Opinion
10-26-1933
BAYONNE TEXTILE CORPORATION v. AMERICAN FEDERATION OF SILK WORKERS et al.
J. Edward Bennett, of Newark, for complainant. Gross & Gross, of Jersey City, for defendants.
Syllabus by the Court.
1. The aims and purposes of an act of Congress entitled "An act to encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes," approved June 16, 1933, known as N. I. R. A., and rules, regulations, and requirements of the administration of the aforesaid act, known as N. R. A., and basic codes of fair competition and standards of labor and employment conditions, established thereunder, manifest a public policy to put an end to strikes by workers employed in industry and trade, to compel, by such means, increased wages, shorter hours of employment, and betterment of working conditions generally, by providing a forum for mediation of grievances between employers and employees, and, in view thereof, courts of equity will not countenance resort to such means of exacting a settlement of differences relating thereto, and will restrain such by injunction, when recourse is had thereto, in an appropriate case by an appropriate proceeding.
2. It is the right of an employer to hire, discharge, or advance its employees on the basis of individual merit, without regard to their affiliation or nonaffiliation with any labor organization.
3. An employer's workers cannot be subjected to intimidation, coercion, threats, annoyance, or interference by any persons, while going to and from their work, and particularly is such inhibition applicable to in-termeddlers.
4. Section 7 (a) of N. I. R. A., in so far as it provides "(1) that employees shall have the right to organize and bargain collectively, through representatives of their own choosing, and shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization, or in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection" (15 USCA § 707(a)(1), does not warrant interference by persons other than employees of an employer, relating to employment and working conditions in such employer's factory or business plant, as to which such employees allege grievances.
5. Neither N. I. R. A. or N. R. A. may foster a nation-wide confederation of workers, any more than a nation-wide confederation of capitalists who engage in industries and trades wherein workers are employed. There can be no special privilege afforded either class against the other. Labor is property; capital is property; both must be equally safeguarded.
6. An employer has a right to conduct its business and deal with its employees without interference by intermeddlers such as organizers, strike agitators, or the like, affiliated with a nation-wide labor organization.
7. "Collective bargaining" must be the result of individual action by both employer and employee.
8. Labor does not need to resort to strike measures to remedy alleged grievances since the establishment of N. I. R. A. and N. R A., under which mediation forums have been created to effect equitable adjustments thereof between an employer and its employees; and the court will take judicial notice of such forums.
9. Where, as in the case sub judice, the proofs manifest that the purpose of the defendants, and the real object of the strike instigated by them, is to compel complainant, by interfering with the lawful conduct of its business and resorting to unlawful practices to accomplish their purpose and object, to submit to defendants' attempt to obtain for a labor union a complete monopoly of the labor market in the industry in which complainant is engaged, by forcing all employees who wish to work for it to join the union, and by forcing it to agree not to employ workera in its factory, except upon such terms as it can make with the combination which seeks to control all labor in such industry, such purpose and object is unlawful.
10. The assembling of a large number of complainant's employees, acting as pickets, on streets leading to its factory, undoubtedly tends to terrorize others who may desire to work for complainant, whose factory is thus picketed, and is therefore unlawful.
11. A strike may be such as to constitute intimidation, even though there is no use of force or physical violence.
12. To "intimidate" is to inspire with fear, to overawe, or make afraid. Fear may be inspired without physical violence or spoken threats, and moral intimidation may be accomplished by a menacing attitude and a display of force which may coerce the will as effectually as actual physical violence.
13. The term "picket" indicates a militantpurpose inconsistent with peaceable persuasion. Picketing has for its purpose the backing up of persuasion with a show of physical force, and almost inevitably tends to intimidation and violence. The phrase "peaceable picketing" is a contradiction in terms.
14. Employers, where third persons interfere with persons willing to be employed, against the latter's consent, by personal molestation, with intent to coerce such persons to refrain from entering such employment, and by personal annoyance, have a right to an injunction to restrain such third persons from so interfering with the persons seeking employment, such interference being an invasion of the right of employers to have labor flow freely to them.
