Opinion
129/21
12-15-1939
MILLER'S, Inc. v. JOURNEYMEN TAILORS UNION LOCAL NO. 195 OF THE AMALGAMATED CLOTHING WORKERS OF AMERICA et al.
David H. Sterner, of Jersey City, for complainant. Isserman, Isserman & Kapelsohn, of Newark, for defendants.
Action by Miller's Inc., against the Journeymen Tailors Union Local No. 195 of the Amalgamated Clothing Workers of America, etc., and others. On return of an order to show cause why a preliminary restraint should not issue against the picketing of complainant's store.
Temporary restraint denied.
David H. Sterner, of Jersey City, for complainant.
Isserman, Isserman & Kapelsohn, of Newark, for defendants.
KAYS, Vice Chancellor.
This matter comes before me on the return of an order to show cause why a preliminary restraint should not issue against picketing the store of complainant.
Complainant operates a retail clothing store in Jersey City. Defendant, Magnapera, was the only employee and was hired as a bushelman or tailor.
From the affidavits it appears that said defendant entered the employ of the complainant about the middle of 1938 and received wages of $30 a week for approximately sixty hours of labor. Said defendant was dissatisfied with the wages and hours and joined the defendant union. The defendant union negotiated with the complainant and entered into a contract with said union whereby complainant agreed to employ only members of that union and pay employees $36.50 for a forty-hour week plus overtime. The agreement also provided for lunch and dinner periods, holidays, arbitration, etc. The agreement by its terms became effective January 2, 1939, and expired October 30, 1939. The contract was signed by complainant and defendant union but not by the defendant employee. Defendant employee claims that he refused to sign it. It was admitted at the argument that the defendant employee accepted the benefits of the contract and continued in the employ of the complainant. The defendant union in October, 1939, attempted to make a new contract with complainant which was not done. At the end of the last day of the running of the contract, complainant informed defendant that his employment was at an end. Complainant thereupon entered into a new contract with a rival union and employed a member of that union in the place of the defendant, Magnapera. Immediately thereafter, defendants claimed a "lockout" and began a strike against complainant and picketed complainant's store. The first placard announced a strike, but the ones carried at the time this application was made advertises a "lockout". As a result the bill in this case was filed.
I have examined the affidavits and bill of complaint in this matter. There is nothing in the bill of complaint or affidavits which indicates to me the term of employment of the defendant, Magnapera. At the argument defendant's counsel admitted that the contract between complainant and defendant union had expired at the time the defendant employee was dismissed. However, if the contract of employment was one at will the defendant probably was properly dismissed. I must rely on the proofs before me and those proofs must be clear and convincing and must substantially show the facts necessary to support the theory upon which the restraint is to rest. Kitty Kelly Shoe Corp. v. United Retail, etc., 126 N.J.Eq. 318, 8 A.2d 767; Heyl v. Culinary Alliance, 126 N.J.Eq. 320, 8 A.2d 809; Dolan Dining Co. Inc. v. Cooks', etc., 126 N.J.Eq. 321, 8 A.2d 809; Blonder v. United "Retail, etc., 126 N.J.Eq. 322, 8 A.2d 766.
I am, therefore, compelled to deny the temporary restraint.