developments. The strike became effective on October 1, and was called of on October 6 as soon as the men were advised that, upon the recommendation of Governor Edison, this Board had taken jurisdiction and would review the case promptly on the condition that the men return to work at once. At the time of this writing, the only response Mr. Byrne had made to this Board was by telegram on October 6 in which he defied the authority of the Board.

"When the men returned to work on October 7, seventy of them, including the President of Local 277, were refused reinstatement on the ground of their leadership and activity in the strike. Each of these men sent an identical letter to Commissioner Byrne on October 8, advising him that they had been refused reinstatement and requesting him to confirm the refusal, or issue immediate instructions for their reinstatement. No replies have been received, although at this writing about ten of the seventy men had been reinstated."

2. THE ISSUES

On Thursday, October 15, 1942, the panel conducted a hearing in Washington, which was attended by local and national officers and counsel representing the union and by Director Byrne, Corporation Counsel Schroeder, Assistant Corporation Counsel Shotland, and other officials representing the Department of Public Works of the City of Newark. Throughout this hearing, which lasted the entire day, it was insisted by and on behalf of Director Byrne that the War Labor Board did not have, or at any rate should not exercise, jurisdiction over a dispute between a municipality and its employees and their union. Nevertheless, the panel succeeded in examining into the number and exact nature of the issues and found them to be as follows:

1. A demand by the union for immediate reinstatement of the discharged strikers (approximately 65), pending a final determination by the Director of the Department of Public Works and the New Jersey Civil Service Commission (upon appeal to it from the director's rulings) of justification for dismissal in any one or more of the individual cases, other than merely for participation in the strike or remaining away from their employment for more than 5 days.

2. A demand by the union for recognition by Director Byrne and his department to the extent of (a) establishing a four-step grievance procedure, ending in arbitration, for the final settlement of individual grievances, and (b) negotiating with the union on matters normally the subject of collective bargaining (though the union does not demand that any formal written contract be entered into with it).

3. A demand by the union that the department accept the principle of equal pay for equal work and agree to the designation of a competent impartial person or agency to survey the functions of the employees and to determine to what extent they are similar (though job labels or titles may be different) and to what extent they are dissimilar (though job labels or titles may be the same).

4. A demand by the union that the department pay time and a half for all hours worked by an employee in any given week beyond the number of hours then constituting the established work week.

On Saturday, October 17, the panel met in Newark, N. J., with the parties and with Governor Edison and with the chairman and secretary of the New Jersey Civil Service Commission in an attempt to mediate a settlement of the above matters. This meeting continued without recess from 2:00 p. m. to 9:30 p. m. and eventually failed of its objective for the reason, on the one hand, that Director Byrne maintained the position throughout that (a) the War Labor Board did not have jurisdiction and (b) he as a public official could not lawfully bargain collectively with a union, and on the other hand, that the union insisted that immediate reinstatement of the discharged employees was an indispensable condition to any agreement on its part.

Both in Washington and in Newark the union asserted that the sixty-five discharged employees include virtually all of the officials of the local from the president on down. This was never denied by Director Byrne or his associates. The union vigorously contended that this discharging of sixty-five union officers out of 400 or more strikers is conclusive proof of an antiunion movement on the part of Director Byrne; it was asserted that the men discharged were selected from among the strikers because they were known to have been guilty of violence or threats of violence. The union countered by denying that there had been violence and by alleging that the official notice received by each of the discharged merely accused him of violating a section of the Civil Service Law which authorizes the director, at his discretion, to discharge any employee who

absents himself without excuse from his work more than 5 days (which all the strikers had done). The director never denied that this was the only reason given to the discharged workers for their dismissal, and he refused to supply any proof of violence to the panel.

The panel chairman has been informed by counsel for the union that on Monday, October 19, and two or three subsequent days, Director Byrne held hearings with respect to all of the discharge cases and ordered reinstatement with loss of varying amounts of back pay of some fifty of the discharged workers, leaving some twelve or fifteen still discharged and that these latter workers include the president and other officers of Local 277.

