Busch & Sons, Inc. v. Retail Union of N.J., Local 108, C. I. O.

• Decision Date: 01 October 1953
• Docket Number: No. A--512,A--512
• Citation: 99 A.2d 519,27 N.J.Super. 432
• Parties: BUSCH & SONS, Inc. v. RETAIL UNION OF NEW JERSEY, LOCAL 108, C.I.O. et al.
• Court: New Jersey Superior Court — Appellate Division

Page 432

27 N.J.Super. 432

99 A.2d 519

BUSCH & SONS, Inc. v. RETAIL UNION OF NEW JERSEY, LOCAL 108, C.I.O. et al.

No. A--512.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 9, 1953.

Decided Oct. 1, 1953.

Samuel Kaufman, Newark, for plaintiff-respondent (Bilder, Bilder & Kaufman, Newark, attorneys; John M. Kaufman, Newark, on the brief).

Samuel L. Rothbard, Newark, for defendants-appellants (Rothbard, Harris & Oxfeld, Newark, attorneys).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The Chancery Division issued a blanket injunction restraining appellants, labor union and individuals from picketing respondent's place of business. This appeal followed.

Busch & Sons, Inc. is engaged in the retail jewelry business in interstate commerce. It operates three stores in New Jersey, the principal one at 875 Broad Street, Newark, and the other two at High Street and Springfield Avenue, Newark, and in Summit. Out-of-state stores are maintained in Alabama and Texas.

Early in April 1951 appellant Retail Union of New Jersey, Local 108, C.I.O., undertook organizational activities among Busch's employees. At this time there were 37 employees in all in the three stores, and according to appellant Irving Rosenberg, the director of organization of the union, 12 of them had signed applications for membership. Since the union maintained that only certain workers, 15 in number, were eligible for an appropriate bargaining unit, membership of the majority of these provided the basis for its demand to be considered the exclusive bargaining agent of all those in the unit.

On April 9, 1951 Rosenberg wrote to the employer claiming that 'a majority of your New Jersey employees have joined our union and have authorized us to represent them in collective bargaining with you.' The latter requested that the union be recognized as the exclusive bargaining agent of the employees and asked for a conference on the subject. In the afternoon of April 10 such a conference was held.

It appeared that on April 9 the employer had discharged two employees, giving economy as the reason. At the meeting the union claimed that these discharges were on account of union activities and not for the assigned ground.

During the discussion the union presented two demands, one, that these employees be reinstated, and the other, that it be accepted as the bargaining representative of the workers. The company denied that the discharges were for organizational activities. It suggested that an unfair labor practice complaint should be filed with the National Labor Relations Board and asserted that it would abide by the result reached by the board. With respect to recognition as the collective bargaining agent, it maintained that a majority of the employees in the unit it deemed appropriate for bargaining had not joined the union and it proposed that an application be made to the same board for an election to decide the question. The proposals were rejected and an impasse was reached. On April 10, eight of the Newark employees went on strike and with other persons, including, for some time at least, the two discharged workers, began to picket the Broad Street store.

The picketing took on an unlawful character and an application for restraint was made. After hearing, the Chancery Division found it to be unlawful in that it consisted of:

'Mass picketing in front of, and in close proximity to the main entrance of plaintiff's said store and at the rear entrance of plaintiff's said store on William Street in such manner as to block, hinder and prevent persons attempting or desiring to enter or leave the plaintiff's store from entering or leaving said store; massing, crowding and collecting in such manner and in such numbers in front of the main entrance of complainant's said store on Broad and William Street as to intimidate persons having lawful business with plaintiff from entering plaintiff's store; obstructing and interfering with customers or prospective customers of plaintiff, desiring or attempting to enter or leave plaintiff's store, for the purpose of doing business with plaintiff at the said store.'

As a consequence, on October 9, 1951 an injunction was issued restraining this conduct, limiting the number of pickets and regulating the manner of the picketing.

