Int'l Ticket Co. v. Wendrich

• Decision Date: 16 July 1937
• Parties: INTERNATIONAL TICKET CO. v. WENDRICH et al.
• Court: New Jersey Court of Chancery

193 A. 808

122 N.J.Eq. 222

INTERNATIONAL TICKET CO.

v. WENDRICH et al.

Court of Chancery of New Jersey.

July 16, 1937.

Syllabus by the Court.

1. Employees, whether members of ft labor union or not, have a right to strike and to use all lawful means in support of such strike and for the attainment of the lawful objects thereof; but the right is relative and in exercising it strikers must have due regard to the rights of others.

2. The right to strike does not mean the right to strike with clubs, stones, or other weapons. A legal strike is a peaceable walk out, the voluntary cessation of the striker's employment, in which the employer and those desiring to remain in its employ are left free to continue the operation of the business in a lawful manner and the pursuit of their lawful employment, unmolested.

3. Whenever in the conduct of a strike illegal means are used in support thereof, such as intimidation, threats, and violence, the strike itself becomes unlawful; at least until those illegal acts are discontinued.

4. An employer has the right to run his business on the open shop plan if he desires to do so. He cannot be compelled to adopt the closed shop plan against his will.

5. Such of the employees as are satisfied with their employment have a right to continue that employment unmolested by other employees who are dissatisfied and by others acting in concert with them.

6. The employer has a property right in the services of his employee not to be in fringed by outside interference. There is a corresponding right in the employee to be protected in the exercise of his right to work.

Suit for injunction by the International Ticket Company against Henry Wendrich and others.

Decree for plaintiff.

Frederick M. P. Pearse, of Newark, for complainant. Meyer M. Semel, of Newark, for defendants.

BERRY, Vice Chancellor.

The complainant is engaged in printing amusement, transportation, clothing, and other tickets at 50 Grafton avenue, Newark, N. J. Its plant and equipment have a value of approximately $250,000, and it docs a gross annual business of approximately $300,000. Prior to May 5, 1937, it had more than sixty persons employed at its plant, and on that day a strike of the employees was called by individual defendants representing defendant labor unions, and a large majority of complainant's employees walked out. All of the defendants have participated in the strike activities.

Various acts of intimidation and violence are alleged in the bill of complaint and are amply supported by affidavits. The most outstanding of these acts of violence resulted in one of the complainant's trucks loaded with paper being driven into the Passaic river with consequent serious loss. The defendants uniformly deny any participation in any of the alleged acts of intimidation and violence and claim that the truck in question was overloaded and being driven in violation of law. The defendants Wendrich and Moser admit telephoning the State Motor Vehicle Department, the Police Department of Newark, an inspector of motor vehicles, and the Department of Weights and Measures, complaining that the truck was overloaded. Such concern on the part of these defendants touching a violation of the Motor Vehicle Act, as amended (Comp.St.Supps. § 135—45a et seq.) might, under other circumstances, be highly commendable; but here their object was not enforcement of the law but interference with complainant's business. Moser rather naively suggests that the drivers, Hall and Dochx (who had tried without succcess to escape complainant's striking employees and were finally cornered at the Pennsylvania Railroad freight station, where they left the truck to avoid alleged attempted violence of the strikers) drove the truck into the Passaic river and there abandoned it. It is admitted on behalf of the defendants that complainant's plant has been picketed continuously since the strike was called, although the proofs as to the number of pickets on duty at any one time vary. As to the defendants' participation in the numerous acts of intimidation and violence it may be said, as was said in Bayonne Textile Corporation v. American Federation of Silk Workers, 116 N.J.Eq. 146, at page 165, 172 A. 551, 560, 92 A.L.R. 1450, "the unlawful acts were done in defendants' behalf, and for their benefit, and in aid of the strike promoted by them."

As to the picketing of complainant's plant which defendants seek to justify under the provisions of chapter 207, P.L.1926, p. 348 (Comp.St.Supp.1930, § 107—131a), it is clear that it should be enjoined. The primary object of the strike is the closed shop and hence unlawful. Defendants' affiants stress the fact that the main purpose of the strike is to compel the complainant to abandon the open shop plan heretofore in vogue and adopt the closed shop plan. Three objects of the strike are stated in defendants' affidavits, higher wages, recognition of the union (whatever that may mean), and the closed shop; but it is insisted by several of the union leaders in their affidavits that the strike will be continued until the closed shop is accomplished. The complainant has already offered concessions with respect to wages and hours of work and has consented to negotiate with the unions with respect to all matters in controversy except the closed shop. The defendants have refused this offer and insist as a condition precedent to any negotiations that the complainants sign a contract providing for the closed shop. In the very recent case of Jordan's Wearing Apparel, Inc., v. Retail Sales Clerks Union, etc., 193 A. 806, Vice Chancellor Stein remarked, "And here we pause to say that an employer cannot be compelled under existing law to enter into contract with any union."

