(dissenting). N. J. 8. 24:15-51 forbids the issuance of “any restraining order or interlocutory or permanent injunction” against the “doing, whether singly or in concert,” of certain acts, this among others: “Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, picketing, without fraud or violence, or by any other method not involving fraud or violence, and not in violation of any other law of the state of New Jersey,” affirmed “to be lawful and in no wise to constitute a tort or a nuisance.”
And it is also declared to be the “public policy” of the State, “(i)n the interpretation and application” of the Article, N. J. 8. 24 :15 — 52, that the procedure permitting a complaining party “to obtain in any case involving or growing out of a labor dispute,” as therein defined, “sweeping injunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party or parties, or that issues after hearing based upon written affidavits alone and not wholly or in part upon examination, confrontation and cross-examination of witnesses in open court, is subject to abuse and contrary to the public policy” of the State, for reasons therein enumerated.
N. J. 8. 24:15-53 bars the allowance of a temporary or permanent injunction “in any case involving or growing out of a labor dispute,” as therein defined, “except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings” (a) of the commission of “unlawful acts,” likely to be continued unless restrained; (b) substantial and irreparable injury to plaintiff’s property unless relief is granted; (c) as to “each item of relief granted,” a showing of “greater injury” to the plaintiff by the denial of relief than to the *104defendants “by the granting thereof;” and (d) the want of an adequate remedy at law. As to the findings of fact made a pre-condition to the issuance of an injunction, see N. J. 8. 2A :15-55.
And “A case shall be held to involve or to grow out of a labor dispute,” N. J. S. &A:15-58(a), when it “involves persons who are engaged in industry, trade, craft, employment, or occupation; or who are members of an affiliated organization of employers or employees; whether such dispute is (1) between 1 or more employees and 1 or more employers; (2) between 1 or more employees and an association or associations of employees or employers; (3) between an association or associations of employees and any other association or associations of employees * * *; or (4) when the case involves any conflicting or competing interests in a ‘labor dispute/ ” as therein defined, “of ‘persons participating or interested’ therein,” as so defined. A person or association, N. J. S. 2A:15-58(6), shall be held to be a person “participating or interested in a labor dispute” if “relief is sought against him or it, and if he or it is engaged in the industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association of employers or employees engaged in such industry, trade, craft, or occupation.”
The term “labor dispute” is defined to include, N. J. 8. 2A:15-58(c), “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”
Eor the significance of the statute, see Westinghouse Electric Corporation v. United Electrical, Radio and Machine *105Workers of America, Local No. 410, 139 N. J. Eq. 97 (E. & A. 1946).
There can be no doubt of the existence here of a “labor dispute” within the intendment of the statute. My brethren say: “It is all but conceded by the Independent Union that a labor dispute,’ ” as so defined, “exists, but in view of the unresolved controversy over the discharge of the five employees we make no determination in this regard.” These men were dismissed following their admission into the defendant union; and the company union then came into being under circumstances suggestive of a company-impelled and company-dominated union to forestall the organization of their employees by the defendant union and therefore calling for a plenary inquiry in the statutory mode as to the workers’ exercise of free choice, not to mention the right to picket for the reinstatement of those discharged from their employment after joining the defendant union, a “controversy * * * concerning the association or representation of persons in negotiating * * * terms or conditions of employment,” and between associations and employees under N. J. S. 2A:15-58(a) that constitutes a ‘labor dispute” within the definition of N. J. S. 2A :15-58(c). Compare Mastro Plastics Corporation v. National Labor Relations Board, 350 U. S. 270, 76 S. Ct. 349, 100 L. Ed. 309 (1956).
This court now finds that the “sole object of the picketing was economic duress calculated to deprive the employees of the choice they had unanimously made, using the employer as the activating force,” to “undermine the right of the plaintiff employees to freely select a bargaining agent — a right which has been exercised,” and thus “antagonistic to our public policy as pronounced in” Article I, paragraph 19 of the 1947 State Constitution, and so may be enjoined. And then there is a remand of the cause for “final hearing in order to develop the full factual background and especially the charge, unsupported by any proof before us, that the Independent Union is a management product.”
*106There is no conflict between the Constitution and the pre-existing statute. The constitutional guarantee is the embodiment in the organic law, proof against legislative interference, of a principle and rule of conduct of general acceptance, that persons in private employment are free to organize and bargain collectively and to take collective action for the individual and common good not inconsistent with the public interest, nor hurtful to the public order, nor detrimental to the common good. Bayonne Textile Corporation v. American Federation of Silk Workers, 116 N. J. Eq. 146 (E. & A. 1934); Kingston Trap Rock Co. v. International Union of Operating Engineers, Local No. 825, 129 N. J. Eq. 570 (E. & A. 1941).
