Opinion
129/21
02-19-1940
MILLER'S, Inc. v. JOURNEYMEN TAILORS UNION LOCAL NO. 195 et al.
David H. Sterner, of Jersey City, for complainant. Isserman, Isserman & Kapelsohn, of Newark, for defendants.
Action by Miller's, Inc., against the Journeymen Tailors Union Local No. 195 and others to enjoin the picketing of complainant's store.
Decree for complainant in accordance with opinion.
Decree affirmed in 15 A.2d 824.
David H. Sterner, of Jersey City, for complainant.
Isserman, Isserman & Kapelsohn, of Newark, for defendants.
FIELDER, Vice Chancellor.
The complainant, a corporation, conducts a shop for the retail sale of men's and boys' clothing. Its president and vice-president are the only salesmen therein and a tailor is its only other regular employee. The defendant Magnapera was employed by complainant as a tailor and while so employed joined the defendant union, which is affiliated with the C. I. O. In December, 1938, complainant entered into a contract with defendant union to employ no one as a tailor who was not a member of said union and Magnapera continued his employment with complainant at the wages and working hours fixed by the contract. The contract by its terms expired October 30, 1939, and on the evening of that day he was discharged. Complainant refused to enter into a new contract with defendant union and made a contract with another union affiliated with the A. F. of L., which contract bears date November 1, 1939, and is similar in its purpose to the expired contract with defendant union. On October 31, 1939, complainant employed a member of the other union to fill Magnapera's place, which new employee has continued working for complainant to the present time. November 2, 1939, Magnapera went on "strike" and has paraded in front of complainant's store during business hours of each day carrying a sign which at first stated, "Miller's tailors on strike for better conditions and for Union recognition" but which was subsequently changed to read, "Miller's tailors locked out", and he has continued to so picket to the present time, being relieved by other members of defendant union.
The joint answer filed by defendants alleges that prior to the expiration of the contract with the defendant union, and in violation thereof, complainant declared a lockout against Magnapera; that because of complainant's refusal to enter into a new contract with defendant union and because of said lockout, the defendants have declared a strike, and in pursuance of said strike have the right to peaceably picket to publicize the existence of their dispute and other grievances claimed against complainant.
Magnapera was not a party to the contract between complainant and defendant union. It may be that he expected to and did obtain a benefit under the contract, but it is not true that complainant locked out or discharged him prior to the contract's expiration.
The question here presented does not involve a strike for higher pay, or better working conditions, or even for recognition of union labor. Such dispute as may be said to exist arose between complainant and Magnapera and it is whether the complainant had the right to discharge him, with or without reason. The owner of a business has the right to select his employees and to discharge them at will, when not bound by contract to act otherwise, and since complainant's contract with defendant union, under which Magnapera might claim a benefit, was at an end, complainant was under no obligation to retain Magnapera in its employ and it had the absolute right to discharge him and hire another man in his place, whether that other man was or was not a member of a labor union, just as Magnapera had the right to quit his job if he felt so disposed. Jersey City Printing Co. v. Cassidy, 63 N. J.Eq. 759, 53 A. 230; Connett v. United Hatters, 76 N.J.Eq. 202, 74 A. 188; Canter Sample Furniture House v. Retail Furniture, etc., 122 N.J.Eq. 575, 196 A. 210.
Having the right to discharge Magnapera if complainant so desired, his discharge cannot be said to have created a lockout or a labor dispute, for Magnapera had no vested right in his job and his job was not kept open but was filled as soon as he was discharged by hiring a permanent employee in his place. He has no job which by a "strike" he can get back or which the defendant union can get back for him, for complainant says its business is going on normally and that it will not make a new contract with defendant union and will not rehire Magnapera. No dispute exists between employer and employee which can be settled by a "strike", and the union had no right to inject itself into the situation by permitting its members to act as pickets, and certainly not for the purpose of forcing complainant to enter into a new contract with defendant union. When the existing contract was at an end, complainant had the right to decide whether or not to renew it and whether or not to enter into a new contract with any labor union. Participation in the "strike" by defendant union for the purpose of compelling complainant to enter into a contract with it or to rehire Magnapera is unlawful. Feller v. Local 144, 121 N.J.Eq. 452, 191 A. 111.
It is complainant's right to conduct its business free from hindrance or obstruction of any kind when it is conducting it in a lawful manner, and picketing even if peaceable is unlawful except as an incident to the existence of a lockout or other labor dispute in which a strike can be justified. International Ticket Co. v. Wendrich, 122 N.J.Eq. 222, 193 A. 808; affirmed 123 N.J.Eq. 172, 196 A. 474; Mode Novelty Co. v. Taylor, 122 N.J.Eq. 593, 195 A. 819; Mitnick v. Furniture Workers, etc., 124 N.J.Eq. 147, 200 A. 553. The defendants claim the right to peaceably picket for the purpose of publicizing the existence of their dispute and the grievance they claim against complainant, but there are no grievances which have a legal basis, therefore no real dispute exists. The signs carried by the pickets tend to mislead the public because both signs refer to "Miller's tailors," thus leading the public to infer that complainant has several dissatisfied employees and the first sign stated that a strike was in progress "for better conditions and for Union recognition," which was untrue, and the second sign stated "Miller's tailors locked out," which was also untrue. Although picketing has been carried on by one person at a time and no disorder has occurred, I cannot escape the conclusion that its purpose was and is malicious and coercive in an attempt to induce complainant's customers and the public to side with defendants in a controversy initiated by defendants, concerning the merits of which complainant's customers and the public have no knowledge and are misled by signs carried by the pickets, and to force complainant through fear of loss of trade to accede to defendants' demands.
Defendants urge that complainant's bill should be dismissed on the ground that complainant has failed to show that it has suffered irreparable injury, or has sustained any damage as a result of the picketing, by which I understand defendants to refer to money injury or damage. The amount of money damage resulting from defendants' acts is impossible of ascertainment. If its receipts have not fallen off since the picketing began, that is no indication that its receipts might not have been greater but for the picketing, or that continued picketing will not affect its future business. An injury is said to be irreparable when it cannot be adequately compensated in damages, or when there exists no pecuniary standard for measuring damages. Inadequacy of damage as complete compensation to complainant results from the nature of defendant's acts, or the nature of the right or property which complainant is entitled to enjoy peaceably. Acts tending to destroy complainant's business, custom, and profits do an irreparable injury and authorize the issuance of a restraint. Scherman v. Stern, 93 N.J.Eq. 626, 117 A. 631; Evening Times, etc., Co. v. American, etc., Guild, 124 N.J.Eq. 71, 199 A. 598. The relief complainant should have is not punitive but preventative. Complainant's business is property, and although for the injury thereto it might have a legal remedy for damages, equity will intervene to prevent a continuing injury when the legal remedy may involve a multiplicity of suits. Barr v. Essex Trades Council, 53 N.J.Eq. 101, 30 A. 881. Complainant is here seeking relief from a continuing tort or nuisance which affects its private rights, and picketing in its mildest form has been said to be a nuisance and, even if not intimidating, should be enjoined when no reason for it exists. Jonas Glass Co. v. Glass Bottle, etc., Ass'n, 72 N. J.Eq. 653, 66 A. 953, affirmed 77 N.J.Eq. 219, 79 A. 262, 41 L.R.A., N.S., 445; Elkind & Sons v. Retail Clerks', etc., 114 N. J.Eq. 586, 169 A. 494.
The complainant is entitled to a decree prohibiting picketing of its place of business by or on behalf of defendants.