Isolantite, Inc. v. United Elec. Radio & Mach. Workers of Am.

• Decision Date: 24 November 1941
• Citation: 22 A.2d 796
• Parties: ISOLANTITE, Inc., et al. v. UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA et al.
• Court: New Jersey Court of Chancery

22 A.2d 796

ISOLANTITE, Inc., et al.

v. UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA et al.

Court of Chancery of New Jersey.

Nov. 24, 1941.

[Copyrighted material omitted.]

Syllabus by the Court.

1. The provision in P.L.1941, chapter 15, section 3, N.J.S.A. 2:29-77.3, that a temporary restraining order, granted in a labor dispute, shall be effective for no longer than five days, does not apply to an order made on notice to defendants.

2. The same section does not require that an interlocutory injunction be based solely on testimony taken in open court. The statute is satisfied if the injunction is based in part on such proofs.

3. The general rule, that a preliminary injunction will be denied when the material allegations of the bill are denied under oath, is modified by the statute. An injunction cannot be refused, as formerly, merely because of the denial under oath.

4. Picketing so conducted that the natural and proximate results are breaches of the peace and the obstruction of the highway is unlawful.

5. The statute, P.L.1941, chapter 15, N. J.S.A. 2:29-77.1 et seq., requires the court to find the facts and to estimate how the situation will probably develop if no injunction be granted. Then the court may enjoin unlawful acts which the court anticipates would otherwise be committed. The injunction must be as specific as the nature of the case permits.

6. The direction in P.L.1941, chapter 15, section 3(c) requires only that the court balance the conveniences.

7. The conveniences are not balanced in order that defendants may continue conduct that is plainly tortious.

8. Freedom of speech is not abridged by an injunction limiting the number of pickets to such an extent as appears necessary to avert intimidation and obstruction of the highway while permitting enough pickets fully to apprise the public, the employees and all others concerned, of the existence of a labor dispute and to arouse sympathy for the strikers.

9. The statute requires that an injunction be denied unless complainants have made every reasonable effort to settle the dispute. Held, under the circumstances of the case, that such effort had been made.

10. It is within the discretion of the court, whether or not to require security on the bond given by complainants pursuant to the statute.

11. Employees have a right to go to and from their work, freely, without hindrance whatever. And the employer has a corresponding right that his employees be unmolested.

Suit by Isolantite, Incorporated, and others, against the United Electrical Radio and Machine Workers of America and others for injunctive and other relief.

Order in accordance with opinion.

Pitney, Hardin & Skinner and Donald B. Kipp, all of Newark, and Jacob Friedland, of Jersey City, for complainants Isolantite, Inc., and Chemical and Oil Workers Union No. 2206, A. F. of L.

Samuel L. Rothbard, of Newark, for defendants United Electrical Radio and Machine Workers of America, C. I. O., and others.

BIGELOW, Vice Chancellor.

Isolantite, Inc., one of the complainants, is a manufacturing corporation, located in Belleville. On May 10, 1940, it entered into contract with its co-complainant, Chemical and Oil Workers Union No. 2206, which had been chartered by the American Federation of Labor a year earlier. The contract, besides provisions for hours, wages, grievances, etc., recognized the union as exclusive bargaining agent for the employees. This contract expired May 10,

1941. About a month in advance of that date, negotiations for a new contract were begun between the Company and the Union, and were continued until June 20, 1941, when a new agreement was executed. It provided for an increase of wages, retroactive to May 10, for another increase to be effective November 10, and for a re-adjustment of wages based upon a cost of living index May 10, 1942. This contract will remain in force until December 31,

1942. It continues the Union as exclusive bargaining agent and embodies these provisions :

"2. The Company agrees to employ or retain in its employ only members in good standing of the Union, provided that new employees not members of the Union may be employed when there are no qualified persons on the Company's unemployed seniority list, upon condition that they shall become and remain members in good standing of the Union within two (2) weeks after being employed. * * *

"14. It is mutually agreed that there shall be no strikes, walkouts, slowdown, lockouts, or any interruption of work during the period of this agreement due to and between any member of the Union individually, or collectively, and representatives of the Company."

