On certification to the Superior Court, Chancery Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J., concurred in result.
The State of New Jersey brought this suit for a declaratory judgment as to the constitutionality of the act dealing with labor disputes in public utilities, R.S. 34:13B-1 et seq. This court allowed an application for certification of the judgment of the Chancery Division sustaining the constitutionality of the act, on the petition of the defendants Traffic Telephone Workers' Federation of New Jersey, Mary Hanscom, Virginia Wigglesworth and Elizabeth Ryan, in which the State and the defendant telephone company joined.
As originally enacted (P.L. 1946, c. 38), the statute, after declaring that "heat, light, power, sanitation, transportation, communication, and water are life essentials of the people" and that "the possibility of labor strife in utilities * * * is a threat to the welfare and health of the people," R.S. 34:13B-1, assured to the employees of public utilities the right to organize and the right of collective bargaining without interference by the employer (incidentally authorizing a closed shop in these industries) and provided for the determination and certification of the bargaining representatives of the employees of a given craft or class by the State Board of Mediation, R.S. 34:13B-2, 3. Other sections of the act
provided for agreements in writing, prior written notice of any changes desired in existing or expired agreements, advisory arbitration procedure in the event of disputes, and finally for seizure by the Governor by taking "immediate possession of the plant, equipment or facility for the use and operation by the State of New Jersey in the public interest," whenever he shall find and proclaim "that there is a threatened or actual interruption of the operation of such public utility as the result of a labor dispute * * * and that the public interest, health and welfare are jeopardized, and that the exercise of such authority is necessary to insure the operation of such public utility," R.S. 34:13B-13. The 1946 act did not, however, contain any prohibition against strikes or lockouts after seizure.
At the time of the strike by the members of the defendant union on April 7, 1947, the Legislature amended and supplemented the statute by two separate enactments (P.L. 1947, c. 47 and c. 75, effective, respectively, on April 9th and April 22nd). The present controversy centers around certain sections of this legislation, which must, for clarity, be quoted at length:
"34:13B-18. Sixty-day notice of intention to strike. It shall be unlawful for any employee or representative of any craft, class or group of employees of a public utility to institute, participate in or aid in the conduct of a strike or work stoppage or for a public utility or any officer, agent or representative thereof to institute, participate in or aid in any lockout until sixty days shall have elapsed after written notice of intention to institute, participate or aid in the conduct of a strike or work stoppage or lockout has been served by the employee or representative intending to institute, participate in or aid in a strike or work stoppage or the public utility intending to institute, participate in or aid in a lockout upon the State Board of Mediation and the other party to the dispute. Said notice may be served on or after but not before the termination of the collective bargaining agreement between the parties and in cases where no such collective bargaining agreement exists, may be served at or after but not before the expiration of the notice of desired changes required to be served under the provisions of the act which this act supplements. During the aforementioned sixty-day period it shall be the duty of all parties to continue their endeavors in good faith to reach an agreement and said sixty-day period may be extended by written agreement of the parties, filed with the State Board of Mediation."
"34:13B-19. Strike after seizure. After the Governor has taken or shall take possession of any plant, equipment or facility of any public utility for the use and operation by the State of New Jersey in the public interest, pursuant to the provisions of section thirteen of the act which this act supplements, and during the continuance of such possession, the relationship between the Government of the State of New Jersey and the persons employed at such public utility, except those who elect to quit such employment, shall be that of employer and employee; and during the continuance of such possession it shall be unlawful for any person employed at such plant or facility to participate in or aid in any strike, concerted work stop-page or concerted refusal to work for the State as a means of enforcing demands of employees against the State or for any other purpose contrary to the provisions of this act."
