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McAleer v. Jersey City Incinerator Authority

Decided: May 10, 1963.

ANDREW J. MCALEER, PLAINTIFF-APPELLANT,
v.
JERSEY CITY INCINERATOR AUTHORITY, ETC., DEFENDANT-RESPONDENT. [DOCKET NO. L-15483-60]; JOHN DONEVERO, ET AL., PLAINTIFFS, AND JOHN J. CASSERLY AND HARRY MORSE, PLAINTIFFS-APPELLANTS, V. JERSEY CITY INCINERATOR AUTHORITY, ETC., DEFENDANT-RESPONDENT. [DOCKET NO. L-7317-60]



Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

Plaintiffs appeal the dismissal of their suits (consolidated for purposes of trial) seeking (1) reinstatement as employees of defendant Jersey City Incinerator Authority, and (2) an award of "back pay from the date of discharge until the date of reinstatement plus interest and cost of suit."

During the pendency of the suits, one of the plaintiffs, John J. Casserly, died, and his widow has been substituted as "Administrator ad prosequendum." The Casserly suit therefore is limited to a claim for "back pay" up to the date of his death.

The basic facts are undisputed. Defendant is a public body politic and corporate created pursuant to the provisions of N.J.S.A. 40:66(A)-1 et seq. Its function is the collection and disposal of garbage and other refuse matter for the City of Jersey City. Plaintiffs, honorably discharged war veterans, were employed by defendant Incinerator Authority for terms not fixed by law. All were members of Local 825 of the International Union of Operating Engineers. On October 8, 1960 members of that union went out on strike against the Incinerator Authority and established a picket line. As a result of the strike the Incinerator plant was shut down. The plant superintendent requested the strikers to "come back to work," but they refused to do so. A court order enjoining the strike was obtained and the plant reopened on October 17, 1960. However, full operations were not resumed until October 31, 1960. After the strike ended, the men returned to their jobs. However, several of them, including plaintiffs, were refused further employment by defendant although they requested to be taken back. Plaintiffs then filed the instant suits claiming that as veterans they had tenure in their employment and that they had been wrongfully discharged by defendant without notice or hearing, in violation of the Veterans' Tenure Act, N.J.S.A. 38:16-1 et seq.

The trial court held that defendant Authority was a public body, that its employees had no right to strike; the strike of

October 8, 1960 was illegal, and plaintiffs had participated in it.

In determining that plaintiffs were not entitled to the relief sought, the trial court held that (1) plaintiffs were not discharged or removed by defendant Authority, but that it was plaintiffs' voluntary act which terminated their employment; (2) plaintiffs' failure to return to work on October 8, 1960 was tantamount to abandonment of their employment, and (3) by their conduct plaintiffs removed themselves from the protective limits of the Veterans' Tenure Act. The opinion of the trial court is reported at 75 N.J. Super. 217 (Law Div. 1962).

Preliminarily, it is to be noted that the Veterans' Tenure Act applies to employees of the various governmental agencies and authorities engaged in the discharge of a public function. DeVita v. Housing Authority of Paterson , 17 N.J. 350, 358-359 (1955). Therefore, plaintiffs, in their employment by defendant Authority, were entitled to invoke the protection of said act unless it be determined that they terminated or abandoned their employment.

We agree with the trial court's ruling that defendant Authority was a public body, its employees had no right to strike, the strike of October 8, 1960 was illegal, and that plaintiffs had participated in it.

Defendant Authority was established by the City of Jersey City to administer a necessary governmental operation, the collection and disposal of garbage and other refuse. A strike against defendant Authority was a strike against the municipal government itself and was illegal. Public employees have no right to strike. See Annotation, "Union Organization and Activities of Public Employees," 31 A.L.R. 2 d 1142 (1953). The uninterrupted carrying out of governmental functions is vital to the public health and welfare. Strikes against government cannot be tolerated. Norwalk Teachers' Association v. Board of Education , 138 Conn. 269, 83 A. 2 d 482, 31 A.L.R. 2 d 1133 (Sup. Ct. Err. 1951).

The trial court found that plaintiffs, by participating in the unlawful strike and refusing to return to work on October 8, 1960 after being requested to do so, terminated their own employment, i.e. , resigned from their jobs. We cannot agree. Termination of employment is a matter of intent. Plaintiffs' participation in the strike was no indication either in fact or in law of any intent to terminate ...


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