Suit by the Bayonne Textile Corporation against the American Federation of Silk Workers and others. On return of order to show cause.
Restraining order pendente lite granted.
J. Edward Bennett, of Newark, for complainant.
Gross & Gross, of Jersey City, for defendants.
FALLON, Vice Chancellor.
Complainant operates a factory in Bayonne for the manufacture and sale of broad silk and rayon. It employs approximately 110 workers. Its production is approximately $1,000,000 per year. Its verified bill of complaint avers that it complies with all legal requirements applicable to its factory, with the provisions of an act of Congress entitled "An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes," approved June 16, 1983, known as N. I. R. A., and with rules, regulations, and requirements of the administration of the aforesaid act, known as N. R. A. Its factory is operated under what is generally known as an open shop plan. An association known as American Federation of Silk Workers, one of the defendants herein, several months ago initiated an effort to unionize workers for the express purpose of forcing an agreement in the silk industry throughout the United States to meet the demands of said association, and recognition of its union, and it has ever since been prosecuting such undertaking. Through the medium of a "National Strike Committee," workers employed in various factories throughout this country, engaged in such industry, were circularized with a view of fomenting a labor strike. One of such circulars is attached to and made part of complainant's bill, and reads in part: "To Every Silk Worker * * * We Choose to Fight * * * For the first time in the history of the Silk Workers a National Strike is in progress. * * * Now that we are already out on strike, it is in our hands to continue this strike until we get a national agreement, a decent living wage, backed up by union recognition."
Complainant avers that at the time of filing its bill of complaint none of its employees were affiliated with said defendant, or with any other labor organization.
The economic depression which has been prevalent throughout this country for several years past, causing widespread unemployment, distress, and disorganization of industry and trade, is alluded to in the bill. Provisions of section 1 of N. I. R. A. (15 USCA § 701), manifest some of the purposes of such enactment to be "* * * to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, * * * to promote the fullest possible utilization of the present productive capacity of industries, * * * to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources." Complainant avers that on or about July 24, 1933, official notice was given by governmental authorities to the Silk Association of America, whose rules and regulations govern the operation of complainant's factory, to the effect that, until such time as a code of fair competition for the silk industry was formulated by N. R. A., the Cotton Textile Code (copy of which is annexed to and made part of the bill) would be applicable to such industry, and that it has been operating its business in conformity with the provisions thereof, which, among other things, concerns labor relations between employer and employees.
The defendant American Federation of Silk Workers is a voluntary association comprising locals throughout the United States of America, and has branch headquarters in Hudson county, N. J. The proofs herein show that said association is striving to effect a nation-wide union of employees of the industry in which complainant is engaged, with the object of compelling employers to employ none but members of said union, to pay wages to employees as demanded by said union, and to enforce recognition of said association as a union of workers employed in the silk industry throughout the United States. The proofs show also that amicable relations existed between the complainant and its employees prior to the activities of the defendants, complained of in the bill of complaint and affidavits annexed thereto and made part thereof, anddemonstrate that the defendants, and divers persons associated with them in their activities, have unlawfully interfered with the conduct of complainant's business, have molested, coerced, intimidated, and annoyed its employees, threatened them with bodily harm, committed acts of violence against them, audibly uttered opprobrious names to, of, and concerning them, and applied opprobrious remarks and epithets to such employees, grossly offensive to their sensibilities, provocative of resentment upon their part and tending to altercations, all of which are violative of such employees' constitutional right of freedom to engage in lawful pursuit of employment and security to their persons while going to and from their work in complainant's factory.