Additional conferences were held in an effort to adjust the problems. The company insisted that the discharges were for economy reasons and asserted that the two youngest employees in point of service were the ones separated from employment, even though they were more competent than some of the others. And it offered to reinstate them and allow the union to designate two others to be discharged in their place. The offer was refused. In addition, there was talk about having the New Jersey State Board of Mediation take charge of the entire matter, including an election, but this too was not fruitful. Here the record to invoke the jurisdiction of the National be reached as to the appropriate bargaining unit, and further that the company wished to invoke the jurisdiction of the national Labor Relations Board for both election and any claim of unfair labor practice in connection with the discharges.

About November 15, 1951 the employer filed a petition with the National Labor Relations Board, seeking an election, and it sought to have the employees of all three New Jersey stores declared to be the appropriate bargaining unit for the purpose. This petition was dismissed. Then a second petition was filed asking for an election in a unit consisting of the employees of the Board Street store.

It appears without dispute that before the second petition was filed the striking employees had been offered the opportunity to return to their employment and had refused to do so.

In any event, a hearing was held on the petition at which, according to the decision of the board of August 18, 1952, 'the employer's president testified, without contradiction, that (a) all strikers had been offered reinstatement and warned that, if they did not return, they would be replaced; (b) that all strikers were, in fact, replaced by December 1951; (c) that all replacements were told, upon being hired or transferred, that they were permanent employees; and (d) that there are no vacancies in any of these jobs.' The board then declared:

'Under these circumstances, we find that the replacements were hired as permanent employees, that they are eligible to vote, and that the strikers, whom they replaced, not being entitled to reinstatement, are not eligible to vote.'

An election was then directed to be held in a bargaining unit consisting of all employees in the Broad Street store, including regular part-time employees, but excluding professional and confidential employees, watchmen, guards and supervisors, as defined in the National Labor Relations Act, 'to determine whether or not they desire to be represented for purposes of collective bargaining by Local 108, Retail Union of New Jersey, Retail, Wholesale & Department Store Union, C.I.O.' And it declared further that the voting eligibles were the employees 'who were employed during the payroll period immediately preceding the date of this Direction of Election, * * * but * * * excluding employees on strike who are not entitled to reinstatement.'

When this determination was made, the union realized that it could not win such an election because none of the employees then in the store were among its members. As a result, it applied to the board to strike its name from the ballot and eliminate it as a party to the election on the ground that it 'does not claim to represent the employees of the employer in the unit found to be appropriate by the National Labor Relations Board in said decision and direction of election * * *.' The employer unsuccessfully resisted the motion, the board declaring that the 'Union's motion is a clear abandonment of its claim to represent the employees of the employer and relieves the employer of any obligation to recognize it as the representative of such employees.' Accordingly, the petition for election was dismissed.

Thereafter the union made no further efforts to organize the company's employees and abandoned its demand for a collective bargaining agreement. However, the picketing continued and on September 12, 1952 counsel for the union and for eight of the strikers and one of the discharged employees wrote to the company stating that 'these employees desire to return to work for you and herewith offer to return to work for you at their former positions.' The letter said further that counsel had been authorized by the union to 'inform you that upon the reinstatement by you of these employees at their former positions with you, all picketing and other strike activities will immediately cease.' The company made no answer and thereafter, according to the union, the only purpose of the picketing was to secure the requested reinstatement.

About the end of September 1952 a supplemental complaint was filed in the Chancery Division reciting the disposition of the matter by the National Labor Relations Board the only avowed present purpose of the picketing, that the purpose was unlawful because it sought the discharge of permanent employees, and praying for a blanket restraint against further picketing. After argument, the court found that the relation of employer and employee no longer existed between the parties and that there was no current labor dispute between them. Accordingly, it banned all picketing. The legal propriety of this injunction is the subject of the present appeal.

When respondent's eight employees went on strike, undoubtedly a labor dispute existed and picketing was proper. The dispute had two aspects: (1) the claim of the union for recognition as bargaining representative of the employees, and (2) the assertion that the discharges were the result of...