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Busch & Sons Inc. v. Retail Union of New Jersey

April 5, 1954


On appeal from Superior Court, Appellate Division.

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


The original restraint of October 9, 1951 allows orderly picketing and will stand, but the restraint of April 22, 1953 enjoining all picketing is set aside. This result is required by the decision of the United States Supreme Court in Garner v. Teamsters, C. & H. Union, 346 U.S. 485, 74 S. Ct. 161, 98 L. Ed. , which came down December 14, 1953, after the Appellate Division, on October 1, 1953, 27 N.J. Super. 432, sustained the Chancery Division judgment embodying the April 22 restraint. We allowed certification upon defendants' petition, 14 N.J. 111 (1953).

Plaintiff is a retail jewelry concern with three stores in New Jersey and stores in other states, and that it is engaged in interstate commerce is conceded. The controversy between it and the defendants started in April 1951 when eight of the 37 employees of the New Jersey stores went on strike in support of the defendant union's demand for recognition as exclusive bargaining agent. Shortly before the strike two other employees were discharged, it appears for reasons of economy. Picketing was begun before the main

store at 875 Broad Street, Newark. There were instances of mass picketing and other disorders which prompted plaintiff to file a complaint for injunctive relief which resulted in the restraint of October 9, 1951 already mentioned.

Meanwhile the employer initiated a representation proceeding before the National Labor Relations Board seeking an election to determine whether the employees desired the union to represent them. The representation proceeding resulted in an order directing an election, but the Board's determination declared that the strikers were ineligible to vote, having been replaced by new employees before December 1951. The Board stated, "Under these circumstances, we find that the replacements were hired as permanent employees, that they are eligible to vote, and that the strikers whom they replaced are not eligible to vote." See 29 U.S.C.A., § 159(c)(3). Judicial review of the determination was not available, as neither party to the controversy has made any charge against the other of unfair labor practice, and unless some not plainly untenable constitutional question is raised, judicial review of a representation proceeding can be had only as an incident to review of a Board order under section 160(c) which adjudicates a Board complaint of unfair labor practice and is based in whole or in part upon facts certified in the representation proceeding. Section 159 (d); Ideal Roller & Mfg. Co. v. Douds, 111 F. Supp. 156 (D.C.N.Y. 1953). The union's dissatisfaction with the determination therefore took the form of a petition to the Board to strike its name from the ballot stating that it did "not claim to represent the employees of the employer in the unit found to be appropriate by the National Labor Relations Board." The petition was granted "on the basis of the aforesaid disclaimer of interest" and the representation proceeding was dismissed.

Orderly picketing, however, was continued by the defendants. On September 12, 1952 the union's attorney wrote plaintiff that "these employees desire to return to work for you and herewith offer to return to work for you at their former positions. * * * I am authorized by the Union

to herewith inform you that upon the reinstatement by you of these employees at their former positions with you, all picketing and other strike activities will immediately cease."

The employer's response was the filing late in September of a supplemental complaint seeking a restraint against all picketing, which restraint was granted and is embodied in the order entered April 22, 1953.

In the Garner case the labor union peacefully picketed the loading platform of an interstate trucking company with the purpose, as found by the Pennsylvania courts, "to coerce petitioners [the employer] into compelling or influencing their employees to join the union." The Pennsylvania trial court held that the picketing violated the Pennsylvania Labor Relations Act, Pa. Laws 1937, p. 1172, Purdon's Pa. Stat. Anno. 1952, Title 43, sec. 211.6, and restrained it. The Supreme Court of Pennsylvania reversed, 373 Pa. 19, 94 A. 2 d 893, holding that the employer's grievance fell within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices proscribed by the Taft-Hartley Act, 61 Stat. 136 et seq., 29 U.S.C.A. § 141 et seq., and that state remedies were therefore precluded. The United States Supreme Court affirmed.

The rationale of the Garner decision is that "federal occupancy" of the field debarred Pennsylvania from "continuing to exercise its conventional equity powers." Mr. Justice Jackson wrote the opinion for a unanimous court and said (346 U.S. 488-490, 74 S. Ct. 165, 98 L. Ed. ):

"Congress has taken in hand this particular type of controversy where it affects interstate commerce. In language almost identical to parts of the Pennsylvania statute, it has forbidden labor unions to exert certain types of coercion on employees through the medium of the employer. It is not necessary or appropriate for us to surmise how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body. The power and duty of primary decision lies with the Board, not with us. But it is clear that the Board was vested with power to entertain petitioners' grievance, to issue its own complaint against respondents and, pending final hearing, to seek ...

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