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: 17 February 1958
• Docket Number: No. A--58,A--58
• Citation: 139 A.2d 1,26 N.J. 145
• 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-Respondents, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a New Jersey corporation, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 145

26 N.J. 145

139 A.2d 1

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-Respondents, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a New Jersey corporation, Defendant-Appellant.

No. A--58.

Supreme Court of New Jersey.

Argued Dec. 16, 1957.

Decided Feb. 17, 1958.

Luke A. Kiernan, Jr., Newark, argued the cause for defendant-appellant.

Frederick E. Riethmuller, Jersey City, argued the cause for plaintiffs- respondents (Jacob Friedland, Jersey City, attorney).

The opinion of the court was delivered by

FRANCIS, J.

Public Service Electric and Gas Company sought a review in the Appellate Division of the Superior Court of an order of the Law Division directing arbitration of the propriety of its refusal to reinstate Thomas Moore, Edward Smith and George Moore to employment after the settlement of a strike in which they participated. We certified the appeal on our own motion.

Public Service is an electric and gas utility, engaged as such in interstate commerce so as to be subject to the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq. Plaintiff, The Public Utility Construction and Gas Appliance Workers of the State of New Jersey, Local No. 274, A.F.L. (hereafter called the union), is and has been for some years the representative of certain of the company's employees. The union and the company had entered into a collective bargaining agreement which by its terms expired on July 1, 1953. In anticipation of the expiration, the parties undertook to negotiate with respect to a new contract. Agreement had not been reached on July 1, 1953, but efforts to resolve the differences continued and there was no cessation of employment. However, on November 20 or 28, 1953, a strike began.

The three individual plaintiffs in this action, Thomas and George Moore (who are brothers) and Edward Smith, were members of the union and they joined in the work stoppage. In the early morning hours of December 23, 1953, while the strike was still in progress, the three men broke into the gas meter room in the basement of an apartment at 32 East Palisade Boulevard, Palisades Park, New Jersey, and disconnected and removed therefrom 10 of the 21 meters which served the various tenants of the building. The room was padlocked and entrance was gained by removing the screws which affixed the hasp to the framework. After disconnecting the ten meters, the Moores and Smith carried them out to the street where Smith's car was parked. Four of them were put in the rear seat and six in the trunk.

At this point, the trio were apprehended by the police. Shortly after 10 o'clock on the same morning, the company sent each of them a telegram saying: 'You are hereby suspended pending further consideration of your status.' Subsequently, on May 13, 1954, they were indicted for unlawful entry and larceny. They were tried on these charges on January 25 and 26, 1955, and the jury, apparently believing their testimony that they did not intend to steal the meters, acquitted them.

On the trial, all three of the strikers admitted their participation in the meter incident. The reason for the unlawful conduct, as given by Thomas Moore, was:

'Well, being that we were out they still had men working doing our work, the inspectors and supervision, so we figured that if they were doing it that we would give them a little more work to do. As long as they were going to do it, we figured that it would help us get back soon if they had the work and couldn't handle it, and that would settle the strike and we would all get back to work again.

'Q. What happened after that? Did you actually participate in this idea of disconnecting the meters? A. Yes, we did.

'Q. Was there anything else that you were going to do? A. Then we were going to call up and say that we were the ones--the people in the apartment that had no gas, so that they would have to get one of their inspectors out of bed to go down and see what was wrong.'

According to the arresting officer, who inquired as to where they were going with the meters, 'they said that they were going to get rid of them and throw them down the creek.' Another officer stated that at police headquarters they told him the intention was to transport them to the Public Service Terminal in Englewood and 'toss them over the fence or put them over the fence.' The plaintiffs contradicted the officers, testifying that they planned to take the meters to the 'gas shop' where they worked and put them on the platform there.

The strike lasted until December 29, 1953, when the negotiations which had persisted eventuated in agreement. While the settlement was being discussed, the matter of reinstatement of the striking employees was a pressing problem. According to the complaint in the present action, which was sworn to by the individual plaintiffs and by Frank De Nike, the business manager of the union.

'Between November 28, 1953, the date when the strike began and December 29, 1953, the ending of the strike, a great number of meetings were held between the parties at the office of the New Jersey State Mediation Board and at these conferences the Union insisted that the three individual plaintiffs be reinstated to their jobs.'

However, they were not reinstated. The written agreement of settlement provided:

'E. All employees, Except as hereinafter provided, shall be returned to work on December 30, 1953 at their regular reporting time. (Emphasis added.)

'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. (We were told at the oral argument that this discharge occurred before the strike.) * * * 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. (Insertion ours.)

'G. John Ragan, Jr., currently suspended shall be reinstated to employment until such time as the charges currently filed against him in the Municipal Court in Paterson are determined. In the event he is convicted of such charges, he shall be deemed automatically discharged and in the event he is acquitted of such charges, he shall continue his employment.'

The framework and language of this portion of the compact is significant. As is usual at the end of a strike, a question arose as to reinstatement of the striking employees. It was agreed that all of them would be returned to work the next day except the Moores and Smith, the dischargee Juillet, whose reinstatement depended on the outcome of arbitration, and Ragan, who was reinstated immediately pending the outcome of criminal charges open against him in a local municipal court. The parties were aware of the arrest of the plaintiffs for the meter sabotage, but they were accorded different treatment from Ragan. No provision was made for their immediate reinstatement, nor for reinstatement if they were acquitted or obtained a dismissal of the criminal complaint. Manifestly, their return was to depend upon the outcome of the arbitration of the propriety of their suspension. An awareness of the well known legal principles controlling reinstatement at the termination of a strike (to be discussed hereafter) and an appreciation of the next paragraph of the contract, make this conclusion clearly evident. Paragraph H says:

'Both parties agree that All differences between them have been settled on the basis above mentioned and that there shall be no claims or litigations between the Company and the Union as the result of the strike.' (Emphasis added.)

As has been indicated, the settlement agreement was signed on December 29, 1953. Presumably the plaintiffs' requests for arbitration of their suspensions were filed within ten days as required. But the hearing, inexplicably, was not moved until May 3, 1955. Perhaps the reason can be found in the action of the union at that time in announcing that it would not contest the propriety of the suspensions.

On May 3 the parties appeared at the New Jersey State Board of Mediation for the arbitration proceeding. Before the hearing plaintiffs asked for reinstatement and the company refused. The question to be determined by the arbitrators was then stipulated as follows:

'The propriety of the suspension of Thomas Moore, George Moore and Edward Smith by their employer on December 23, 1953, is the issue before the panel.'

Prior to the taking of any testimony counsel for the union advised the panel that the union would not contest the validity of the suspensions but believed that the men should be returned to work. However, the panel in its ultimate ruling declared that the issue before it was limited to the matter of the suspensions. The hearing then proceeded and testimony was taken. Thereafter, on May 11, 1955, a unanimous decision that the suspensions were proper was issued.

On May 4, 1955, as the result of the request for reinstatement made on the previous day, the company wrote plaintiffs advising them that:

'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.' (Emphasis added.)

On May 6 the business manager of the union (who was a member of the arbitration panel which five days later sustained the suspensions) sought to treat the letter of May 4 as a Discharge and demanded that the matter be processed as a grievance under the collective bargaining agreement then in force or under the one which was renewed after the strike. The...