On appeal from Superior Court, Chancery Division.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For affirmance -- Justices Heher and Jacobs. The opinion of the court was delivered by Burling, J. Heher, J. (dissenting). Jacobs, J. (dissenting).
This appeal arises from a denial of pendente lite injunctive relief against peaceful picketing by the Superior Court, Chancery Division. Plaintiffs filed an appeal with the Superior Court, Appellate Division, and we certified the cause prior to a review below.
Preliminarily, the present state of the controversy should be explained. Plaintiff Independent Dairy Workers Union of Hightstown (hereinafter called the Independent Union) is composed of the employees of defendant Decker's Dairy. It sought, inter alia, injunctive relief against picketing of the dairy and certain of its customers by defendant Milk Drivers and Dairy Employees Local 680 (hereinafter referred to as Local 680) and a judicial recognition of its status as the "sole and exclusive bargaining representative of the employees of Decker's Dairy, Inc. for the purpose of collective bargaining." Following the filing of the complaint an order to show cause why temporary relief should not be granted pending the final hearing was issued by the trial court. The order itself contained certain ad interim restraints. (These, however, did not affect the picketing.) At the hearing on the order to show cause Local 680 moved to dismiss because the complaint failed to allege a factual foundation upon which relief could be granted. The order to show cause was eventually dismissed and temporary relief denied upon this motion. The ad interim restraints were vacated. The court's interest in the merits was apparently focused solely upon the presence or absence of violence in the picketing, and, there being none, the order was dismissed. Local 680 offered no proof. In the disposition of this appeal which stems from the motion of dismissal we must resolve the issues in a context of fact and reasonable inference most favorable to the Independent Union. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170 (1955).
Decker's Dairy is located in Hightstown and has been engaged in an intrastate milk business in that vicinity for nearly 30 years. It purchases milk from farmers in several New Jersey counties, processes it, and sells the products to stores, restaurants and family consumers, either through sub-dealers or on its own routes. The Dairy presently employs some 52 men, the majority of whom are route salesmen and plant employees and who constitute the individual plaintiffs.
Local 680 is a labor organization affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. It has been engaged in activities designed to attain its goal of representing the dairy employees as their bargaining agent. The program employed to attain this wholly legitimate objective constitutes the crucial point of antagonism.
Between January and March of this year Decker's Dairy laid off five employees, Hughes, Brook, Murray, Victor and Vernon Van Hise, all individual defendants herein. (Whether these lay-offs were engendered because of the men's interest in Local 680 or for reasons of economy need not be pursued at this time. The complaint does not seek relief from picketing which might be based upon this factor; and counsel for Local 680 admitted that for purposes of the motion to dismiss, the picketing was acknowledged to be for recognition purposes as alleged by the complaint.) These men, apparently under the direction of Local 680, have engaged in peaceful picketing against Decker's Dairy and many of its customers since mid-January of this year. The signs carried by the pickets, although originally stating that the dairy was unfair to union labor, now impart the following information and request: "Decker's Dairy is not signed up with Milk Drivers and Dairy Employees Local 680 AFL-CIO. Please do not purchase Decker's Dairy Products." The lever employed here to attain the legitimate objective has been successful to an extent. The Dairy has lost customers, alleged to amount to 2,000 quarts of milk daily. So much is admitted by Local 680, its attorney remarking at
the hearing below, "We hope to persuade the public not to purchase (the dairy's) milk and I am proud to think that our picketing had that effect." Local 680 stated this was part of the "persuasive process."
On January 28, 1956 the employees of Decker's Dairy met to discuss the possibility of joining or organizing a labor union. 27 of the group voted to explore the possibility of forming an independent union, three considered membership in a nationally affiliated union the wiser course, and 17 desired to have an informal employer-employee committee handle their problems. The majority course was pursued and a committee of six men proceeded with the initial investigation. They took the matter up with an attorney and were thereafter authorized by the employees to seek the formation of an independent union. On February 21, 1956 a constitution and by-laws were adopted and officers of the Independent Union were elected. The dairy management was informed that the Independent Union had been chosen by the employees as their bargaining agent. Conferences were held between the two groups in an effort to work out a collective bargaining agreement.
All during this time the picketing had continued. The dairy management met with representatives of Local 680 who demanded the employer recognize Local 680 as the bargaining agent of the employees (which demand lacked any sanction of the employees themselves). The dairy management, most aware of the conflicting interest of the two unions, requested proof of the Independent Union that it represented a majority of the employees.
