Journeymen Barbers' International Union, Local 687 v. Pollino

Heher, J.

(dissenting). The county district court did not have jurisdiction of the subject matter. The shop cards have but a nominal intrinsic worth; admittedly, it is the relation symbolized by the cards that is the subject of this litigation, and this is not within the cognizance of the local district court.

The union is seeking to withdraw recognition of defendants’ barber shops as “union” establishments, and thus to compel the union employees of the shopowners to terminate their employment or surrender their union membership and status, unless the shopowners will accept union membership conditioned upon their surrender of fundamental civil rights, conditions that my colleagues concede “would appear to be wholly unenforceable as against an employer member who, in the rightful advancement of his own proper interests as an employer, joins an association of employers, brings a proceeding against the union, advocates legislation opposed by the union, or takes other action of similar design,” but excuses because “there is no suggestion that the union is seeking to enforce any of these provisions against any employer members”; and “on the contrary counsel for the union indicated at oral argument that the defendants might properly retain their membership in the Associated Master Barbers of New Jersey (cf. R. S. 34:12-5) and otherwise protect their interests as employers but urged that the provisions were separable and were in nowise controlling on the single issue presented as to the union’s legal right to reclaim its shop cards in its District Court replevin action.”

But this reasoning does not, I submit, take into account the essence of the subject matter of the controversy, the relation itself and the legal rights of the shopowners; in *403 this, form is given ascendency over the substance. The shop-owners cannot be thus coerced into an abdication of their basic civil rights on the assurance of counsel or union officers in the midst of litigation that the surrender will not be enforced; and it is equally unavailing to suggest that, at all events, there would be legal remedies to bar enforcement.

These conditions would destroy the free agency of the shop-owners in the negotiation of collective bargaining agreements, the very freedom indispensable to collective bargaining; indeed, they prohibit any "civil action of any name or nature” against International or any local union, "either directly or indirectly,” and make annulment of membership the penalty for action against the "interests” of International or any local union; members of the union are forbidden to join "any dual organization which is composed wholly or partly of employers”; and any member "found guilty of individually or collectively preventing the passage or enforcement of legislation endorsed” by the International is subject to a fine.

The union would exact submission to these unlawful demands and thereby lay upon the shopowners the costly burden of litigation should enforcement of the conditions be undertaken and, as well, the ensuing loss of business, not to mention the uncertainty and emotional impact of these continuous threatened restraints upon their freedom of action. The time to determine these issues is now.

The measure is plainly coercive, at odds with sound public policy, particularly that declared in N. J. S. 2A :15—51 and R. S. 34:12-5. “The union desires possession of the cards, not because it wishes to make some use of them or to sell them, but because of what they symbolize and because of the effect it anticipates from the withdrawal of them. * * * The union desires the cards because it wishes to compel the defendant to join the union and to contribute to its support.” Di Leo v. Daneault, 329 Mass. 590 , 109 N. E. 2d 824 (Sup. Jud. Ct. 1953).

As there also said, the "question of the right of the union to the aid of a court of equity to obtain possession of the *404 cards cannot be divorced from the context of the case and cannot be considered apart from the circumstances -which have given rise to the controversy”; the union “desires the cards because it wishes to compel the defendant to join the union and contribute to its support”; it “brings this suit as a step in the process of compulsion”; “If the object sought is contrary to the public policy of the Commonwealth a court of equity will not lend its aid in accomplishing that object, whatever agreement the defendant may have made.” And this is the principle that governs here.

The district court’s jurisdiction extended only to the cards as mere chattels; the issue here concerns the relations of the parties involving equitable principles. There is no genuine controversy here as to the daily wage and shop closing hour. There was ready acceptance of the wage rate; the delay as to the closing hour had relation to the requirements of a local ordinance, and is not in dispute. It is clear that the issue now concerns the right to withdraw the cards as a means of coercing acceptance of union membership conditioned upon the relinquishment of freedom of action violative of public policy and natural right; and on the plainest principles of equity and justice there can be no affirmative relief when the demand for the cards is so conditioned. The shop employees are all members of the union in good standing. By express provision of the union’s constitution, “When the Union Shop Card is removed from any shop for violation of the laws, rules, regulations and agreements, all members employed therein shall immediately leave the employment of said shop.”

And, notwithstanding the concession below, it is by no means clear that the collective bargaining agreement terminated by its own limitation on July 31, 1954. There was a provision for annual automatic renewal “upon the anniversary date, without further notice,” provided that “either party may open this agreement for the purpose of discussion and revision upon written notice” by either party to the other “not less than thirty days prior to the expiration of this agreement.”

*405 I find no evidence of record that notice was given by either party to the other, prior to the expiration of the current term, of an “opening” of the agreement for “discussion or revision,” much less to consider a proposal for the submission of the shopowners to union membership upon the stated conditions.

I shall not elaborate on this issue. It suffices now to say that it is one calling fox full inquiry; and that the failure to raise the question below is not conclusive. It involves public policy in labor relations, a major public concern that cannot be set at naught by the default of individual parties to the litigation.

I would reverse the judgment of the district court, and remand the cause for transfer to the Superior Court for hearing and disposition there in accordance with equitable principles.

For affirmance — Justices Oliphant, Wachenfeld, Bur-ling and Jacobs — 4.

For reversal — Justice Heher — 1.