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Simon v. Journeymen Barbers

Decided: February 16, 1953.


On appeal from the Superior Court, Chancery Division.

For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Wachenfeld, J.


Seeking injunctive relief restraining the defendants from, amongst other things, picketing the barber shop of the plaintiff and the shops of other members of the Associated Master Barbers of New Jersey, the plaintiffs filed their complaint.

Frank Simon for the past ten years has owned and operated a barber shop in the City of Plainfield. He is a member of the Associated Master Barbers of New Jersey, an association of employer or proprietor barbers who own or operate their own barber shops. It is affiliated with and part of the Associated Master Barbers and Beauticians of America, a national organization. The chapter of which he is a member is known as Plainfield Chapter No. 945 and is composed of Simon and seven other proprietor barbers.

The complaint alleges Simon works in his shop with the tools of his trade and employs an associate barber who was a member of the defendant union; that by reason of his

employment of union help, plaintiff Simon was given a union shop card by the defendant union to display in his shop; that the defendants Bruno J. Soriano and Louis D'Agostino, respectively president and secretary-treasurer of the defendant union, demanded that Simon and other members of the corporate plaintiff sign written application for membership in the Employers Guild, which is an affiliate of the defendant union and governed by the same constitution and by-laws; that unless they signed an application and became members of the guild, the union shop card would be removed, their shops would be picketed, the journeymen barbers employed in their shops would not be permitted to remain; and it further asserted Simon's shop had been picketed by members of the defendant union, and the shops of other members of the corporate plaintiff had been intermittently picketed, with the threat to put Simon and the others out of business.

An order was issued requiring the defendants to show cause why the prayers and the relief sought in the complaint should not be granted and why an interlocutory injunction should not issue preventing and restraining the defendants from picketing the barber shops of the plaintiffs and from interfering with and depriving the plaintiffs of their rights and property as described in the complaint. No preliminary or interlocutory injunction was granted.

The defendants gave notice of a motion for an order vacating and dismissing the order to show cause upon the ground it was improvidently and improperly entered and dismissing the complaint because it did not disclose a cause of action, was sham and frivolous, and because no summons had issued within the time limit permitted by the rule applicable to such cases.

The motion, after argument, was denied, whereupon the defendants filed an answer denying they had demanded but admitting they had requested that the plaintiff Simon and the other members of the corporate plaintiff join the guild. The defendants further asserted that the employee of Simon, one John Puglisi, was suspended from membership in the

union in February 1952 and thereafter they requested Simon to surrender the union shop card and upon his refusal D'Agostino, one of the defendants, together with other persons, did in March enter the shop and remove the union shop card. They admitted picketing the shops of the plaintiffs but justified their action on the ground that a labor dispute existed within the meaning of R.S. 2:29-77.1 et seq., presently N.J.S. 2 A:15-51 et seq.

When the defendants' answer had been filed, counsel representing them suggested oral testimony be waived and the case be submitted on complaint and answer. He was reluctant, however, to have final judgment rendered thereon but was willing to proceed "for interlocutory purposes."

It was then stipulated the parties proceed "as if testimony were taken; that no technical objections will be made by reason of the fact that your Honor did not take testimony; in other words, submission on the pleadings and exhibits. We are willing to submit the matter."

Defendants' counsel then reversed his stand and suggested final judgment be determined on the same stipulation and that the court should dispose of the matter on the pleadings and enter such final judgment, the plaintiffs having agreed to waive their claim for money damages.

The court below found as a fact from the record, amongst other things, that the union shop card was the property of the defendant union. It came into possession of the plaintiff Simon because he employed union help. One of the rules governing union shop cards, printed on the reverse side specifies such card may not be displayed in a shop where non-unionists are employed, and any person eligible to membership in the union who is not in good standing should be considered a non-unionist. When Simon received his card, his employee was a member of the union in good standing, but on February 29, 1952 the employee was suspended from membership. He was notified of such suspension March 3, 1952 in a letter signed by the defendant D'Agostino. No reason was offered or shown for the suspension and the court

concluded it was arbitrary and done for the purpose of lending color to the creation of a labor dispute and as part of a scheme in ...

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