Delaware River and Bay Authority v. International Organization of Masters, Mates and Pilots

Decision Date28 June 1965
Docket NumberNo. A--123,A--123
Citation211 A.2d 789,45 N.J. 138
PartiesThe DELAWARE RIVER AND BAY AUTHORITY, Plaintiff-Respondent, v. The INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS, Defendant-Appellant, and Affiliated Employees, etc., Defendants.
CourtNew Jersey Supreme Court

John J. Bracken, Newark, for defendant-appellant (Bracken & Walsh, Newark, attorneys).

Thomas K. J. Tuso, Vineland, for plaintiff-respondent (Joseph Tuso, Vineland, attorney).

The opinion of the Court was delivered by

JACOBS, J.

The defendant The International Organization of Masters, Mates & Pilots (hereinafter called the Union), appealed from an order denying its motion to dissolve a temporary restraint entered in the Chancery Division. We certified before argument in the Appellate Division.

The plaintiff, The Delaware River and Bay Authority (hereinafter called the Authority), is a bi-state agency of New Jersey and Delaware, created by a compact entered into between them and approved by Congress. See N.J.S.A. 32:11E--1 et seq. It was established to construct and operate crossings between New Jersey and Delaware over the Delaware River and Bay, it operates the Delaware Memorial Bridge, has undertaken the construction of a second bridge, and operates a ferry service running between Cape May, New Jersey, and Lewes, Delaware. Article IV of the compact declares that the Authority 'shall constitute an agency of government of the State of Delaware and the State of New Jersey' for listed general public purposes and that it 'shall be deemed to be exercising essential government functions in effectuating such purposes.' Article VII enumerates various powers and concludes with power '(t)o exercise all other powers not inconsistent with the Constitutions of the 2 States or of the United States, which may be reasonably necessary or incidental to the effectuation of its authorized purposes' and to exercise in connection with its property and affairs 'all powers which might be exercised by a natural person or a private corporation in connection with similar property and affairs.' Article XIII declares that the powers and functions exercised by the Authority are for the benefit and general welfare of the people of Delaware and New Jersey and to that end the Authority 'shall be regarded as performing essential governmental functions' and shall not be required to pay any taxes levied by the States or their political subdivisions. The New Jersey statute providing for the compact (L. 1961, c. 66) directs that the Authority's New Jersey Commissioners shall be appointed by the Governor with the advice and consent of the Senate and that they shall be deemed State officers. N.J.S.A. 32:11E--2; N.J.S.A. 32:11E--4.

After the Authority began its operation of the ferry service between Cape May, New Jersey, and Lewes, Delaware, the Union, representing deck officers employed by the Authority, made demands for wage increases and union recognition. It placed pickets near the ferry terminals, Union members failed to report for work on the ferries, and the ferry service was halted. The Authority submitted a verified complaint to the Chancery Division seeking injunctive relief against the Union and its affiliated employees. The complaint alleged that the Union had threatened to 'strike and refuse to operate the ferry boats and other facilities operated by the plaintiff,' that the Authority's operation of the ferries was in the public interest and for the public convenience, necessity, health and welfare, that a strike would cause irreparable injury to the public and the Authority, and that the defendant employees, as employees of an agency of the States of New Jersey and Delaware, are not authorized to engage in a strike which 'would be contrary to public policy, against the public interest and in defiance of the Laws of the State of New Jersey and the United States of America.' The Chancery Division entered an Ex parte order dated August 28, 1964, restraining the defendants from engaging, Inter alia, 'in any type of strike, sit down, work stoppage or slow down against the plaintiff' and directing that they show cause on September 11th why the restraint should not be continued until final hearing. The order granted leave to the parties to move to dissolve, enlarge or modify the restraint upon two days' notice.

When served with the August 28th order the Union removed the pickets from the New Jersey ferry terminal but, acting on the advice of counsel, continued the pickets at the Delaware terminal. On September 1st the Authority obtained an order to show cause why the Union should not be held in contempt. On September 4th the Union moved for dissolution of the August 28th restraint as violative of due process and the terms of New Jersey's Anti-Injunction Act. See N.J.S. 2A:15--51 et seq., N.J.S.A. On September 11th the Union's motion for dissolution of the restraint was denied. The Union then filed its notice of appeal from the denial of the motion to dissolve the temporary restraint. Thereafter it removed its pickets at the Delaware terminal and the Chancery Division dissolved the temporary restraint, apparently because all of the picketing had ceased. The hearing on the contempt matter was continued by the Chancery Division pending disposition of the Union's appeal.

