Elkind & Sons, Inc. v. Retail Clerks' Int'l Protective Ass'n

• Decision Date: 06 December 1933
• Citation: 169 A. 494
• Parties: ELKIND & SONS, Inc., et al. v. RETAIL CLERKS' INTERNATIONAL PROTECTIVE ASS'N et al.
• Court: New Jersey Court of Chancery

169 A. 494

ELKIND & SONS, Inc., et al.

v. RETAIL CLERKS' INTERNATIONAL PROTECTIVE ASS'N et al.

Court of Chancery of New Jersey.

Dec. 6, 1933.

Syllabus by the Court.

1. A strike to compel an employer to adopt the "closed shop" plan is unlawful; the object being unlawful, any act in furtherance thereof, including picketing, however "peaceful," is also unlawful and will be enjoined.

2. "Peaceful picketing" is a contradiction in terms. Picketing is militant both in character and purpose. Its purpose, compulsion or coercion, is accomplished only by intimidation. It is, therefore, unlawful and will be enjoined.

3. Inoffensive observers are lawful; militant pickets are not.

4. Chapter 207, P. L. 1926, p. 348 (Comp. St. Supp. § 107—131a), does not in terms legalize picketing, nor is the legislative intent to do so apparent. Picketing in its mildest form is a nuisance which the Legislature is powerless to legalize.

Suit by Elkind & Sons, Inc., and others against the Retail Clerks' International Protective Association and others. On order to show cause.

Decree for complainants.

Harrison & Roche, of Newark, for complainants.

James D. Apostolakos, of Newark, for defendants.

BERRY, Vice Chancellor.

The complainant Elkind & Sons, Inc., conducts a retail shoe store at 707 Broad street. Newark, N. J., and the complainant Miles Shoe Stores, Inc., conducts a retail shoe store at 99 Market street, Newark, N. J. They seek an injunction restraining the defendants from unlawful interference with their business. The matter came on for a hearing on November 14, 1933, on the return of an order to show cause advised by Vice Chancellor Stein on October 27, and the preliminary restraint imposed by that order was continued pending the final hearing. Because of some apparent misunderstanding of the court's decision and the reasons therefor and to avoid further misunderstanding, these conclusions are written.

The complainant Miles Shoe Stores, Inc., operates more than fifty retail shoe stores in the metropolitan area, and the executive offices are in New York City. The bill alleges, and it is not denied, that both complainants have been in business for many years; that their business is conducted on the open shop plan, and that they have had no strikes or labor troubles of any kind before the present controversy; that they have in all particulars complied with the N. R. A. code applicable to their business and, in fact, pay salaries to their employees approximately 30 per cent. higher than those established by that code.

On or about October 19, 1933, the defendant Rosenberg, who is the business agent of the defendant Retail Clerks' International Protective Association, called upon the executives of the complainant companies and "demanded" (Rosenberg's term as used in his affidavit) that they and their employees sign an agreement with the Retail Clerks' International Protective Association to become members of local No. 708 of said association, comply with that association's rules, and employ members of that organization and no others; and to immediately discharge such of their employees as were not members upon pain of strike of their employees, the creation of a boycott, and picketing in front of their respective places of business with placards charging noncompliance with the N. R. A. and unfairness to union labor. The bill charges, and the charges are amply verified, that defendants threatened that "they would cause this strike despite the fact that the employees of Elkind & Sons, Inc. were satisfied with their employment, length of working hours, and salaries received; that they would cause these placards above referred to to be carried in front of the premises in military fashion, through which procedure they would make it impossible for people to come into the store or to see the display in the windows and to make it so generally uncomfortable and impossible to do business as would disrupt the entire organization and cause financial failure of the complainants."

