Kitty Kelly Shoe Corp. v. United Retail Employees of Newark, N. J., Local No. 108

• Decision Date: 14 June 1939
• Citation: 126 N.J.Eq. 374,9 A.2d 295
• Parties: KITTY KELLY SHOE CORPORATION v. UNITED RETAIL EMPLOYEES OF NEWARK, N. J., LOCAL NO. 108, et al.
• Court: New Jersey Court of Chancery

9 A.2d 295

126 N.J.Eq. 374

KITTY KELLY SHOE CORPORATION

v. UNITED RETAIL EMPLOYEES OF NEWARK, N. J., LOCAL NO. 108, et al.

Court of Chancery of New Jersey.

June 14, 1939.

Suit by the Kitty Kelly Shoe Corporation against the United Retail Employees

of Newark, N. J., Local No. 108, affiliated with the C.I.O., and others, to enjoin them from picketing, distributing handbills, and hindering or obstructing any person or persons seeking ingress or seeking to make deliveries at the complainant's place of business. On order to show cause.

Order allowing restraint pendente lite.

Reversed in 126 N.J.Eq. 318, 8 A.2d 767.

Leonard J. Emmerglick, of Newark, for complainant.

Samuel L. Rothbard, of Newark, for defendants.

BERRY, Vice Chancellor.

This memorandum is written for the purpose of an appeal from an order advised by me herein under date of January 3, 1939, and enjoining the defendants from certain strike activities, including picketing, distributing of handbills and obstructing ingress to complainant's place of business. The order appealed from continued restraints theretofore imposed upon application for preliminary restraint upon notice as required by the rules and was entered after cross-examination of complainant's affiants by counsel for the defendants, and after consideration of the proofs submitted on behalf of the parties. The facts out of which this controversy arose, as disclosed by the proofs, are as follows:

The complainant operates a shoe store at 159 Market Street, in Newark, and has conducted its business at that address since 1934. The business is located near one of the busiest street corners in the world, and in a building for which complainant pays a rental of $26,500 a year. Complainant has always operated its business on the open shop plan and, until the events which gave rise to this controversy, had never experienced any labor troubles. None of its employees had expressed any dissatisfaction with their wages, hours or conditions of employment and no demands for any change in the terms or conditions of their employment had been made upon complainant by its employees or anyone representing them; in fact, up until the date of the entry of the order appealed from, no specific demands for any change touching the terms or conditions of employment had been made by anyone. Complainant's business reaches its highest peak in December, and particularly during the period from December 15th to December 25th. Notwithstanding there had been no expression of dissatisfaction by complainant's employees with the terms and conditions of their employment, one Robert Brown, who styled himself general manager of the defendant union, in October, 1938, wrote to complainant's president stating that the union had been designated as the representative of complainant's employees "for collective bargaining with you in reference to hours, wages and other terms and conditions of employment". Other correspondence ensued, and on December 5, 1938, Brown addressed a letter to complainant's president advising him that "unless you meet a representative committee of your employees and our union for collective bargaining within forty-eight (48) hours, we will be compelled to seek other remedies". (Italics mine). No specific demands having been made and no dissatisfaction having been expressed by complainant's employees, the complainant refused to discuss the matter with the union representative, but later agreed to confer on the subject of collective bargaining with the Rev. L. Hamilton Garner, Director of the Newark Labor Relations Board, and did so on December 13, 1938. This conference was between the said Director and Mr. Waterman, complainant's secretary. The complainant operates nineteen stores in various parts of the United States, and the secretary, at about the time of this conference, was obliged to go to Chicago on a business trip, but agreed with Mr. Garner to confer with General Manager Brown on December 19th, on his return from that trip. He also suggested that he was willing to meet Mr. Brown that afternoon (December 13, 1938) at the Grand Central Railroad Station, where he was to take a train for Chicago. These facts being communicated to Mr. Brown, he refused to meet complainant's secretary as suggested, or to await his return, and on December 14th, seven of complainant's employees left its employ and began picketing complainant's place of business, carrying signs reading as follows: "Kitty Kelly Shoes refuse to bargain collectively with our Union"; "Kitty Kelly employees on strike for better working conditions. Help us win"; "Kitty Kelly Shoes Employees are on strike for Union conditions"; "Please help us win. We deserve your cooperation. Employees of Kitty Kelly Shoes".

Photographs attached to the bill of complaint show the manner of the picketing and the crowded condition of the sidewalks while such picketing was going on. The conclusion that the rights of the public in the use of the sidewalk in front of complainant's store, as well as those of the complainant, were considerably abridged by the parading of the pickets, is inescapable. As a matter of fact, the complainant had not refused to "bargain collectively" with the defendant union and the placards and circulars publicizing the strike were false in this respect, at least. Complainant's secretary had already discussed the matter with the Director of the Newark Labor Relations Board and had agreed to confer with Mr. Brown, notwithstanding the fact that up to that time none of the employees had expressed any dissatisfaction with their terms or conditions of employment and had made no demands upon their employer.

Let us assume, however, but only for the sake of argument, that complainant had refused to meet Mr. Brown "for the purpose of collective bargaining". Would that have afforded any excuse for the picket line? Is there anything unlawful, or even reprehensible, in an employer's refusing to bargain with a labor union? Has industry reached the point where the owner of the business has no longer the right to select his employees and define his business policy—to operate on the union or non-union plan, as he pleases? If I understand the law, the answer to each of these questions must be in the negative. To act freely in these matters, without molestation or compulsion, and, indeed, without the unsolicited advice of the union, is the owner-employer's constitutional right. The authorities supporting this contention are legion. I cite only Hitchman Coal & Coke Company v. Mitchell, 245 U.S. 229, 250, 251, 38 S. Ct. 65, 62 L.Ed. 260, L.R.A.1918C, 497, Ann.Cas.1918B, 461; Brennan v. United Hatters, 73 N.J.L. 729, 65 A. 165, 9 L.R.A, N.S, 254, 118 Am.St.Sep. 727 and Currier & Sons v. International Molders' Union, 93 N.J.Eq. 61, 115 A. 66. In the Hitchman case, Mr. Justice Pitney, speaking for the United States Supreme Court, 245 U. S. at page 250, 38 S.Ct. at page 72, 62 L. Ed. 260, L.R.A.1918C, 497, Ann.Cas.1918B, 461, said:

"Whatever may be the advantages of 'collective bargaining,' it is not bargaining at all, in any just sense, unless it is voluntary on both sides. The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make non-membership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power."

However that statement of the law may have been modified by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., it is still a correct statement of the law of New Jersey; and the National Labor Relations Act has no application to this controversy.

There is considerable conflict between the affidavits filed on behalf of the complainant and those on behalf of the defendants, but I think a careful reading of them all will disclose that those of the complainant are the more reliable. Defendants' affidavits bear the stamp of an effort to deceive the court as to the number of complainant's employees belonging to the union and those going on strike. Brown's affidavit states that "all of complainant's employees except" seven, whose names he mentions, are members of the union and have gone on strike. In another part of the affidavit he says that complainant's employees number twenty-two and that all but seven had gone on strike. As a matter of fact, the number of complainant's regular employees totals fourteen and but seven of those went on strike. Only six of them have filed affidavits in which they claim membership in the union. All of defendants' affiants other than Brown and Levine content themselves with stating that they have read Levine's affidavit and that the facts therein stated are true. They have no probative value. They affirm allegations of fact as to which even Levine had no knowledge.

The principal affidavits filed on behalf of the defendants are those of Brown and Levine. They contain many allegations obviously based upon hearsay and concerning facts of which they have no personal knowledge. Brown's affidavit in...