The proofs show also that the complain ant has suffered damage to its factory and property contained therein which is reasonably attributable to the defendants and persons allied with them in their aforesaid lawless activities. The defendants, and many persons allied with them, the numbers whereof have been variously estimated in affidavits filed in behalf of the complainant and defendants, respectively, resorted to a practice of picketing complainant's factory and employees, and as a result thereof complainant has been deprived of its lawful right to a free flow of labor to its factory for the conduct of its business. Some of the opprobrious names and opprobrious remarks and epithets, threatening language, and offensive remarks, uttered by such picketers to, of, and concerning complainant's employees, are: "You'd better follow in line with us or we'll get you; * * *" "You dirty scabs, * * *" "Why don't you yellow bellies join in the strike with us? * * * "You're another filthy scab, we ought to give you the works now, * * *" "There goes another scab, * * *" "Why don't you get wise to yourself and come out on strike with us? * * *" "You're yellow, * * *" "You dirty scab, you're no better than the rest of us, come out and strike with us white people. * * *" I am convinced that the grievances complained of and substantiated herein are attributable to the defendants as intermeddlers. The defendants Raphael Brown, Olga Sacaroff, and Nathan Burn are not employees of the complainant; they migrated from places outside of the state of New Jersey with the express intention and purpose of being strike agitators at complainant's factory, and other factories in Hudson county engaged in the same industry as complainant. It appears from the affidavit of the defendant Brown, which is filed in behalf of the defendants, that he and the defendants Sacaroff and Burn were delegated by the American Federation of Silk Workers to visit Bayonne to organize complainant's employees for the purposes hereinabove mentioned. Brown's affidavit asserts he was delegated to devote his attention to organizing the silk workers in Hudson county, and to induce them to join the American Federation of Silk Workers; it asserts also that he commingled with complainant's employees, and expressed to them his pleasure of the manner in which they were doing their picket work, characterizing same as "an admirable job." The proofs herein show that conditions in the vicinity of complainant's factory have been such, as a result of the activities of the defendants and their allies, that numerous city police officers constantly patrol the streets in the vicinity thereof to prevent breaches of the peace.
Affidavits filed in behalf of the defendants manifest that a hundred or more employees of complainant, supervised by defendants Brown, Sacaroff, and Burn, have been engaged in picketing the streets in the vicinity of its factory. Affidavits filed in behalf of the complainant manifest approximately 300 persons are so engaged. An affidavit of Eleanor Wolinsky, an employee of complainant, filed in behalf of the defendants, admits that some of the picketers called her a "scab" while she was passing them, and thus corroborates to such extent complainant's proofs as to opprobrious words uttered to, of, and concerning its employees while going to and from their work in its factory. All of the affidavits filed in defendants' behalf say, "This strike is a national strike and applies to all silk workers," and evidence that the affiants were among those engaged in picketing complainant's factory and employees. Considerable of the matters contained in the affidavits filed in behalf of the defendants are made up of hearsay, argument, conclusions, and opinions, and therefore, to such extent, of no evidential value. Complainant's bill avers that its employees were induced by defendants to quit its employ without first making known to it that they considered themselves in any wise aggrieved, and in such respect violated the aims, purposes, and spirit of N. I. R. A. and N. R. A.
Affidavits of employees attached to and made part of complainant's bill include that of William W. Rehrig who says that on Thursday, September 21, 1933, just as he reached the entrance of complainant's factory, he was surrounded by 100 men and women who were picketing there and attempted to detain him, and, as he tried to make his way into the factory they yelled after him, "You're another filthy scab, we ought to give you the works now"; also an affidavit of Fred Unger who says that on Thursday, September 21, 1933, just as he reached the entrance to complainant's factory one of the men picketers accosted him and started to push him around, calledhim vile names, and warned him that, if he knew what was good for him, he had better stay away from the factory and join the strike. He also says that when he entered the complainant's place of business he observed that 30 windows had been broken on the south side of the factory, and that silk which was placed alongside of the windows was badly damaged; also an affidavit of Margaret Casper who says that on Thursday, September 21, 1933, while going to work, she was confronted with a group of picketers who were stationed at the street entrance leading to complainant's factory, and as she passed them they yelled after her, "There goes another scab. Why don't you get wise to yourself and come out on strike with us. You're yellow," and warned her that, unless she went out on strike with them, they would do her bodily harm. Her affidavit manifests that she is desirous of working in complainant's factory to support herself and her aged father and mother, but that she is afraid because of the threats made against her; also an affidavit of May Brown who says that on Thursday, September 21, 1933, as she was going to work and turned the corner of Fifty-Second street and the boulevard, she was surrounded by over 100 girls who were picketing, one of whom grabbed her right arm and said, "You dirty scab, you're no better than the rest of us, come on out and strike with us white people"; that they hurled threats at her and told her that, if she went back to work, it should be just too bad for her. She says she is desirous of working for complainant, but is afraid of the strikers and that they will carry out their threats; also an affidavit of Mildred Cherchio who says that on Thursday, September 21, 1933, as she was walking to the entrance of complainant's factory, she was stopped by a group of 50 girls who began to push her away from the factory entrance, telling her that she had no business going to work, that it was a serious strike, and that it would be just too bad for her if she went back to work. She says she would like very much to go back to work, because she had no complaint against her employer, but was afraid to do so, fearing the picketers might inflict serious injury upon her; and also an affidavit of Ben Farina, who says that on Thursday, September 21, 1933, while on his way to work, a large group of women saw him in front of complainant's factory and called to him and told him that it would not be wise for him to go into the factory as they were trying to call a strike, and that if he valued his life he had better stay away. The proof's throughout manifest coercion and intimidation of complainant's employees, and that complainant suffered damage to its property, as a result of defendant's activities.
