U.S. Pipe & Foundry Co. v. United Steelworkers of America, AFL-CIO, Local No. 2026, CIO--AF

Citation157 A.2d 542,59 N.J.Super. 240
Decision Date18 January 1960
Docket NumberCIO--AF,No. A--245,LOCAL,A--245
PartiesUNITED STATES PIPE AND FOUNDRY COMPANY, a corporation of the State of New Jersey (Burlington, New Jersey, plant), Plaintiff-Respondent, v. UNITED STEELWORKERS OF AMERICA,NO. 2026, Joseph Stella, Stephen Cole, John Lankelis, James Kennedy, Howard V. Smith, Ernest Sternotti, Theodore Daniels, Leon Borkowski, Anthony Christinzie, Robert Adams and James Sykes, Defendants-Appellants.
CourtNew Jersey Superior Court – Appellate Division

Page 240

59 N.J.Super. 240
157 A.2d 542
State of New Jersey (Burlington, New Jersey,
plant), Plaintiff-Respondent,
Joseph Stella, Stephen Cole, John Lankelis, James Kennedy,
Howard V. Smith, Ernest Sternotti, Theodore Daniels, Leon
Borkowski, Anthony Christinzie, Robert Adams and James
Sykes, Defendants-Appellants.
No. A--245.
Superior Court of New Jersey, Appellate Division.
Argued Jan. 4, 1960.
Decided Jan. 18, 1960.

Page 245

[157 A.2d 545] George Pellettieri, Trenton, argued the cause for defendants-appellants (Pellettieri & Rabstein and Lewis C. Stanley, Trenton, attorneys).

Harry Heher, Trenton, argued the cause for plaintiff-respondent (Minton, Dinsmore & Bohlinger, H. Collin Minton, Jr., and George H. Bohlinger, Jr., Trenton, attorneys).


The opinion of the court was delivered by


This is an appeal, taken by leave of this court, R.R. 2:2--3(a), from an interlocutory injunction granted by the Chancery Division on November 25, 1957 enjoining the defendant union and named individual officers and agents thereof, as well as 'all persons and organizations associated with or acting in concert or combination

Page 246

with them,' from certain specified activities at or near the entrances to plaintiff's plant on East Pearl Street, in the City of Burlington, and regulating and restricting picketing by them related to an existing strike. The appeal was directed to be brought on for argument on an abbreviated time schedule. The nature of some of the questions raised by the parties and suggested by the court requires rather detailed recounting of the chronology of this controversy.

The defendant union represented about 670 of plaintiff's working force at its manufacturing plant; there were about 212 non-union employees. A three-year contract governing wages and working conditions of the union personnel expired August 20, 1959. Negotiations for a renewal not having resulted in agreement, the union called a strike and the union employees walked out at midnight of August 20, 1959 (Thursday-Friday). From that time until 10:30 A.M. Friday morning large numbers of the striking employees were massed at the main plant gates on East Pearl Street, resulting in practically total blockage of ingress or egress by vehicles and male pedestrians. Only women were allowed through. Later that day one of the Superior Court judges temporarily sitting to hear Chancery motions entered a temporary restraint and order to show cause based upon a verified complaint for injunctive relief against the activity described. The restraint was founded on oral proofs as well as affidavits and recited that it was issued without notice because 'immediate substantial and irreparable injury' to plaintiff would probably otherwise result before notice could be served. See N.J.S. 2A:15--53, N.J.S.A. (Anti-Injunction Act, N.J.S. 2A:15--51 to 58, incl., N.J.S.A.).

The order to show cause was heard before another judge on August 26, 1959. The company proofs then adduced indicated that while there are in all six gates leading into the plant premises, only two are in regular use for plant personnel--Gate No. 1, customarily used by supervisory and office personnel, and Gate No. 2, for general plant employee use. Each is wide enough for two-way vehicular passage

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(Gate No. 1 is wider), and each has separate pedestrian access gates alongside. In addition [157 A.2d 546] to proof of the mass obstruction in the early hours of August 21, 1959, plaintiff proved that during the remainder of that day and on Monday, August 24, 1959, the union carried on a practice variously described as 'elliptical' picketing or 'merry-go-rounding' at the vehicular gates. This consisted of pickets marching in an oval formation so as to prevent a vehicle from driving through the gates without risk of making contract with one of them. After one or more turns the line would open to let the car through. The result was, for example, that at closing times non-striking employees would be delayed anywhere from half a minute to 30 to 35 minutes in driving out of the plant. This activity terminated by Tuesday, August 25, 1959, and it was primarily on that basis that the judge denied the application for continuation of the preliminary relief, although finding that 'there was illegal picketing in the early hours of this strike.' The formal order provided that 'plaintiff may apply for relief on short notice to the defendants or their counsel in the event of any further illegal acts of violence' and that costs should not be taxed in favor of defendants.

