Vim Elec. Co., Inc. v. Retail Employees Union Local 830, 129/576.

• Decision Date: 20 December 1940
• Docket Number: 129/576.
• Citation: 128 N.J.Eq. 450,16 A.2d 798
• Parties: VIM ELECTRIC CO., Inc. v. RETAIL EMPLOYEES UNION LOCAL 830 et al.
• Court: New Jersey Court of Chancery

16 A.2d 798

128 N.J.Eq. 450

VIM ELECTRIC CO., Inc.

v. RETAIL EMPLOYEES UNION LOCAL 830 et al.

129/576.

Court of Chancery of New Jersey.

Dec. 20, 1940.

Syllabus by the Court.

1. The right of defendants to convey truthful information of their disputes with their employer to the public is recognized and it is entirely proper and legal.

2. In a labor dispute between employer and employees, peaceful picketing is permitted.

Suit by the Vim Electric Company, Incorporated, against the Retail Employees Union Local 830, affiliated with the United Retail and Wholesale Employees of America and with the Congress of Industrial Organizations, and others, to enjoin picketing.

Injunctive relief denied.

Stein & Willman, of Newark (Julius Stein, of Newark, of counsel), for complainant.

Isserman, Isserman & Kapelsohn, of Newark, for defendants.

EGAN, Vice Chancellor.

The complainant is a corporation of the state of New York. It operates twenty-three stores in that state and six stores in this state. The New Jersey stores are located in Jersey City, Newark, Elizabeth, Paterson, Union City and Perth Amboy. In its New Jersey stores it has forty-seven employees.

The defendant Local Union 830 is a labor organization which counts among its membership many of complainant's New York employees, and some of its New Jersey employees. The New York Labor Relations Board has designated it as the collective bargaining agency of complainant's New York City and Westchester County, New York, employees. Local 830 for a period of at least one year had been negotiating with complainant for better working conditions, hours and wages of employment for complainant's employees without satisfactory adjustment, with the result that on or about November 13, 1940, the local called a strike of complainant's New York City employees. The defendants, Ralph Rispoli and Joseph Hoffman, two of complainant's Union City employees, and Benjamin Bonn, from its Paterson store, who are members of Local 830, left complainant's employ—Rispoli on November 13 and Hoffman and Bonn on November 16, 1940, and engaged in picketing complainant's stores in Paterson and Union City. While picketing, they carry placards upon which is inscribed "Employees of Vim are on strike for decent working conditions. Retail Employees Union Local 830." The Newark store is being picketed by persons who, it is alleged, have never been in complainant's employ. As to them the bill recites: "The said pickets of the Newark store never were employees of this complainant and are complete strangers to this complainant. These pickets are picketing at the same time and are walking together about three feet from the show windows. These pickets are very noisy and speak out very loudly. These pickets speak so loudly that salesmen are required to turn on the radios at full blast to enable the customers to hear the radios which are being sold. These pickets are on hand generally between 11:00 a. m. and 10:00 p. m. when the Newark store closes. The manner in which these men are picketing renders passage across the sidewalk and ingress and egress to and from complainant's Newark store difficult. From time to time one of the pickets has walked up and down across the entrance lobby to the store. The presence of these pickets and the manner in which they carry on their picketing is a threat and intimidation not only to persons who are actually or prospective customers of the complainant but also with respect to the employees of this complainant."

The bill does not allege violence, threats, picketing in large numbers, or the commission of acts which are considered coercive. It is largely devoted to complainant's troubles with the New York local. It states that there is no strike in progress in New Jersey and that the vacancies caused by the three defendants leaving its employ have been filled by capable, competent, efficient and experienced substitutes. However, the allegations in paragraphs 20 and 22 of the bill convey the inference of labor trouble between complainant and defendants. Those paragraphs read as follows :

20. "* * * Actually out of the forty-seven employees in the six stores in New Jersey conducted by this complainant, only three employees left their jobs, two in Union City and one in Paterson. None of the other employees have left their employment and none of the other employees have authorized a strike or have authorized Local 830 to represent them in collective bargaining."

22. "* * * All of the aforementioned employees, except the defendant, Benjamin Bonn, are presently working and are satisfied with their wages and hours and other working conditions. None of these men, except Benjamin Bonn, authorized Local 830 to call a strike for them and none of these men, except Benjamin Bonn, have authorized Local 830 to bargain collectively for them."