The N. I. R. A. provides (section 3 (a), 15 USCA § 703 (a) that codes established thereunder shall not permit monopolies or monopolistic practices. Such provision is applicable to both employers and employees; there can be no monopoly of business, and no monopoly of labor. It is the right of complainant to hire, discharge, or advance its employees on the basis of individual merit, without regard to their affiliation or non-affiliation with any labor organization. Complainant's workers should not be subjected to coercion, intimidation, opprobrious names and epithets, threats, annoyance, or interference by any persons while going to and from their work, and particularly by intermeddlers, that is, by persons such as defendants Brown, Sacaroff, and Burn who are not employees of complainant. It cannot reasonably be gainsaid that, if working people were allowed, without molestation, intimidation, threats of bodily harm, annoyance, or interference by intermeddlers, such as so-called labor union business agents, organizers, and the like, to bargain collectively direct with their employers with respect to hours of labor, wages, and other working conditions, the great unrest, turmoil, and disorganization of industry and trade, which is prevalent throughout this country at the present time, some of it in municipalities in Hudson and Passaic counties, respectively, of which the court must take judicial notice because of the public notoriety thereof, occasioned by strikes, picketing, and lawless activities in connection therewith, which has caused chaotic business conditions and fomented trouble, not only for those workers willing to bargain their labor to employers willing to avail themselves thereof and pay a satisfactory compensation or wage therefor, but for the public at large, which has long suffered from economic disturbances, such unrest, turmoil, and disorganization of industry would readily be obviated.
Section 7 (a) of N. I. R. A. (15 USCA § 707 (a) (1) provides inter alia: "(1) That employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. * * *" Such provision, in my judgment, is tantamount to meaning that employees of a particular factory or business plant may avail themselves thereof for equitable adjustment of grievances, real or fancied; that it means in the instant case that the employees of complainant may avail themselves thereof; but that it does not mean that intermeddlers such as defendants canintervene. Wages exigible for employees in a particular territory may not be exigible in other territory. President Roosevelt has by "Interpretation No. 1" concerning paragraph 7 of N. I. R. A. (see N. R. A. Bulletin No. 4, page 12) opined that: "Rates of pay for employees above the minimum wage group shall be increased by 'equitable readjustments.' No hard and fast rule can be laid down for such readjustments, because the variations in rates of pay and hours of work would make the application of any formula unjust in thousands of cases." In N. R. A. Bulletin No. 3 (clause 5) it is said: "The employees' part is * * * to cooperate with N. R. A. and employers in peaceful adjustment of differences." In N. R. A. Bulletin No. 1 (pp. 2 and 3), it is said: "* * * This is a time for mutual confidence and help and we can safely rely on the sense of fair play among all Americans to assure every industry which now moves forward promptly in this united drive against depression that its workers will be with us to a man."
