Journeymen Barbers, Hairdressers and Cosmetologists' Intern. Union of America, Local 687 v. Pollino
| Decision Date | 27 February 1956 |
| Docket Number | No. A--37,A--37 |
| Parties | The JOURNEYMEN BARBERS, HAIRDRESSERS AND COSMETOLOGISTS' INTERNATIONAL UNION OF AMERICA, LOCAL 687, now known as Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' International Union of America, Local Union 687, Plaintiff-Appellant, v. Roy POLLINO, Vincent Cannamela, Charles Guarino and John Toth, Defendants-Respondents. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Abraham L. Friedman, Newark, argued the cause for plaintiff-appellant (Rothbard, Harris & Oxfeld, Newark, attorneys; Samuel L. Rothbard, Newark, of counsel).
Samuel V. Convery, Perth Amboy, argued the cause for defendants-respondents (I. Oscar Spevack, Perth Amboy, on the brief).
Before Judges CLAPP, JAYNE and FRANCIS.
The opinion of the court was delivered by
CLAPP, S.J.A.D.
The plaintiff, a local union associated with the Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' International Union of America (herein called the International), sued in a county district court to replevy four union shop cards issued to the four defendants. The cards are designed for display in a barber shop as a symbol of union recognition; on the face of each card appear the words 'Union Shop' in large letters. The four defendants are employer barbers, each working at the trade in his own shop in Perth Amboy, New Jersey, each of them employing one journeyman barber except that one of them employs three. The court gave judgment for defendants. Plaintiff appeals.
Questions are raised as to whether the county district court has jurisdiction over the subject matter of the action. Under our present appellate practice, however, this is a matter of minor concern. If the cause is cognizable, not in that court, but in some other trial court in the State, we nevertheless should endeavor to resolve the substantial questions; however, we then, through our mandate, will direct judgment on our conclusions to be entered in a court which has jurisdiction of the subject matter. R.R. 1:27D(b).
Putting first things first, we turn to the troublesome substantial questions. Is the plaintiff entitled to the possession of the shop cards? Should the law refuse to aid the plaintiff because of plaintiff's alleged ulterior motives here?
The defendants do not inform us explicitly as to the injury they would suffer if the cards were taken from them. Neither a strike, boycott or picketing is suggested. But obviously the cards bring to defendants' shops a certain amount of patronage from union men and their sympathizers; and the replevin of the cards would impair defendants' livelihood to presumably a substantial extent. However, it does not appear that the return of the cards to the plaintiff would subject defendants to any other injury. We have not overlooked the following provision of the International's constitution (Art. VII, sec. 3):
The parties have not alluded to this provision in their arguments before us. However, there is some suggestion in the testimony that the union is not enforcing it at the present time, and we of course should not on our own initiative assume that the clause will affect the defendant.
We shall look first at the case as plaintiff argues it.
Under agreements, similar in form, heretofore signed by defendants (defendants in their brief admit that all four of them signed up), the defendants each agreed:
'* * * I will comply with all the conditions imposed in the 'Rules Governing Shop Cards' which are printed on the back of said Union Shop Card.
'I also agree, that the Union Shop Cards is (sic) now, and shall remain the property of the Journeymen Barbers' International Union of America, and that it is loaned to me only during such time as the conditions imposed are fulfilled by me * * *
'I also further agree, on demand, to peaceably allow, without interference on my part or others, any duly appointed representative of the International or Local Union to remove said Union Shop Card from any point of display * * *.'
It would seem that each defendant thereby agreed to yield to the plaintiff the possession of the card for any cause. However we need not rest on this inference. Clause (d) of the Rules Governing Shop Cards (to which rules defendants agreed in the sentence first quoted above) confirms the point. The rules appear on the back of the cards as follows:
'The person or persons displaying this card do so in accordance with the rules stated below, and it is agreed, by the person or persons displaying this card, that For any violation of the rules below stated, he or they will give peaceable possession of the same to the local union under whose jurisdiction it is to be displayed, or a duly appointed or elected representative thereof; * * *
'Rules Governing Union Shop Cards
'The contract, or agreement, called for by these laws shall be so construed that the person or persons displaying the Shop Card shall specifically agree:
'(a) To abide by the laws of the J.B.H.C.I.U. of A. governing Shop Cards and such laws as may be made in the future for the proper government of the same.
'(b) To abide by the laws of the local union, now and in the future, with reference to prices, hours, wages, etc.
'(c) To peaceably give up said Shop Card on demand of the local union or local executive board, through its duly appointed representative, For the violation of any local or International laws.
'(d) To peaceably give up said Shop Card to the General President- Secretary-Treasurer, or a duly appointed representative, in case of the suspension or disbandment of the local union which issued it, or For any cause when called upon to do so.' (Italics inserted.)
We refer to clause (d) above. Not much attention has been given by counsel to the terms of that clause. However, we think it fairly clear that the plaintiff local is a 'duly appointed representative' of the general president-secretary-treasurer within the intendment of the clause. Under Article VII, section 11 of the International's constitution this official is required to furnish, in blank, forms of agreement to be signed by the persons conducting the barber shop. Under the last sentence of the forms of agreement (as quoted above) which were signed by the defendants here, it appears that 'any duly appointed representative of the * * * Local Union' is authorized to remove the shop card. It is to be implied therefore that the general president-secretary-treasurer constituted the local's representative as his representative for the purposes of clause (d); and A fortiori the local itself is his representative in this regard. Further, as to the authority of the local, see Article VII, section 2 of the International's constitution. So we conclude that clause (d) authorizes the plaintiff to recover the shop card 'for any cause.'
There is another point here, important to the plaintiff's case. The person displaying a shop card agrees to give it up if he violates any law of the International Union. See clause (c) of the Rules Governing Union Shop Cards, above quoted; see also the preliminary statement on the back of the card, reading it with clause (a). Among International's laws which are worthy of note is Article VII, section 3 of its constitution which provides 'Any shop Recognized as a union shop by the laws and principles of our union shall be entitled to display said Shop Card.'
Are the defendants' shops so recognized? The collective bargaining agreement between the local chapter of the Associated Master Barbers of New Jersey (to which chapter defendants belong) and the plaintiff union came to an end July 31, 1954, more than six months before this action was started. Negotiations for a new contract were unsuccessful, and no contract has been in effect since then. Can it be said under this state of affairs that defendants' shops are each 'recognized as a union shop under the laws and principles of our union'? We think not. The International's constitution, Article VII, section 11, requires that copies of the working agreement, which fixes prices, wages, hours and working conditions, 'shall be signed by the owner or operator Signing the Shop Card agreement' (italics added) and put on file with the secretary of the local union. There was no such working agreement here.
On the basis of the foregoing points (), plaintiff claims it is entitled to recover the shop cards. Now we turn to defendants' principal argument, namely, that plaintiff is making use of the processes of the court for an illegal purpose, namely, in order to induce defendants to join the union.
Article VII, section 5 of the International's constitution provides:
'No Shop Card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the Union in good standing.' (Italics added.)
This provision, insofar as it refers only to the union, seems to be inaccurate. For the employer barbers are permitted to join either the union or (if they choose) an employers' guild established under the International's constitution. Thus, it is provided in Article VIII, section 3 of the constitution:
'An employer * * * who works at the trade and who desires to operate a union shop must become an employer member of the local union or guild.'
The statement is made to us (we do not have a copy of the constitution as it existed prior to amendments made in September 1953, and hence have no means of checking the statement) that at the time of the decision of Simon v. Journeymen Barbers, etc., Union of America, Local No....
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