On appeal from the Superior Court, Chancery Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Hall. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J. Burling, J. (concurring). Burling, J., concurring in result.
The individual plaintiffs are employees of defendant Deckers Dairy, Inc. (herein called "Decker") and constitute the membership of plaintiff union (herein called "Independent Union"). Plaintiffs sued to enjoin defendant union (herein called "Local 680") and some of its members from coercing Decker to breach a contract made by Decker with the Independent Union as the bargaining agent of the employees, and to restrain Decker from abrogating the agreement or from recognizing Local 680 as the bargaining representative during the contract period. The parties agree that Decker is engaged in intrastate commerce; no one suggests federal preemption.
The matter first came before us by appeal from a denial of injunctive relief pendente lite. This court ordered such relief. The opinion stated in part that "The case may then proceed to final hearing in order to develop the full factual background and especially the charge, unsupported by any proof before us, that the Independent Union is a management product." Independent Dairy Workers Union of Hightstown v. Milk Drivers and Dairy Employees Local No. 680, 23 N.J. 85, 102 (1956), commented upon in 12 Rutgers L. Rev. 98 (1957). The trial court found for plaintiffs, and the final judgment is now here on the appeal of Local 680 and its member defendants, certified by us before the Appellate Division acted upon it.
Decker purchases milk from local farmers, processes it, and sells the products to stores, restaurants and family consumers through either its employees or sub-dealers. Local 680 represents employees of others engaged in the same industry. In response to an inquiry by an employee of Decker, Local 680 expressed an interest in representing the employees if they produced a majority in favor of it. The trial court found, and we agree, that Decker dismissed four employees because of their interest in Local 680. Picketing followed. In addition to seeking the reinstatement of the men with back pay Local 680 demanded recognition and a contract even though it did not represent a majority of the men. Local 680 declined to accept anything less than recognition and a contract, taking the position that the unfair discharge of the men by Decker generated an atmosphere in which a free election would be impossible.
The Independent Union was created after the onset of picketing. At an election conducted by the Honest Ballot Association, a reputable organization, the Independent Union was unanimously chosen as bargaining representative. The election was held without notice to Local 680. Upon receiving the Association's certification, Decker recognized the Independent Union, and a two-year contract with provision for annual renewals was negotiated. Notice of the contract was given to Local 680, which however continued to picket.
The picketing was peaceful. It covered Decker's premises and as well on a roving basis the retail establishments which handled Decker's products. Local 680 stipulated, for the purpose of the present case, that its picketing was effective, resulting in economic harm to Decker and the individual members of the Independent Union.
As noted above, Local 680 urged upon the prior appeal that the Independent Union was company-dominated. At the final hearing Local 680 withdrew the issue. It gave as its reason that it wished to seek a reconsideration by this court of its holding upon the prior appeal that Article I, paragraph 19 of the Constitution of New Jersey, forbade
picketing for recognition in the face of an election and a contract made with the representative of the employees' choice. Whatever the reason, we must accept the premise that the Independent Union is what its name literally implies. We add also that Local 680 did not in this suit challenge the validity of the election, either by reason of the manner in which it was conducted or any infection consequent upon the wrongful discharge of the four employees.
The remaining factual matter necessary for decision is the purpose for which the picketing was conducted. In its brief filed with us Local 680 states:
"From all of this testimony, it is clear that there were a number of objectives in the picketing and distribution of leaflets. They were,
(2) Securing of back pay for time lost due to unfair discharges.
(3) Execution of collective bargaining contract with Local 680.
This was demanded until the date of the receipt of the notice, Exhibit P-5 [ sic, Ex P-9, the letter advising Local 680 of the execution of the contract with the Independent Union.] There is no evidence as to the demand of the union subsequent to that date, and its objective thereafter is subject to speculation." (Emphasis added.)
The trial court correctly found that initially the picketing was for the three specific purposes thus claimed by Local 680 but that the first two disappeared before injunctive relief was granted pendente lite and remained non-existent at the final hearing. The testimony of the discharged employees revealed plainly that they became permanently employed elsewhere and that none would consider reemployment with back pay unless Decker would also recognize Local 680 as the representative of all the employees. We agree with the trial court that the issue at final hearing was factually crystallized into the question whether Local 680, which represented neither employees nor former employees interested in reinstatement, may picket to compel abrogation of a valid contract between the employer and the Independent Union and recognition of Local 680 as the bargaining representative of employees it did not in fact represent.
We italicized above so much of Local 680's statement of facts as suggested that following notice of the making of the contract the objective of the picketing became "subject to speculation." Later in its brief and in the oral argument before us Local 680 urged that after the discharged employees assumed the final position described above, the purpose of the picketing should be deemed to have been to organize the employees with a view toward seeking recognition at the expiration of the contract. No such issue was tendered at the ...