McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
This is a renewal of the motion made by the appellant, New Jersey Bell Telephone Company (hereinafter referred to as "telephone company"), for leave to take additional testimony under Rule 3:81-9, based on two affidavits of Mr. Harold W. Lord, the telephone company's appointee to the Board of Arbitration. Subsequent to the filing of the Board's findings of fact, the telephone company made such an application and this court denied the motion without prejudice to its renewal at the argument of the appeal.
The telephone company argued the motion in its main brief on appeal under point three on the assumption that the proof sought to be offered through its motion to take additional testimony, and based upon the facts contained in Mr. Lord's affidavits, is true. It is obvious from an examination of the reasons advanced for the taking of additional testimony
that the motion involves some of the questions necessarily to be decided on the main appeal. Consequently, they will be dealt with in the opinion of the court disposing of those and other issues raised on the appeal itself. We proceed to a discussion of those aspects of the motion disposed of by this opinion.
Under Point III (a) in its appeal brief, the company asserts:
"The Findings of Fact, Decision and Order were not the result of Board action, but rather were made by three members of the Board acting individually and without permitting participation therein by the remaining members of the Board."
We find no support in the affidavit of Mr. Harold W. Lord, the company's representative on the Board, for these assertions; therefore, there is no justification for taking additional testimony with respect thereto. The findings of fact and decision filed by a majority of the Board recites that "Following a recess for the study of the record and the exhibits submitted by the parties, the Board convened to consider the matters on April 10th and continued its discussions until April 18th. The Order resulting from such deliberation was delivered to the Governor and released on April 20th. The following are our findings of fact and decision with respect to the matters submitted to the Board." It is obvious that the order signed by all of the members under date of April 19, 1950, determining the issues between the parties, resulted from the specific conclusions of the Board members, the labor and industry members indicating their dissents as to certain "items" determined thereby. It is significant that the order, signed by Mr. Lord and the other four members, recites that "the board held public hearings at which both parties were represented by counsel and presented evidence on the issues in controversy. After due consideration of the evidence submitted, and of the arguments on behalf of the respective parties, the board of arbitration promulgates the following order." Mr. Lord, in his affidavit in support of the motion, states that "After meeting together a half day on Saturday, April 15th,
the public members then met with the labor member and me and presented us with their conclusions. I objected to the conclusions from which I dissented in the Order. The labor representative objected to certain conclusions. The discussions which followed resulted in little change from those conclusions so reached by the public members in private session." At that session, Mr. Lord admits that he succeeded in obtaining two concessions from the majority. It is clear that both the industry and labor members of the Board received a copy of the majority's written findings of fact prior to the filing thereof, as indicated by their dissenting findings of fact dated and filed on May 25, 1950, on which date the majority's findings of fact were also filed. Under the pertinent statute, a majority of the Board may determine the issues. Having done so, as here, the majority acted within the scope of their authority when they took the necessary steps to prepare the written form of their findings of fact. We see no error in their meeting in separate sessions for that purpose. The irregularity, if any, was in the majority's failure to comply with the statute by filing their findings of fact forthwith. This question is dealt with in the main opinion. We think it is clear from the record that the entire Board met and discussed the majority findings of fact, and that no good purpose could be served by taking additional evidence with respect thereto.
It would be improper to permit the telephone company to take proofs that the Communications Workers of America (CIO), announced that it would not seek wage increases for the employees represented by it, including members of the union involved in this litigation, but would combine its efforts in entering into contracts with other Bell System Companies providing for a shortening of wage progression schedules and other changes in said contracts not related to wage increases. This announcement was subsequent to the conclusion of the hearings in question and assuming the truth of the assertion, even if admitted, it could have no relevancy or effect upon the determination reached by the Board of
Arbitration. The foregoing comment applies to other evidence that the telephone company desires to take, viz.: that a number of Bell System Companies throughout the United States have executed or are about to execute with ...