This constitutional provision secures to “persons in private employment” the “right to organize and bargain collectively,” and to “persons in public employment” the “right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals, through representatives of their own choosing.”
The right of persons in private employment to organize and bargain collectively through representatives of their own free choice is of the very essence of the constitutional protection; and coercion may not be employed to subvert this basic freedom of persons so employed to select their own bargaining representatives, and, by such means, to fulfill the right of labor to organize for the betterment of wage, hour and working conditions, whether the compulsion be exerted directly upon the employees themselves or indirectly through the employer, or by the employer himself to his own ends. This would seem to be axiomatic. What constitutes coercion erosive of free agency, as distinct from fair persuasion, is another question, involving also the right to picket in the just pursuit of the common and individual interest.
In the field of interstate action, the National Labor Relations Board has uniformly taken the position that stranger picketing does not transgress the National Labor Relations Act, although, contrariwise, there is adherence in *107some quarters to the philosophic concept that stranger picketing in its very nature involves unlawful economic coercion of employee free choice in regard to bargaining representation. See “Labor Relations Law” by Professor Petro, 1955 Annual Survey of American Law, 199 (New York University School of Law).
Counsel for the defendant Local No. 680 finds determining significance in the omission, from the specific constitutional guarantee accorded to persons in private employment, of the phrase “through representatives of their own choosing” included in terms in the protection given to persons in public employment. And the union asserts a “right to picket” as “an incident to the constitutional guarantee of freedom of speech” under Article I, section 6 of the 1947 New Jersey Constitution and the First and Fourteenth Amendments to the Federal Constitution, citing E. L. Kerns Co. v. Landgraf, 128 N. J. Eq. 441 (E. & A. 1940); Newark Milk and Cream Co. v. Milk Drivers and Dairy Employees Local 680, 19 N. J. Misc. 468 (Ch. 1941); Bayonne Textile Corporation v. American Federation of Silk Workers, supra; Thornhill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940).
Acknowledging that under Building Service Employees International Union, Local 262 v. Gazzam, 339 U. S. 532, 70 S. Ct. 784, 94 L. Ed. 1045 (1950), the “right to picket must fall before a proper public policy of the state, established either judicially or legislatively,” and “If, under the State’s public policy, the object of the picketing is unlawful, it may be prohibited,” the insistence is that the “picketing in this case is utterly lawful,” and “no proper public policy could be established to declare that its objects are unlawful”; that “even if the picketing were solely and exclusively for recognition, our State’s policy does not stand in the way,” citing Newark Milk and Cream Co. v. Milk Drivers and Dairy Employees Local No. 680, supra; Holly Stores of Camden v. District 76, Distributive Processing & Office Workers of America, 14 N. J. Super. 447 (Ch. Div. 1951); that New Jersey does not have a “Labor Relations Act *108which would enable the parties to secure a formal certification, and would enable us to charge, prove, and thereby secure the disestablishment of the company union on the ground that it is dominated by the company”; that the design here is “to pervert the provision” of the 1947 State Constitution “to their ends, to assert constitutional protection for an employee-representation plan, even though it may be thoroughly company dominated”; that the “Wagner Act, the Taft-Hartley Law, and all of the State Labor Eelations Acts have specific prohibitions against the creation of company-dominated unions,” and in New York, “notwithstanding a constitutional provision guaranteeing to employees ‘the right to organize and to bargain collectively through representatives of their own choosingNew Yorlc Constitution, Article I, section 17, “the Labor Eelations Act prohibits and requires the disestablishment of company dominated unions,” New York State Labor Relations Law, Article 20, section 704, paragraph 3, adopted 1937, c. 443; yet here the contention is that the cited article of the 1947 New Jersey Constitution “would prevent the disestablishment of a company-dominated union.”
