Newark Milk & Cream Co. v. Milk Drivers & Dairy Employees Local No. 680 of Newark, A. F. of L.

• Decision Date: 27 March 1941
• Docket Number: 139/14
• Citation: 19 A.2d 232
• Parties: NEWARK MILK & CREAM CO. et al. v. MILK DRIVERS & DAIRY EMPLOYEES LOCAL NO. 680 OF NEWARK, A. F. OF L., et al.
• Court: New Jersey Court of Chancery

19 A.2d 232

NEWARK MILK & CREAM CO. et al.

v. MILK DRIVERS & DAIRY EMPLOYEES LOCAL NO. 680 OF NEWARK, A. F. OF L., et al.

139/14

Court of Chancery of New Jersey.

March 27, 1941.

Syllabus by the Court.

1. Complainant Newark Milk and Cream Company is engaged in the milk, cream and ice cream business. It entered into contract with Independent Union of Dairy Employees. The contract recognizes the Union as the sole bargaining agent of complainant's employees. No strike or labor dispute exists between complainant and any of its employees.

2. The defendant Milk Drivers and Dairy Employees Local No. 680 caused to be picketed (without fraud or violence) the places of business of the retail customers of the corporate complainant through the individual defendants, not employees of the complainant, who carried various signs, one of which read: "This Establishment Sells Milk & Cream of the Alderney Dairy or the Newark Milk & Cream Co. which is Not Signed Up with the Milk Drivers & Dairy Employees Union Local 680, A.F. of L. Please Do Not Patronize Until They Sell Only Milk & Cream Delivered By A.F. of L. Union Drivers".

3. R.S. 2:29-77.3, N.J.S.A. 2:29-77.3, forbids the issuance of a temporary or permanent injunction "in any case involving or growing out of a labor dispute, as herein denned * * *." By the statute, 2:29-77.8, a labor dispute exists when it involves persons who are engaged in industry, trade, craft, employment or occupation; or who are members of an affiliated organization of employers or employees; whether such dispute is "(3) between an association or associations of employees and any other association or associations of employees * * *. (e) The term 'labor dispute' includes any controversy concerning terms or conditions of employment, * * * regardless of whether or not the disputants standing (stand) in the proximate relation of employer and employee."

4. R.S. 2:29-77.1, section (k) declares as a matter of public policy of the State that certain acts are lawful and are "in no wise to constitute a tort or a nuisance", namely (e) giving publicity to the existence of any labor dispute by "patrolling, picketing, without fraud or violence"; (j) "Requiring as a condition of employment that all employees of a particular employer or group of em ployers shall be members of a particular labor organization."

5. Under the statute in the instant case, the picketing of complainant's customers even if carried on for the avowed purpose of inducing or compelling complainant to accept the demands of the defendant Union and thus bring about the so-called closed shop is lawful.

6. The wisdom or lack of wisdom of a legislative enactment is not a consideration open to judicial inquiry. The effect of the statute is to regulate the procedure by which an injunction may be obtained and to limit the scope of the relief which may be granted. The order to show cause will be discharged.

Suit by the Newark Milk & Cream Company against the Milk Drivers and Dairy Employees Local No. 680 of Newark, American Federation of Labor, and others, to enjoin picketing.

Order to show cause discharged.

McCarter, English & Egner and Leonard J. Emmerglick, all of Newark, for complainants.

Thomas J. Markey, of Bloomfield, for Independent Union of Dairy Employees.

Thomas L. Parsonnet, of Newark, for defendants.

STEIN, Vice Chancellor.

On March 1, 1941, complainants Newark Milk and Cream Company, as employer, and six of its employees, presented their bill of complaint with affidavits annexed naming as defendants Milk Drivers and Dairy Employees Local No. 680 of Newark, A.F. of L., two of its officers and two others not connected with the complainants but who have been engaged in picketing activities as hereinafter outlined.

The allegations of the bill of complaint supported by proof established that the corporate complainant is engaged in the sale of milk, cream and ice cream; that a contract was entered into by it with Independent Union of Dairy Employees, which contract by its terms expired October 31, 1941, unless the Independent Union ceased to represent a majority of the company's employees, which fact was to be determined by the National Labor Relations Board. The contract recognized the Independent Union as the sole bargaining agent of the employees and covered wages hours and working conditions. The bill further alleged that no strike, labor dispute or controversy existed between the corporate complainant and any of its employees. On February 27, 1941, under authority of and for the defendant Union, Local No. 680, the places of business of the corporate complainant's customers were picketed by the Union through the individual defendants, not employees of the complainant, who carried signs bearing the following language:

"Alderney Dairy or Newark Milk & Cream Co. is Not Signed Up with the Milk Drivers & Dairy Employees Local Union 680 A.F. of L. Please Cooperate With Us And Buy Only Milk & Cream Delivered By A.F. of L. Union Drivers".

"This Establishment Sells Milk & Cream of the Alderney Dairy or the Newark Milk & Cream Co. which is Not Signed Up with the Milk Drivers & Dairy Employees Union Local 680 A.F. of L. Please Cooperate Buy Only Milk & Cream Delivered by A.F. of L. Union Drivers".

"This Establishment Sells Milk & Cream of the Alderney Dairy or the Newark Milk & Cream Co. which is Not Signed Up with the Milk Drivers & Dairy Employees Union Local 680, A.F. of L. Please Do Not Patronize Until They Sell Only Milk & Cream Delivered By A.F. of L. Union Drivers".

The picketing was peaceful and took place in front of the places of business of the retail customers of the corporate complainant.

Upon the filing of the bill and affidavits, an order to show cause with intermediate injunction was issued. Upon the return of the order to show cause on March 10, 1941, the answering affidavits filed by the defendants set forth, among other things, that the activity of the defendant Union in picketing the customers of the corporate complainant was conducted in order to bring about a "test case"; that the signs carried by the pickets were consciously prepared in order to secure a judicial determination "that both primary and secondary picketing are an exercise of our right of free speech constitutionally guaranteed to us, as established by the decisions of the United States Supreme Court, especially the recent cases of Milk Wagon Drivers Union of Chicago, Local 753, v. Meadowmoor Dairies, Inc., 61 S.Ct. 552, 85 L.Ed. ——, and A.F. of L. v. Swing, 61 S.Ct. 568, 85 L.Ed. —."

In the Meadowmoor case injunction issued restraining all conduct, violent and peaceful. The master to whom the cause had been referred found that the retail customers of the vendors who purchased milk from the dairy company were intimidated by the commission of acts of violence, and his action was affirmed by the high court which justified its decision because...