For affirmance -- Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Justice Heher. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting).
The Middlesex County District Court rejected the plaintiff union's claim in replevin for the return of its union shop cards possessed by the defendants who operate barbershops in Perth Amboy; the Appellate Division in an opinion reported at 39 N.J. Super. 250 (App. Div. 1956) reversed the district court with direction that judgment be entered for the plaintiff; we granted certification on the defendants' application under R.R. 1:10-2.
The plaintiff is Local Union 687 of the Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' International Union of America. It has jurisdiction over Perth Amboy and vicinity and has entered into union contracts governing many barbershops in that area; some of these barbershops are operated by proprietors who have no employees at all; others are operated by proprietors who work as barbers alongside one or more barbers employed by them. Barbershops which are operating under union contracts may obtain shop cards from the union for display at the premises; these cards bear the seal of the International Union, a facsimile of its president's signature, the words "Union Shop" in large letters, and the statement that the card is the property of the union and is subject to the conditions set forth on the back thereof; the brief filed by the defendants in the instant matter acknowledges that the shop card is "designed for display in a barbershop as a symbol of union recognition." When a shop card is delivered, its recipient signs a stipulation which provides that he will comply with the conditions on the back of the card, that it shall remain the property of the union, and that it is loaned only during compliance with the conditions; and he agrees, on demand, to allow peaceful removal of the card by a duly appointed representative of the union. The conditions on the back of the card embody agreements by the recipient that he will (a) abide by the laws of the International Union, (b) abide by the laws of the local union, (c) peaceably surrender the card for the violation of any laws of the International or local, and (d) peaceably surrender the card "for
any cause when called upon to do so." The laws of the International provide that any shop "recognized as a union shop" by the laws and principles of the union shall be entitled to display the shop card; that the shop card shall not be displayed in a barbershop "unless all persons working in the shop with the tools of the trade are members of the union in good standing"; and that an employer who works at the trade and "desires to operate a union shop must become an employer member of the local union" (or a proprietor's guild provided for by the International's constitution).
The four defendants own shops in Perth Amboy and work in them as barbers. One of them employs three journeymen barbers and each of the others employs a single journeyman barber. The defendants are not members of the union or a proprietor's guild but are members of the Perth Amboy Chapter of the Associated Master Barbers of New Jersey which acted for them in bargaining negotiations with the union. The last written agreement between the union and the Perth Amboy barbers was dated August 1, 1953 and was to continue for one year until July 31, 1954, with provision for automatic yearly renewal without notice, and with further provision "that either party may open this agreement for the purpose of discussion or revision upon written notice being served upon either party by the other not less than thirty days prior to expiration of this agreement." Under date of May 3, 1954 the union addressed a letter to the Associated Master Barbers advising that the agreement would "soon expire" and that it would like to meet "to talk about a new contract." In response the union received a letter from the Perth Amboy Chapter advising that it would meet with the union's committee at its convenience. Thereafter negotiations were conducted between representatives of the union and the Perth Amboy barbers but no new agreement was ever reached or executed. When negotiations were broken off on July 29, 1954 by the withdrawal of the union's representative from the bargaining session there were two union demands which had not been met, namely, (1) that
employer barbers, such as the defendants, who worked with the tools of their trade should join the union in accordance with the International's constitution, and (2) that the barbershops should close at 6 P.M. Thereafter a letter was sent to the union indicating acceptance of the 6 P.M. closing hour, but the demand that the employer barbers join the union or a proprietor's guild has been and is still being resisted.
Notwithstanding the failure of the negotiations and the absence of any new union agreement, each of the defendants continued to display the union shop card in his place of business. Demand for their return was refused and on February 11, 1955 the union filed its complaint demanding possession of the shop cards. Thereafter trial was duly held and the witnesses testifying for both parties agreed that the 1953 contract had expired and that there was then outstanding no bargaining contract between the union and the defendants. The defendants' position in the district court was that the union had refused to enter into a new contract solely because of their refusal to join the union and that in the light of that circumstance its replevin claim for return of the shop cards should be rejected. The district court entered judgment for the defendants and cited Simon v. Journeymen Barbers, &c., Union, Local No. 315, 11 N.J. 448 (1953), where this court, in an opinion by Justice Wachenfeld, enjoined picketing which was designed to compel employer barbers to become members of the union without, however, any voting rights on matters pertaining to wages and hours and without eligibility to hold office in the local or International union. The authority to retain and display the union shop cards was not passed upon in the Simon case. After the opinion was filed the International's constitution was amended to provide, as it now does, that any barber who works at the trade and is otherwise qualified is eligible to membership and "all members are entitled to equal rights of membership including the right to vote or hold office."
