Public Utility Const. and Gas Appliance Workers of State of N. J., Local No. 274, of United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry, A. F. L. v. Public Service Elec. & Gas Co.

• Decision Date: 15 March 1957
• Docket Number: No. L--8665,L--8665
• Citation: 130 A.2d 421,44 N.J.Super. 316
• Parties: The PUBLIC UTILITY CONSTRUCTION AND GAS APPLIANCE WORKERS OF the STATE OF NEW JERSEY, LOCAL NO. 274, OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY, A.F.L., an unincorporated association, and Thomas Moore, Edward Smith and George Moore, Plaintiffs, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a New Jersey Corporation, Defendant. . Law Division
• Court: New Jersey Superior Court

Page 316

44 N.J.Super. 316

130 A.2d 421

The PUBLIC UTILITY CONSTRUCTION AND GAS APPLIANCE WORKERS OF the STATE OF NEW JERSEY, LOCAL NO. 274, OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY, A.F.L., an unincorporated association, and Thomas Moore, Edward Smith and George Moore, Plaintiffs, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a New Jersey Corporation, Defendant.

No. L--8665.

Superior Court of New Jersey.

Law Division.

March 15, 1957.

Jacob Friedland, Jersey City, for plaintiffs.

Luke A. Kiernan, Jr., Newark, for defendant.

DUFFY, J.C.C. (temporarily assigned).

The plaintiffs, a labor union and three members thereof, by order to show cause, seek an order from this court directing that the subject matter of a dispute between the named individual plaintiffs and the defendant company be remanded to an arbitration board for settlement pursuant to the rules of the State Board of Mediation and the contract of employment between the parties. This action is brought under the provisions of N.J.S. 2A:24--3, N.J.S.A.

The pleadings and exhibits indicate that a contract of employment previously executed between the union plaintiff and the defendant company terminated on July 1, 1953. While negotiations for a new agreement went on between the parties, the members of Local No. 274 fulfilled and continued working in the various jobs and assignments of their employment with defendant.

The negotiations for a new contract proved unsuccessful. On November 28, 1953 the union called a strike. All members of the union, including the three individual plaintiffs, immediately ceased work in answer to the call.

On December 23, 1953 Thomas Moore, Edward Smith and George Moore, plaintiffs in this proceeding, were arrested by the Palisades Park police on a criminal charge. They were thereupon suspended from their jobs by defendant company. An indictment was returned against them by the Bergan County grand jury on May 13, 1954 in two counts, one, charging breaking and entering and the other, burglary. They were tried on January 25 and 26, 1955 and the jury returned a verdict of not guilty of both counts in favor of the three defendants (in the Criminal Division), Thomas Moore, Edward Smith and George Moore.

Meantime, on December 29, 1953, the strike between the union and defendant company was amicably settled. Part of the strike settlement agreement provided that the propriety of the Suspension of the individual plaintiffs be submitted to arbitration in accordance with the rules of arbitration of the New Jersey State Board of Mediation.

Pursuant to the above proviso a hearing was afforded the three named plaintiffs before an arbitration board, May 3, 1955, to determine the merits of their suspensions. On May 11, 1955 the board made its findings that the suspension of the three named was just and proper. However, at the close of the hearing on May 3, certain representatives of the defendant company verbally advised the named individual plaintiffs that their conduct, the subject matter of the criminal proceedings, justified their discharge by the company, that from that moment on they could and should consider themselves discharged by the company.

The dismissal was confirmed by letters to each of the individual plaintiffs, dated May 4, 1955. The language of each letter was verbatimly similar. I quote the letter to Thomas Moore:

'Dear Sir:

'This letter is in reply to your application for reinstatement in our employ made again on May 3, 1955.

'Your representative previously has been informed that in our opinion your actions of December 23, 1953 were such as to disqualify you for employment with this Company. We advised him that under no circumstances would we reinstate you. Your recent application does not change the situation, and our decision not to reinstate you stands.

'Very truly yours,

'(s) H. W. Nicholson

'General Superintendant of Distribution Gas Department.'

Under date of May 6, 1955, on the stationery of the labor union, the following reply was directed to the company:

'Mr. Harold Emerson

'District Superintendent

'Bergen Gas Distribution

'Englewood District

'Public Service Electric and Gas Company

'Englewood, New Jersey

'Dear Mr. Emerson:

'Pursuant to Article IX, Section 5, Subdivision (d) of the Labor Agreement in effect between your Company and this Local Union we wish to advise as to the existence of grievances relating to the discharges of Thomas Moore, Edward Smith and George Moore.

