Galler v. Slurzberg

• Decision Date: 07 August 1953
• Docket Number: No. A--255,A--255
• Citation: 27 N.J.Super. 139,99 A.2d 164
• Parties: GALLER v. SLURZBERG et al.
• Court: New Jersey Superior Court — Appellate Division

Page 139

27 N.J.Super. 139

99 A.2d 164

GALLER v. SLURZBERG et al.

No. A--255.

Superior Court of New Jersey

Appellate Division.

Argued June 8, 1953.

Decided Aug. 7, 1953.

Abraham J. Slurzberg, Jersey City, for appellants (August W. Heckman, Jersey City, attorney).

Joseph A. Davis, Jersey City, for respondents (William A. Kaufmann, Hoboken, attorney; O'Mara, Schumann, Davis & Lynch, Jersey City, of counsel).

Before Judges GOLDMANN, SMALLEY and SCHETTINO.

The opinion of the court as delivered by

GOLDMANN, S.J.A.D.

Defendants appeal from an order dated January 26, 1953 granting plaintiffs (hereinafter referred to as 'the company') an interlocutory injunction restraining them from picketing at or near the premises of any of the company's customers.

The company holds an exclusive franchise for the bottling and distribution of a carbonated beverage known as '7-Up' in the Counties of Hudson, Bergen and Passaic. On February 15, 1950 it entered into an agreement with Local No. 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of American, A.F.L., as the collective bargaining agent for the 27 individual defendant sub-distributors, governing the terms, conditions, rules and regulations under which each of them was to distribute and service 7-Up to retailers in his assigned territory. The agreement became operative June 1, 1950 and by its terms was to continue in effect until January 31, 1956, unless sooner terminated. In the early months of 1952 the company conceived that defendants had breached the contract in material respects and had entered into a conspiracy which threatened to destroy its business. Accordingly, on March 10, 1952 it served written notice on defendants of the termination of the contract. Two days later plaintiffs instituted this action seeking rescission of the agreement, $250,000 damages for breach of contract, and an additional $250,000 for losses occasioned by the alleged conspiracy.

Defendants retaliated by picketing the company's Hoboken and Hackensack plants and engaging in other activities of a kind commonly associated with labor disputes, among them approaching its customers (the company has 11,000 retail outlets) and telling them that the defendant distributors were on strike, and also picketing the customers' places of business. On motion the court, by order dated May 9, 1952, permitted the filing of an amendment and supplement to the complaint setting forth these alleged facts and demanding judgment restraining defendants' picketing and other activities. Such a pleading as filed and, after argument, an interlocutory injunction was granted on May 23, 1952. The order recited that defendants were independent contractors, the provisions of the Anti-Injunction Act (N.J.S. 2A:15--51 et seq., N.J.S.A.) inapplicable, and defendants guilty of tortious conduct which had caused and, if continued, would cause substantial and irreparable injuries to the company. It then went on to restrain defendants from picketing at or near the company's plants in Hackensack or Hoboken and also, among other things '(i) from displaying placards containing legends stating or implying that Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F.L., is connected with the defendants in their controversy with plaintiffs, or that plaintiffs are unfair to organized labor, or that plaintiffs have locked out the defendants;

'(k) from picketing at or near the premises of any of the plaintiffs' customers;'

Defendants thereupon appealed from the two orders of May 9 and 23. In Galler v. Slurzberg, 22 N.J.Super. 477, 92 A.2d 89. (October 29, 1952), the Appellate Division held that (1) there was no error in allowing the company to file the supplemental complaint, and (2) the relation of employer and employees existed between the parties, and therefore the injunctive order must be set aside and the record remanded for further proceedings in harmony with the Anti-Injunction Act. The court said:

'* * * When the taking of oral proofs upon controverted issues shall be completed, if it still appears that the defendants were employees within the intent of the statute and that a labor dispute exists, there can be no injunction against picketing plaintiff's plants, although there may be an injunction if the proofs warrant, against violence, misleading signs, and other unlawful conduct. We intimate no opinion whether picketing is unlawful Per se if the defendants were not employees. * * *' 22 N.J.Super. at page 494, 92 A.2d at page 89.

