Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D. Goldmann, S.j.a.d. (concurring).
[59 NJSuper Page 245] This is an appeal, taken by leave of this court, R.R. 2:2-3(a), from an interlocutory injunction granted by the Chancery Division on November 25, 1959 enjoining the defendant union and named individual officers and agents thereof, as well as "all persons and organizations associated with or acting in concert or combination
with them," from certain specified activities at or near the entrances to plaintiff's plant on East Pearl Street, in the City of Burlington, and regulating and restricting picketing by them related to an existing strike. The appeal was directed to be brought on for argument on an abbreviated time schedule. The nature of some of the questions raised by the parties and suggested by the court requires rather detailed recounting of the chronology of this controversy.
The defendant union represented about 670 of plaintiff's working force at its manufacturing plant; there were about 212 non-union employees. A three-year contract governing wages and working conditions of the union personnel expired August 20, 1959. Negotiations for a renewal not having resulted in agreement, the union called a strike and the union employees walked out at midnight of August 20, 1959 (Thursday-Friday). From that time until 10:30 A.M. Friday morning large numbers of the striking employees were massed at the main plant gates on East Pearl Street, resulting in practically total blockage of ingress or egress by vehicles and male pedestrians. Only women were allowed through. Later that day one of the Superior Court judges temporarily sitting to hear Chancery motions entered a temporary restraint and order to show cause based upon a verified complaint for injunctive relief against the activity described. The restraint was founded on oral proofs as well as affidavits and recited that it was issued without notice because "immediate substantial and irreparable injury" to plaintiff would probably otherwise result before notice could be served. See N.J.S. 2 A:15-53 (Anti-Injunction Act, N.J.S. 2 A:15-51 to 58, incl.).
The order to show cause was heard before another judge on August 26, 1959. The company proofs then adduced indicated that while there are in all six gates leading into the plant premises, only two are in regular use for plant personnel -- Gate No. 1, customarily used by supervisory and office personnel, and Gate No. 2, for general plant employee use. Each is wide enough for two-way vehicular passage
(Gate No. 1 is wider), and each has separate pedestrian access gates alongside. In addition to proof of the mass obstruction in the early hours of August 21, 1959, plaintiff proved that during the remainder of that day and on Monday, August 24, 1959, the union carried on a practice variously described as "elliptical" picketing or "merry-go-rounding" at the vehicular gates. This consisted of pickets marching in an oval formation so as to prevent a vehicle from driving through the gates without risk of making contact with one of them. After one or more turns the line would open to let the car through. The result was, for example, that at closing times non-striking employees would be delayed anywhere from half a minute to 30 to 35 minutes in driving out of the plant. This activity terminated by Tuesday, August 25, 1959, and it was primarily on that basis that the judge denied the application for continuation of the preliminary relief, although finding that "there was illegal picketing in the early hours of this strike." The formal order provided that "plaintiff may apply for relief on short notice to the defendants or their counsel in the event of any further illegal acts of violence" and that costs should not be taxed in favor of defendants.
No union activity gave plaintiff any reason for further complaint to the court until Monday, September 14, 1959. A series of incidents from that morning until Wednesday morning, September 16, 1959, led plaintiff to give defendants' counsel short notice, at 10:00 A.M. that morning, by leave of the judge sitting in the Chancery Division vicinage for Burlington County, of an application to be made that afternoon, at 2:00 P.M. in Camden, for a new restraint based on such incidents. Union counsel appeared, stated the notice was insufficient to enable him to meet the application, and informed the court that the union's position was that it was and had continuously been doing only what the judge hearing the first show cause order had "instructed" it was permissible -- "to stop cars and trucks going in there, not to compel them to stop, but if they stopped, to ask them to
respect the picket lines." He asked the court to set the matter down for full hearing the following week. Counsel for the plaintiff stated that it was willing to have the application considered as made " ex parte ," with an order to show cause returnable on short date, but insisted on the right to an immediate temporary restraint on oral proofs it was ready to adduce. The court informed union counsel it saw no reason why it could not hear the application "in an ex parte way whether you received notice or didn't receive notice." The latter thereupon asked to be excused and left the courtroom. The plaintiff then adduced the testimony of F. W. Van Ness, assistant to the resident manager of the company, and of Newton Parks, works industrial engineer, establishing, mostly by their direct knowledge but partly by hearsay, several incidents of union picket activity from September 14 to September 16, producing obstruction of indeterminate duration of ingress and egress by trucks and a fairly continuous periodic obstruction of cars of nonstriking personnel.
