93 N.J. Eq. 429 | N.J. | 1922
Lead Opinion
The opinion of the court was delivered by
This is a motion on bill and affidavits for injunction to restrain defendants, employes of complainant, from improper interference in complainant’s business during a strike, and also to restrain Bauseh, who describes himself as business agent of
Since the present case was argued, the supreme court of the United States has decided the general principle underlying the present facts in a case that has been pending for several years, since, at latest, 1916. Tri-City Central Trades Council et al. v. American Steel Foundries, 238 Fed. Rep. 728; American Steel Foundries v. Tri-City Central Trades Council et al., United States Sup. Ct. Advance Sheets No. 2, October term, 1921, not yet officially reported. The authority of that high tribunal is of such weight as to be practically controlling on us in a class of cases in which it must often, and may always, have the full force of a binding authority. It would be unwise in us to assume to sit in review even if the reasoning of the opinion did not commend itself to our minds, as in fact it does. It is true that that case was within the terms of the Clayton act, and this case, as far as the record shows, is not, but the chief-justice discussed the case also as a matter of common law as well as a matter governed by the Clayton act. We start, therefore, with the ruling in that case as the foundation of our decision. It decided that the employer had the right to the access of Ms employes to his place of business and egress therefrom without intimidation or obstruction, and the employes recent or expectant had the right to use peace
They were enjoined from personal molestation of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment. They do not appeal.
They were enjoined from loitering or picketing in’the streets or on the highways or public places near the premises of the complainants or near any premises with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant, or causing the employes of the complainant to refrain from or refuse to remain in the employ of complainant. They do not appeal.
They were enjoined from attempting to cause any persons employed by complainant to leave such employment by intimidation or annoying such employes by annoying language, acts or conduct. They do not appeal.
They were enjoined from going either singly or collectively to the house of any of complainant’s employes for the purpose of intimidating, urging, annoying or coercing any or all of them to leave its employ. They do not appeal.
They were enjoined from interfering with, hindering or obstructing complainant’s business, and in the operation of complainant’s plant in any manner in inducing or compelling, or attempting to induce or compel 'by threats, intimidation, force or violence any of the complainant’s employes to leave complainant’s service, or to refuse or fail to perform their duties as such employes. They do not appeal.
They were enjoined from in any manner and by any means 'molesting or interfering with complainant’s employes, or any of them, in going to or returning from their daily work. They do not appeal.
We have mentioned enough of the defendants’ conduct which they confess by their failure to appeal. The injunctions against parading and picketing must be read in the light of such admitted conduct. There can, as Chief-Justice Taft said, .be no such thing as peaceful picketing in such surroundings and the evidence shows how mere picketing by overwhelming force runs into intimidation and breach of the peace. The law now recognizes the right of members of trade unions to combine in order that they may deal with their employers on terms approaching equality. On the same principles employes must be left unmolested in order that their conduct may be controlled by their .reason, unaffected by the vis melus of great numbers, which corresponds to the vis major of physical force. It might, perhaps, be claimed that the terms of the injunction from which an ap
We have referred to the conduct of the defendants at length and specifically because an injunction was issued against Bausch, and it may he argued that he did! no more than the trade unions were conceded the right to do in the American Steel Company Case above cited. The proof sufficed to show that Bausch was directing the strikers and endeavoring to secure more members for the union with a view to compel the complainants to unionize their shops. He denies that he actively intervened; but he accepted their invitation to aid in forming an effective organization. We think a man who takes paid in forming, fomenting or aiding an effective organization for the illegal purpose for which this organization was in fact used, cannot escape liability by letting others do the work of “active intervention.” He aided in forming, fomented and aided an “effective organization” which at once committed unlawful acts, for which it was properly enjoined, as it admitted by failing to appeal. Had he desired to keep within the bounds of the law, the way to do it was to withdraw when his associates (perhaps, in view of the martial character of picketing, we may properly say “his forces”) began their violations of law. It does not follow that because aiding in an effective organization may under some circumstances be legal, that will be the case under different circumstances. A very good illustration is to be found in a case that arose during the recent war. Schenck v. United States, 249 U. S. 47, 52.
“We admit,” said -Mr. Justice Holmes, speaking for the court, “that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from-an injunction against uttering
The order for injunction must be affirmed, with costs.
Concurrence Opinion
(concurring).
