Opinion
Argued February 10th, 1947.
Decided May 15th, 1947.
1. Equity will not enforce a contract unless it is supported by a consideration.
2. Equity will not specifically perform a contract unless the defendant could likewise obtain specific performance against complainant. There must be mutuality.
3. Quaere, whether P.L. 1941 p. 27, as amended by P.L. 1946 p. 723, has made collective bargaining contracts unenforceable.
4. Complainants asked Chancery to order defendant to discharge three of its employees, none of them parties to the cause. They are entitled to be heard.
5. Because complainant's case is so doubtful and no real urgency appears, the order to show cause was properly discharged.
On appeal from an order of the Court of Chancery, in which court Vice-Chancellor Bigelow filed the following opinion:
"This is a suit for the specific performance of the seniority provisions of an agreement between the United Automobile, c., Workers, and the defendant, Elastic Stop Nut Corporation, dated June 13th, 1946. With the union are joined as complainants three of its members, Ambizioso, Corona and Farley. Upon the filing of the bill, the defendant was ordered to show cause why it should not be compelled pendente lite to reinstate Ambizioso in the position of set-up operator in the Bodine department and to remove Albert J. Koury, Stephen Matlaga and Walter Foerster from positions of set-up operator. After argument, the order to show cause was discharged. From the order discharging the order to show cause an appeal has been taken, and therefore I present my reasons for the order.
"No urgent necessity for relief pending suit has been shown. Ambizioso and the other two individual complainants are still in the employ of the defendant, although holding positions that pay somewhat less than they would receive as `set-up men.' If they eventually succeed in the cause, they can be made whole by charging the company with the difference between the pay they get and the pay of the positions to which they were entitled.
"The facts are not entirely clear. It seems that there is in the Bodine department a set-up man named Matthes, who is an officer of the union, and by virtue of his office and the terms of the contract has priority over Ambizioso. Ambizioso has actual seniority over a certain veteran Gauweiler, and Gauweiler has, by the provisions of the Selective Service Act, seniority over Matthes. The company took back into its employ the veteran Gauweiler last July; Matthes refused to yield his contract priority over Ambizioso, and Ambizioso was transferred to another job. Nearly three months later, Koury, Matlaga and Foerster, who I take to be veterans, were given back their old positions by the company.
"The law governing the case is unsettled. To grant the relief which complainants ask might nullify the preference which Congress has given the veterans, and that, of course, this court will not attempt to do. It may be, however, that the presence of Matthes in the department has been the basis of reinstating several veterans successively, and has resulted in the removal of several non-veterans who have length of service greater than that of the veterans. If this has occurred, all the men so removed, except the first one, may have, perhaps, a grievance.
"There is another feature of the case to be considered. It is well established that equity will not enforce a contract unless it is supported by a consideration. Wittingham v. Lighthipe, 46 N.J. Eq. 429; Andrews v. Guayaquil, c., Co., 73 N.J. Eq. 150; 75 N.J. Eq. 535. And it is said that equity will not specifically perform a contract unless the defendant could likewise obtain specific performance against complainant; that there must be mutuality. Fiedler, Inc., v. Coast Finance Co., 129 N.J. Eq. 161. Both the bill of complaint and the contract between the union and the defendant are silent on the subject of consideration. Often a contract contains some promises by one party, and other promises by the other party, and in such case, the one set of promises are consideration for the other. What the employer usually gets by a collective bargaining contract, is an assurance against work stoppages and picketing. In the contract now before the court, the only paragraph which appears to be inserted for the benefit of the company and which might be a consideration for its promises is paragraph 19. It binds the union not to cause, or permit its members to take part in, any sympathetic strike or unauthorized work stoppage, or to picket any of the company's plants until certain bargaining procedures have been exhausted. It is doubtful if these provisions are enforceable in Chancery or in any other court, since the enactment of P.L. 1941 p. 27, as amended P.L. 1946 p. 723. This statute declares that it is lawful regardless of any undertaking made after March 13th, 1941, to cause work stoppages and picketing; and the statute forbids an injunction directed against such conduct. However, our Court of Errors and Appeals, in Westinghouse, c., Corp. v. International, c., Union, has held that this part of the statute is merely `declaratory of the existing substantive law.' It will require very careful study to determine the effect of the statute and whether it has made collective bargaining contracts unenforceable.
"One last doubt. Complainants ask the court to order the defendant to discharge Koury, Matlaga and Foerster — none of whom are parties to the cause. It seems to me that they are entitled to be heard, despite Hudson Bus, c., Association v. Hill Bus Co., 121 N.J. Eq. 582.
"Because the complainant's case is so doubtful and no real urgency appears, I discharged the order to show cause. Citizens Coach Co. v. Camden Horse Railroad Co., 29 N.J. Eq. 299."
Messrs. Rothbard, Harris Oxfeld ( Mr. Samuel L. Rothbard, Mr. Emil Oxfeld and Mr. Abraham L. Friedman, of counsel), for the appellants.
Messrs. Whittemore, Porter Pollis ( Mr. Phidias L. Pollis and Mr. Hamilton Hicks (of the New York bar), of counsel), for the respondent.
The order under review will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Bigelow.
For affirmance — THE CHIEF-JUSTICE, PARKER, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, WELLS, RAFFERTY, DILL, FREUND, JJ. 12.
For reversal — None.