backes said: "the principle of the closed shop, i. e., the monopolization of the labor market, has found no judicial sponsor. In whatever form organized labor has asserted it, whether to the injury of employer, or to labor, or to labor unions outside of the fold, the judiciary of the country has responded, uniformly, that it is inimical to the freedom of individual pursuit guaranteed by the fundamental law of the land, and contravenes public policy." In Aimco, Inc., v. Paneswitz, Docket 99, p. 172 (1933), Vice Chancellor Buchanan said: "That purpose (the closed shop) has been repeatedly denounced as unlawful not only by the courts of this state, but also by the Supreme Court of the United States and the courts of practically every other state in the union where the question has been considered." And see Elkind & Sons, Inc., v. Retail Clerks International Protective Association, 114 N.J.Eq. 586, 169 A. 494; J. Lichtman & Sons v. Leather Workers' Industrial Union, 114 N.J.Eq. 596, 169 A. 498; Wasilewski v. Bakers Union, Local No. 64, 118 N.J. Eq. 349, 179 A. 284.
Not for publication.
The object of the strike being unlawful, all acts in support thereof, including picketing, are also unlawful. Bayonne Textile Corporation v. American Federation of Silk Workers, supra, 116 N.J.Eq. 146, at page 161, 172 A. 551, 92 A.L.R. 1450; Elkind & Sons, Inc., v. Retail Clerks International Protective Association, supra; Dorchy v. State of Kansas, 272 U.S. 306, 311, 47 S.Ct. 86, 87, 71 L.Ed. 248, 269; Toledo, Ann Arbor & North Michigan Railroad Company v. Pennsylvania Company (C.C.) 54 F. 730, 737, 19 L.R.A. 387. In Senn v. Tile Layers Protective Union, 57 S.Ct. 857, 867, 81 L.Ed. —, Mr. Justice Butler said: "But strikes or peaceful picketing for unlawful purposes are beyond any lawful sanction. The object being unlawful, the means and end are alike condemned."
Counsel for defendants cites the recent decision of the Supreme Court of the United States in Senn v. Tile Layers Protective Union, supra, in support of his contention that the picketing activities engaged in by the defendants are lawful under chapter 207, P.L.1926, p. 346 (Comp. St.Supp.1930, § 107—131a); but the case is not applicable and does not express the law of this state. It involved the construction of certain sections of the Labor Code of the State of Wisconsin (St.Wis.1935, §§ 103,51 to 103.63), one of which provided that: "Peaceful picketing or patrolling, whether engaged in singly or in numbers, shall be legal" (section 103.53 (l). This decision goes no further than to hold that a statute of the State of Wisconsin, which the highest court of that state had held to justify certain acts of the defendant union, was not in contravention of the Fourteenth
Amendment to our Federal Constitution. It upheld the right of the State Legislature to express by statute the public policy of that state in connection with labor disputes. If the decision had the effect claimed for it by defendants' counsel and was expressive of a federal or national public policy—if the law of Wisconsin were the law of the land—then would the guaranties of personal and property rights under our fundamental law be secured by a veritable "rope of sand." Gulf, Colorado & Santa Fe Railroad Company v. Ellis, 165 U.S. 150, 154, 17 S.Ct. 255, 41 L.Ed. 666. But fortunately it is not the law of the land. Yickwo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045, 29 A.L.R. 1446; Butchers' Union, etc., Co. v. Crescent City Live-Stock Landing & Slaughter-House Company, 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585, 588; Coppage v. Kansas, 236 U.S. 1, 14, 35 S.Ct. 240, 59 L.Ed. 441, 446, L.R.A.1915C, 960; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, 135, L.R.A.1916D, 545, Ann.Cas.1917B, 283; New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747, 753. Nor of the State of New Jersey. Brennan v. United Hatters, 73 N.J.Law, 729, 65 A. 165, 9 L.R.A.(N.S.) 254, 118 Am.St.Rep. 727, 9 Ann.Cas. 698; Snead & Co. v. Local No. 7, International Moulders' Union, 103 N.J.Eq. 322, 143 A. 331. Feller v. Local No. 144, International Ladies Garment Workers Union, 121 N.J. Eq. 452, 191 A. 111. A mere recital of the facts of the Senn Case and a reference to a recent decision of our court of last resort will indicate conclusively that the law of Wisconsin as determined in that case is not the law of New Jersey.
