Dolan Dining Co., Inc. v. Cooks' & Assistants' Union, Local No. 399, A. F. Of L.

• Decision Date: 18 November 1938
• Parties: DOLAN DINING CO., Inc., v. COOKS' AND ASSISTANTS' UNION, LOCAL NO. 399, A. F. OF L., et al.
• Court: New Jersey Court of Chancery

4 A.2d 5

124 N.J.Eq. 584

DOLAN DINING CO., Inc.,

v. COOKS' AND ASSISTANTS' UNION, LOCAL NO.

399, A. F. OF L., et al.

Court of Chancery of New Jersey.

Nov. 18, 1938.

Syllabus by the Court.

1. Against the employees' right to strike there is a co-relative right in the employer to operate his business on the open shop plan and free from unlawful or unreasonable interference with his management of his own business.

2. Strike activities of organized labor which might be entirely lawful when directed against "big business"—large aggregations of capital employing such numbers of men that the individual workman is a mere number incapable of audible vocal protest—may be unlawful when directed against the small business man employing few men. In such a case the inequality of bargaining power from which was evolved the principle of collective bargaining is completely reversed and the employer is completely at the mercy of the union. He must submit or be crushed. Picketing and other strike activities directed against an owner-employer employing only three men, and which tend to block ingress and egress to the business place and to create disorder will be enjoined.

3. In determining the equality of equity, the wealth and strength of a labor union, rather than that of the few employees whom it represents, will be measured against that of the employer.

Suit by the Dolan Dining Company, Inc., against Cooks' and Assistants' Union, Local No. 399, A. F. of L., and others to enjoin the picketing of complainant's place of business and other activities usually accompanying a labor dispute.

Injunction granted.

Samuel H. Nelson, of Newark, for complainant.

Solomon Golat, of Newark, for defendants.

BERRY, Vice Chancellor.

The bill is for an injunction restraining the defendants from continuing the picketing of complainant's place of business, and enjoining certain other activities usually accompanying a labor dispute.

The complainant owns and operates a lunch wagon or "diner" on Poinier Street, Newark, New Jersey. The entire capital stock of the complainant company is owned by Anthony J. Schneider, the Vice President of the Company, who works in and manages the "diner", and William J. Jernick, who is president of the company. The lunch wagon is located on leased land which has a frontage of only seventeen feet on Poinier Street. The lease for this land expires June 1, 1939. The three individual defendants were, up to October 11, 1938, the only employees of complainant. The defendant Bukowski was the cook; the defendants Day and Rich, countermen; and they are all members of the defendant union. So far as the proofs show none of them ever expressed to their employer any dissatisfaction with their wages or hours of employment; but, without making any attempt to bargain with the complainant, or any demand for higher wages, or shorter hours, although one of the owners was their co-worker in the same room with them, and the other owner was available, they asked Mr. Longo, the business agent of the defendant local, to negotiate with their employer for them. For several weeks the business agent negotiated with complainant, but the ultimate result was negative. The demands were for higher wages, shorter hours and a "closed shop" agreement which was to provide, inter alia, for the employment of additional help. Upon complainant's refusal to enter into a closed shop agreement, and increase the wages of its employees, the business agent went to the "diner" and instructed the employees to go out "on strike". They quit work immediately and walked out. Picketing was immediately begun—the complainant says by four pickets carrying signs— but, according to the defendants, by only two, later reduced to one. It is a fact, however, that at times a considerable number of persons, the complainant claims as many as thirty, apparently sympathizers, congregated and milled around on the sidewalk in front of the "diner", and automobiles remained parked in front, and on either side, of the entrance, continually—an unusual condition plainly attributable to the strike activities. Vile language addressed to complainant's manager, by defendants, or those acting in concert with them, is also charged and complainant claims these activities have resulted in disorder, blocking of ingress and egress, and intimidation of customers and would-be customers. Complainant's affidavits fully support these charges. The average weekly receipts of the business have dropped from $400 to $70. The business is practically at a standstill, and must shut down entirely if these conditions are permitted to continue. The defendants disclaim any responsibility for any of these conditions except the picketing.

There can, of course, be no doubt about the right of complainant's employees to quit work, or "strike", as they say they have done, if they are dissatisfied with the terms of their employment; but it is equally the privilege of the employer to operate his business on the open shop plan if he desires to do so, to fix the minimum wage to be paid to his employees, and to be free from unlawful and unreasonable interference in the management of his business. International Ticket Company v. Wendrich, 122 N.J.Eq. 222, 193 A. 808, affirmed 123 N.J.Eq. 172, 196 A. 474; Canter Sample Furniture House, Inc. v. Retail Furniture Employees Local No. 109, 122 N.J.Eq. 575, 196 A. 210. Both employer and employees are entitled to the full protection of the courts in the enjoyment of their respective rights, but all social rights are relative and must be exercised by one with due regard to the rights of others.

As has been repeatedly said by the courts of this state, picketing may be lawful or unlawful according to the circumstances of each particular case, and ordinarily the presence of one picket in the vicinity of an employer's place of business, a strike being in progress, would not be...