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Zimmer v. Westinghouse Electric Corp.

Decided: March 17, 1958.


On certified appeal from the Law Division to the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Heher, J.


[26 NJ Page 341] This is a class action by six hourly-paid employees of the defendant, Westinghouse Electric Corporation, in behalf of themselves and some 1,700 fellow employees of like status, for holiday pay claimed for July 4, 1954 under a collective bargaining agreement made October 1, 1950 between the defendant employer and the International Union of Electrical, Radio and Machine Workers, C.I.O., providing thus, section XI: "All hourly paid employes who have completed three (3) months' continuous service immediately preceding an observed holiday will be paid for their established shift hours on such holiday"; "[h]ourly paid employes who were laid off for lack of work and are rehired within one (1) year after layoff, who completed three (3) months' continuous service prior to their layoff, will receive the above holiday payment"; such "payment will be made only to hourly paid employes who are on the active roll as of the day before the observed holiday

within the week and who earn some wages during the week in which such holiday falls or any of the four preceding weeks," section XI, paragraph 1(f); and "[s]alary employes will be paid for the seven (7) observed holidays."

Independence Day was among the seven enumerated holidays. Monday observance was provided for holidays falling on Sunday, and on another designated day between Monday and Friday for holidays falling on Saturday. There was a special provision, not involved in this inquiry, for Washington's Birthday and also where "a state law requires the observance of a holiday not [therein] listed."

The employer pleaded in defense "work stoppage[s] and strike[s] in violation" of the stated agreement "on numerous days prior to July 4, 1954, * * * continue[d] to July 8, 1954," "strikes, slow-downs and stoppages of work during the life of the agreement * * * and in the three-month period directly prior to Independence Day, July 4, 1954"; also that the plaintiff employees and those whom they represent "did not and have not completed three months' continuous service immediately preceding" the given holiday, all cited as conditions precedent to the accrual of the contractual right to holiday pay, and that the case is ruled by Kennedy v. Westinghouse Electric Corporation, 16 N.J. 280 (1954).

A jury was empaneled to try the issue; there were a stipulation of facts and oral testimony, and in the course of the trial the complaint was amended to include a second count alleging an oral agreement made July 7, 1954 providing for the payment of holiday pay for July 4, 1954. At the close of the plaintiffs' case, the first count was dismissed for want of the continuity of service made a precondition to recovery under the bargaining agreement; at the conclusion of the defendant's proofs the second count was submitted to the jury; there was a general verdict of no cause for action; and plaintiffs' motion for a new trial was denied.

We certified, sua sponte, plaintiffs' pending appeal to the Appellate Division of the Superior Court.

The contention is that (a) the plaintiff employees "have fulfilled the requirements of the labor agreement"; (b) a "work stoppage does not deprive workers of holiday pay"; and (c) "continuous service has the same meaning for holiday and vacation pay clauses as for seniority rights"; hence, Kennedy v. Westinghouse Electric Corporation, supra, is not in point.

The essential facts were stipulated in part at the trial. By written notice given by the local union March 31, 1954, the "local supplement" to the basic "National Agreement" was terminated, and negotiations for a new local supplement were still in progress when on June 1, 3, and 16, 1954 defendant "in accordance with the established practice, requested the employees in the shipping and receiving department to work overtime." With few exceptions, the 65 workers in that department refused the request, and on June 16 ensuing defendant notified "those in shipping and receiving who had unjustifiably refused to work overtime" of "a one-day disciplinary furlough" on June 17, 1954, "[t]hat is, without pay"; and on that day "the entire [group of] hourly workers" in the plant, approximately 1,700, remained away from work "in sympathy" with the 65 furloughed. All returned to work the next day.

The same course was taken June 21 ensuing, with a like result; a three-day disciplinary furlough followed, commencing June 22, and all the plant employees remained away from work during the period of discipline; June 28, a request for overtime service was again refused; a three-day furlough was ordered, effective the next day and continuing until July 1; once again the plant employees abstained from work for the furlough period and for the same reason, and on July 1 a three-day disciplinary furlough was imposed on all the plant's hourly workers, some 1,700, "excepting now, shipping and receiving," for July 2, 6, and 7, "for their having gone out or not having returned to work in sympathy with shipping and receiving on the previous occasions."

July 2, 6, and 7, 1954, "those in shipping and receiving stayed out in sympathy with the rest of the plant, so that for those three days, for all practical purposes, nobody was working at the plant; at least none of the hourly workers were working at the plant"; but on July 8, the "last disciplinary furlough day," the "plant was back at work. Everybody was working."

It was agreed that none of the plant's hourly workers, "shipping and receiving or the rest of the plant, 1,700 employees, received any pay whatsoever for the days for which they were given a disciplinary furlough, or for the days that either of the groups stayed out in sympathy with the other"; "none of these employees [were paid] for these days that they were out of the plant, whatever the reason"; and "none of the hourly employees were paid for the holiday of July 4, 1954."

It was also stipulated that "there is nothing in [the] contract which makes it mandatory for any of the employees to work overtime"; and it had been the "past practice * * * up until June of 1954" to comply with the company's requests for overtime service and no ...

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