Senn was engaged in performing small tile laying jobs, personally performing almost half of the manual labor required, and usually employing a tile setter and helper, occasionally two of each. Neither he nor any of his workmen were members of the union. Though a competent mechanic in that trade, he was excluded from membership because he took contracts, and because he had not served the apprenticeship required by the union rules. In 1935 he had about forty jobs. His net income was $1,500, of which $750 was attributed to his own labor. The balance, constituting his profit as contractor, was not enough to support him and his family. The defendant attempted to induce Senn to adopt the closed shop in his business and put in force the union scale of wages. This he was willing to do, but the union further demanded that he sign a contract in which he would agree not to work with his own hands on his own contracts. This he refused to do, although he assured the union that when his business was sufficient to justify it, he would refrain from manual labor, and explained that without personally working he could not continue in business. Conceding the truth of that statement, the union nevertheless persistently declined to modify its demands. In this posture of affairs the union began picketing Senn's place of business and engaged in various other activities designed to prevent him from securing any tile laying contracts. He sought an injunction in the Wisconsin courts which was denied, the highest court of that state holding that the controversy between Senn and the union was a labor dispute within the meaning of the Wisconsin statute, and that both the means employed and the end sought by the unions were legal under its law. But neither would be legal under the law of this state. Feller v. Local No. 144, International Ladies Garment Workers Union, supra. The extent of the decision of the United States Supreme Court is indicated by the following excerpts from the majority opinion:
"The judgment of the highest court of the state establishes that both the means employed and the end sought by the unions are legal under its law. The question for our determination is whether either the means or the end sought is forbidden by the Federal Constitution.
"Clearly the means which the statute authorizes—picketing and publicity—are not prohibited by the Fourteenth Amendment. Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution. The state may, in the exercise of its police power, regulate the methods and means of publicity as well as the use of public streets. * * *
"The laws of Wisconsin, as declared by its highest court, permit unions to endeavor to induce an employer, whenunionizing his shop, to agree to refrain from working in his business with his own hands—so to endeavor although none of his employees is a member of a union. Whether it was wise for the state to permit the unions to do so is a question of its public policy—not our concern. The Fourteenth Amendment does not prohibit it."
A comparison of this language of the United States Supreme Court with excerpts from previous decisions of the same court as quoted in the dissenting opinion presents an interesting problem of reconciliation.
And it is a far cry from that language back to Coeur d'Alene Consolidated & Mining Company v. Miners' Union (C.C.) 51 F. 260, 263, 19 L.R.A. 382, where Mr. Justice Beatty said: "Whatever enthusiasts may hope for, in this country every owner of property may work it as he will, by whom he pleases, at such wages, and upon such terms as he can make; and every laborer may work or not, as he sees fit, for whom, and at such wages as, he pleases; and neither can dictate to the other how he shall use his own, whether of property, time, or skill." That high-sounding phrase was written in 1892, forty-five years ago. And while the principles of liberty underlying our fundamental law are still the same, we have gone far since those words were written. The boasted liberty of the citizen and the vaunted security of individual property are no longer what they were. Both employer and employee now dictate to each other "how he shall use his own, whether of property, time or skill." We have become group conscious; are ruled in both business and government by groups and blocs, and organization has been met by organization. It is a question of the survival of the fittest.
But however obnoxious the statement may be to some individuals or classes, it must be admitted that we are a capitalistic nation whose wealth has been built up upon the concept of property and individual right therein. So long as we continue to be a capitalistic nation and individual rights in property are recognized by the fundamental law of the land, protection to those rights must be given by our courts if government and law and order are to continue to exist. Individualism is still recognized and protected by our fundamental law and the "equality" of Bellamy has not yet been accomplished, however desirable for the social well-being it might be. Under our basic law property rights are entitled to the same protection as personal rights. The right of the individual to work at his chosen occupation is both a personal and a property right, and, as such, constitutes his capital as truly as does the money with which his employer creates an industry. And while "neither the rights nor the duties of a person are affected by being placed in the class of either laborer or capitalist" (The Law Relating to Trade Unions, by Sir William Erle, IX), to that extent both employer and employe are capitalists. But the capital of one is useless without the other, and the destruction of the one will spell the annihilation of the other. The capital of both should be used in co-operation to enhance the value of each, but this cannot be done in a foment of discord. It cannot be accomplished by violent physical attacks of the one upon the other. The tactics pursued by the defendants in support of their strike activities are the natural outgrowth of the so-called liberalism of some of our courts in labor disputes, a policy which will eventually bring its own retribution—the inevitable consequences of intimidation, violence, threats of violence, and the general disregard of the rights of others incident to mob rule—the product of mob psychology. Too often the ear of the court is tuned to the voice of the mob rather than to that of reason. By tolerant and temporizing decisions liberty is constantly being judicially lost—within less than half a decade last past more constitutional rights have been sacrificed by supine, tolerant, and vacillating authority than can be regained by a century of reaction. But it has been well said that "there is a point where tolerance shades into weakness," and clearly this is no time for vague temporizing with lawbreakers or vacillation of judicial authority.
