For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
These consolidated appeals, certified on our own motion while pending in the Appellate Division, challenge denials by the Chancery Division of appellants' applications for costs and counsel fees for services in the two causes in that court and the Appellate Division.
The applications were made under N.J.S. 2 A:15-53, a section of the statute dealing with injunctions in labor disputes, L. 1941, c. 15, N.J.S. 2A:15-51 to 58, inc., incorporated in 1948 as part of our rules governing practice and procedure under the new court system. See original Rule 3:65-9, now R.R. 4:67-9. The pertinent portion of section 53 -- a section specifying the procedure to be followed in the issuance of such injunctions -- reads as follows:
"No temporary restraining order or interlocutory injunction or permanent injunction shall be allowed, except upon condition that plaintiff shall first file with the court a bond or undertaking, in favor of the person or persons enjoined or restrained, in an amount to be fixed by the court issuing the restraining order or injunction, sufficient to secure to the person or persons enjoined their court costs, attorney and counsel fees taxed against the plaintiff, in the event that the injunctive relief sought is subsequently denied by the court or in the event that the order or judgment granting such injunctive relief is thereafter reversed by an appellate court."
The question in the second-captioned appeal, which we will call "the arbitration case," is whether that action fell within the scope of the so-called Anti-Injunction Act at all; in the one first entitled, to be referred to as "the strike case," the question is whether the final result of the litigation required the allowance of costs and counsel fees under the quoted provision. These issues arise in the following context, summarized from the records and opinions of the Appellate Division in the prior appeals on the merits in the two cases -- the strike case, 59 N.J. Super. 240 (1960), and the arbitration case, 67 N.J. Super. 384 (1961).
The Steelworkers Union represented some 670 of plaintiff's approximately 885 employees at its plant in Burlington. The non-union members appear to have been principally managerial personnel, office workers, and technical and research people. A collective bargaining agreement between the union and the company covering production workers expired Thursday, August 20, 1959 and, negotiations for renewal having failed of agreement, the union called a strike of its members at midnight that day. Immediate mass picketing at the main plant gates resulted in practically total blockage of ingress and egress by vehicles and people with the exception of female employees. Late on Friday plaintiff commenced the strike case by filing a complaint against the union and certain named officers and members, which sought injunctive relief primarily against the alleged illegal picketing. The judge to whom the matter was presented
ex parte issued an order to show cause with temporary restraint. The procedure seems to have followed that specified by N.J.S. 2A:15-53 except that no bond was required of plaintiff. It may be noted, however, that the form of order presented to the court by plaintiff contained a paragraph providing for the bond, but it was stricken out, presumably by the judge, before signature.
Upon the return of the order to show cause, in a contested hearing before another judge five days later, the court found that illegal activity had existed at the beginning of the strike but had terminated prior to the hearing. He therefore dissolved the restraint but gave plaintiff leave to apply for relief on short notice in the event of any further unlawful conduct. Costs were denied to defendants. We take it that the court thereby concluded that plaintiff was entitled to a temporary restraint at the time it was issued.
Some three weeks later, on September 16, plaintiff applied to the judge then sitting in the vicinage, on short notice to defendants, for a new restraint based on alleged unlawful acts said to have occurred since the dissolution of the former restraint. The conduct complained of again related to mass picketing activity obstructing or unduly hindering the entry and exit of cars of non-striking personnel and trucks of plaintiff and others making deliveries to or shipments from the plant. Defendants' counsel was excused from participation at his request and the court took oral proofs ex parte as required by N.J.S. 2A:15-53. At the conclusion of the hearing that day the court decided plaintiff was entitled to a temporary restraint, finding "illegal acts by the defendants in the mass picketing and the inability of the proper flow of automobiles and trucks to the plant." The terms of the restraint ordered are fully set forth in the Appellate Division's opinion. 59 N.J. Super., at pp. 248-249. They were for the most part broad and general, but specific in limiting pickets to six in number, at least ten feet apart, at each plant entrance and in forbidding them to obstruct the entrances or interfere with entry or egress by employees,
persons having business with plaintiff and vehicular traffic. The order did not require plaintiff to post the bond called for by section 53.
