On certified appeal from the Law Division to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J.
The essential question here concerns the meaning of a severance-pay provision of a collective bargaining agreement made by the defendant Press Publishing Company, the publisher of a newspaper in Atlantic City, New Jersey, and the Newspaper Guild of Philadelphia and Camden, a voluntary association affiliated with the American Newspaper Guild, C.I.O., as the exclusive collective bargaining representative of all editorial, news, photographic and art department employees of the Publishing Company. The first such agreement was made October 23, 1944, for a term of one year, following the certification of the Guild's local unit as the bargaining agent of defendant's employees pursuant to the National Labor Relations Act, 29 U.S.C.A., sec. 159; and there were successive agreements thereafter until the last made November 30, 1950, for a term expiring August 22, 1952.
All the plaintiffs were employees of defendant in its editorial department; all but Lewallen entered defendant's employ during the subsistence of one of these collective bargaining agreements; Lewallen joined defendant's staff in 1935 and had been continuously in its employ when, in 1944, the Guild and defendant made the first such agreement.
The final agreement made in 1950, as just said, embodied this severance-pay clause, Article 20, of the same general purport as those that had gone before:
"When an employee is discharged for any reason other than gross misconduct, he shall be paid, in addition to any sum otherwise due him, one week's pay for each six (6) months of continuous service, or major fraction thereof, for a period of twelve (12) years, up to a maximum of twenty-four (24) weeks' pay."
And Article 19(a), entitled "Dismissals," provided:
"There shall be no dismissals except for good and substantial cause which shall include: dishonesty, willful neglect of duty and self-provoked discharges. Publisher agrees to give employees dismissed for causes other than those listed above, two weeks' advance notice of dismissal in addition to stated severance pay."
Pursuant to Article 27(d) of the collective bargaining contract made November 20, 1950, the Guild on June 19, 1952 notified the defendant employer of its desire to "negotiate" specified "changes in the provisions" of the agreement; and in accordance with section 8(d) of the Labor-Management Relations Act, 29 U.S.C.A. § 158(d), the Guild on the ensuing July 22 advised the employer of its "intention to terminate on August 23, 1952, the collective bargaining agreement between us," and proposed a conference "for the purpose of negotiating the contract modifications we have heretofore proposed." The negotiations failed; and their contractual collective bargaining relations ended when the then current contract expired by force of its own limitation.
Plaintiffs remained in defendant's employ until they were severally discharged in January, February and May 1953, for reasons other than gross misconduct, it is conceded; they were each paid the wages or salary due for the preceding week and, in addition, two weeks' wages or salary in lieu of notice of dismissal. Lewallen was also paid two weeks' wages as accrued vacation pay, and ten weeks' wages as severance pay. But the other plaintiffs were not given severance pay; and in this action they all seek recovery of such pay calculated at the rate of one week's wages or salary for each six months of the particular plaintiff's employment, allowing in Lewallen's case credit for the payment made.
The Law Division of the Superior Court, Judge Leonard sitting, 34 N.J. Super. 203 (Law Div. 1955), gave summary judgment in favor of each plaintiff for severance pay computed according to the periods of their respective employments terminating on the expiration of the last collective bargaining agreement, August 22, 1952, as "earned and accrued," "only the time of payment" being "postponed to the time when they were discharged, there being no claim that they were discharged for gross misconduct," the refusal of which would constitute a "forfeiture" of "earned and accrued rights."
There are cross-appeals to the Appellate Division, certified here for decision on our own motion. Defendant challenges
the allowance of severance pay; plaintiffs complain of the disallowance of such pay according to the particular plaintiff's period of service after August 22, 1952 ...