The principles and purposes of N. I. R. A. and N. R. A. auger well for the country at large, if co-operated in and substantially observed and adhered to by both employers and employees. Neither N. I. R. A. or N. R. A. may foster a nation-wide confederation of workers, any more than a nation-wide confederation of capitalists who engage in industries wherein such workers are employed. There can be no special privilege afforded either class against the other. Labor is property; capital is property; both must be equally safeguarded. As declared in official bulletins issued by the Administrator of N. R. A., labor does not have to resort to strike measures to remedy a grievance since the establishment of N. I. R. A. and N. R. A., under which competent and impartial forums have been created for the mediation of grievances between employers and employees with a view of effecting equitable adjustments thereof. The courts will take judicial notice of such forums. An employer has an indisputable right to conduct its business and deal with its employees without interference by intermeddlers such as organizers, strike agitators, and the like, affiliated with nation-wide labor organizations. If workers employed in an industry or trade in a particular locality may bargain collectively with their employer, and the employer can be assured it may so bargain, without outside interference, satisfactory results would doubtless be attained by both.
In view of the means afforded employees to effect mediation of alleged grievances against their employer before impartial mediators such as provided under N. R. A., it is inconceivable that they should be permitted to resort to strikes ad libitum against their employer. Such practices, while the aims and purposes of N. I. R. A. and of N. R. A. are sought to be effected, must be regarded as taboo. The policy of N. R. A. is not only, by codes, to standardize fair competition for trade and industry, but to regulate equitably wages, hours of labor, and working conditions of laboring classes. Neither capital or labor may be permitted to dominate one another. The turmoil which has been occasioned in industry and trade by recent strikes of workers in the silk industry throughout the country, and as stated hereinabove in the silk industry in Hudson and Passaic counties, is indefensible by those responsible therefor, and particularly at a time like the present when the Chief Executive of our nation is striving zealously to place industry and trade on a firm foundation for prospering them. It is not difficult to perceive that the immediate effect of strikes is increased unemployment and distress. Considering the means afforded by N. R. A. for equitable readjustments of real or fancied grievances between an employer and its employees by boards of mediation created under the authority of N. I. R. A., strikes by employees, and particularly sympathetic strikes such as seem to be so much in vogue at the present time, wherein intermeddlers intervene, cannot be countenanced by courts of equity when recourse is had thereto by employers alleging themselves to be aggrieved thereby, and such courts should, in appropriate cases and upon appropriate proofs of disregard of N. I. R. A. and N. R. A. provisions and requirements, enjoin such undertakings and practices.
In Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 220, 38 S. Ct. 65, at page 72, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461, it was held that "collective bargaining" must be the result of voluntary action by both employer and employees. In view thereof, courts of equity cannot countenance strikes against employers engaged in industrial pursuits, and picketing in connection therewith, particularly by intermeddlers, when no fair effort has been made to adjust alleged grievances by employer and employees. Activities of third parties, such as the defendants in the case sub judice, to disrupt complainant's business, upon the pretense they are seeking to advance the interests of complainant's employees whom they have induced to quit work in complainant's factory, when their real purpose was and is to effect a joinder of labor forces in the general industry throughout the country, of which the complainant is but a small part, is illegal, and will be enjoined. Whatever the right may heretofore have been regarded to be as to strikes by employees of a particular factory engaged in industry, third parties have never had a right to coerce or instigate employees thereof to strike.
In Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316, 317, 35 L. R. A. (N. S.) 787, which was asuit for injunction to restrain defendants from calling or declaring a strike and from proceeding with a strike already called to "unionize" the plaintiff's shop, and for other reasons, and wherein an injunction was granted restraining, among other things, a strike called to force the signing of a closed shop agreement, the court said: "The master was undoubtedly right in finding that the purpose of the defendants and the real object of the strike was not so much to obtain certain slight advantages referred to in the proposed agreement, as to compel the employers, by inflicting this injury upon them, to submit to an attempt to obtain for the union a complete monopoly of the labor market in this kind of business, by forcing all laborers who wished to work to join the union, and by forcing all employers to agree not to employ laborers, except upon such terms as they could make with the combination that should control all labor in this business. This has been held to go beyond the limit of justifiable competition. Conduct directly affecting an employer to his detriment, by interference with his business, is not justifiable in law, unless it is of a kind and for a purpose that has a direct relation to benefits that the laborers are trying to obtain. Strengthening the forces of a labor union, to put it in a better condition to enforce its claims in controversies that may afterwards arise with employers, is not enough to justify an attack upon the business of an employer by inducing his employees to strike." See Berry v. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738. It is not difficult to perceive that picketing by a great number of persons, such as in the instant case, tends to intimidate those who desire to become employees of the complainant, even though no acts of violence be committed. Manifestly, the use of a large number of pickets cannot reasonably be regarded as intended for a lawful purpose. The assembling of a large number of persons on the streets leading to complainant's factory, acting as pickets, undoubtedly has a tendency to terrorize other persons who may desire to work for complainant whose place of business is thus picketed.