The “omission” of the express provision for representation of persons in private employment is thus explained: This State constitutional guarantee “was intended to cover only employees not protected by the Eederal Act,” “not factory employees, transportation employees, or other interstate workers,” but rather “in the main, employees in the building and construction industries, and other similar types of craftsmen,” in a field where “it is and always has been the practice of building contractors of all sorts to sign a union contract before they employ their craftsmen,” and “In this way, they can call upon the union of the particular craft whenever they want to, and procure the necessary mechanics,” a “type of contract” that “has always been frowned upon by the” N. L. E. B., “since it does not allow the ultimate employees the opportunity of designating representatives of their own choosing,” citing Douds v. Anheuser-Busch, Inc., 99 F. Supp. 474 (D. C. N. J. 1951), where *109the company and union were restrained “from effectuating a contract signed before the employment of the employees to be covered, based upon the guarantee of ‘representatives of their own choosing,’ ” and “To avoid a similar effect in this State, which would force a change in the labor practices of the largest segment of intrastate industry, the building trades, the phrase ‘through representatives of their own choosing’ was carefully, consciously and deliberately omitted in the portion of the constitution relating to private employees”; and, moreover, under the doctrine of the then decided Florsheim Shoe Store Co., v. Retail Shoe Salesmen’s Union, 288 N. Y. 188, 42 N. E. 2d 480 (Ct. App. 1942), “If these words had been included in the ‘private employees’ ’ clause, company-dominated unions could seize upon them, as our adversaries are attempting to do, in order to enjoin picketing even though there was no State Labor Relations Act which could bar company-dominated unions or determine formally and efficiently the uncoerced desires of a majority of employees in an ‘appropriate unit’ for collective bargaining,” a determination by the Board under a Labor Relations Act, e. g., ”a craft unit, in which ease the majority of the craft would determine the question,” a “departmental unit, a plant-wide unit, a company-wide unit, or even an industry-area-wide unit,” such as “exists, under the NLRB, in the milk industry in northern New Jersey.”
The adjudications of the New York courts interdicting recognition picketing had their" genesis in the policy of the cases in the United States Supreme Court commencing with Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949), holding eventually that the constitutional protection of free speech did not insulate peaceful picketing against injunctive restraint under all circumstances. Picketing designed to effect the “coercion by the employer of the employee’s selection of a bargaining representative” could be enjoined. Building Service Employees International Union, Local 262 v. Gazzam, cited supra; International Brotherhood of Electrical Workers Local 501, A. F. of L. v. National Labor Relations Board, *110341 U. S. 694, 71 S. Ct. 954, 95 L. Ed. 1299 (1951); Local Union No. 10, United Ass’n of Journeymen Plumbers and Steamfitters of United States and Canada of A. F. L. v. Graham, 345 U. S. 192, 73 S. Ct. 585, 97 L. Ed. 946 (1953), decisions diverging from the earlier causes of Thornhill v. State of Alabama, cited supra; American Federation of Labor v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855 (1941), rehearing denied 312 U. S. 715, 61 S. Ct. 735, 85 L. Ed. 1145 (1941); Cafeteria Employees Union Local 302 v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58 (1943). See “Organizational and Recognition Picketing,” by David L. Benetar, Eighth Annual Conference on Labor (New York University, 1955), p. 199.
In the later case of Wood v. O’Grady, 307 N. Y. 532, 122 N. E. 2d 386 (Ct. App. 1954), the New York Court of Appeals, dividing four to three, held that peaceful organization picketing concerns a “labor dispute” as defined in section 876-a of the New York Civil Practice Act. L. 1935, c. 477. Injunctive relief was denied, generally for the reasons that the picketing was not designed to exert economic pressure on the employer, but rather to enlist the support of the employees in the unionization program, and the coercion involved was directed by the employer against the employees and not by the union against the employer, and there was no showing of irreparable injury.
The labor policy embodied in the New York Civil Practice Act is much the same as ours. There may be peaceful picketing without fraud or violence for the publicizing of a “labor dispute” as there defined, concerning “terms or conditions of employment * * * or representation * * * employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.” Subd. 10, par. (c). The New York act applies even though the disputants do not stand in the relation of employer and employee, May’s Furs and Ready to Wear, Inc., v. Bauer, 282 N. Y. 331, 26 N. E. 2d 279 (Ct. App. 1940), and if the acts of the union *111“have any reasonable connection with wages, hours of employment, health, safety, the right of collective bargaining, ox any other condition of employment or for the protection from labor abuses, then the acts are justified,” Opera on Tour, Inc., v. Weber, 285 N. Y. 348, 355, 34 N. E. 2d 349, 352, 136 A. L. R. 267 (Ct. App. 1941), and “inconvenience to the employer” without more cannot be labeled “an unlawful objective,” but merely the “consequences frequently accompanying peaceful picketing in a labor dispute,” Wood v. O’Grady, supra, in the pursuit of an organizational activity in keeping with the policy of the statute.
The holding in Wood v. O’Grady was that “It is only when the picketing is unlawful that it may properly be restrained,” and there is nothing in the statute “authorizing the use of an injunction in peaceful picketing for avowedly organizational purposes.” And Goodwins, Inc., v. Hagedorn, 303 N. Y. 300, 101 N. E. 2d 697, 32 A. L. R. 2d 1019 (Ct. App. 1951), was there distinguished as concerned with “picketing to compel employer recognition as collective bargaining agent of its workers, despite the fact that a certification proceeding on that very issue was pending before the National Labor Relations Board to determine whether the picketing union or a rival union should be certified, a quite different situation.”