At the conclusion of the proofs the judge announced that plaintiff was entitled to a restraint: that there had been "adequate proof * * * of illegal acts by the defendants in the mass picketing and the inability of the proper flow of automobiles and trucks to the plant." An "injunctive order" was signed and served the same day reciting: " a. that illegal acts of further violence (sic) and unlawful acts have been committed by defendants, and are likely to be committed by them unless restrained," followed by the conclusions specified as prerequisites in b. and c. of N.J.S. 2 A:15-53, in practically haec verba , but without the finding required by d. of that section "that plaintiff has no adequate remedy at law." Moreover, the bond for costs called for by the cited section was not ordered.
We refer at some length to the enjoining verbiage of the order as it remained in effect continuously thereafter until it was superseded by the interlocutory injunction of November 25, 1959, and we shall be considering the legal implications
of the subsistence of such restraints against the union all during the intervening period in the light of the various mandatory conditions specified as prerequisite for such relief in the Anti-Injunction Act. The union and the individual defendants were, in substance, enjoined from (a) collecting or gathering at the entrances of plaintiff's premises for the purposes of intimidating or coercing plaintiff's employees desiring to work, or other persons having business with plaintiff, or from preventing or obstructing anyone from entering or leaving the premises, except that six pickets ten feet apart might peaceably walk up and down the streets or sidewalks but not obstruct the entrances or molest or interfere with entry into or egress from the premises; (b) obstructing plaintiff's premises so as to prevent deliveries to or shipments from the plant of goods and merchandise; (c) "parading or patrolling, loitering or picketing about premises of plaintiff, or public streets or public sidewalks approaching thereto or in vicinity thereof except in such number or in such manner or in such places as hereinabove set forth in this order"; (d) directing, assisting or abetting any person in doing or attempting to do any of the foregoing prohibited acts; and (e) coercing employees of plaintiff by threats to them or their families to induce them not to report to work (no competent proof of any such threats by defendants had been submitted). There was absent from the order any finding of any specific acts committed by defendants and expressly complained of in the complaint (even as supplemented by the new application), as required by N.J.S. 2 A:15-55.
The order set the matter down to be heard on the following Tuesday, September 22, 1959. (The statute provides that temporary restraining orders issued without notice become void after five days. N.J.S. 2 A:15-53.) At the opening of the hearing on September 22, 1959, the court received in evidence over the objection of defendants the transcript of testimony taken on the return of the order to show cause concerning the August occurrences. Counsel for
defendants stated it was their position "that plaintiff be required to conform with all sections of the statute, N.J. (sic) 2 A:15-51 to paragraph 58, inclusive, and to be made to prove all the elements set forth as prerequisites for relief in the statute * * *." The taking of proofs from both sides began and continued each successive court day (except Friday, September 25, 1959) through September 30, 1959. At that time the parties rested, and the court announced, on its own motion, and without objection of the parties, that it would continue the matter until October 7, 1959, the restraint to continue, and at that time hear oral argument on the application. Such argument was held, and, at its conclusion, the court stated it would make its "written finding of facts within the next few days with an opinion accompanying it," the existing restraints to continue in the meantime.
On November 17, 1959 the trial court filed a document entitled "Conclusions," in the form of an opinion. It was recited that the testimony showed that non-striking employees were partially operating the plaintiff's business and this entailed traffic in and out of the gates at morning, night and lunch-hour, as well as movement of goods by truck. The court found that the elliptical picketing, as described above, had occurred on September 14, 15 and 16, 1959, blocking vehicular plant traffic for "long and unreasonable delays" and that some vehicles were barred. It also found abusive language by some of the defendants "on more than one occasion" beyond the legal rights of reasoning with or solicitation of cooperation from employees or third persons. The deprivation of deliveries in and out of the plant and of free access thereto of employees "as well as the loss of the property rights of the plaintiff resulted in irreparable injury to plaintiff." It was concluded that the "recurrence" of the acts after the findings of the judge who sat on the August order to show cause and of further acts during the taking of the testimony on the current application showed "unlawful acts are likely to be continued unless restrained";
also that this showed much greater injury would be inflicted upon plaintiff by a denial of the restraint than upon the defendant by its grant. The court found that both before and after expiration of the bargaining agreement representatives of the parties had met to attempt to resolve their differences. It said: "There was no evidence to indicate that the plaintiff failed to make every reasonable effort to settle such dispute, either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration." The court rejected defendants' contentions that there was no blocking of traffic and that plaintiff itself "designed these stoppages," as unproved. It was directed that the restraint should be continued in the form of the September 16, 1959 order.