In American Steel Foundries v. Tri-City Central Trades Council et al., 257 U. S. 184, 42 S. Ct. 72, 77, 66 L. Ed. 189, 27 A. L. R. 360, opinion by Chief Justice Taft, it is said that the term "picket" indicates a militant purpose, inconsistent with persuasion; and that, though a striker may accost an employee on the street with a view to persuade him to cease employment, persistence, importunity, and dogging the employee after the offer of information, or advice is declined is unjustifiable annoyance and obstruction, which is likely soon to savor of intimidation, and from such the person sought to be influenced has a right to be free, and his employer has a right to have him free. In the same case it was held that the posting of 3 or 4 groups of pickets, each group composed of from 4 to 12 men who were members of various unions involved, in the street through which the employees of the plant against which the strike was declared had to pass to and from work, so that the passage of employees was in effect running the gauntlet, in itself was intimidation and inconsistent with peaceable persuasion. The court further held: "A restraining order against picketing will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work, and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerve and physical strength and courage." In Levy & Devaney, Inc., v. International Pocketbook Workers' Union, 114 Conn. 319, 158 A. 795, 796, the court declared that well-considered authorities all hold that the conduct of a strike may be such as to constitute intimidation, though there is no use of force or physical violence. One of the authorities cited as so holding is Keuffel & Esser v. International Association of Machinists, 93 N. J. Eq. 429, 116 A. 9.
In the Levy & Devaney Case, supra, it was also held: "To intimidate is to inspire with fear, to overawe or make afraid. Fear may be inspired without physical violence or spoken threats, moral intimidation may be accomplished by a menacing attitude and a display of force which may coerce the will as effectually as actual physical violence." There is ample proof in the case sub judice that a number of complainant's employees were thus intimidated. Although P. L. 1883, p. 36, 3 Comp. St. 1910, p. 3051, § 128, provides: "That it. shall not be unlawful for any two or more persons to unite, combine or bind themselves by oath, covenant, agreement, alliance or otherwise, to persuade, advise or encourage, by peaceable means, any person or persons to enter into any combination for or against leaving or entering into the employment of any person, persons or corporation," nevertheless, the boundary between lawful and unlawful conduct has been held to be that between peaceable persuasion and intimidation. In the Levy & Devaney Case, supra, the court, in declaring that the term "picket" indicates a militant purpose inconsistent with peaceable persuasion, declared that "picketing" has for its purpose the backing up of persuasion with a show of physical force, and almost inevitably tends to intimidation and violence, so that the phrase "peaceable picketing" is a contradiction in terms. In Jersey City Printing Company v. Cassidy, 63 N. J. Eq. 759, 53 A. 230, it was held that employers, where third persons interfere with persons willing to be employed, against the latter's consent, by personal molestation, with intentto coerce such persons to refrain from entering such employment, and by personal annoyance, have a right to an injunction to restrain such third persons from so interfering with the persons seeking employment, such interference being an invasion of the right of employers to have labor flow freely to them. In the matter sub judice it is denied in affidavits filed in behalf of defendants Brown, Sacaroff, and Burn that they have done the things complained of by complainant. If such be the fact (I do not believe it to be the fact), the granting of a restraint pendente lite cannot operate to their disadvantage or detriment.
