Lamena v. Camden Local No. 396 of Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' Intern. Union of America

• Decision Date: 08 July 1963
• Docket Number: No. A--1105,A--1105
• Citation: 193 A.2d 285,80 N.J.Super. 203
• Parties: James LAMENA, Plaintiff-Respondent, v. CAMDEN LOCAL NO. 396 OF THE JOURNEYMEN BARBERS, HAIRDRESSERS, COSMETOLOGISTS AND PROPRIETORS' INTERNATIONAL UNION OF AMERICA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 203

80 N.J.Super. 203

193 A.2d 285

James LAMENA, Plaintiff-Respondent, v. CAMDEN LOCAL NO. 396 OF THE JOURNEYMEN BARBERS HAIRDRESSERS, COSMETOLOGISTS AND PROPRIETORS' INTERNATIONAL UNION OF AMERICA Defendant-Appellant.

No. A--1105.

Superior Court of New Jersey Appellate Division.

Argued April 1, 1963.

Decided July 8, 1963.

Albert K. Plone, Camden, for appellant (Plone, Tomar, Parks & Seliger, Camden, attorneys, Howard S. Simonoff, on the brief).

Lee B. Laskin, Camden, for respondent.

Before Judges CONFORD, GAULKIN, and KILKENNY.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

The Chancery Division enjoined the defendant union from picketing plaintiff's barbershop in Haddonfield for purposes of causing or coercing him to join the union or coercing his nonunion employees into doing so. The union (hereinafter referred to as the barbers' local) appeals.

The facts shown by the record are these. Plaintiff operates a small barbershop in which he regularly employs one apprentice barber and occasionally a part-time journeyman barber. Plaintiff himself works as a barber alongside his employees. Neither of these employees belongs to the barbers' local, nor has it ever requested them to do so. The apprentice testified he had voluntarily looked into the matter of joining the union but decided not to. Plaintiff formerly belonged to a barbers' union but left it because the union rules call for closing on Wednesday whereas plaintiff prefers to close on Monday. Plaintiff's hours of operation are 8 A.M. to 7 P.M., the same as the barbers' local's; his only apparent conflict with the union's regulations is as to closing Monday instead of Wednesday. The union has not complained about the rate of compensation he pays his employees.

For some time prior to May 1962 the secretary and the president of the barbers' local importuned plaintiff to close on Wednesday instead of Monday. They expressed the fear that other shops might start closing Monday, thus weakening the union's Wednesday closing policy. Plaintiff remained adamant. The requests then turned to proposals he join the union, and he refused these likewise. It was implicit that if he joined the union his employees would also have to do so because the union constitution requires that only union members may be employed in a union shop or one which displays the union shop-card.

On May 9, 1962 the barbers' local representatives came to the shop and told plaintiff this was the 'last time,' and that he was 'going to go along with (them).' He again refused, and they directed two waiting men to don signs and start picketing. The picketing continued every dayfor over a week until restrained by the court. The signs read: 'This Barber Shop Does Not Display The Union Shop Card Of Barbers Local 396' and 'The Barbers In This Shop Are Not Members of Local 396.' The picketing was accompanied by a drop in plaintiff's business. An attempt at the hearing to prove that a service vehicle would not make a delivery to the shop because of the picketing was barred, on objection, as hearsay. However, it is conceded by plaintiff that the picketing was peaceful at all times.

The picketing was enjoined by the Chancery Division May 17, 1962 pursuant to an Ex parte order to show cause and restraint made returnable May 25, 1962, based upon affidavits, not set forth in the appendices to the briefs, but purportedly averring that immediate, substantial and irreparable injury would probably result to plaintiff before a hearing on notice could be had. The restraint order expired by its terms May 25, 1962. A full hearing was conducted May 31 and June 1, 1962 when the court announced oral conclusions, which, though finding no 'substantial' loss of business, determined that there was no 'labor dispute' and that therefore the 'object of the picketing (was) not lawful' and the restraint would be continued. Accordingly, on June 11, 1962 the court entered an injunctive order restraining the picketing. The order finds there is no labor dispute as defined in N.J.S. 2A:15--58, N.J.S.A. (Anti-Injunction Act) and that 'injunctive relief may be based upon general Chancery Court principles'; that the picketing was 'for the purpose of requiring plaintiff to join Defendant Union,' which was an 'unlawful object and therefore enjoinable.' Thereafter the parties stipulated that the hearing already held be deemed the final hearing in the matter, and final judgment of injunction was entered August 1, 1962, substantially in the content of the order of June 11, 1962.