Defendants applied to this court for leave to appeal, with stay of the order pending appeal. This was denied as premature, no formal order having been entered. Thereafter, as noted, the interlocutory injunction now under appeal was entered November 25, 1959. This document recites the making of Findings of Facts, filed the same day, and the previous filing of Conclusions on "November 14, 1959" (actually filed November 17, 1959). The "Findings of Facts" makes the conclusionary recitals found in a. to d. of N.J.S. 2 A:15-53, and that plaintiff has complied with the provisions of N.J.S. 2 A:15-54 (compliance by plaintiff with obligations imposed by law and reasonable efforts to settle dispute). It then finds, in the same generalized language as was incorporated in the injunctive order of September 16, 1959, as described above, that defendants have (1) gathered to coerce or intimidate, and obstructed plaintiff's employees and others having business with plaintiff from ingress and egress to and from its plant; picketed to effect such obstruction; obstructed deliveries and shipments of goods; and aided and abetted others in doing such acts. The interlocutory injunction of November 25, 1959 repeated the restraints of the injunctive order of September 16, 1959 except that against coercion of non-striking employees by threats of
violence, which was concededly not supported by the proofs. Also, and for the first time, plaintiff was ordered to file a bond "pursuant to N.J.S. 2 A:15-53" to secure defendants' costs and counsel fees "in the event that the injunctive relief herein granted is hereinafter reversed by the Appellate Court."
On granting leave to appeal, this court, by divided vote, denied a stay of the injunction pending appeal.
We first address our attention to the defendants' contention that the evidence does not show them to have been guilty of conduct fairly beyond the lawful scope of the economic and psychological pressure which a striking union may apply in the effort to win a strike. Preliminarily, we note we have no concern here with the doctrinal vagaries as to the effect of the legality of the ultimate purpose and object of the picketing as neutralizing its "free speech" constitutional aspect. See the discussion of this subject in Independent Dairy Workers, etc., v. Milk Drivers, etc., Local No. 680, 30 N.J. 173, 183-184 (1959); Galler v. Slurzberg , 27 N.J. Super. 139, 154-157 (App. Div. 1953), certif. denied 13 N.J. 391 (1953). The rise and fall of the socalled Thornhill doctrine (equating picketing with the right of free speech) in the United States Supreme Court is reviewed in International Brotherhood, etc., v. Vogt , 354 U.S. 284, 77 S. Ct. 1166, 1 L. Ed. 2 d 1347 (1957). The present problem, by contrast, is simply whether the picketing here was beyond the "peaceful" category and invaded the property rights of the plaintiff to an extent appropriately calling for equitable relief by injunction. Here, the object of the strike and picketing -- as implements of economic pressure to obtain a better collective employment contract from the strikers' employer -- was clearly lawful. What is in issue is the manner of the picketing. While striking picketers unquestionably have the right to attempt to dissuade
non-striking employees and business visitors from crossing the picket line, this does not extend to the privilege of harassment of the individuals involved or substantially impeding free ingress and egress to and from the employer's premises. Under the rationale of the controlling decisions of our court of last resort in such cases as Westinghouse Electric Corp. v. United Electrical, etc. , 139 N.J. Eq. 97 (E. & A. 1946), and Isolantite, Inc., v. United Electrical, etc., of America , 132 N.J. Eq. 613 (E. & A. 1942), absence of violence is not the sole requirement to render "peaceful picketing" immune from judicial restraint. "* * * [I]t must be free from intimidation, coercion, duress, fraud and force," Westinghouse Electric Corp., supra (139 N.J. Eq. , at page 112), and is illegal and enjoinable if it deprives the employer of "the right of free access to [its] plant by the owners thereof and their employees and customers who wish to enter same." To the extent that such free access is denied, the union's activity is an illegal seizure of the employer's property. Id. , at page 113. As liberal a judge as Mr. Justice Reed, dissenting from the Supreme Court's holding in Carpenters and Joiners Union v. Ritter's Cafe , 315 U.S. 722, at pages 738-739, 62 S. Ct. 807, 815, 86 L. Ed. 1143 (1942), that Texas might constitutionally enjoin union picketing for a purpose conflicting with state policy, nevertheless said: "We do not doubt the right of the state to impose not only some but many restrictions upon peaceful picketing. Reasonable numbers, quietness, truthful placards, open ingress and egress , suitable hours or other proper limitations, not destructive of the right to tell of labor difficulties, may be required." (Emphasis added)
The age of the decision does not detract from the continued authority of Keuffel & Esser v. International Ass'n. Machinists , 93 N.J. Eq. 429, 431 (E. & A. 1922), following American Steel Foundries v. Tri-City C.T. Council , 257 U.S. 184, 203, 204, 42 S. Ct. 72, 66 L. Ed. 189 (1921) (a case in which Chief Justice Taft spoke for a court inclusive of Justices Holmes and Brandeis), to the effect that
"men may accost one another with a view of influencing action, but may not resort to persistent importunity, following and dogging." (But "following" solely to communicate one's views may not necessarily be unlawful. Isolantite, Inc., v. United Electrical, etc., of America, supra (132 N.J. Eq. , at p. 623).) Further, "the employer ha[s] the right to the access of his employees to his place of business and egress therefrom without intimidation or obstruction," while strikers have "the right to use peaceable and lawful means to induce * * * employees * * * to join their ranks." Keuffel & Esser, supra , 93 N.J. Eq. , at pp. 430, 431. And see Bayonne Textile Corp. v. American, etc., Silk Workers , 116 N.J. Eq. 146, 163 (E. & A. 1934).
