Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
The eight plaintiffs, members of the United Electrical, Radio & Machine Workers of America (U.E. Local No. 456), instituted a class action on behalf of themselves and some 700 fellow members of the union to recover compensation for hourly-paid employees for Labor Day, September 3, 1951, under the terms of the union contract with the defendant Westinghouse Electric Corp. The plaintiffs and the other members of the union performed no services on the date mentioned, but assert that, under the terms of their contract with the defendant, they were entitled to be paid for this and other holidays enumerated in the contract. The defendant company refused to pay for the holiday in question for the reasons hereinafter mentioned.
This suit was tried in the Law Division of the Superior Court without a jury and resulted in judgment for the plaintiffs from which the defendant appeals. The opinion of the trial court is reported 25 N.J. Super. 601 where the essential facts of the controversy are fully set forth.
The contract between the union and the defendant company, upon which this suit is based, provides in section X thereof that the basic work week shall be 40 hours based on eight hours per day, five days per week, Monday to Friday, inclusive; section XII, 1 (a) and (e) provide for
seven paid holidays during the year, among which is included Labor Day. Section VII (a) of the contract reads in part as follows:
"The Union and the Locals will not cause or officially sanction their members to cause or take part in any strike (including sitdowns, stay-ins, slow-downs, or any other stoppage of work) during the life of this Agreement."
Paragraphs 1 (b), (c) and (d) of section XII of the contract read as follows:
"b. All hourly paid employes who have completed three (3) month's continuous service immediately preceding the holiday will be paid for their established shift hours on a holiday observed between Monday and Friday both inclusive. Hourly paid employes who were laid off for lack of work and are rehired within five (5) years after layoff, who had completed three (3) months' continuous service and had a total employment of at least one (1) year prior to their layoff, will also receive the above holiday payment.
c. Hourly-paid employes will be paid for such hours at their average earned rate, as defined in Section XI, for the payroll period involved.
d. The above payment will be made only to hourly paid employes who are on the active roll as of the day before the holiday within the week and who earn some wages during the week in which the holiday falls or any of the four preceding weeks."
The trial court found as a fact, and we are satisfied that the record supports such findings, that defendant's hourly employees, including the plaintiffs, instituted the practice of refusing to work for the full eight hours of their prescribed employment; that for the period from July 12 to August 24, 1951 they worked only six hours per day; that on August 27 and 28 they worked the full eight hours; that for the period from August 29 to September 11 they worked for periods ranging from 3 1/2 to six hours per day; that on August 31 the officers of the union were notified that if the employees refused to work the full prescribed eight hours on that day, they would not be paid for the ensuing ...