On the union's appeal from the adverse judgment in the district court the defendants again took the position that
although the union contract had terminated and had not been renewed they were nevertheless entitled to retain and display the union shop cards because of the alleged illegality of the union's demand. Thus their brief expressly set forth that the signed contract dated August 1, 1953 had expired July 31, 1954, and that although the parties had conducted negotiations for a new agreement "none was signed and none has been in effect since the expiration of the signed contract." The Appellate Division properly rendered its opinion on the basis of the case thus presented by the record and the briefs and argument of counsel; it took the position that a shop which is no longer recognized by the plaintiff as a union shop should not, in any event, be permitted to display a sign declaring that it is recognized by the plaintiff as a union shop; and it found that under the explicit arrangements between the parties when the cards were originally delivered the cards remained the property of the union and could now properly be reclaimed in an action for replevin. See 39 N.J. Super., at page 261. See also Wisconsin Employment Relations Bd. v. Journeymen Barbers, etc., 272 Wis. 84, 74 N.W. 2 d 815 (1956); Foutts v. Journeymen Barbers, etc., 155 Ohio St. 573, 99 N.E. 2 d 782 (1951); Head v. Local Union No. 83, Journeymen Barbers, 262 Ala. 84, 77 So. 2 d 363 (1955); Rainwater v. Trimble, 207 Ga. 306, 61 S.E. 2 d 420 (1950).
In this court the defendants seek to alter and reverse the course they took in the lower courts; they now urge that the contract dated August 1, 1953 did not expire on July 31, 1954, but is still in effect. Cf. Kerkemeyer v. Midkiff (Mo.), S.W. 2 d (1956). Their present construction entails the rather far-reaching notion that the parties contemplated a collective bargaining contract which would continue forever unless properly changed by mutual consent. No such contemplation is apparent from the language in the contract and the practical construction which both parties placed on it was obviously to the contrary. Although the contract provided for automatic yearly renewal it expressly stipulated that either party could open
it for revision upon proper notice. The letter of May 3, 1954 was rather informal but was treated by both parties as sufficient notice for the opening of the agreement and there is no reason why we should do otherwise. In their negotiations thereafter both parties acted consistently on their concordant views that the agreement would expire on July 31, 1954 and that if no new agreement was reached by that date there would be no collective bargaining contract then in effect. This practical interpretation is, of course, entitled to great weight. See Kingston Trap Rock Co. v. Eastern Engineering Co., 132 N.J.L. 254, 259 (E. & A. 1944); William Berland Realty Co. v. Hahne & Co., 26 N.J. Super. 477, 496 (Ch. Div. 1953), modified, 29 N.J. Super. 316 (App. Div. 1954). In the Berland Realty case Judge Speakman aptly remarked that where the meaning of contractual language is doubtful the best guide is furnished by the parties' construction as manifested by their conduct. Finally, the case was tried and determined in the lower courts on the basis of the assertion by both parties that the contract had expired and had not been renewed; as Justice Burling pointed out in Brown v. Brown, 2 N.J. 252, 255 (1949) this court does not ordinarily "permit a litigant to plead and try his case upon one theory and then, if unsuccessful, advance another theory upon appeal." See Lippman v. Ostrum, 22 N.J. 14, 26 (1956); Beckmann v. Township of Teaneck, 6 N.J. 530, 537 (1951). In the instant matter we are entirely satisfied that the determination in this court must justly be founded on the premise that the contract had expired and that no new contract was entered into primarily because the defendants rejected the demand that they become members of the union.
The defendants contend that the objective of the plaintiff to have them become members of the union "is unlawful because they would become bound by provisions of the International Union Constitution which would incapacitate them from acting as free agents in the negotiation of collective bargaining agreements." In particular they ...