The "demands" were refused, and the defendant Rosenberg then called upon the complainants' employees to walk out. Of the nine employees of Elkind & Sons, Inc., at 707 Broad street, one walked out; and of the ten employees at the Miles Shoe Store, Inc., 99 Market street, four walked out. Immediately the defendants began carrying out their threats, established a line of pickets in front of the complainants' stores with placards as threatened, and, as complainants claim, blocked the entrance to their stores and at times stood in front of the show windows in such a manner as to prevent window shopping. Acts of annoyance and threats of violence are also alleged. At the time the defendants' activities were begun there was no controversy between employer and employees and no known or expressed dissatisfaction on the part of the employees with the terms or conditions of their employment; and no strike and no labor troubles of any kind had ever been experienced by the complainants during all of the years in which they had been engaged in business.

On the return of the order to show cause no answering affidavits were filed by the defendants and none have since been filed; but counsel for the complainant has furnished me with copies of answering affidavits served upon him prior to the return day. While these answering affidavits are not a part of the file in this cause, I have nevertheless examined and considered them, as it is assumed they were intended to be filed.

There are more than fifty of these affidavits. Twenty-five of them are affidavits of non-employees who acted as pickets, and seven of affiants who claim to have been former employees of complainants and who also acted as pickets. There are also affidavits of six police officers of the city of Newark who were on duty in the vicinity of the complainants' stores during the period of the activities forming the basis of the complaint.

The objects of the present strike, as stated in the affidavit of the defendant Rosenberg, are "to endeavor to obtain recognition of the union voluntarily from the employers and also to obtain consent of the employers to hire only our members in connection with their business." (Italics mine.)

The affidavits of the several police officers are to the effect that they observed no violence and heard no threats, but Officer McCarthy says: "In accordance with Sergeant Dougherty's orders I prevented the pickets from blocking the store entrance and kept them moving at all times." Sergeant Dougherty verifies his instructions to that effect. Most of the affiants who were in the picket line aver that there were never more than two pickets "in line" in front of complainants' stores at any one time, and they deny having blocked the entrances or the view of the windows; but it is significant that many of the affiants aver that when they were not in the so-called picket line they went to both stores at various times during the day to observe what was going on. The complainants claim there were many more—crowds, congregated in front of the stores from time to time—and both complainants and defendants claim to have called the police to maintain order.

Each of complainants' stores has a street frontage of only twenty feet or less, and when it is considered that there were at least thirty-two pickets in line at some time during the day, that those not on duty in the picket line were at times acting as observers at one store or the other, and that six police officers were also on hand to preserve order, I think it may logically be inferred that the show of force was sufficient to be intimidating, not only to the employers and employees, but to prospective customers as well. The necessary presence of the police officers accentuated, in the public eye, the militant character of the assemblage.

The purpose of the so-called strike and the object of the defendants' demands was to compel the complainants to adopt the closed shop and employ only union labor. This is evident from the form of the proposed agreement and is confirmed by the affidavit of the defendant Rosenberg. True, the form of the agreement contains some provision respecting working on holidays, but there was no such issue between employers and employees.

Nor, in fact, was there any issue at all until one was made by the defendant Rosenberg. The defendants sought to hide their real purpose behind the pretense that they were seeking to advance the interests of the employees; but this was a service unsought and unasked for by them. It may have been acquiesced in by some, but it was forced upon most of them. The strike agitators were mere volunteers. They sought mainly to advance their own personal interests by demonstrating to their superiors their usefulness in inciting strikes and their ability to enforce their demands. They assumed the role of those aptly characterized by Vice Chancellor Fallon in Bayonne Textile Corporation v. American Federation of Silk Workers et al., 114 N. J. Eq. 307, 168 A. 799, 803, as "inter-meddlers." They have no place in the administration's program for economic recovery.

The law applicable to this controversy cannot, I think, be in substantial dispute. It is claimed by the defendants that their sole offense, if any, is what is termed "peaceful picketing," and that what they have done is entirely within their rights and is specifically authorized by chapter 207, P. L. 1926, p. 348 (Comp. St. Supp. § 107—-131a). I do not, however, take that view of the matter. And picketing is not the only offense with which the defendants are charged. The admitted "demands" of the defendants for the closed shop were unlawful (Hitchman Coal & Coke Company v. Mitchell, 245...