Defendant appeals on two broad grounds: (1) the controversy involves a labor dispute within the meaning of the Anti-Injunction Act, and it was unlawful to enter interim restraints without compliance with the several procedural requisites imposed by that statute; (2) the object of the picketing was lawful, and the injunction therefore violated 'free speech' rights guaranteed by the First and Fourteenth Amendments of the United States Constitution, as well as the right of collective bargaining declared in Article I, paragraph 19 of the 1947 Constitution of New Jersey.

We have concluded that the litigation projects important questions of law and public policy for the fully satisfactory determination of which the proofs before us are inadequate, and that more exhaustive development of the legal issues than was had either at trial level or before us is desirable, particularly in the light of the further proofs to be adduced. For these reasons a remand will be necessary. The charting of the factual and legal issues to be developed requires some additional reference to the facts now known.

I

The 'constitution' of the International Union, of which the barbers' local here involved is a member was introduced in evidence, and defendant's representative testified the barbers' local operates pursuant thereto. Under the constitution, both 'proprietor barbers' (non-employers) and 'employer' barbers who work with the tools of the trade are eligible to membership in a local union and 'all members are entitled to equal rights of membership, including the right to vote and hold office.' (Plaintiff is an employer-barber.) Provision is made for 'employers' guilds,' apparently inside the local union entity, consisting of 15 or more employer-barbers. We find nothing in the constitution, however, specifying the economic rights, powers, duties or obligations of such guilds or their members, particularly with respect to collective bargaining Vis a vis the employee members of the union. There is nothing before us to indicate that an employers' guild exists in the territorial jurisdiction of the barbers' local.

The heart of the substantive problem before us, from plaintiff's standpoint, lies in article XV, section 5 of the constitution. It reads:

'SEC. 5. Every local union shall regulate the hours of labor, prices and wages in their respective locality, which shall be known as the 'Working Agreement.' Any working agreement or amendment thereto must be read at two meetings on separate dates, prior to third meeting at which vote is taken; all members shall be notified in advance of date of meeting at which vote is to be taken. A two-thirds vote of members present shall be necessary for working agreement to be adopted. Two copies of the agreement, before it is printed, shall be submitted to the General President-Secretary-Treasurer, for his approval, after which one copy will be returned to the local.

A Working Agreement stabilizes conditions for a stated period of time and no agreement can be amended during the stated period except by unanimous consent of all parties to the said agreement. No working agreement or amendment thereto shall become effective unless the foregoing is complied with.

The Working Agreement shall be submitted in duplicate to the shop owner for his signature, one copy for the local file and one copy for the person signing same.'

There is no provision in the constitution for collective bargaining as to wages or working conditions between employer members of the union, individually or as a class, and employee members, either in individual shops or as an entire class. Article XV section 5 would seem to preclude it. However, the barbers' local secretary-treasurer testified, in answer to a question, 'How about negotiating the terms of your working contract, who does that?,' that the employers are 'represented by their committee' which discusses 'the matters of the wages and the hours' with an employees' committee 'until they come to an agreement.' There was no development of the question as to what happens if no mutual agreement is arrived at between the committees. There was testimony that the union has 248 members of which '90, 95 percent are employees, the rest are shop owners, employers.' However, at oral argument defendant corrected these figures to state that of a total of 245 members of the barbers' local, 110 are operators of 'one-chair' shops, having no employees, 60 are employers of one or more barbers, and 75 are employees.

Moreover, the constitution (as revised effective January 1, 1959) continues to include certain provisions summarized in Journeymen Barbers, etc., Local 687 v. Pollino, 22 N.J. 389, 395, 396, 126 A.2d 194, 198 (1956), as follows:

'The defendants contend that the objective of the plaintiff to have them become members of the union 'is unlawful because they would become bound by provisions of the International Union Constitution which would incapacitate them from acting as free agents in the negotiation of collective bargaining agreements.' In particular they complain about article II, section 4 of the International's constitution which prohibits any member of the International from bringing any civil action against the union; article XVII, section 7 which provides that any member who shall operate against the interests of the union shall have his membership annulled; article XVII, section 8 which forbids any...