And it seems strange that at this late day it should be necessary to repeat that a strike which has as its object the "closed shop" is unlawful, and that a contract providing for the closed shop is illegal and unenforceable. "The illegality of such contracts is pronounced upon the fundamental principles' of our theory of government, to which monopolies of any kind affecting in any way the utmost freedom of the individual to pursue his lawful trade or business are abhorrent." Baldwin Lumber Company v. Local No. 560, International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, 91 N.J.Eq. 240, 248, 109 A. 147, 150. In Lehigh Structural Steel Company v. Atlantic Smelting & Refining Works, 92 N.J.Eq. 131, at page 136, 111 A. 376, 378, the late Vice Chancellor Backes said: "the principle of the closed shop, i. e., the monopolization of the labor market, has found no judicial sponsor. In whatever form organized labor has asserted it, whether to the injury of employer, or to labor, or to labor unions outside of the fold, the judiciary of the country has responded, uniformly, that it is inimical to the freedom of individual pursuit guaranteed by the fundamental law of the land, and contravenes public policy." In Aimco, Inc., v. Paneswitz, Docket 99, p. 172 (1933), ¹ Vice Chancellor Buchanan said: "That purpose (the closed shop) has been repeatedly denounced as unlawful not only by the courts of this state, but also by the Supreme Court of the United States and the courts of practically every other state in the union where the question has been considered." And see Elkind & Sons, Inc., v. Retail Clerks International Protective Association, 114 N.J.Eq. 586, 169 A. 494; J. Lichtman & Sons v. Leather Workers' Industrial Union, 114 N.J.Eq. 596, 169 A. 498; Wasilewski v. Bakers Union, Local No. 64, 118 N.J. Eq. 349, 179 A. 284.

The object of the strike being unlawful, all acts in support thereof, including picketing, are also unlawful. Bayonne Textile Corporation v. American Federation of Silk Workers, supra, 116 N.J.Eq. 146, at page 161, 172 A. 551, 92 A.L.R. 1450; Elkind & Sons, Inc., v. Retail Clerks International Protective Association, supra; Dorchy v. State of Kansas, 272 U.S. 306, 311, 47 S.Ct. 86, 87, 71 L.Ed. 248, 269; Toledo, Ann Arbor & North Michigan Railroad Company v. Pennsylvania Company (C.C.) 54 F. 730, 737, 19 L.R.A. 387. In Senn v. Tile Layers Protective Union, 57 S.Ct. 857, 867, 81 L.Ed. —, Mr. Justice Butler said: "But strikes or peaceful picketing for unlawful purposes are beyond any lawful sanction. The object being unlawful, the means and end are alike condemned."

Counsel for defendants cites the recent decision of the Supreme Court of the United States in Senn v. Tile Layers Protective Union, supra, in support of his contention that the picketing activities engaged in by the defendants are lawful under chapter 207, P.L.1926, p. 346 (Comp. St.Supp.1930, § 107—131a); but the case is not applicable and does not express the law of this state. It involved the construction of certain sections of the Labor Code of the State of Wisconsin (St.Wis.1935, §§ 103,51 to 103.63), one of which provided that: "Peaceful picketing or patrolling, whether engaged in singly or in numbers, shall be legal" (section 103.53 (l). This decision goes no further than to hold that a statute of the State of Wisconsin, which the highest court of that state had held to justify certain acts of the defendant union, was not in contravention of the Fourteenth Amendment to our Federal Constitution. It upheld the right of the State Legislature to express by statute the public policy of that state in connection with labor disputes. If the decision had the effect claimed for it by defendants' counsel and was expressive of a federal or national public policy—if the law of Wisconsin were the law of the land—then would the guaranties of personal and property rights under our fundamental law be secured by a veritable "rope of sand." Gulf, Colorado & Santa Fe Railroad Company v. Ellis, 165 U.S. 150, 154, 17 S.Ct. 255, 41 L.Ed. 666. But fortunately it is not the law of the land. Yickwo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Meyer v. Nebraska, 262 U.S....