3. THE ISSUE OF JURISDICTION

With respect to the jurisdiction of the National War Labor Board, we believe that, at least since the President's Executive Order of October 3, 1942, the National War Labor Board has jurisdiction over the labor disputes of all employees in the United States. The activities of municipal employees may be, and in this case are, just as intimately connected with the war effort as those of other employees. Unrest and dissatisfaction arising out of terms and conditions of employment among municipal employees can hamper the successful prosecution of the war. The prosecution of a foreign war, being within the exclusive province of the Federal Government, it is unthinkable that the National War Labor Board would endanger the war effort by failing to concern itself with the problems of municipal employees to the same extent that it concerns itself with the problems of those employed by private individuals or corporations. We are not unmindful of the traditional and desirable division of powers between the Federal Government and the State governments and subdivisions thereof. But the framers of the United States Constitution cannot have intended that the doctrine of States' rights should be a bar to the successful prosecution by the Federal Government of a war upon which the very existence of the Nation depends.

Furthermore, we are not unmindful of the serious enforcement problem that might arise if Director Byrne were to refuse to comply with a directive order of the National War Labor Board. But in this particular case it so happens that a majority of the commissioners of the City of Newark have the authority to relieve any commissioner of the department to which he has been assigned. The mayor and a majority of the commissioners have already indicated (as has Governor Edison) that they desire the National War Labor Board to bring about a settlement of this dispute. In the event of a directive order of the Board there can be little doubt that it would be carried out without further intervention by the Federal Government.

4. THE ISSUE OF REINSTATEMENT

We condemn strikes in wartime. Since the union strongly contends for the jurisdiction of the National War Labor Board it certainly should have relied upon that Board rather than upon a work stoppage as a means of achieving compliance with its just demands. Even if some penalty should be visited upon the strikers, we do not believe that the employer should be permitted to discriminate without cause against some of the strikers and in favor of others.

Moreover, while we realize that the National Labor Relations Act is not applicable to governmental employees, we believe that it does indicate an established national policy that strikers do not cease to be employees merely because of striking. Furthermore, we condemn, as severely as we do strikes, activities in wartime by employers that are reasonably calculated to provoke strikes; and we believe that the consistent refusal of Director Byrne to have any dealings with the representatives of his employees' union was at least provocative.

The assertion of the union has not been challenged that the sixty-five who were discharged out of some 400 or more strikers include the key officials of the union. The director asserts that these sixty-five men were selected because they were believed to have been guilty of violence or threats, and intimates that it is just a coincidence that they happen to be the key officials of the union. This may be a fact, but it would be difficult to convince an impartial jury, and impossible to convince the rank and file of employees, that no antiunion activity was intended. Accordingly, we believe that this selection of discharges is a prima facie indication of antiunionism which ought to be remedied.

Finally, we believe that if the National War Labor Board, as in this case, informs workers on strike that it will investigate the merits or demerits of their

dispute with their employer only if they will at once return to work, this imposes a duty upon the employer as well as the strikers to restore the status quo ante strike and to maintain this status during the period of the Board's investigation and consideration of the matter. In this insance, pursuant to the demand of the National War Labor Board all of the strikers reported to work, but sixty-five of them were refused even temporary reinstatement by their employer.

For the foregoing reasons, we recommend that the City of Newark be directed to reinstate all discharged employees who were officially charged (1) merely with having absented themselves from their jobs for more than five consecutive days during the period of the strike that began October 1, 1942, or (2) merely with participation in that strike, without formal allegation of violent or criminal Conduct.

5. RECOGNITION AND OTHER ISSUES

We believe that governmental employees are entitled to form, and to belong to labor unions. This is conceded by Director Byrne and his associates. We further believe that it is allusory to concede the right of governmental employees to unionize unless it is also conceded that their union representatives are entitled to participate in the determnation of the terms and conditions of employment of the union members, and to represent them in the presentation of grievances.