The matter came on for full hearing as to whether an interlocutory injunction should issue on September 22, pursuant to the court's order. A full and sharply contested trial commenced on that day and continued through September 30, when the court announced that the temporary restraint would continue until he heard argument on October 7. At the conclusion of that argument the court expressed no opinion but reserved decision, with the restraint to remain in force.
The judge's opinion, entitled "Conclusions," was not filed until November 17. The factual findings contained therein, partly detailed in the opinion of the Appellate Division (59 N.J. Super., at pp. 250-251), set forth mass picketing acts just prior to the issuance of the temporary restraint on September 16 and further acts before the testimony was concluded on September 30 barring or unreasonably delaying vehicular traffic into and out of the plant. The court expressly said defendants had failed to prove that there was no blocking of traffic or that plaintiff had designed stoppages. It further specifically found to exist the conditions precedent to injunctive relief required by the statute. N.J.S. 2A:15-53 and 54. The court held that plaintiff was entitled to an interlocutory injunction and the opinion directed that it be in the same form as the temporary restraint of September 16.
The form of the interlocutory injunction, entered on November 25, was settled on notice returnable that day. The record does not indicate what position defendants took with reference to the form when their counsel appeared pursuant to plaintiff's motion. On the same day the court signed and filed a document prepared by plaintiff's attorneys called "Findings of Facts." This instrument, as well as the court's "Conclusions" previously mentioned, was referred to in the recitals of the injunction. The "Findings
of Facts" set forth the statutory conditions precedent and found unlawful picketing in most general language. The instrument neither added anything to the court's prior "Conclusions" nor can it be said to have subtracted therefrom. In fact the earlier document was much more specific and detailed in both basic and ultimate findings and in the reasoning by which the court reached its conclusions. (The Appellate Division held on the appeal that, between the two instruments, findings adequate to meet the statutory requirements were set forth. 59 N.J. Super., at pp. 276-277.) The interlocutory injunction, in its decretal portion, followed the language of the September 16 temporary restraint, except that it omitted a prohibition against coercing plaintiff's employees from working by threats of damage to person or property as to which there was no proof at the trial and no finding by the court. The injunction further ordered plaintiff, for the first time, to file a $1,000 bond pursuant to N.J.S. 2A:15-53.
Defendants' appeal, on leave granted without stay, was heard on an advanced date and on typewritten briefs and appendix. The thrust of the argument in defendants' brief was that plaintiff was not entitled to an injunction on the proofs. It was urged the trial court had erroneously found on all of the evidence that the pickets had committed unlawful acts and, in any event, the conduct had not been such as to warrant an injunction in a labor dispute in the light of the policy provisions and purposes contained in and underlying the Anti-Injunction Act. There apparently was no real claim of invalidating delay, procedural error or improper findings or restraints until these matters were raised by the court at oral argument. See 59 N.J. Super., at p. 272. Views thereon were then presented in supplemental memoranda requested by the court.
The Appellate Division in its opinion handed down January 18, 1960 thoroughly reviewed and appraised the evidence relating to the factual basis for an injunction. It concluded:
"It should be obvious from the foregoing that the general character of the union picketing activity transcended what is permissible as a matter of lawful strike conduct. Some of the obstruction of vehicles was fairly incidental to legitimate persuasion to gain allies. Much was obstructive purely for the sake of coercive harassment. There was a denial to the plaintiff of free and unimpeded access to and egress from its plant by its employees and business visitors of a character which sufficiently educes the presumption of irreparable injury and inadequate remedy at law, within the rationale of the application of the equitable remedy by the cited decisions of our courts of last resort and without impingement upon the public policy of the Anti-Injunction Act.
Whether the violation of plaintiff's property rights was substantial and likely of continuance unless restrained, as is required under N.J.S. 2A:15-53, as of the time the plaintiff gave notice of renewed application for restraint on the morning of September 16, is fairly questionable. But any doubt as to these factors is dispelled, in our judgment, by the added weight of the ...