As has been pointed out it is in effect admitted that the “picketing” in this case abounded in almost all conceivable elements of intimidation, but it is urged that these elements might have been, although they in fact were not, absent, and that, therefore, “picketing” as such should not have been enjoined. This contention raises in my mind the query, “What is the essential and fundamental purpose and effect of ‘picketing’ as practiced in strike controversies?” for, obviously, it is the intended and actual consequence of the practice which is decisive rather than the ordinary meaning of the name as otherwise used. “What we call a rose, by another name would smell as sweet.” and a practice which is intended to, and which does, reasonably cause men of average courage to fear immediate or subsequent bodily injury or death for themselves or their families, or destruction of their homes, or even persecution of their children, as the result of their disregard of a strike order, is none the less intimidation, al
This, as I understand it, is the essence of the opinion by Chief-Justice Taft, speaking for the supreme court of the United States, in American Steel Foundries v. Tri-City Central Trades Council (decided December 5th, 1921), wherein he says: “The name ‘picket’ indicated a militant purpose, inconsistent with peaceable persuasion. The crowds they drew made the passage of the employes to and from the place of work one of running the gauntlet. Persuasion or communication attempted in such a presence and under such conditions was anything but peaceable and lawful. When one or more- assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to- lawful methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and cannot be peaceable and may be properly enjoined by the specific term because its meaning is clearly understood in the sphere of the controversy by those who a.re parties to it.” Citing Barnes v. Typographical Union, 232 Ill. 425; Franklin Union v. People, 220 Ill. 355; Philip Henrici Co. v. Alexander (1918) Ill. App. 568; Vegelahn v. Guntner, 167 Mass. 92; Jonas Glass Co. v. Glass Association, 72 N. J. Eq. 653; S. C., 77 N. J. Eq. 219; Jersey City Printing Co. v. Cassidy; 63 N. J. Eq. 759; Frank v. Herold, 63 N. J. Eq. 443; Goldberg v. Stablemen’s Union, 149 Cal. 429; Pierce v. Stablemen’s Union, 156 Cal. 70; Local Union, No. 313, v. Stathakis, 135 Ark. 86; Beck v. Teamster’s Union, 118 Mich. 497; In re Langell, 178 Mich. 305; Jensen v. Cook and Waiters Union, 39 Wash. 531; St. Germain v. Bakery and C. Workers Union, 97 Wash. 272; Jones v. E. Van Winkle Gin and Machine Works,
The present ease is illustrative of the foregoing idea. Only one hundred and forty out of the seven hundred employes went out on the order for the sjnnpathy strike here involved, but after two days “picketing” by fifty to two hundred “pieketers” (largety imported), all except twenty-five.of the other five hundred and sixty failed to “show up” at their work. The day after the “picketing” was stopped by the order here appealed from, however, we are advised 'by counsel that all the employes, except the original one hundred and fortjr, came back to work, and this, although (according to the affidavits) a large number of them had been called by name and told by “pieketers” that if they went back to work they would “get theirs,” or “be sony,” or “receive bodily violence.” They apparently were not scared by the verbal threats of the individuals after the backing of the crowd was withdrawn, but they were afraid to run the gauntlet of the hostile army of “pieketers” standing or parading at and near their entrance to-the factory.
For the foregoing reasons I am unable to concede that “picketing” (properly so called), as applied to strike controversies, is ever free from intimidation and obstruction, and I therefore think it is here properly enjoined under the specific term.
Dissenting Opinion
(dissenting).
I concur in the view expressed in the majority opinion that the proofs before the vice-chancellor fully justified his conclusion that the conduct of the defendants constituted an illegal interference with the complainant’s property rights, and that the latter was entitled to an order restraining the defendants from further continuing such unlawful conduct. My dissent is based upon what seems to me to be the unwarranted scope of the order appealed from. It contains fifteen different restraining provisions, the validit3r of most of which, as is pointed out in the majority opinion, is not challenged by the appellants. For the purpose of making plain the reason for my dissent, I need only refer to three of those involved in the appeal, nameljr, No. 4,
It is conceded in the majority opinion that picketing may or-may not be lawful, depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy (or his employes or those seeking employment with him), or an immediate tendency to interfere with their right of free passage, such as the streets afford, and prevent them from exercising and enjoying that right as fully as do others who enjoy the same privilege. I concur in this view, and approve the order appealed from, so far as it restrains such picketing as has the immediate tendency just indicated; and this the fourth provision of the order does, as I read it. The tenth provision, however, goes much further, and restrains the defendants absolutely from picketing, without regard to whether or not such action would have a tendency to intimidate the complainant or its employes or persons seeking employment with it, and without regard to whether or not it would interfere with their full and free use and enjoyment of the public streets. That it has this effect seems to me too plain for argument; for it is an entirely settled principle of construction that, in ascertaining the meaning of a judicial order or decree, every provision thereof is to be given effect, or, stated in another way, that no provision thereof is to be annulled by so construing it as to- malee it a mere repetition of an earlier provision therein, unless that purpose be made manifest by the words used. The fourth provision of the order deals with the matter of unlawful picketing, and, under the rule of construction to which I have referred, the tenth provision must be interpreted as dealing with a method of picketing not embraced
It is to be borne in mind that the purpose of an injunction is not to punish for past offences or violations of the law, but to protect in the futura those who have suffered from such violations against a continuance thereof. The learned vice-chancellor, as I have ready stated, properly found that the method of picketing adopted by the defendants constituted an unlawful invasion of the rights of the complainant, of its employes and of persons seeking employment with it, and he .was entirely justified in directing' an injunction preventing any further violation of those rights bjr a continuance of the unlawful methods which had 'been adopted and put in operation by the defendants. But he was not, as I think, justified in going further — that is, in.restraining the defendants in the future from the exercise of their legal rights in a peaceful and orderly manner by prohibiting further picketing, even though done in a lawful way.