The defendants say that the strike of complainant's employees in both New York and New Jersey is current and is the result of a labor dispute. They allege that their activities are of a most peaceful nature, and are of a kind recognized as proper, lawful and appropriate. They aver that they attempted in good faith to negotiate with the complainant to secure for its employees better working conditions, satisfactory hours of employment and fair wages; they asked to extend to the union, full recognition as collective bargaining agent in accordance with "the authorization of the Vim employes to that effect." The defendants further allege that the strike in progress in New York and in this state was caused solely by the complainant's attempt to "disregard its obligation to bargain with the local union."

While it may be conceded that the positions of the three former employees of complainant in this state have been filled and taken by others, that in itself does not effect a termination of the strike. While the bill alleges that the three men hired in the place of complainant's three former employees, are capable, competent, efficient and experienced, and are doing satisfactory work, yet complainant's conclusion to that effect is challenged by the defendants. They contend that it lacks a recital of the essential, ultimate facts which lead to the inference.

The court's language in McPherson Hotel Co. v. Smith, 127 N.J.Eq. 167, 12 A.2d 136, 140, on the question of when a strike may be considered terminated, is, in the circumstances, illuminating; in part, it reads as follows: "But when can it be said that a condition of strike no longer exists as a practical matter? Technically of course as soon as the strikers' places are filled with permanent competent men, the strikers are no longer employees of the employer, and there would be no longer in existence a 'strike,' by 'employees.' But obviously that is not the view held by our courts, as evidenced by their expressions. It would seem that the law in this state today is that where employees have gone out on strike (for a lawful purpose) that strike is deemed to continue to exist, and the strikers are deemed to continue to be employees or quasi-employees (so far as concerns the question of lawfulness of picketing by them), as long as the strike has not been abandoned, or terminated by mutual consent, and there exists some reasonable possibility that the purposes of the strike (or some of them) may still be attained."

In the instant case, the present and continuous picketing by the complainant's former employees shows that the strike is still in progress. Newark International, etc, v. Theatrical Managers, etc, 126 N.J. Eq. 520, 10 A.2d 274. The complainant expresses fear of loss of business from the picketing; yet, it does not show that the picketing has materially affected its business. Meyer v. Somerville Water Co., 79 N.J.Eq. 613, 82 A. 915; Meyer v. Somerville Water Co., 82 N.J.Eq. 572, 89 A. 545; Brunetto v. Town of Montclair, 87 N.J.Eq. 338, 100 A. 201; McMahon v. Pneumatic Transit Co., 85 N.J.Eq. 544, 96 A. 999; Schindler Adv. Co. v. Public Service Transportation Co., 97 N.J.Eq. 542, 127 A. 786; Perth Amboy Gas Light Co. v. Kilek, 101 N. J.Eq. 805, 138 A. 886; Helbig v. Phillips, 107 N.J.Eq. 138, 152 A. 919; Rissler v. Plumbers Local No. 326, etc, 109 N.J.Eq. 91, 156 A. 498; Earrusso v. Montclair, 114 N.J.Eq. 12, 168 A. 398; Sneath v. Lehsten, 120 N.J.Eq. 327, 185 A. 55.

The affidavits of the defendants, as hereinabove stated, admit the picketing of complainant's stores. The affidavit of Abe Silverberg, president of Local 830, in part, says: "The purpose of the picketing is to inform the public that there is a strike against the company and that the union is attempting to get favorable working conditions for the employees of the said company. The public is asked to aid the union in its strike by refusing to patronize the stores until the strike is settled."

Paragraph 5 of the affidavit of Sophie Feinstein, business manager of Local 146, in part, reads: "The picketing is carried on in order to apprise the public generally that there is a strike being carried on by the union."

The striking employee, Benjamin Bonn, in paragraph 8 of his affidavit, says: "We made an appeal to the public to support our strike by not patronizing Vim Electric stores. * * * Our sole purpose in carrying on the picketing was to inform the public that the strike existed."

In Restful Slipper Co., Inc. v. United Shoe & Leather Union, 116 N.J.Eq. 521, 174 A. 543, 546, this court in part said: "Picketing is lawful if it does not have an 'immediate tendency to intimidation of the other party to the controversy, * * * or an immediate tendency to obstruct free passage such as the streets afford, consistent with the right of others to enjoy the same privilege.' Keuffel & Esser v. International Association of Machinists, 93 N.J.Eq. 429, 116 A. 9, 10; American Steel Foundries v. Tri-City C. T. Council, 257 U.S. 184, 42 S.Ct. 72, 77, 66 L.Ed. 189, 27 A.L.R. 360."

The right of defendants to convey truthful information of their...