A comparison of chapter 207, P.L. 1926 (Comp.St.Supp.1930, § 107—131a), with the Wisconsin statute will show a wide difference in their respective terms. The Wisconsin act is much broader than ours. In fact, our act does not in terms legalize picketing at all. What it does authorize is "peaceably and without threats or intimidation being upon any public street or highway or thoroughfare
for the purpose of obtaining or communicating information." When picketing is sought to be justified under this act, the purpose for which persons are to be unrestrained in "being upon" the public streets must be borne in mind and the act interpreted in the light of the comment of Chief Justice Taft in the Tri-City Case (American Steel Foundries v. Tri-City Central Trades Council), 257 U.S. 184, 42 S.Ct. 72, 76, 66 L.Ed. 189, 27 A.L.R. 360, that: "We are a social people and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other's action are not regarded as aggression or a violation of that other's rights. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. From all of this the person sought to be influenced has a right to be free and his employer has a right to have him free." And while in Bayonne Textile Corporation v. American Federation of Silk Workers, supra, it was said that "picketing is not per se unlawful," but that it "is lawful if it does not have an immediate tendency to intimidation * * * or to obstruct free passage such as the streets afford," it was held that the picketing in that controversy was accompanied by illegal acts and that such unlawful conduct should be enjoined. In view of the constitutional guaranty of the right of free speech, there is perhaps no necessity for legislative action to legalize peaceful picketing, if there is any such thing, but it is rarely that a case arises where picketing is free from unlawful conduct justifying an injunction because "picketing in its mildest form" is said to be a "nuisance," George Jonas Glass Co. v. Glass Bottle Blowers' Association, 72 N.J.Eq. 653, 66 A. 953, affirmed 77 N.J. Eq. 219, 79 A. 262, 41 L.R.A.(N.S.) 445; "peaceful picketing" is a contradiction in terms. Truax v. Corrigart, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360; "'picketing' * * * is a pretence for 'persuasion,' but is intended for intimidation," Union Pacific Railroad Company v. Ruef (C.C.) 120 F. 102, 121; and is usually participated in by such large numbers of strikers and sympathizers as to be impossible of control. It may, of course, be legal or illegal according to its purpose of the manner of its conduct, and this without regard to statute; the question being one of fact to be determined according to the circumstances of each particular case. Gevas v. Greek Restaurant Workers' Club, 99 N.J.Eq. 770, 778, 134 A. 309, and cases there cited. Assuming that in a given case picketing may be peaceful and therefore lawful, it must, of course, be carried on with due regard to the rights of others and particularly to the right of the employer to remain unmolested in the lawful conduct of his business, and the right of the public to be unrestrained and unhampered in its lawful dealings with such employer.
Lest we forget, these propositions may be considered as firmly established by the decisions of the courts of this state:
Employees, whether members of a labor union or not, have a right to strike and to use all lawful means in support of such strike and for the attainment of the lawful objects thereof; but the right is relative and in exercising it strikers must have due regard to the rights of others. And the right to strike does not mean the right to strike with clubs, stones, or other weapons. A legal strike is a peaceable walkout, the voluntary cessation of the striker's employment, in which the employer and those desiring to remain in its employ are left free to continue the operation of the business in a lawful manner, and the pursuit of their lawful employment unmolested. Whenever in the conduct of a strike illegal means are used in support thereof, such as intimidation, threats, and violence, the strike itself becomes unlawful; at least until those illegal acts are discontinued.
The right of the citizen to work at his chosen lawful occupation must remain inviolate.
An employer has the right to run his business on the open shop plan if he desires to do so. He cannot be compelled to adopt the closed shop plan against his will.
Such of the employees as are satisfied with their employment have a right to continue that employment unmolested by other employees who are dissatisfied and by others acting in concert with them.
The employer has a property right in the services of his employee not to be infringed by outside interference. There is a corresponding right in the employee to be protected in the exercise of his right to work.
At common law every person has individually, and the public also have collectively, a right to require that the course of trade should be kept free from unreasonable obstruction. Restraint of the free course of trade in labor controversies by acts of molestation or obstruction, which are not otherwise unlawful, but which operate as a hindrance to the exercise of a trade, and which are done for the purpose of such hindrance without justification, constitute an actionable wrong. Erle, Trade Unions, pp. 6, 20.
These rights are fundamental, and, except as modified, are guaranteed by our basic law. They must all remain inviolate, otherwise law and order will succumb to anarchy.