And what I have indicated with relation to the matter of picketing is also, true with relation to the restraining of the defendants from further parading in the neighborhood of the complainant’s plant, bearing placards containing a statement that a strike was in progress at that plant, without regard to whether or not the parading shall be done in such a way as to have a tendency to intimidate the complainant, its employes or persons desiring emplojrment with it, and without regard to whether or not it would have a tendency to interfere in any way with the full and free use and enjoyment of their respective rights in the public streets. It is not unlawful per se for a body of men to march through the public streets in a quiet and orderly manner (unless ¡prohibited by some municipal ordinance), even though the paraders carry banners or placards of the character indicated in this provision of the order, unless the placards themselves naturally have a tendency to intimidate the owners of the plant, the employes who continue at work therein or persons desirous of seeking employment at such plant; and that they have such a tendency is not shown by the affidavits in the case.
Considering the order appealed from too broad in the respects which I have indicated, I am constrained to dissent from the
I am authorized to state that Mr. Justices Trenchard and Black and Judge Van Buskirk concur in the views expressed in this opinion.
Dissenting Opinion
(dissenting).
The employes of complainant’s plant at Union Hill, being dis-' satisfied with the terms of their employment, refused to return to work, and sent for Victor Bausch, one of the defendants, to consult and advise with. He advised them to draw up- a statement of their demands as to horn’s and wages, and submit it to their employer, the complainant, for consideration. A committee of employes waited upon complainant for that purpose, but the complainant refused to listen to them. The strikers then resorted to the complainant’s plant at Hoboken, by sending some of their number with circulars to distribute among the employes, calling their attention to the fact of the Union Hill strike for “higher wages” and against “intolerable conditions,” and urging them] to attend a public meeting at a public hall at 107 Washington street, Hoboken, under the auspices of the International Association of Machinists, at which one of the Union Hill employes would be the principal speaker, and Bausch would also speak.
This meeting was attended by over three hundred men and women, only twelve of whom were identified with any labor union. The hall itself is located about one mile and a half from the Union Hill plant, in another municipality, and is located over six city blocks from the Hoboken plant. As a result of' that and a subsequent meeting, another committee of complainant’s workmen was appointed to wait upon complainant, and to present a request for ten per cent, increase in wages. As in the former instance, the complainant refused to confer with the committee. When this report was made to the employes at the meeting, a resolution was passed unanimously declaring a strike a-t the Hoboken plant. As a result of this declaration the employes who struck lingered about the streets adjacent to the plant, ob
The' restraining order is directed not only against the employes but against Bausch and the labor organization, and this appeal is taken only by these two defendants. In their behalf Bausch presented an affidavit denying the truth of the allegations of the bill as to himself and the association, and alleging that neither he nor the association did any picketing, and that the association had nothing to do with calling the strike, or formulating the demands of the employes. Upon the presentation of that issue of fact the injunction as against these two defendants should not have gone.
The rule is settled, since the determination of this court, speaking by Chief-Justice Beasley, in Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299, that when the equity of the complainants’ bill is disproved by the answer and affidavits, a preliminary injunction is not proper. In that case, as in this, the injunction went not upon the allegations of the pleadings, but upon the sworn statements annexed thereto. “The general rule,” says the distinguished chief-justice, “subject to but few exceptions, is that if the facts constituting the claim of the complainant for the immediate interposition of the court are controverted under oath bjr the defendant, the court will not interfere at the initial stage of the cause.” Instances of the application of this rule by this court have been frequent, the latest case being Brunette v. Montclair, 87 N. J. Eq. 338, where Mr. Justice Trenehard, speaking for the court, reiterated the doctrine and amplified it to the extent of declaring that “a preliminary injunction will not be granted merely to allay the fears and apprehensions of individuals. They must also show the court that the acts against which they seek protection are not only threatened but will in all probability be committed to their injury.”
