Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
Defendants appeal from the grant by the Chancery Division of plaintiff's motion for voluntary dismissal of this action for an injunction as moot.
Defendant union in July 1965 was engaged in organizational picketing of plaintiff's Boonton manufacturing plant. In connection with the underlying controversy plaintiff and the union had filed charges of unfair labor practices against each other with the National Labor Relations Board (NLRB). On July 23, 1965 plaintiff filed a complaint for an injunction against the union, charging, among other things, threats of physical violence by the pickets against plaintiff's personnel and blocking of ingress and egress of vehicles at the plant entrance. The same day, upon the basis of a recital in the sworn complaint that unless a temporary restraining order
were issued without notice plaintiff would sustain substantial and irreparable injury, oral proofs were permitted to be taken ex parte, the court made oral findings that defendants were guilty of unlawful acts of blockage of plaintiff's entrances and of threats of violence to workers at the plant, and by order to show cause temporarily restrained such actions and any picketing in excess of two persons at each entrance and ten in front of the building. The order was made returnable July 28, 1965.
On July 27, 1965 defendants brought on for argument a motion for adjournment of the order to show cause and also to discharge the order and vacate its restraints on the grounds that plaintiff improperly failed to give defendants notice and that the order lacked provisions permitting application for dissolution or modification of the restraints and setting a date for expiration thereof. A supporting affidavit expanded the legal grounds for relief to include the contentions that plaintiff had elected its remedy by filing charges with the NLRB and that the issues were pre-empted for determination by that tribunal under the National Labor Relations Act. At the argument of the motion the court requested memoranda of law on the last-stated issues.
No decision was rendered on defendants' motion. Vacations of counsel for both sides and of the trial judge prevented a hearing on the order to show cause, which was adjourned to September 17, 1965 by an order of August 17. The order continued the restraints, and the order to show cause was thereafter adjourned to October 8, 1965. Defendants, while not objecting to the continuances, kept pressing the trial judge for a decision on their earlier motion to vacate the restraints.
On October 8, 1965, informally, and on October 22, 1965, formally, plaintiff applied for voluntary dismissal of the action on the ground that the matter was moot because the union had discontinued all picketing on August 18, 1965, following dismissal by the NLRB of its complaint of unfair labor practices by plaintiff. Defendants resisted the application on
grounds which may be summarized: (a) various procedural deficiencies in obtaining the restraint, principally the failure to give notice of the application therefor, violated the Anti-Injunction Act, N.J.S. 2A:15-51 to 58; (b) failure of the court to set aside the restraint as unwarranted had impeded defendants in their attempts to prove unfair labor practices by plaintiff before the NLRB, and had and would continue to handicap the union in organizing plaintiff's employees, and (c) dismissal of the complaint without adjudicating the motion would prejudice defendants' right to statutory costs and counsel fees under N.J.S. 2A:15-53.
The trial court found plaintiff's application for leave voluntarily to dismiss the complaint as moot to be warranted. It also denied defendants' motion for counsel fees. An order conforming to these determinations was entered, without costs to either party.
Our consideration of the appellate arguments satisfies us that some of the points argued need not be decided. The termination of all picketing by defendants on August 18, 1965 and thereafter did make the injunction suit moot from plaintiff's point of view. See Lake Charles Metal Tr. Council v. Newport Industries, 181 F.2d 820 (5 Cir. 1950). It remains, however, to determine whether the action was moot from defendants' point of view at the time the trial court granted plaintiff's motion.
Mootness is not refuted by defendants' argument that failure to adjudicate the merits of the temporary restraint affected their ability to organize plaintiff's employees or to obtain the cooperation of those employees in prosecuting unfair labor complaints. The dismissal of the complaint automatically vacated ...