It has been held that, substantively, nothing in the Anti-Injunction Act (cited above) operates to validate or withdraw from the remedial process of injunction what was previously acknowledged as tortious conduct injurious to property rights. Westinghouse Electric Corp., supra (139 N.J. Eq. , at p. 108); Independent Dairy Workers, etc., supra (30 N.J. , at page 186). Undoubtedly the express legislative declaration of policy as to valid labor practices, including strikes and picketing, in the act cited, N.J.S. 2 A:15-51, was designed to remind our equity courts thereof in the context of a statute conceived, over-all, to remedy the abuse of hasty, ill-considered and unfair injunctions in labor disputes, but the essential scheme of the act, as we shall see hereinafter, was to attain its objectives by imposing procedural safeguards against oppressive and unjust injunctions in such cases.
Defendants stress that their stopping of cars and trucks was only incidental to a reasonable exercise of the right to persuade the drivers thereof to cooperate with their strike objectives, and not of a degree substantially beyond the fair purview of that right. They contend that supervisory employees and officers of plaintiff adopted tactics designed to aggravate the stoppages in order to promote the chances of obtaining an injunction -- not to protect its property or maintain
its activities, which were not being substantially impaired or curtailed -- but to "break the strike." This argument makes it necessary to look at the factual picture painted by the proofs -- a process which will also serve the occasion later herein to appraise the sufficiency of the findings of fact and conclusions.
A fair analysis of the proofs reveals the following. Prior to Monday, September 14, 1959, according to Ernest A. Sternotti, International Representative of the union, and in charge of negotiations and strike activities for the local, an "agreement" had existed, arranged between union counsel and the employer's, whereby the union would "allow" passage of company trucks and rail shipments. On that morning the union received information that the employer was using leased carriers for the shipment of its products out of the plant. This was objectionable to the union. It had previously been successful in getting drivers delivering to the plant to "respect" its picket line. The plaintiff anticipated trouble on that date, there having been warnings by one Borkowsky, a striker, to Parks, the works engineer, in the presence of a non-striking secretary, and to a company supervisor, one Durham (all three testifying thereto), that starting the following week, "no women will get through." The supervisors were instructed by plaintiff on Friday, September 11 to be on hand early Monday morning with photographic equipment.
Basically, the acts complained of here are the union's blockage of automobiles driven by non-striking employees as well as truck traffic coming into and out of Gates No. 1 and No. 2. (The other four gates into the plant were not opened during the strike. But they had not previously been used for general access purposes by supervisory or office personnel.) It is clear that there was no attempt by the union at any time to block or hinder pedestrian flow in and out of the gates, or, for that matter, to accost pedestrians with a plea to stay out. Stella, the union president, testified that he gave the strikers instructions not to hinder vehicular
traffic as well, but it is obvious that there was some degree of planned union hindrance thereof.