Who was Valentine Bausch? When the exodus from the Union Hill plant began, the employes sought him as a Moses, to advise and lead them from the hill top, not into a promised land, but into Hoboken, and then the trouble began. He is pictured to us in all the pungent putridity, of a labor agitator. Were he a religious or a political agitator, it may be assumed that he would not be accorded the prominence with which the bill invests him; but even as a labor agitator he could invoke the companionship of Lincoln, Wendell Philips and Henry Ward Beecher, not to speak of the immortal Gracchi of Republican Rome. His crown
The head aixdi front of the offending-of these men seems to be that they discussed and advised with the employes in neighboring halls the merits of their industrial demand and the legal modus oferandi for attaining it. This offence, in the contemplation of the bill, seems to be comprehended in the generic offence of “picketing;” axxd, generally, they are enjoined from consulting, parading, visiting or advising the employes against continuing in their employment.
In this situation we are asked to define “picketing,” so that counsel may be in a position to advise their clients regarding their constitutional rights as citizens. This, manifestly, we cannot attempt, since we must deal with each case upon the facts as it is presented.
- Some judges have attempted a definition, and as a result we axe presented with an illogical and confusing medley of obiter dicta, that attempt to define the illegality of what may be a perfectly legal and constitutional act. One learned judge simply
There are, however, in this state, satisfactory and reasoned views in the light of personal rights, our legal fundamentals and the constitutional guarantees which extend to every citizen, regardless of employment. , Notable among these is that of Vice-Chancellor Stevenson in Fletcher v. International Association, &c., 55 Atl. Rep. 1077; Vice-Chancellor Pitney in Frank v. Herold, 63 N. J. Eq. 443; Vice-Chancellor Reed in Cumberland Co. v. Glass, &c., Association, 59 N. J. Eq. 49, and Vice-Chancellor Green in Mayer v. Journeymens Association, 47 N. J. Eq. 519.
The trend of legislation indicating the popular will is in the same direction. Thus we have the act of 1883 (at p. 36, Comp. Stat. 2344) entitled “An act relative to combining and encouraging other persons to combine,” which makes it not unlawful for persons “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.” This act was held in the Jonas Glass Company Case to relieve such an act of the character of a conspiracy, so as to be the subject of indictment, but was held to afford no justification for an illegal attack upon the property of another. The so-called “Clayton act” (U. S. Stat. 38 chap. 323 L. 1914 §§ 20, 38; Barnes Federal Code; § 7963) is to the same effect, and it is therein declared inter alia: “Nor shall such organizations or the members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws.”
This recital of a sensible, constitutional, legal rule of action in these industrial disputes requires no explanation and no illumination, and, obviously, eliminates the necessity for a more definitive expression upon the subject, either for-courts or litigants.
The recent adjudication by the United States supreme court in the Tri-City Central Trades Council Case, referred to in the majority opinion, simply elaborates and elucidates this conception of a sensible and constitutional role, declared by the writer of the opinions in both cases.
The conclusion we1 have reached in this case, it will be observed, but serves to mark another step' in the cycle of judicial legislation which, beginning with an appropriate effort to curb agitation of a forceable character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. Thus, in Brennan v. United Hatters, 73 N. J. Law 749, ignoring constitutional limitations peculiar to American government, and basing our conclusion upon a line of English cases, evolved from class conditions, in a land where no constitutional limitations exist, we conceded that the feudal right of property in the man, and! his labor, still subsists in the hands of a master. The logical effect of .that enunciation has been to prevent by injunction an organization of workingmen (1) from interviewing their co-laborers on the way to work, or in their homes, or “in the neighborhood” of the plant; (2) from walking or parading on the public streets “in the neighborhood” of the plant; (3) from visiting co-laborers in their homes or contributing to a fund to sustain indigent or sick agitators, or from con
Nothing further would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (23 and 24 Edw. III), under which the laborer was effectually conscripted to the sendee of the master, and to that end was hounded as a helot and labeled with the brand of Cain.
In every other walk of life the peaceful activities condemned by these adjudications are .quiescently tolerated, if not approvingly recognized.
In an age when the workingman occupied the legal status of a villain or serf, and thus became an appurtenance of the freehold, the legal procedure invoked here was neither impracticable nor unworkable; but in an age of popular enlightenment and in a social order where men are theoretically free and equal, and occupy a legal status of sovereignty, in which schools, libraries and the daily press liberally disseminate an education which fructifies in an enlightened manhood, regardless of avocation, the duration of such an archaic system may be estimated by the passive willingness of an enlightened electorate to tolerate it. For, it is indubitable as a philosophic deduction from the progress of law, as well as from the progress of mankind, that an artificial legal status which thus attempts to environ human endeavor, instead of palliating an existing evil will, deplorable as it may seem, inevitably operate like the deliverance in the Dred Scott Case, to precipitate a popular demand for a radical remedy; and the danger of it is, as history attests, that in the evolution “the man with the hoe” very often assumes the not inconspicuous role of a Samson manacled in the temple.
The decree appealed from, so far as it seeks to enjoin the two appealing defendants- from exercising the right of free speech in a public hall, should be reversed.