During the mediation meeting in Newark, hopeful indications developed that, if the matter of discharges could be disposed of, Director Bryne and the representatives of the Union might then be able to work out, together, mutually satisfactory representative procedure.

Therefore, we recommend as to these remaining issues:

() That the City of Newark be directed to recognize Local 277 of the State, County and Municipal Workers Union as the representative of its members in the city's employ.

(2) That the parties be directed promptly to negotiate a procedure for the settlement of grievances of individual employees or groups of employees.

(3) That if the parties are unable to agree upon such procedure, this matter be returned to the Board for establishment of such procedure.

(4) That the disputed questions of wage adjustments and overtime pay be submitted to the procedure thus established.

Signed by Alexander Hamilton Frey, representing the public, and Milton Murray, representing employees. George K. Batt, representing employers, dissented.

DISSENTING OPINION OF EMPLOYER REPRESENTATIVE

BACKGROUND AND HISTORY OF THE CASE

The City of Newark is governed by a commission of five, the mayor being elected in turn by the commissioners. Each commissioner is given certain departments to supervise, over which he has complete executive, legislative, judicial, and administrative authority and control. In this case, Commissioner Joseph M. Byrne, Jr., is involved. The union involved has had relations with the city in the preceding administration and up until the beginning of this trouble, discussions as requested were held by the city representatives with representatives of the union. However, over the period of the controversy from approximately February 1942 to date, the situation has deteriorated, mainly upon the claim of the union that they had no access to the commissioner involved and the city's answer being that there had been established a committee of three-socalled grievance committee-in this department which, at all times, has been available for submission to it and consideration by it, of the problems, grievances, etc., of any of the employees. This committee in turn was in close touch with the commissioner at all times and its actions were subject to his approval.

The union on its side has strenuously objected to the treatment accorded by the commissioner in question. The commissioner in turn has seriously resented the actions and tactics of the regional director of this particular union. The situation has thus become a personal one and the ensuing bitterness has really resulted from the personalities involved.

The actual cause of the strike was a city order requiring time off in the following week for week-end work performed by employees of the Water Department. In reply to this order by the city, the union regional director advised under date of September 18 that the union would not agree to this

procedure and would insist that the Water Department employees be paid time and a half for any Saturday or Sunday work that they may be required to do. This demand for extra work is not a weekly affair and affects the individual only every seven or eight weeks.

The failure of five employees of the Water Department to report for work resulted in their suspension for five days under Civil Service rules. Twentynine in this same department thereafter walked out in support of the five and were in turn suspended for a period of five days and under Civil Service rules. The strike was the result and on October 1, approximately 400, according to the city, walked out, and according to the union, 500 or 600.

This strike action followed a previous attempt at conciliation by federal conciliators earlier in the year and also an attempt by the State Mediation Board to adjust the differences. This strike was in the face of a public pledge made in February 1942 by the committee of the union that there would be no strikes for the duration of the war.

It was during this earlier period that the W. L. B. had ruled against taking jurisdiction over this case and decided that the matter was one solely within the jurisdiction of the board of commissions of the City of Newark.

In connection with the present controversy, however, the W. L. B., apparently acting upon the telegraph request of Governor Edison, decided at least to examine into the facts. The Governor, knowing of the previous failures to adjust and thinking that present mediation machinery might not be effective for masses of government employees made his resultant request upon the W. L. B. to examine the facts in the hope that a solution might be found.

The Governor's attitude in this respect was further apparent by his earlier appointment of a state committee headed by Mr. Justice Heher to examine into existing grievance machinery in State Civil Service and with an end in view to bring in recommendations that would strengthen the existing machinery in light of present economic conditions. This committee has now made complete recommendations to the Governor for his consideration.