On September 22, the Union wrote the Company: "Mr. Joseph Melchionne has been given a trial and expelled from this Union by the Executive Board Members of Local #22,026, the charges are discrimination against our Union Membership. In accordance with our agreement with your company, Mr. Melchionne is to be dismissed from his job immediately."

The following morning, Melchionne was discharged pursuant to the Union's demand. Forthwith, a large number of the employees went on strike, formed a picket line in which were displayed placards reading:

"Isolantite on Strike

"We want C. I. O.

"A. F. of L. unfair. Contract illegal.

"Help us Win."

The same day, the defendant United Electrical Radio & Machine Workers of America, a union affiliated with the Congress of Industrial Organizations, petitioned the National Labor Relations Board for investigation and certification of employees' bargaining representatives, pursuant to section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c). There followed on September 29, a conference with Mrs. Elinore M. Herrick, Regional Director of the Board, at her office in New York, attended by representatives of the Company and of the rival unions. On October 1, the Board dismissed the petition.

On October 10, the bill of complaint in this cause was filed praying for an injunction against all picketing and for less drastic relief, and at the same time complainants moved for an order to show cause with interim restraint. This action was taken in the presence of counsel for all the defendants on two days' notice, pursuant to Chancery rule 212. Witnesses for both sides were examined and cross examined in open court. An order to show cause was thereupon made, returnable October 21, and which restrained defendants:

"(a) From gathering, parading or patrolling, loitering or picketing about the premises of complainant, or the public street or sidewalks approaching thereto, or in the vicinity thereof, particularly on Cortlandt Street between Holmes and Joralemon Streets; provided, that not more than ten pickets may peaceably walk up and down the sidewalks of the street in front of complainant's plant upon condition that they maintain a space of at least ten feet between each such picket and that they or any of them do not obstruct the entrance to the plant or molest or interfere with the entry into or egress from said plant by any employees, servants or agents of complainant or any person having business with complainant;

"(b) From violence or threats of violence or intimidation practiced upon any person now employed or hereafter to be employed by complainant, or who is willing to be employed by complainant;

"(c) From using obscene or insulting language "(d) From intercepting molesting or following any person now employed or hereafter to be employed by complainant, or who is willing to be employed by complainant on his or her way to or from complainant's plant; or at any other place;"

The order further provided: "Defendants shall serve answering affidavits by October 18, 1941, and the hearing upon the return hereof shall be held on the affidavits annexed to the bill, answering affidavits so served, testimony taken this day, and proofs presented upon the return hereof on such issues, and within such limits as the court shall then determine."

On motion of the defendants, the hearing of the order to show cause and the restraints were continued until November 5. The hearing has been concluded and the matter is ripe for decision.

Defendants say that the interim restraining order was erroneous in that it was effective for longer than five days, contrary to P.L.1941, chapter IS, section 3, N.J.S.A. 2 :29-77.3. The point is academic since the restraint was continued from October 21 on motion of defendants themselves. Furthermore, the statutory provision on which defendants rely applies only to orders made without notice to the defendants and not to an order on notice such as was made in the present suit.

Defendants also urge that the same section of the statute requires that decision on the order to show cause be based solely on the testimony produced in open court, and not at all on the affidavits annexed to the bill or the testimony taken on the motion for the order. In aid of the interpretation of section 3, the public policy of the state is declared in section 2, N.J.S.A. 2:29-77.2. Namely, that a procedure that permits injunctive relief "based upon written affidavits alone and not wholly or in part upon examination", of witnesses in open court, is subject to abuse. The statute then forbids the issuance of an injunction "except after hearing the testimony of witnesses in open court."' It is plain that the use of affidavits is not banned; the statute is satisfied if the injunction is based in part upon proofs taken in open court. For a fuller understanding, another sentence should be quoted from section 2: "Determination of issues of veracity and of probability of fact from affidavits of the opposing parties that are contradictory and, under the circumstances, untrustworthy, rather than from oral examination in open court is subject to grave error."

The legislature in enacting this statute, took cognizance of the usual circumstance, that many, indeed most, of the facts which constitute the basis...