Harold A. Ackerman, P.J.D.C. (temporarily assigned).
This is an action to recover lost wages under an individual employment contract for the period commencing October 13, 1964 and ending February 1, 1965.
On December 6, 1937 plaintiff entered into an employment contract with defendant Standard Oil Company of New Jersey (subsequently Humble Oil & Refining Company) which provided, in pertinent part:
"Company hereby agrees to pay employee said salary * * * as in its opinion may be justified during the continuance of such employment and until 60 days after company shall notify employee that it desires to discontinue his service."
Plaintiff has been continuously employed by defendant in the Chemical Products Department of its Bayway Refinery.
In 1944 the Independent Petroleum Workers of New Jersey, hereinafter referred to as Independent, was certified by the National Labor Relations Board as the exclusive bargaining agent for certain of defendant's employees at its Bayway Refinery, in accordance with the statutory mandate of § 9(a) of the National Labor Relations Act, 29 U.S.C.A. § 159(a). In July 1945 a collective bargaining agreement was executed with the aforesaid union fixing the rate of pay,
wages, hours and other conditions of employment for those employees in the bargaining unit.
Although plaintiff was not a member of Independent or subsequent unions, his wages were fixed by the collective bargaining agreement for a period of over 20 years. He was always on an hourly wage and for the bulk of his employment was classified as an operator. During the course of his lengthy employment, however, plaintiff was variously employed as a substitute foreman, substitute shift foreman, and supervisor. With the exception of these designations he was included within the regular classification of operator. As such, he was a member of the bargaining unit represented by the particular union certified as the exclusive agent. It must be noted, however, that plaintiff was disqualified by Independent in 1950 because he was working as a supervisor in White Oil. When plaintiff was not engaged as an operator exclusively, his salary was adjusted by defendant and his classification was occasionally altered.
On or about October 13, 1964 Independent of Bayway, which had been certified by the National Labor Relations Board and was then the exclusive representative for the purposes of collective bargaining of certain of defendant's employees, including the unit of which plaintiff was a member, called a strike. The members of the unit were thereafter absent for a period of some 16 weeks. Plaintiff has instituted this suit to recover wages allegedly due for the period of 16 weeks, relying upon his 1937 employment contract.
The strike in question commenced on October 13 at midnight. Plaintiff was then engaged as an operator of the butyl extraction unit. The testimony is in dispute as to when he first learned of the strike. He claimed that he first knew of the work stoppage on the 15th when he reported for work for the 7 A.M.-3 P.M. shift and was told by a guard that he could not work. William J. Kerns, defendant's refinery safety advisor, testified that on the evening of the 13th he was assigned to operate the crude butyl unit if a work stoppage occurred. In anticipation of this contingency he
went to the unit at about 6 P.M. According to Kerns, plaintiff, who was there, reported that he had received a call from the president of the union, who had alerted him to the impending walkout. In my judgment, Kerns' version is more credible.
On the Tuesday following the commencement of the strike, plaintiff went to defendant's office to show Sweeney, an employee in the personnel office, the individual employment contract and, in addition, to make certain payments on a loan and arrange for Blue Cross coverage. Plaintiff subsequently returned to the Bayway office building once a month to pay defendant for the aforesaid loans and Blue Cross coverage.
Plaintiff returned more frequently to the vicinity of the refinery in order to discover if there still remained a picket line. It is undisputed that he went on the picket line sometime in the latter part of January, picketed for two hours a day for three days and was compensated by the union in the amount of $15.
During the whole period of the strike plaintiff spoke to no supervisor or department head. He did, however, correspond with defendant as to his individual rights under the 1937 contract. This correspondence amounted to one letter and a reply dated December 18, 1964. The reply, by J. C. Hickey of the Employee Services Division, stated in pertinent part:
"We are checking further to see what the status of this contract is at this time and will be in touch with you at a later date."
After the strike was settled plaintiff joined Local 866, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, who were the representative agents for collective bargaining. He received the rate agreed upon by the union for operators. Pursuant to the collective bargaining agreement in force before the strike, plaintiff had been receiving $3.78 per hour, plus shift differential and an allowance for a thrift plan.
The meritorious issues in this matter are:
1. Whether a collective bargaining agreement negotiated by a certified union supersedes an individual employment contract.
2. Whether a nonunion member is bound by the provisions of a collective bargaining agreement negotiated for a bargaining unit of which said member is a part.
3. Whether plaintiff is a supervisor and, consequently, not within the purview of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.
4. Whether the 1937 employment contract has been abandoned by the parties.
5. Whether plaintiff, as a matter of fact, made a good faith effort to work during the strike.
The National Labor Relations Act, 29 U.S.C.A. § 159(a) provides in pertinent part:
"[The] Representative designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment."
In order to determine the status of plaintiff's individual employment contract, 29 U.S.C.A. § 159(a) represents the pivotal point of departure. To ascertain the import and extent of this vital section of the National Labor Relations Act, ...