The Independent Union, in order to secure its position, requested the Honest Ballot Association, an impartial body, to poll the employees. (In passing it is to be noted that New Jersey does not have a labor relations act common in many states which provides the machinery for determining the desire of employees in the choosing of bargaining representatives. See Blumrosen, " Labor Law " (1956 Survey, 11 Rutg. L. Rev. 171, 209-212 (1956)). The voters were given three choices:
"I wish to be represented for purposes of collective bargaining by:
INDEPENDENT DAIRY WORKERS UNION OF HIGTSTOWN
Write in name of Union of your choice
I do not wish to be represented by a union at this time.
This is a secret ballot and MUST NOT BE SIGNED."
45 votes were cast, and all for the Independent Union. A further demand was then made upon Decker's Dairy to enter a collective bargaining agreement with the Independent Union. Negotiations were resumed and on April 30, 1956 a contract was drawn and later ratified by the employees.
Local 680 was notified of these events by the Independent Union and a demand was made that the picketing cease. It has continued. The Independent Union filed a complaint against Local 680 and the persons engaged in the picketing, seeking the restraint of all activities which would lend the impression that a labor dispute existed between the Dairy and Local 680 or that the dairy employees were on strike, or threatening reprisals to customers of the dairy. Additional restraint against Decker's Dairy from abrogating the agreement with the Independent Union was sought as well as against any recognition of Local 680 as bargaining agent of the employees. The court was asked to determine that the Independent Union alone enjoys the position of bargaining agent.
The crux of the argument of Local 680 on its motion to dismiss the order to show cause and here is that the anti-injunction statute of New Jersey, N.J.S. 2 A:15-51 et seq., prohibits the granting of any relief and that the right to picket is a constitutional guarantee which may not be arrested under the factual allegations of the complaint. It is all but conceded by the Independent Union that a "labor dispute" within the meaning of N.J.S. 2 A:15-58 exists,
but in view of the unresolved controversy over the discharge of the five employees we make no determination in this regard. Consult Outdoor Sports Corp. v. American Federation of Labor, Local 23132, 6 N.J. 217 (1951) (where the presence or absence of an employer-employee relationship in relation to the statute was discussed), and the alternative holding in Browning King Co. of New York v. Local 195, 34 N.J. Super. 13 (App. Div. 1955). For the purposes of this decision we assume a "labor dispute" to exist and move on to assay the real merits of the plaintiffs' contentions which are hinged upon N.J. Const. 1947, Art. I, sec. 19, which provides as follows:
" Persons in private employment shall have the right to organize and bargain collectively. Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing." (Emphasis supplied)
If the picketing involved here threatens to undermine this protection given persons in private employment by our fundamental law, the anti-injunction law creates no barrier to relief, N.J.S. 2 A:15-51(e), and the sole remaining question would be whether the activities of Local 680 are immune from restraint by virtue of the First and Fourteenth Amendments of the Federal Constitution guaranteeing freedom of speech.
The factual recitation herein is but a development of the assumptions made by the trial court in granting the motion to dismiss. The court characterized the activities of Local 680 as "recognition picketing" and held this not to be illegal in New Jersey. Inasmuch as such a broad pronouncement cannot be approved without resort to the underlying facts (which may vary considerably in these matters) we note the factual climate assumed by the trial court:
"In order to assist you, may I say that for the purposes of this motion of Mr. Parsonnet, if I make a decision on the motion in his favor, I will assume that there were some negotiations between
Local 680 and Deckers Dairy, Inc.; there was the establishment of a corporate entity, the plaintiff; that there was this election by the Honest Ballot Association and that the result is as stated by you in the complaint; that your union is recognized by Mr. Currie's client, Deckers Dairy, Inc.; that after the May 4th, 1956 letter, Schedule B, I think, of the Complaint, the picketing continued on the part of the defendant Local 680; that as a result of the picketing, despite Mr. Parsonnet's motion to strike the testimony because it wasn't tied up, that your testimony established the efficacy and effectiveness as it was intended to be; and that your clients suffered a loss of earnings, your individual clients, the plaintiffs; that Mr. Currie's client as a result also loses business which was intended by the defendant, Local 680's action; that as I note the testimony this morning, the defendant, Local 680, through its members did picket the defendant, Deckers Dairy, Inc., and the customers of your clients, that is the route customers of your clients who are also the customers of Mr. Currie; that as a result of this picketing your clients lost money and so did Deckers Dairy, but that picketing has continued under the sign stated in your complaint and that as far as this proffered sign of Mr. Parsonnet is concerned I will only consider that in the sense that a future application will consider what sign is used."
At the very outset of the hearing on the order to show cause the attitude of the trial court was revealed to the litigants in the following words:
"I think a union may picket to try to convince the workers to change from one union to another, and I don't care if there has been an ...