Opinion
07-20-1936
PERFECT LAUNDRY CO. v. MARSH et al.
Gilhooly & Yauch, of Newark, for complainant. Isserman & Isserman, of Newark, for defendants.
Syllabus by the Court.
1. Printed employment contract prepared by employer should be construed most strongly against employer. Ambiguities must be resolved in favor of the employee.
2. Contract contained a promise by employee that he would not, within one year after termination of his employment, solicit, divert, or take away any of employer's customers or business. Strikers appealed to customers not to deal with employer until the strike was settled. Held, not a violation of the agreement.
3. Strikers may present their cause truthfully to the public by placards, circulars, or speech and may appeal to friends, customers, and the public generally, to assist them by refusing to deal with their employer; but the law does not permit appeals based on falsehoods or supported by coercion.
Suit by the Perfect Laundry Company against Edward Marsh and others.
Decree for defendants.
Gilhooly & Yauch, of Newark, for complainant.
Isserman & Isserman, of Newark, for defendants.
BIGELOW, Vice Chancellor.
Complainant proposed to reduce the wages of its routemen; their repartee was a demand for an increase. Rebuffed, theywalked out in a body. The strikers are not members of any union, they number only 16, and their places in complainant's organization were immediately filled; so they have called for aid on the customers whom they formerly served, and have distributed among them printed notices reading:
"Perfect Laundry routemen on strike for a living wage. Kindly co-operate by not sending your bundle to the Perfect Laundry.
"Thank you,
"Your Routeman."
The strikers have also orally told customers their alleged grievance, and have asked that patronage be withheld until the strike is settled. Complainant seeks an injunction against such interference with its business, on the ground that defendants are conducting an illegal boycott and are violating a covenant which each made with complainant.
The employment contract, a very lengthy printed document, includes the following: "The employee further agrees that he will not within the period of one year after the termination of his employment in any way, directly or indirectly, solicit, divert, take away or attempt to solicit, divert or take away, any of the customers, business or patronage of such customers as were served by the company during his period of employment. * * *" This contract, prepared by complainant doubtless with the advice of counsel, should be construed most strongly against the company. Ambiguities must be resolved in favor 'of the employee. Kislak, Inc., v. Muller, 100 N.J.Eq. 110, 116, 135 A. 673; Sarco Co. v. Gulliver, 129 A. 399, 3 N.J.Misc. 641, affirmed 99 N.J.Eq. 432, 131 A. 923. The general purpose of the paragraph, which includes the agreement quoted, was to prevent routemen, who might enter business for themselves or find employment with competitors, from using their acquaintance with complainant's customers to divert its business to themselves or to their new employers. Defendants are not soliciting, diverting, or taking away the company's business within the meaning of the covenant.
Is the so-called boycott illegal? The object which the strikers have in view, higher wages, is lawful, of course, and one which will justify their actions, if any object can do so. They may present their cause, truthfully, to the public by placards, or circulars, or by speech, and their employer may do the like. According to the great weight of authority, they may appeal to friends, to customers, and to the public generally, to assist them by refusing to deal with their employer. If the effect is ruin to the employer, it is damnum absque injuria. But the law does not permit appeals based on falsehoods or supported by coercion. The persuasion that the law allows is addressed to reason or sentiment and leaves the will free to choose. Local Union v. Stathakis, 135 Ark. 86, 205 S.W. 450, 6 A.L.R. 894; Rosenberg v. Retail Clerks' Ass'n, 39 Cal. App. 67, 177 P. 864; Walters v! Retail Clerks Union, 120 Ga. 424, 47 S.E. 911; Robison v. Hotel & Restaurant Employees, 35 Idaho, 418, 207 P. 132, 27 A.L.R. 642; Ellis v. Journeymen Barbers' International Union, 194 Iowa, 1179, 191 N.W. Ill, 32 A.L.R. 756; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N.W. l3> 42 L.R.A. 407, 74 Am.St.Rep. 421; Roraback v. Motion Picture Machine Operators' Union, 140 Minn. 481, 168 N.W. 766, 169 N.W. 529, 3 A.L.R. 1290; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S.W. 391, 56 L.R.A. 951, 90 Am.St.Rep. 440; Empire Theatre Co. v. Cloke, 53 Mont. 183, 163 P. 107, L. R.A.1917E, 383; People v. Hughes, 137 N. Y. 29, 32 N.E. 1105; State v. Van Pelt,' 136 N.C. 633, 49 S.E. 177, 68 L.R.A. 760, 1 Ann.Cas. 495; Clark Lunch Co. v. Cleveland Waiters & Beverage Dispensers Local No. 106, 22 Ohio App. 265, 154 N.E. 362; Greenfield v. Central Labor Council, 104 Or. 236, 192 P. 783, 207 P. 16.8; Bomes v. Providence Local No. 223, 51 R.I. 499, 155 A. 581; United Chain Theatres v. Philadelphia Moving Picture Machine Operators Union (D.C.) 50 F.(2d) 189; Collard v. Marshall, [1892] 1 Ch. 571.
Counsel for complainant argue that the law of New Jersey is peculiar, in that it forbids all appeals by strikers to the public to stop trading with the employer. Coercion of customers to prevent their dealing with the employer was present in Barr v. Essex Trades Council, 53 N.J.Eq. 101, 30 A. 881, Booth & Bro. v. Burgess, 72 N.J.Eq. 181, 65 A. 226, 227, and Fink & Son v. Butchers' Union, 84 N.J.Eq. 638, 95 A. 182. The injunction in Jonas Glass Co. v. Glass Bottle Blowers' Ass'n, 77 N. J.Eq. 219, 79 A. 262, 41 L.R.A.(N.S)445, prohibited only threats made for the purpose of coercion. Martin v. McFall, 65 N.J.Eq. 91, 55 A. 465, seems to go further. Vice Chancellor Pitney said that the boycott, in whatever form it assumes, is unlawful, and that "it is unlawful for the defendant to attempt to induce or compel complainant to adopt a particular mode of doing his business by persuading or inducing other persons not to deal with him." The purpose of the boycott was to induce Martin to close his shop at 8 o'clock (see Van Der Plaat v. Undertakers' & Liverymen's Association, 70 N.J.Eq. 116, at page 122, 62 A. 453), and the insufficiency of the end in view may, perhaps, explain the decision. Certainly, Vice Chancellor Stevenson did not consider that Martin v. McFall established the rule that mere persuasion of customers was actionable. In Booth & Bro. v. Burgess, supra, he said that coercion was "a fact which I think is absolutely essential to the granting of the most important part of the injunctive relief prayed for by the complainant." He observed at page 189 of 72 N.J. Eq, page 229 of 65 A, that decisions of some courts awarded to the business man "not only a free market, but a market where transactions occur naturally according to the ordinary laws of trade and commerce, unaffected not only by coercion, but also by persuasions or noncoercive inducements from outside parties,' applied by them with intent and with the effect to interfere with his dealings and thereby to cause him damage. Whether in New Jersey, upon a further development of the law, such a wider right will be recognized, and the tort which consists in its violation will be restrained by injunctions, need not be considered in this case."
Lastly, Vice Chancellor Backes, in Newark Morning Ledger Co. v. Suburban Newsdealers' Association, 154 A. 534, 9 N.J.Misc. 373, held that a newsdealers' association, not employees, had a right to enlist the friendly aid of nonmembers in refusing to handle a newspaper with which they were at odds.
I am satisfied the New Jersey decisions do not support complainant, and that defendants may lawfully seek to persuade complainant's customers to cease dealing with complainant. Order to show cause discharged, and temporary restraint vacated.