Following the coming down of the mandate, the Chancery Division began taking oral proof. The hearings started December 1, 1952 and continued on January 8 and 13, 1953, with the next session scheduled for January 28. On January 15, 1953 some of the defendants began to picket two of the company's retail outlets, the Grand Union and the Acme supermarkets in Ridgewood, N.J. On Saturday, January 17, the company's attorney moved Ex parte before the judge who had been taking testimony pursuant to the mandate, to obtain an order to show cause why an interlocutory injunction or, in the alternative, a temporary restraining order should not issue restraining defendants from picketing at or near the premises of any of the company's customers. The order was granted, returnable the following Monday, January 19, and was served upon defendants' attorney at his home that Saturday evening.

On the return day defendants' attorney objected to the proceedings, claiming he was not ready to meet the application on such short notice and the matter went over to the next day, Tuesday, January 20, after the testimony of one witness had been taken by consent. That same day (January 19) counsel for plaintiffs gave notice that he would apply the next morning on behalf of the Grand Union Company for leave to intervene as plaintiff for the sole purpose of restraining defendants' picketing at or near its premises. The notice was served on defendants' attorney that evening. On Tuesday morning the trial court permitted the filing of the intervenor's complaint, over objection. The application for injunctive relief was held until that afternoon after objection by the attorney for defendants that they were entitled to notice under the Anti-Injunction Act, that he had not had adequate opportunity to confer with them, and that there was nothing before the court to inform the individual defendants as to what they were being charged with. Following the noon recess and further argument, both plaintiffs' and intervenor's applications were carried to Friday afternoon, January 23.

In the interim the intervenor filed an amended complaint and defendants served notice that they would move to dismiss it on January 23, 1953. On that date defendants again objected to any further proceedings, the chief ground being that there was no complaint before the trial court with reference to any specific acts committed by any of the defendants subsequent to the filing of the supplemental complaint upon which the company was seeking Ad interim relief. The court overruled these objections and proceeded to take oral proof which established that some of the defendants had picketed the Grand Union and Acme supermarkets in Ridgewood on January 15, 1953, the A & P market in Hoboken on January 17, the A & P, Safeway and Acme markets in Jersey City on January 17, and the Grand Union in Ridgewood again on January 22. The testimony was corroborated by photographs admitted in evidence and appearing in the appendix. Defendants' attorney continued his objection to the taking of testimony, but nevertheless cross-examined all witnesses for the company and the intervenor. No witnesses were produced on defendants' behalf, nor did any of the individual defendants take the stand although the uncontradicted testimony indicated that more than half of them had been active participants in the various acts of secondary picketing.

Generally, the picketing consisted of (1) the parking of one or more of defendant distributor's trucks in front of a market, the trucks bearing a sign reading '9 Months Lock-Out--Help Us Get Our Job Back--Galler 7-Up Unfair to Labor--Don't Buy 7-Up'; and (2) one or more of the defendants walking up and down in front of a market with sandwich signs reading: 'Galler 7-Up--Locked Out Its Drivers for 9 Months--This Store is Handling 7-Up--Help Us Get Our Job Back--Don't Buy 7-Up.' The stores were open for business at the time of the picketing. The pickets passed out small handbills in front of the Grand Union Company store on January 22 and the A & P market on January 17. Neither plaintiffs nor intervenor claimed that the conduct of the pickets was disorderly or violent.

At the conclusion of the testimony and after further argument the trial judge orally concluded that defendants were engaging in secondary picketing in violation of the law and that an injunction against such picketing was not interdicted by N.J.S. 2A:15--51 et seq., N.J.S.A. Thereafter, on January 26, 1953, an interlocutory injunction issued in favor of plaintiffs and the intervenor, restraining defendants:

'(1) from picketing in this dispute, at or near the premises of any of the plaintiffs' customers; and,

'(2) from ordering, commanding, directing, assisting or abetting, in any manner whatsoever, any person or persons in any picketing, in this dispute, at or near the premises of any of the plaintiffs' customers * * *.'

It is this injunction, restraining only secondary picketing of the premises of the company's customers, which is under appeal.

Two minor matters should be noted. Unlike the situation in most labor cases, the union has no significant role in these proceedings. Local No. 560 was merely a nominal party defendant in the original rescission suit. It has never been restrained. On January 24, 1952, and before this action came into being, the union notified the defendant-distributors that it...