If they are not, the effort cannot be launched without duress of some kind, and that is what makes this denial of Mr. Raspberry and Mr. Johnson incredible, because they were the only two, evidently, who didn't know there was going to be a work stoppage but they both got sick at the same time that everybody else did. The coincidence of this, the Court finds to be incredible.
It should be observed as to the field investigators, whether they were Mr. Sauls or of the employer's staff, that when each of them spoke to an employee and was told that one or the other or both of the plaintiffs had said "Don't go in," or made a threat, that it was not hearsay at that level. They were being told what the plaintiffs said by the person to whom it was said. Of course, as it gets reported it becomes hearsay.
This question has been faced by courts before in more explicit ways. There comes to mind a lawsuit involving a lease in which the owner was entitled to charge the tenant not only for rent but for supplying live steam, which was used in the tenant's business operation. There was a provision in the lease that if the cost of producing steam increased the landlord was entitled to an adjustment to reflect that cost, upon proof thereof, or some such language, and the dispute wound up in court. One of the issues was what kind of proof was needed and the court said that the same kind of proof that an ordinary businessman would accept was sufficient, not formal proof. The case is Lincoln Rug Company v. East Newark Realty, 142 N.J. Eq. 743, 61 A.2d 448 (E & A 1948). The original opinion was by Vice-Chancellor Bigelow and it was affirmed on appeal by the Court of Errors and Appeals. But here, of course, we don't even have a requirement of proof. If there were, the Court would feel that the standard described in that case would be appropriate and sufficient.
Why is that? Well, for one thing it is quite plain that since this right that § 4 calls for must be exercised, if at all, during the first twenty-four-hour period of an unauthorized work stoppage or strike, it obviously would be unrealistic to expect some kind of formal factfinding proceeding to take place in that time.
Beyond that the Court is of the view that the provision, § 4, actually does say and means that it applies to employees whether they were involved in the work stoppage or not, and that as so construed it is valid. This contract was negotiated between a large employer and a large -- at least in affiliation -- labor organization, and it is well known that the Teamsters and other national labor organizations maintain central files of labor contracts and they pay close attention to this kind of language, particularly in an area having to do with the right to strike and its consequences.
Both sides obviously are well equipped to say what other contracts do say typically, that the company should have the right to discipline or discharge "any and all of the employees involved" in a clause of this kind. That language is not in here. There is nothing to suggest that these parties didn't know enough to put it in, if that is what they meant, and the Court cannot make a new contract for them.
On validity, is this too extreme? Well, there are analogies. It is well-established law that the testator may say "If anybody brings a proceeding to challenge my Will he doesn't get a nickel." The most recent recognition of the validity of that kind of provision by the highest court in New Jersey is Alper v. Alper, 2 N.J. 105, 65 A.2d 737. It's a 1949 case.
There is another example, also a reported case, in which a company official was retired and put on a pension, and there was a condition to his pension that if he did anything to harm the company the company could terminate the pension. Well, he started a lawsuit against the company which he well knew created some serious financial problems for the company, and which he knew, or should have known, lacked probable cause to support it, and the company passed a resolution declaring the pension terminated. The court ruled that it had every right to do so. Specht v. Eastwood-Nealley Corporation, 34 N.J.Super. 156, 111 A.2d 781 (App.1955).
Another example is the acceleration clause in the field of private mortgage lending. It is quite common to make loans on a personal, selective basis, and when that is done, at least if the lender is properly represented, you will usually find a provision that if the title to the property is transferred in any way whatever or, if it is a residence, if it is used or occupied by any person other than the borrower and his immediate family, the entire balance of the mortgage falls due and payable. That is the only way you can make the loan. It is a personal loan. If the property is used for anything else, if he's going to rent it out, if he's going to sell it, that lender wants to be paid. He is going to do his own lending. He is going to select his own borrowers and that is how it is done. There is nothing wrong with it. It can be enforced. If he wants to recast the loan, he has the option. To put it in the terms that Jimmy Durante used to do, this is the clause that says "Just for dat, everybody's gotta get off."
Why does this make sense and why is it reasonable and lawful? Well, because when a work stoppage is unauthorized and when it is carried out through concealment, the device of a false, universal illness, the burden of getting into questions of proof makes any other course meaningless. So this kind of provision eloquently tells the employees that if any of them misbehave they are all subject to this sole and complete right of discipline, including discharge, and it looks to and relies upon the mutual and common interest of the employees to prevent the conduct which the clause is designed to control; and if they know that it means this, and are approached by a Johnson or a Raspberry, they won't listen to him. They will go in to work. There won't be an unlawful and unauthorized work stoppage, and the clause can't be invoked. That is how it is designed to work, and it is a perfectly proper purpose.
This opinion is to be taken as the Court's findings of fact and conclusions of law and judgment will be entered for the defendants.
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