Judge Dye said:
“It is axiomatic that we may not, under the guise of interpretation, import into a statute conditions or criteria which the Legislature has been careful to omit. By the same token, we may not review a record in such a way as to bypass the clear meaning and intent of the Legislature. If the Legislature wishes to sound the death knell of peaceful organizational picketing by repealing section 876-a as a declaration of State policy, or by amending it, so as to permit the restraint of peaceful organizational picketing as unlawful because ‘exerting economic pressure’ in addition to that presently defined as ‘substantial and irreparable injury to complainant’s property’ it, of course, may do so but we may not.”
And Judge Dye rejected the thesis that lengthy picketing “without success,” in that case for 18 months, constituted “unlawful economic coercion,” holding that the “test of *112illegality * * * is not whether any particular picketing has ‘gone on long enough’ but rather whether such picketing is being lawfully conducted in the furtherance of union interests in a statutory labor dispute,” for section 816-a “prescribes no time limit” where “picketing is a legally protected right.”
Full freedom in the selection of bargaining representatives is an essential attribute of the constitutional mandate; and no inference of a different policy is derivable from the omission of an express provision for representation. We are not referred to the deliberations of the 1941 Constitutional Convention or its committee proceedings as in any wise giving color to the distinction offered by counsel. There is implicit in this basic guarantee freedom of association, self-organization, and of representation in the marketing of the workers’ services. But ISTew Jersey’s broad policy in this controversial field involving fundamental social and economic relations, expressed in the Anti-Injunction Act, is to be fulfilled in consonance with the manifest reason and spirit of the expression. Such is the philosophy of Gazzam, supra, holding that the right of free speech as guaranteed by the Fourteenth Amendment is not violated by state policy forbidding employers to coerce their employees’ choice of representatives for purposes of collective bargaining. It was there said that, as in Giboney, supra, “the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the declared policy of the state.” See American Federation of Labor v. Swing, supra.
And it does not matter that the picketing enjoined may be outside the scope of the state anti-injunction act. The right to picket does not depend upon the local definition of a labor dispute. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U. S. 169, 62 S. Ct. 816, 86 L. Ed. 1178 (1942); Cafeteria Employees Union Local 302 v. Angelos, supra. State law as to the “legitimate area of the labor dispute is thus not controlling on the right to enjoin or criminally punish *113peaceful picketing.” “Labor Relations Law/’ by Marcus Manoff, American Law Institute (December 1955), p. 113.
Most if not all of the several state labor relations acts, and the federal act also, provide for administrative review of the certification of “company” unions and their disestablishment as well where the association was unduly coerced or for other good cause. We have no such mechanism in New Jersey; and where, as here, the right to picket is challenged as a measure designed to coerce the employer’s breach of a collective-bargaining agreement made with a company union, the union’s establishment as a free association comporting with the constitutional guarantee would in principle be a pre-condition to the exercise of the injunctive power.
And it is generally the province of union labor to take reasonable measures to maintain its bargaining position within the industry, by meeting market competition arising from the lower standards of non-union establishments; and to make its cause known to the public with a view of public support by peaceful means devoid of force and violence, fraud and misrepresentation and the elements of unreason in mode and manner, such as distinguishes “coercion” from fair persuasion. Kingston Trap Rock Co. v. International Union of Operating Engineers, Local No. 825, supra. See “Labor Relations Law,” Manoff, supra, p. 114 et seq. This is an inquiry that is sometimes said to be concerned with the difference between purely organizational picketing, i. e., to persuade the employees to join the union and inform the public that they are not in the union, and recognition picketing, where the union seeks “to compel the employer to compel the employees to join the union” and to inform the public of the employer’s failure to comply with the demand, a distinction that has been criticized as arbitrary and meaningless. See “Organizational and Recognition Picketing,” by Stephen V. Vladeck, Eighth Annual Conference on Labor (New York University, 1955), p. 207.
Here, we do not have a bargaining representative certified by an authorized administrative agency; and there has been *114no prior inquiry and determination of representation in the manner provided by the statute for the resolution of issues upon which the right to an injunction depends. Indeed, our statute does not so condition the secured right to picket; and a state policy of peaceful picketing in the service of the common interest of the workers in the same industry, directed to the betterment of their wage and working conditions, does not trample upon the basic rights of the employers. Kingston Trap Rock Co. v. International Union of Operating Engineers, Local No. 825, supra.
Here, there was no mass picketing, no violence or threat of violence, or fraud or misrepresentation. And 'the means of communication are always subject to reasonable control, to preclude abuse of the right.
I would affirm the order refusing an injunction.