Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.
Defendants are a labor union and certain of its officers and agents. Plaintiff corporation is a manufacturer whose plant is situated in Newark. Together with Fein's Tin Can Co. Inc. and Atlas Can Co., both of New York City, plaintiff is a wholly owned subsidiary of U.S. Hoffman Machinery Corp. The union is the collective bargaining agent of the employees of all three concerns, which are under common management and supervision.
At the time of institution of this action, December 7, 1959, there was in effect a collective bargaining agreement between plaintiff and the union which was due to expire January 31, 1960. A separate agreement covering the New York plants had expired some time previously and a strike was instituted by their employees against the New York companies because of the failure of negotiation of a new
labor contract. Thereupon a number of the New York employees were assigned to the Newark plant. Defendants say this was done to assist the New York plants by handling some of the production the New York concerns were unable to effect because of their strike. No finding as to this was made by the trial court. Testimony relevant to this matter by plaintiff's general manager was equivocal. Regarding this procedure as bringing the plaintiff to the aid of the New York enterprises in their economic struggle with the union, the latter sent representatives from New York to picket the Newark factory notwithstanding that in its labor contract with plaintiff, still in effect, it agreed there would be no strikes, work stoppages, picketing or secondary boycotts, etc. and that the union would be liable in law and equity for a breach of such provisions.
In its verified complaint, seeking both an injunction and damages, plaintiff recited, inter alia , that defendants were attempting to prevent plaintiff's employees from working and advising them not to work. It sought an injunction against the "aforesaid interference with business, work stoppage * * * picketing * * * and all other activities of the defendants."
On December 7, 1959 a judge of the Chancery Division issued a temporary restraint against defendants on the basis of ex parte affidavits; heard the parties on an order to show cause the following day; and on December 11 entered a restraining order "until further order of Court" enjoining them from "picketing, boycotting, striking, displaying any signs regarding plaintiff, or in any way interfering with the operation of the business of plaintiff and prohibiting defendants from contacting, soliciting, or in any manner dealing with any business customers of plaintiff, and enjoining and restraining defendants from coming within one mile of plaintiff's plant * * *." The court found that "the defendant union is engaged in picketing the plaintiff in support of its current strike against" the New York companies but "that there is at present no labor dispute
shown by the record between plaintiff and defendants." The issuance of the injunction was not preceded or attended by any of the procedural requisites or findings specified by the Anti-Injunction Act (N.J.S. 2 A:15-51 to 58) or by the filing of the bond for costs required by section 53. The restraining order recites that the cited statutory provisions "do not apply" because the record does not "establish that [a] labor dispute exists between the plaintiff and the defendants."
Defendants petitioned the United States District Court for the District of New Jersey for removal of the cause on December 16, 1959. This was denied, insofar as the cause of action for an injunction was concerned, on the ground that there could be no removal thereof to the federal court since the federal court lacked initial jurisdiction and the state court lacked any jurisdiction over that feature of the controversy, the subject matter being "federally pre-empted" by the provisions of the Labor Management Relations Act, 1947 (Taft-Hartley), 29 U.S.C. Sec. 141 et seq. , because of the implication of an unfair labor practice in the controversy under the fact-findings by the state court.
This court subsequently granted leave to appeal from the restraining order. Several contempt orders against various of the individual defendants have been issued in the interim.
Defendants urge two main grounds of appeal from the injunction: (1) the state courts have been excluded from jurisdiction over the unfair labor practices contended to inhere in this controversy (29 U.S.C. Sec. 158(b)(4)(A)) by virtue of section 10 of the Taft-Hartley Act, 29 U.S.C. Sec. 160, as construed in a series of controlling federal decisions culminating in San Diego Bldg. Trades Council, etc. v. Garmon , 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2 d 775 (1959); (2) the case involved or arose from a labor dispute within the scope of the New Jersey Anti-Injunction Act, and the injunction was illegal because concededly not obtained in conformity with the mandatory procedural requirements of that statute. See United States Pipe, etc.,
Co. v. United Steelworkers of America , 59 N.J. Super. 240 (App. Div. 1960). Defendants also object to the unreasonableness of the scope of the restraints.
The first of these questions is one of uncommon complexity and difficulty as applied to the precise problem here presented -- an employer's right to a state court injunction against a union's breach of a collective bargaining agreement where such conduct may also be reasonably contended to constitute an unfair labor practice under the Taft-Hartley Act. Cf. McCarroll v. Los Angeles County D.C. of C. , 49 Cal. 2 d 45, 315 P. 2 d 322 (Sup. Ct. 1957). Neither our own courts nor the United States Supreme Court have yet passed upon the specific issue. We have decided to avoid resolution of the question as we are fully satisfied that the restraint was improper in any event as in contravention of the requirements of the New Jersey Anti-Injunction Act cited above.
Plaintiff urges that the issue is now moot as the labor contract between the parties has expired, plaintiff's employees have gone on strike, and the restraint is presumably vacatable as of course since there is no subsisting contract between the parties. Defendants counter that the invalidity of the restraint when issued will affect pending contempt proceedings and bear upon the union's right to allowance of a counsel fee under N.J.S. 2 A:15-53. Without implying any view as to the merits of these assertions we think a determination of this appeal is shown to be at least debatably germane to such prospective questions. Moreover, ...