The August 28th order providing for a temporary restraint was interlocutory in nature, as was the September 11th order denying the motion to dissolve the restraint. See Romano v. Maglio, 41 N.J.Super. 561, 569, 125 A.2d 523 (App.Div.), certif. denied, 22 N.J. 574, 126 A.2d 910 (1956), cert. denied, 353 U.S. 923, 77 S.Ct. 682, 1 L.Ed.2d 720 (1957). The Union had no right to appeal from the September 11th order without leave which it could have sought, but did not, under R.S. 2:2--3. However the issue has not been raised by the parties and in view of the public importance of the meritorious questions presented we shall pass it by along with any suggestion of mootness. See Cooke v. Tramburg, 43 N.J. 514, 516, 205 A.2d 889 (1964); State v. Perricone, 37 N.J. 463, 469, 181 A.2d 751, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); Schlossberg v. Jersey City Sewerage Authority, 15 N.J. 360, 364, 104 A.2d 662 (1954).

Strikes by public employees are prohibited in our State and generally elsewhere. See N.J. Turnpike Auth. v. Amer., etc., Employees, 83 N.J.Super. 389, 395, 200 A.2d 134 (Ch.Div.1964); Donevero v. Jersey City Incinerator Auth'y, 75 N.J.Super 217, 222, 182 A.2d 596 (Law Div.1962), rev'd on other grounds, McAleer v. Jersey City Incinerator Auth'y, 79 N.J.Super. 142, 146, 190 A.2d 891 (App.Div.1963); see also Norwalk Teachers' Ass'n v. Board of Education, 138 Conn. 269, 83 A.2d 482, 31 A.L.R.2d 1133 (Sup.Ct.Err.1951); City of Los Angeles v. Los Angeles Bldg. & C. Tr. Council, 94 Cal.App.2d 36, 210 P.2d 305 (D.C.App.1949), reaffirmed, 109 Cal.App.2d 81, 240 P.2d 16 (D.C.App.1952); City of Manchester v. Manchester Teachers Guild, 100 N.H. 507, 131 A.2d 59 (Sup.Ct.1957); City of Alcoa v. International Broth. of Elec. Wkrs., 203 Tenn. 12, 308 S.W.2d 476 (Sup.Ct.1957); City of Pawtucket v. Pawtucket Teachers' Alliance, 87 R.I. 364, 141 A.2d 624 (Sup.Ct.1958); Port of Seattle v. International Longshore. & W.U., 52 Wash.2d 317, 324 P.2d 1099 (Sup.Ct.1958); Cornell, 'Collective Bargaining by Public Employee Groups,' 107 U.Pa.L.Rev. 43, 54 (1958); Note, 'Labor Relations in the Public Service,' 75 Harv.L.Rev. 391, 407 (1961); Note, 'Union Activity in Public Employment,' 55 Colum.L.Rev. 343, 358 (1955); Annot., 'Union organization and activities of public employees,' 31 A.L.R.2d 1142 (1953).

In Donevero, supra, 75 N.J.Super. 217, 182 A.2d 596, the Law Division held that the Jersey City Incinerator Authority was a public body exercising governmental functions and that its employees were public employees who had no right to strike; in the course of its opinion it stressed the vitality of the prevailing view that, in order to protect the public health, safety and welfare, government must remain immune from any strikes by its employees. On appeal, the Appellate Division expressed its complete agreement on this issue, saying:

'Defendant Authority was established by the City of Jersey City to administer a necessary governmental operation, the collection and disposal of garbage and other refuse. A strike against defendant Authority was a strike against the municipal government itself and was illegal. Public employees have no right to strike. See Annotation, 'Union Organizations and Activities of Public Employees,' 31 A.L.R.2d 1142 (1953). The uninterrupted carrying out of governmental functions is vital to the public health and welfare. Strikes against government cannot be tolerated. Norwalk Teachers' Association v. Board of Education, 138 Conn. 269, 83 A.2d 482, 31 A.L.R.2d 1133 (Sup.Ct.Err.1951).' 79 N.J.Super., at p. 146, 190 A.2d, at p. 893.

In the Turnpike Authority case, supra, 83 N.J.Super. 389, 200 A.2d 134, the defendant union, acting on behalf of members employed as toll collectors and maintenance employees of the New Jersey Turnpike Authority, demanded recognition and threatened to conduct a strike. The Authority obtained an Ex parte injunction and sought a declaration as to its responsibilities and the right of its employees to strike. The Chancery Division held that although the Turnpike Authority was not obliged to engage in collective bargaining, it was under an affirmative duty to meet with its employees, or their chosen representatives, and to consider in good faith any grievances and proposals submitted on the employees' behalf. It also held that the employees had no right to strike, pointing out that the Legislature had established the Turnpike Authority within the State Highway Department as 'an instrumentality exercising public and essential governmental functions' (N.J.S.A. 27:23--3), that its employees were 'persons in public...

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