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Westinghouse Electric Corp. v. Local No. 449 of International Union of Electrical and Radio

Decided: February 23, 1956.


Schettino, J.s.c.


[39 NJSuper Page 440] Applications for counsel fees and costs are made by the attorneys for defendants and the award of counsel fees and costs are resisted by plaintiff.

Plaintiff filed a complaint on December 15, 1955 and sought injunctive relief under N.J.S. 2 A:15-51 et seq. On an ex parte hearing on December 19, 1955 at Freehold preliminary injunction was granted after oral testimony was submitted by plaintiff. On December 20, 1955 a hearing was set for December 22, 1955.

On Thursday, December 22, 1955 -- which was the last day the court sat before Christmas recess -- this court set aside its entire calendar in order to give plaintiff and defendants an opportunity to submit testimony. The hearing started about 10:30 A.M. and continued until 8:30 P.M. Plaintiff produced eight witnesses and numerous exhibits and defendants had exhibits marked for identification or in evidence. The stenographic record totals 244 pages for that one hearing.

At the conclusion of the hearing oral determinations were made encompassing the following:

"The essential acts of disorder by defendants, alleged and presented by plaintiff as prime justification for its application for preliminary relief, were intentionally incited by plaintiff. Testimony offered on behalf of plaintiff designed to show absence of responsibility on the part of the plaintiff for the events which led to the disorder referred to in the complaint, is not credible.

Plaintiff has not, in the matters and situations referred to in the complaint, acted in a manner which was discreet or which was intended to produce a condition of peace in the community.

The plaintiff has not acted in good faith in that it sought and secured ex parte and ad interim relief on incomplete factual statements presented to the court.

Plaintiff, has, within the intendment of New Jersey Statute R.S. 2 A:15-54, failed to establish by adequate proofs presented in preliminary hearing that it has made proper reasonable effort to settle the labor dispute in question whether by negotiation or with the aid of available governmental machinery of mediation, or voluntary arbitration and that plaintiff's actions are arbitrary. Plaintiff failed in the preliminary hearing adequately to establish justification for the issuance of preliminary injunction."

It cannot be denied because of the vast importance of the subject matter that days and hours must have been spent by all counsel in preparing for this December 22, 1955 hearing. The enormity of the work, the pressures of time and importance, the quality of work demanded and accomplished -- all lead to the conclusion that defendants' attorneys and

their entire facilities must have been used for this hearing. So they state in their affidavits of services and so I find.

On January 11, 1956 plaintiff obtained ex parte an order permitting it to file a supplemental complaint and on January 13, 1956 all counsel appeared in Freehold in order to fix a hearing date on the original and supplemental complaint. Over objection by defendants' counsel, the date was set for January 18, 1956 even though defendants' counsel had other commitments.

The transcript for that day contains the following:

"MR. PELLETTIERI: Your Honor, I have another motion. I think it is so germain to this present motion, if your Honor will hear me, I would like to make it now.

As Mr. Kapelsohn has indicated, this matter has been before your Honor and we had quite a hearing, standing from 10 o'clock in the morning until 9 or 9:30 in the evening of the same day which was, I believe, December 22nd last, that your Honor so graciously decided we would sit until we had cleaned the matter up because it was of such far reaching importance.

Now, your Honor will recall the testimony in that case, particularly when Mr. Kapelsohn was examining the witnesses who were beyond the local level but on the state level on negotiations. If your Honor will recall, the testimony was that no one knew who had the authority. One witness says that he only went in there and sat. They had these relay teams of persons who merely went in and negotiated, gave a negotiation by grace. They had no power, no authority. Did not discuss anything. They merely listened.

Now, it strikes me, your Honor, that an important question here to be determined is the good faith, the compliance with the statute in order to entitle them to any relief.

THE COURT: Well, it is not only to entitle them any relief, Mr. Pellettieri. It is in order to permit me to exercise any authority. It is a jurisdictional question.

MR. PELLETTIERI: I respectfully urge at this time, so that we will not be met with the type of testimony which we had before where your Honor had to glean from all of the facts, from the circumstantial facts the question of bargain in good faith. I at this time for that purpose make request and ask the court to compel the complainant, the plaintiff who is seeking relief to produce its officers, the President, Mr. Price, and the Vice President, Mr. Hadnett, who are the two men who have charge of the negotiations. They are the top level. I respectfully request that on the adjourned date that they be compelled to produce these witnesses in court so that we can examine them and question them on the jurisdiction of negotiating in good faith."

The application by defendants' counsel for an order directing plaintiff's president to appear at the January 18, 1956 hearing was granted over plaintiff's objections.

On January 17, 1956 plaintiff's counsel applied for a week's adjournment of the hearing. Because of the calendar situation the hearing date was adjourned to January 30, 1956.

On January 18, 1956 defendants' counsel obtained an order to take the depositions on January 26, 1956 of the president and secretary of plaintiff corporation. After service of the order plaintiff's counsel requested and received a date to argue a motion for an order directing that the depositions of the president and secretary be not taken; or that the scope of the matters in which the defendants may inquire be limited; or that defendants be compelled to comply with the requirements of R.R. 4:24-1 before the documents referred to in the notice for the taking of depositions be required to be produced; and that the court's order directing the attendance of the president as a witness for the defendants at the trial be set aside.

Its motion was based on three grounds; the matter was not relevant nor would it lead to the discovery of admissible evidence; defendants sought to discover matters which were privileged or in the nature of privileged matter and that the proceedings were calculated to annoy, embarrass and oppress the witnesses of the plaintiff. Service of the notice of this motion was made on defendants' counsel on Friday, January 20, 1956.

After oral argument on January 23, 1956 I made the following oral determinations:

"THE COURT: May I say with reference to the history of depositions, Messrs. Schnitzer and Wildstein very ably and thoroughly set forth the purposes of the rule to great length and cite from opinions by Justice Wachenfeld, Justice Brennan and the Chief Justice to the effect, 'Litigation is no longer to be thought of as a battle of wits, or a trial as a sporting event conducted for the benefit of the spectators,' which is a statement by Chief Justice Vanderbilt at ...

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