'The Local Union and the individuals involved protest these discharges as not being for just cause and request the use of the grievance procedure outlined in Article IX of the contract in an endeavor to amicably adjust or settle these disputes in the simplest and most direct manner.

'Very truly yours,

'(s) Frank De Nike

'Business Manager.'

In its answer to the verified complaint filed by the plaintiffs in these proceedings, defendant has set up four separate defenses, namely: (1) that defendant has fully complied with the only agreement existing between the parties to arbitrate in relation to the status of the three individual plaintiffs; (2) that the issue is not arbitrable since the three individual plaintiffs were admittedly engaged in unlawful conduct by sabotaging defendant's property and facilities during the course of the strike; (3) that there is no agreement existing between the parties to arbitrate the issue of defendant's failure to reinstate the three individual plaintiffs; and (4) that the matter in dispute is exclusively within the jurisdiction of the National Labor Relations Board.

Points (1) and (3) can be considered together. Defendant contends that at the time of suspension of the three named plaintiffs (December 23, 1953) the contract of employment between the parties had expired and was non-existent and thus no rights or benefits could possibly accrue to the plaintiffs thereunder. (A state of strike existed between the parties at the time mentioned.) It has been repeatedly held that a strike does not constitute a quitting or abandonment of employment. It does not terminate the relationship of employer-employee between the parties. Kennedy v. Westinghouse Elec. Co., 29 N.J.Super. 68, 101 A.2d 592 (App.Div.1953); American Federation of Hosiery Workers v. Pohatcong Hosiery Mills, 13 N.J.Super. 268, 80 A.2d 447 (App.Div.1951). Moreover, the agreement which terminated the strike and which was executed between the committee representing the union and C. R. Dewhurst on behalf of defendant company, under date December 29, 1953, specifically provided:

'The parties have met to further negotiate a settlement of the strike. The following proposals of settlement have been agreed upon between the committee representing the Union and the representatives of Public Service Electric and Gas Company. * * *

'1. The Agreement which expired July 1, 1953 will be amended as follows:

'E. All employees, except as hereinafter provided, shall be returned to work on December 30, 1953 at their regular reporting time.

'F. Francis C. Juillet may have the propriety of his discharge submitted to Arbitration in accordance with the rules of Arbitration of the New Jersey State Board of Mediation. All of the preliminary steps provided for adjustment of disputes in the labor agreement are waived by both parties. The same shall apply to the suspension of Thomas Moore, George Moore and Edward Smith. Requests for such arbitration must be filed 10 days from date hereof.

'H. Both parties agree that all differences between them have been settled on the basis above mentioned and that there shall be no claim or litigation between the Company and the Union as a result of the strike.

'I. All other terms and conditions of the Agreement between the parties which expired July 1, 1953 shall be effective to June 30, 1954.'

A reading of the above agreement, subsequently approved by vote of the union membership, plainly shows the intent of the parties to treat the named individual plaintiffs as employees of the company who occupied a suspended status at the time of its execution. But, more importantly, the agreement provided that the terms, provisions and conditions of the employment contract should be retroactively effective to July 1, 1953, the termination date of the former contract.

Article IX of the employment contract comprises the grievance and arbitration section and outlines the procedure to be followed 'should any dispute or difference arise between the Company and the Union or its members as to the interpretation, application or operation of any provision of this agreement, both parties shall endeavor to settle same in the simplest and most direct manner.' It should be specifically noted that the above quoted section governs and controls 'any dispute or difference' arising between the parties concerning 'the interpretation, application or operation of any provision' of the employment agreement. (Italics supplied.)

It is my conclusion that defenses (1) and (3) of defendant's answer are not well taken and should be dismissed. This is especially so because paragraph 5(d) of the same section quoted above provides:

'(d) Any employee disciplined or discharged by the Company may use the above grievance steps, including arbitration, for hearing on his case. Grievances concerning such matters shall be filed in writing with the District Superintendent within 72 hours of the disciplining or discharge, or shall be deemed waived.'

Under special defense (2) defendant contends that it was completely justified in summarily dismissing the individual plaintiffs because they 'were admittedly engaged in unlawful conduct and unprotected activity during the course of the strike and sabotaged defendant's property and facilities.' In this connection I have read the transcript of the testimony of Thomas Moore, Edward Smith and George Moore in the criminal trial (marked here Ex. D--1) and find admissions by the...