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Browning King Co. v. Local 195

Decided: January 21, 1955.


Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.


The Chancery Division enjoined peaceful picketing of the plaintiff's premises by the defendant union and all persons associated with it. The basic ground of the restraint was that the picketing was in pursuit of an unlawful objective.

The Browning King Co. of New York, Inc. is engaged in the retail men's clothing and haberdashery business. It maintains and operates one shop on Broad and Clinton Streets in Newark, N.J., and three others in New York City. Its main office and principal place of business is located at 241 Broadway, New York, N.Y.

The company employed at the Newark store a number of persons who were known as bushelmen. Such employees engage in the task of making alterations on clothes sold there. On November 1, 1950 a collective bargaining agreement was entered into on their behalf between the company and the United Garment Workers of America, Local 287, of the American Federation of Labor. The contract regulated their wages, hours of work and other conditions of employment. Its term was for one year but it was to continue in force from year to year unless previously terminated by either party upon written notice of 30 days to the other.

About a month before the November 1, 1953 termination date, Local 287 gave notice that the contract would not be renewed on the existing basis and that negotiation of a revised one was desired. Thereafter and during the month of October, conferences were had between the employer's representative and the union, which, so far as the record shows, concerned themselves largely with the problem of a wage increase.

The busheling work for all three of the New York shops was done at a central plant operated in that city. The employees there were represented by the New York Joint Board, Amalgamated Clothing Workers of America, C.I.O., and that union was likewise engaged in negotiating a contract with Browning King during this same period.

The employer offered Local 287 the same wage scale as had been agreed upon tentatively by the C.I.O. in New York. The offer was refused and a counter-proposal made which was said to represent the prevailing wage scale in the New Jersey area. At the last conference, which took place on October 27, the offer was increased $1 per week and the employer announced that if it was not accepted, the busheling department of the Newark store would be transferred to its control plant in New York and the work done there by the C.I.O. union. The union representatives agreed to submit the matter to the employees and suggested that if agreement was not reached, the company might have to deal with the defendant, Local 195, Journeymen Tailors' Union of the Amalgamated Clothing Workers of America, C.I.O., which apparently had contracts covering alteration department employees in other comparable stores in the Newark area. The officer of the employer who was handling the transaction replied that he would not negotiate with that local; he was satisfied with the A.F. of L. if the employees accepted his terms.

The bushelmen rejected the offer; they went on strike on November 2 and began picketing the Newark store. On the same day the employer transferred the busheling operation

to the central plant in New York where it has been handled ever since, with the possible exception of occasions when that plant was overloaded. In that situation the work seems to have been taken care of at some unnamed place in Linden, N.J.

While the picketing was in progress, a meeting was arranged between Local 287, A.F. of L., and the defendant union. It took place on November 6, at which time all of the strikers signed membership cards and joined the defendant.

Thereafter defendant notified the company that it represented the strikers and wished to negotiate an agreement in their behalf. Also, on November 13 Local 287 advised the company that its services as bargaining agent had ceased and that defendant now occupied that status.

Picketing was halted by defendant in an effort to accomplish an agreement, but although some meetings were held between the parties, the company steadfastly refused to negotiate, saying that it had neither dispute nor relationship of any kind with defendant, and further that the strikers were no longer employees because the department having been abolished, the relationship of employer and employee had ceased to exist.

The testimony indicates that during the hiatus in the picketing the defendant protested against the allocation of the Newark alteration work to the New York C.I.O. local. The company sought arbitration of the dispute between the two unions and a hearing was ordered thereon for December 9 by the Impartial Chairman of the Clothing Association. The record does not disclose whether the hearing was held, and if so what result was reached. However, the central plant in New York continued to do the work. And one of the union witnesses testified that in the course of the discussions the employer's vice-president asserted that if the A.F. of L. local accepted the wage proposal the work would be done in Newark, but he would not negotiate with the defendant C.I.O. local.

On December 4 picketing was resumed and shortly thereafter the action was instituted seeking the injunction.

The pleadings, arguments, oral opinion and memorandum of the trial court and the briefs presented to us show it to be undisputed that when the action was instituted and tried, the employer was subject to the federal Labor Management Relations Act of 1947 (29 U.S.C.A. ยง 141 et seq.). The absence of dispute on the subject was clearly based upon the understanding of the parties that tested by the then existing standards relating to the extent of an employer's engagement in interstate commerce necessary to make the jurisdiction of the National Labor Relations Board applicable, Browning King Co. qualified as such an employer. Under those standards the board accepted jurisdiction over an enterprise having (1) a direct inflow of materials from out of state valued at $500,000 per year, or (2) an indirect flow of materials from out of state valued at $1,000,000, or (3) $25,000 of interstate sales yearly, or (4) a combination interstate movement of goods where the percentage of minimum amounts bought or sold interstate, directly or indirectly, added up to 100%. The proof shows that gross sales of the Newark store alone for the 11-month period ending November 30, 1953 totaled $667,274.57.

The case was presented and tried and was argued on this appeal on the theory that the picketing was for an unlawful purpose, a purpose neither within nor protected by the federal act, and consequently cognizable by the state court and subject to its injunctive power.

The complaint was filed shortly after the opinion of the Appellate Division in Busch & Sons, Inc., v. Retail Union of N.J., Local 108, 27 N.J. Super. 432 (Oct. 1, 1953). At that time the precedents in New Jersey demonstrated generally that where the dispute between the employer and striking employees concerned a matter which is covered by the Labor Management Relations Act, if the object of picketing is to induce a violation of the act, the controversy is not

within the field of the federal preemption and the state court can issue its injunctive process. 27 N.J. Super. , at page 441.

The Busch case was certified by the Supreme Court and pending the review the United States Supreme Court decided Garner v. Teamsters, C. & H. Union , 346 U.S. 485, 74 S. Ct. 161, 98 L. Ed. 228 (Dec. 14, 1953). The principle stated there was that where the dispute concerns a subject matter which is regulated by or within the scope of federal legislation, the state courts are excluded from jurisdiction. More particularly, the court held that where picketing was through non-employees and for the purpose of coercing the employer into influencing the employees to join the union in violation of the Labor Management Relations Act, the state court had no jurisdiction because a complaint could be filed with the National Labor Relations Board.

The object of the picketing in the Busch case was to procure the discriminatory discharge of certain employees. This was declared to be unlawful as in violation of the Labor Management Relations Act and the Appellate Division affirmed the issuance of the injunction. However, our Supreme Court reversed, following the Garner case, saying that the basic issue between the parties was within the coverage of the federal act and consequently the determination thereof was exclusively for the National Labor Relations Board. Busch & Sons, Inc., v. Retail Union of N.J., Local 108, 15 N.J. 226 (1954).

It may be noted that in the present case the injunction was granted a week before the Busch reversal. Thereafter, on reargument applied for by the union, the trial court adhered to his original judgment that the picketing was not in furtherance of any lawful labor objective nor could it be justified on the thesis that the transfer of the busheling operation to New York created a recognizable labor dispute.

Thus we are brought to a consideration of the validity of the injunction in the light of the ...

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