19 A.2d 204 | N.J. | 1941
This is an appeal from an order of the Court of Chancery restraining, pendente lite, the appellants, Truck Drivers' and Helpers' Union Local 676, and Messrs. O'Neill, Weaver and Glassman, who respectively are secretary, president and business agent of defendant Union, and their agents, servants and employes. The injunctive order restrains (a) picketing, interference with complainant's business, violence, c.
The complainant operates a retail furniture store at 932 Broadway, Camden, New Jersey. The rear of the store abuts on a street or alley seven or eight feet wide known as St. John street.
The main charge outlined in the bill of complaint has to do with alleged conduct of the Union representatives on the narrow street in the rear of the business property where the complainant, in the operation of its business, loaded its trucks to make deliveries and received merchandise consigned to it, which acts and conduct, if done, would amount to assault by threat. The court evidently accepted as true the statements in the affidavits annexed to the bill, that the individual defendants effectually blocked this narrow right of way at *310 both ends and threatened those on the scene who were in the employ of the complainant.
The restraint which is the subject of this appeal was preliminary and on ex parte proofs which assert that a representative of the Union called upon the president of the complainant company and suggested a closed shop contract embracing the services of a truck-driver, helper, and a warehouseman. Mr. Heine, the president, rejected the proposed contract but told the Union representative that he was free to discuss the matter with the said employes. Upon the refusal of these employes to join the Union, it is said that on the following day the Union representatives arrived and picketed the premises front and rear, carrying signs. While the complainant's affidavits do not state what message was published by the signs carried by the pickets, the counter-affidavits state that the placards read, "This company does not employ any Union help," and this is not denied. It is further alleged in the complainant's affidavits that the truck-driver and his helper were threatened and told to keep off the truck; and that members of the Union parked their cars in narrow St. John street and effectually blocked that right of way in both directions so that vehicles could neither reach nor leave the complainant's premises. It is also said that incoming drivers attempting to make deliveries were subjected to threats with the result that they left without delivering the merchandise; and that a customer of the complainant, on calling for goods he had purchased from the complainant, was afraid to take his purchases away. It should also be mentioned, in passing, that these affidavits contain many conclusions, rather than detailed recitals of fact and circumstance.
Five affidavits are submitted for the defendants — three from the individuals defendant — officers of the Union — two from the pickets — members of the Union. They challenge the charges of the complainant in every substantial detail. These affidavits, when paralleled with the ten moving affidavits, disclose an impasse on fact; they make a complete, detailed and categorical denial of all of the material allegations advanced in support of the restraint except the fact of picketing, which is admitted. The deponents assert there *311 were no threats of violence; that at no time were there more than three pickets in attendance, generally but two, one in front and one in the rear of the premises; that they carried a sign whose legend has already been mentioned; further, that in keeping with instructions from their superior, the picketers spoke to no one except when spoken to; that they did not block the rear street with automobiles; that in fact they had no automobiles either of their own or any one else; and that the automobiles, shown in the photographs included in the state of case, which blocked the narrow rear street, belonged to persons who were strangers to them and with whose street parking they had no connection of any kind.
The learned Vice-Chancellor, in referring to the facts, said that while he recognized that pending final hearing it was not the function of the court in a proceeding of this kind to determine the factual issue on affidavits, nonetheless that the denials of the defendant "do not carry conviction," citingEvening Times Printing and Publishing Co. v. AmericanNewspaper Guild,
One further point was made by the defendants. Relying onThornhill v. Alabama,
Reverting to the case before us, and considering what has been said, our view is that the charges of violence in this case, supported by moving affidavits, have been neutralized by answering affidavits of equal quality which render the application for preliminary injunction indeterminable until after final hearing.
The order should be reversed.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15. *314