Counsel for defendants in argument herein said: "We are frank to concede that the strike may be inimical to the purposes of the National Recovery Act. * * *" He also referred to chapter 207 of the Laws of 1926 (Comp. St. Supp. § 107—131a) entitled "An Act relating to disputes concerning terms or conditions of employment, the communicating of information and limiting the issue of restraining orders and injunctions in certain cases," which provides: "No restraining order or writ of injunction shall be granted or issued out of any court of this State in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from peaceably and without threats or intimidation recommending, advising or persuading others so to do; or from peaceably and without threats or intimidation being upon any public street or highway or thoroughfare for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or abstain from working, or to employ or to cease to employ any party to a labor dispute, or to peaceably and without threats or intimidation recommend, advise or persuade others so to do, provided said persons remain separated one from the other at intervals of ten paces or more." I deem it unnecessary to comment herein upon the provisions of said act, for the purpose of my determination of the matter sub judice, other than to say that the proofs herein clearly manifest that it is inapplicable to said matter, even though regarded as intended to curtail or minimize the powers of the court of chancery, a constitutional court, of its equity jurisdiction which does not emanate from the Legislature, and which cannot be circumscribed by said body. If the prerogatives of the Court of Chancery, which do not emanate from and are not dependent upon the Legislature, could be encroached upon by said body as attempted by the aforesaid enactment, it is not difficult to visualize that through frequent like encroachments the court might eventually be rendered inert. Such is inconceivable under the present state of the law.
I am of the opinion that what was said by Vice Chancellor Stevenson in Jersey City Printing Co. v. Cassidy, supra, 63 N. J. Eq. at page 770, 53 A. 230, is pertinent herein and applicable to the matter sub judice. In that case the Vice Chancellor held that, notwithstanding the denial of defendants of the charges made against them, the restraining order should be held in force as to those defendants who stood fairly charged, under oath, with the interdicted misconduct; that the sole issue appeared to be one of fact, viz., whether the defendants had done and were threatening to do the acts complained of or not; and that such an issue could not properly be tried on ex parte affidavits, but should be reserved for the final hearing; but that in a case like the one in question, where the defendants were the only persons in sight, apparently, interested in having the unlawful conduct complained of continued, and were therefore subjected to a temptation to cause such conduct to be continued, an injunction which merely prevented them from doing acts which they disclaimed any right to do, and denied that they had done or threatened to do, should be retained until the final hearing.
It is argued in behalf of the defendants that the discretion of the court should not be exercised herein in the complainant's favor, because of the rule laid down in Citizens' Coach Co. v. Camden Horse Ry. Co., 29 N. J. Elq. 299, declaring that, where the complainant's proofs are fully and satisfactorily met by those of the defendants, no injunction will go in advance of the final hearing. I am of the opinion that the complainant's proofs have not been fully and satisfactorily met by the defendants. As stated by our Court of Errors and Appeals in Ideal Laundry Co. v. Gugliemone, 107 N. J. Eq. 108, at pages 115, 110, 151 A. 617, 620: "While the general rule is that a preliminary injunction will not issue where the material fact in complainant's bill and affidavits, on which the complainant's right depends,( is met by a full, explicit, and circumstantial denial under oath, yet, where, as here, the denial lacks these essential qualities, and upon the entire showing from both sides it appears reasonably probable that the complainant had the right claimed, the injunction may issue." Such I regard to be pertinent to the matter sub judice. In Meyer v. Somerville Water Co., 79 N. J. Eq. 613, 615, 82 A. 915, 916, it is said: "The object of a preliminary injunction is to prevent some threatening, irreparable injury pending a full and deliberate investigation of the case upon the merits." I consider such rule of law to be applicable herein. If a restraint pendente lite should not be granted to the complainant herein, it is not difficult to appreciate that, if defendants were to continue the unlawfulpractices complained of, during the time, perhaps several months hence, when the above-stated cause may be brought on for final hearing, the damage which complainant would sustain would, not only be immeasurable, but irreparable.
I will advise an order restraining defendants pendente lite from activities indicated hereinabove to be unlawful, in so far as prayed in complainant's bill.