On Monday, September 14, there was no obstructive picketing activity until 10:30 A.M. Before that time management employees came and went freely, and a loaded leased truck was driven out Gate No. 2 twice by Griffith, a foreman. Sternotti and Stella heard about the use of the leased truck and went to the gate, with an added complement of picketers. They arrived just in time to see a station wagon, which was escorting the truck, come through the gate. Van Ness, who drove the station wagon, testified that as he neared the gate, there were eight or ten pickets circling at the gate, forcing him to stop and then inch his way through. Sternotti and Stella claim the station wagon did not stop at all. The truck, however, did stop at the gate -- the pickets had commenced marching about in elliptical fashion, the testimony numbering them between eight and twelve. Sternotti spoke to Griffith, the driver, for several minutes and then to the cab passenger, Scudder, a production manager. He crossed the line, spoke to the occupants of the station wagon, Van Ness; Bowker, of management; and Burr, an engineer, and then returned to speak with Griffith. At that point, about ten or fifteen minutes after the truck first stopped, Burr went back through the line and instructed Griffith to return the truck to the plant grounds, which he did. During this time photographs and movies of the pickets were taken by Burr, Bowker and Parks, who was in a second station wagon behind the truck. Some of these were introduced in evidence and show the pickets standing facing the truck while Sternotti is addressing the driver. Parks also testified that he was called a foul name by one of the pickets, whom he identified. This was denied. Sternotti's explanation of the various conversations was that he did not realize that the driver was a company supervisor and was trying to persuade him to respect the picket line. Scudder agrees that Sternotti used no threats or foul language, nor shouted. The supervisors' testimony purports to refute the claim that
the only purpose of the blockage was persuasion. They are agreed as to various statements made by Sternotti, such as, "You should feel proud of yourself," "Doesn't your conscience bother you?" and, "I didn't know a snake could sink so low."
After the truck turned back, Van Ness drove the station wagon back into the plant grounds without incident and returned to his office to review the matter and to consult with counsel over the sufficiency of this episode as a basis for an injunction. Griffith was instructed at 1:30 P.M. to take the truck out again and did so without any difficulty.
This truck incident was the only untoward happening on Monday, September 14, 1959. Viewed most favorably to the contentions of the plaintiff, Van Ness acted reasonably in deciding that the truck would not get through at that time and instructing it to retreat. However, Van Ness' motive is suspect, as events indicate he was looking for evidence to support an injunction. Moreover, the substantiality of the episode seems diminished by the fact, if true, that the sole cause of the stoppage was Sternotti's lawful desire to persuade an "outside" trucker to respect the lines. Note that Griffith during that week took out thirteen additional truckloads without appreciable incident.
On the morning of Tuesday, September 15, the union applied the elliptical picketing technique to all non-striking employees arriving by car. The pickets would make one to four circles in front of the gate, disperse enough to let one car through, then repeat the process before letting the next one through, and so on with all in line. This was the same general tactic that had been used on the second working day of the strike, Monday, August 24, but was thereafter generally abandoned, occurring only sporadically up to September 15. Although Walker, Van Ness and Ireton, a production manager, were held up for two or three minutes at Gate No. 1, the "merry-go-rounding" at that gate was not continuous, Bowker passing through with no obstruction. At Gate No. 2 each driver was "merry-go-rounded" for about
three minutes while Sternotti attempted to persuade him not to enter the plant. There is no doubt that this form of picketing was intended to block access temporarily by each car, and actually did. The testimony of one Stuart before the judge who heard the August application for restraint indicates the efficacy of the technique and the foolhardiness of disregarding it.
"I proceeded very slowly, I would judge the maximum of half a mile an hour in a very halting way. At one stage of the game I thought my line had opened up. They passed by me a couple of times but it closed up again and one of the voices on the line shouted that I hit him. I felt no impact or could not have because I was moving very, very slowly. They shouted, 'Take his number.'"
At any rate, we are clear that a non-striking driver does not have to subject himself to the risk of trying to drive through such a line. As to the intent to block to the extent of exercising dominion over the gate, this is plainly inferable from the continual references by Sternotti, Stella and counsel to "allowing" the cars through and "letting them through."
There was nothing else untoward on Tuesday. Griffith took out four truckloads of merchandise with no blockage.
On Wednesday, September 16, the tempo of union blockage of non-striking employees' vehicles increased, and the plaintiff deliberately made a bad situation worse. That morning some of the supervisors, most of whom customarily used Gate No. 1, drove up to Gate No. 2. Shortly before 8:00 A.M., Wilson, a supervisor, drove up to the gate from one direction, the pickets were circling, and he stopped. Sternotti went over and asked him "to respect the picket line." Parker, another supervisor, drove up from the other direction, and also stopped. Manning, also a supervisor, pulled up behind Parker, his car blocking traffic from both directions. Griffith came into position behind Manning and was told by another supervisor, Downs, to "pull up tight." By about 8:45 A.M. no car had entered the gate, and one Anderson, a night watchman, who had been waiting
to drive out of the plant since 8:00 A.M., was still on the other side of the gate. There were about 70 cars lined up in the easterly direction and about 25 in the westerly, including two school buses and a mail truck.
About this time Marie Sozio, a company stenographer, drove to the gate by coming down the left lane of the street and pulled up between Wilson and Parker. She testified that she had expected to be allowed through, because, up ...