"34:13B-20. Board of arbitration; submission to Board. Within ten days after the Governor has taken or shall take possession of any plant, equipment or facility of any public utility pursuant to the provisions of section thirteen of the act which this act supplements, or within ten days after the effective date of this act, whichever is later, any and all disputes then existing between the public utility and the employees shall be submitted to a Board of Arbitration to be constituted within such ten day period as follows: the management of such public utility and the representatives of such employees shall each designate in writing one person to serve as a member of such Board of Arbitration and file such designation with the State Board of Mediation; the two persons so designated shall choose three disinterested and impartial persons and shall file such designations with the State Board of Mediation, and the five thus appointed shall compose, and act as the Board of Arbitration. * * *"
R.S. 34:13B-21 then states that the "Board of Arbitration shall promptly proceed to arbitrate the matters submitted to it * * * (and) it shall promptly hold hearings * * *," and R.S. 34:13B-22 requires the Board "to make written findings of fact and to promulgate a written decision and order upon the issue or issues" within thirty days after submission of the matters in dispute or such additional period as may be agreed upon by a majority of the members of the Board. R.S. 34:13B-23 gives binding and conclusive effect to the findings, decision and order of the Board of Arbitration and provides for an appeal therefrom by any party to the former Supreme Court. The statute then recites:
"34:13B-24. Lockout, strike or work stoppage; penalty. Any lockout, authorized or engaged in, by any public utility in violation of any provision of this act, or any failure or refusal by a public
utility to abide by the terms of any decision or order made by any Board of Arbitration constituted in accordance with the provisions of this act, or any strike or concerted work stoppage, authorized or engaged in, or continued to be engaged in by any labor union or representative of any craft, class or group of employees of a public utility, or any concerted action on the part of a substantial number of the members of any labor union resulting in an interruption of the operation of any public utility, in violation of any provision of this act or in connection with any refusal to abide by the terms of any decision or order made by any Board of Arbitration constituted in accordance with the provisions of this act, shall subject such public utility and any officer or agent thereof participating or aiding therein or such labor union or representative of any craft, class or group of employees of a public utility to a penalty in the sum of ten thousand ($10,000.00) per day for each day during the period of such lockout, strike or concerted work stoppage, such penalty to be recovered in the name of the State in an action at law in any court of competent jurisdiction."
"34:13-B25. Violations. Any officer or agent of any public utility or labor union, or any person performing the duties of such officer, or agent, who shall willfully violate, or aid and abet the violation of any of the provisions of this act, or attempt to do so, shall, for each such offense, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars ($25.00) nor more than two hundred fifty dollars ($250.00). Each day's continuance of the violation shall constitute a separate offense."
Under Chapter 47 the penalties prescribed in R.S. 34:13B-25 included imprisonment and a fine ranging between $250 and $500, but by chapter 75 the penalty of imprisonment was eliminated and the scale of fines reduced to from $25 to $250 a day.
The facts in the case were stipulated by the parties at the time of the hearing in the Superior Court. It appears that the defendant union represents approximately 12,000 telephone operators employed by the defendant New Jersey Bell Telephone Company, and that the individual defendants were members and officers of the union. Following a breakdown in negotiations between the union and the telephone company over the terms of a contract to replace a previous agreement which expired on March 31, 1947, the defendant union as well as other unions went out on strike on April 7, 1947, against the telephone company and commenced picketing the various offices and buildings of the telephone company in the
State. Thereupon the Governor, acting under the 1946 statute, issued an executive order on the same day authorizing the Commissioner of Labor to seize and take possession of the property and facilities of the telephone company and invested him with broad powers to manage and carry on the operations of the telephone company. Immediately thereafter the Commissioner of Labor served the executive order upon the telephone company and stationed himself and his representatives at the main offices of the telephone company in Newark and at various other offices in the State. Although he and his representatives remained throughout the duration of the strike, aside from arranging for the cooperation of state and local law enforcement agencies and observing the progress of the strike, the Commissioner of Labor engaged in no activity whatever, neither interfering with nor participating in the management or operations of the company.
P.L. 1947, c. 47, above referred to, passed the Legislature on April 6th and was signed by the Governor on April 9th. Two days later, on April 11th, the individual defendants were arrested and charged with a violation of chapter 47 for aiding, abetting and counselling persons to participate in the strike, and the State also commenced a civil action against the union to recover the $10,000 penalty prescribed in R.S. 34:13B-24. The telephone company designated its representative to serve as a member of the Board of Arbitration, but the defendant union declined to participate in the arbitration proceedings, and on April 14th initiated a proceeding in the United States District Court for the District of New Jersey to test the constitutionality of the legislation. The Attorney General thereupon commenced the present proceeding on April 18th, obtaining in connection therewith a preliminary restraint against the enforcement of the legislation directed to himself, the Commissioner of Labor and all other state ...