No union activity gave plaintiff any reason for further complaint to the court until Monday, September 14, 1959. A series of incidents from that morning until Wednesday morning, September 16, 1959, led plaintiff to give defendants' counsel short notice, at 10:00 A.M. that morning, by leave of the judge sitting in the Chancery Division vicinage for Burlington County, of an application to be made that afternoon, at 2:00 P.M. in Camden, for a new restraint based on such incidents. Union counsel appeared, stated the notice was insufficient to enable him to meet the application, and informed the court that the union's position was that it was and had continuously been doing only what the judge hearing the first show cause order had 'instructed' it was permissible--'to stop cars and trucks going in there, not to compel them to stop, but if they stopped, to ask them to

Page 248

respect the picket lines.' He asked the court to set the matter down for full hearing the following week. Counsel for the plaintiff stated that it was willing to have the application considered as made 'ex parte,' with an order to show cause returnable on short date, but insisted on the right to an immediate temporary restraint on oral proofs it was ready to adduce. The court informed union counsel it saw no reason why it could not hear the application 'in an ex parte was whether you received notice or didn't receive notice.' The latter thereupon asked to be excused and left the courtroom. The plaintiff then adduced the testimony of F. W. Van Ness, assistant to the resident manager of the company, and of Newton Parks, works industrial engineer, establishing, mostly by their direct knowledge but partly by hearsay, several incidents of union picket activity from September 14 to September 16, producing obstruction of indeterminate duration of ingress and egress by trucks and a fairly continuous periodic obstruction of cars of non-striking personnel.

At the conclusion of the proofs the judge announced that plaintiff was entitled to a restraint: that there had been 'adequate proof * * * of illegal acts by the defendants in the mass picketing and the inability of the proper flow of automobiles and trucks to the plant.' An 'injunctive order' was signed and served the same day reciting: 'a. that illegal acts of further violence (sic) and unlawful acts have been committed by defendants, and are likely to be committed by them unless restrained,' followed by the conclusions specified as prerequisites in B. and C. of N.J.S. 2A:15--53, N.J.S.A., in practically Haec verba, but without the finding required by D. of that section 'that plaintiff has no adequate remedy at law.' Moreover, the bond for costs called for by the cited section was not ordered.

We refer at some length to the enjoining verbiage of the order as it remained in effect continuously thereafter until it was superseded by the interlocutory injunction of November 25, 1959, and we shall be considering the legal implications

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of the subsistence[157 A.2d 547] of such restraints against the union all during the intervening period in the light of the various mandatory conditions specified as prerequisite for such relief in the Anti-Injunction Act. The union and the individual defendants were, in substance, enjoined from (a) collecting or gathering at the entrances of plaintiff's premises for the purposes of intimidating or coercing plaintiff's employees desiring to work, or other persons having business with plaintiff, or from preventing or obstructing anyone from entering or leaving the premises, except that six pickets ten feet apart might peaceably walk up and down the streets or sidewalks but not obstruct the entrances or molest or interfere with entry into or egress from the premises; (b) obstructing plaintiff's premises so as to prevent deliveries to or shipments from the plant of goods and merchandise; (c) 'parading or patrolling, loitering or picketing about premises of plaintiff, or public streets or public sidewalks approaching thereto or in vicinity thereof except in such number or in such manner or in such places as hereinabove set forth in this order'; (d) directing, assisting or abetting any person in doing or attempting to do any of the foregoing prohibited acts; and (e) coercing employees of plaintiff by threats to them or their families to induce them not to report to work (no competent proof of any such threats by defendants had been submitted). There was absent from the order any finding of any specific acts committed by defendants and expressly complained of in the complant (even as supplemented by the new application), as required by N.J.S. 2A:15--5, N.J.S.A.

The order set the matter down to be heard on the following Tuesday, September 22, 1959. (The statute provides that temporary restraining orders issued without notice become void after five days. N.J.S. 2A:15--33, N.J.S.A.) At the opening of the hearing on September 22, 1959, the court received in evidence over the objection of defendants the transcript of testimony taken on the return of the order to show cause concerning the August occurrences. Counsel for

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defendants stated it was their position 'that plaintiff be required to conform...

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