The State position, in turn, is supported by that of the City of Newark who have stated they are also in the process of establishing complete grievance machinery through resolution of the board of commissioners of the city, which grievance machinery will undoubtedly be submitted to the Civil Service Commission for its approval or disapproval. Both State and city therefore recognize the need for modernizing existing grievance machinery and are taking steps to accomplish this.

As a result of the fact-finding panel's efforts, two hearings were held, one in Washington and a following one in the City of Newark in which the hard facts of the case were boiled down and admitted to by both the city and the union in the presence of the Governor and the president and the executive secretary of the State Civil Service Commission.

The union's main contentions in this case are:

1. That it must be recognized as the representative agency of its members employed by the city;

2. That it must have access to the particular commissioner involved and/or his representatives, and that union representatives be allowed to appear in behalf of their member as required;

3. That proper grievance machinery be set up by the city and union involved and allowed to function;

4. That in this instance of mass suspension, the individuals as employees be reinstated prior to the hearings, either by the commissioner or Civil Service Commission or the courts which, by established procedure in New Jersey, must entertain all appeals by aggrieved employees.

NOTE. The union insists in this particular case that all of the suspended striking employees be reinstated before a hearing by the commissioner and now that the commissioner has heard nearly all of the suspended cases, probably insists that those of their members who were not reinstated as a result of the hearing be reinstated forthwith.

The city's position, on the other hand, is that in accordance with the provisions of the State Civil Service laws and the rules promulgated thereunder, each employee must first stand charges on trial before the head of the department by which he is suspended or dismissed. He has the right to appeal to the Civil Service Commission for a new trial, and thereafter, still agreed, he has recourse to the New Jersey Court and to the State Court of Errors and Appeals.

The city further contends that any deviation from this program would mean a complete break-down of the Civil Service laws and policies of the State and a violation of the particular commissioner's oath of office.

The city, in view of its position and promise to the W. L. B. panel, commenced hearings on the Monday following the Saturday panel hearing. Within three days, the commissioner and his representatives have heard fifty-eight suspended cases. Thirty-eight employees were reinstated with the loss of pay for the period of their absence from duty; five were suspended, in the case of which two suspensions were to be lifted as of October 26, and in the case of the remaining three suspensions were to be lifted as of November 23. Fifteen employees were permanently dismissed.

With respect to the remaining four who were suspended, there have been no hearings up to this time because of the illness of two of these men, the inability of the attorney of one to be present at the fixed time for the hearing, and the absence of the remaining men due to employment elsewhere. These four cases will be speedily disposed of. Of the fifteen permanently dismissed, to the city's knowledge not more than five are union officials and the city believes that not more than half are union members. They have no definite knowledge to this effect. Of the 38 reinstated, this number contained the organizer of the union and other active union workers. The city further contends that those permanently dismissed were so dismissed, because of their extreme actions during the strike and in complete violation of Civil Service regulations. The union, of course, contends that those dismissed were the principal officers of the union and therefore that the city's action was strictly an antistrike action. The union further admits that their striking members were in violation of Civil Service regulations and departmental rules but that they had a right to strike.

IMPORTANT FACTS TO BE CONSIDERED BY THE BOARD AS AFFECTING
THE BACKGROUND OF THIS CASE

The first important point to be considered by the Board is the misunderstanding of perhaps the other members of the panel and surely of the union involved as to the Board's telegram sent to the union at which time the striking city employees offered to return to work, also the question as to whether or not the Board took jurisdiction over this case when it sent the telegram or whether or not it simply proceeded to find out the facts through its appointed panel and then decided whether or not it would take jurisdiction. There was also the question before the Board at that time that if the Board did have jurisdiction whether or not it would exercise it in this case.

It has been the understanding of the panel employer member from the time of appointment that

1. The question of jurisdiction is still open before the Board, the arguments would be considered by it, of course, on (a) whether jurisdiction exists, and (b) whether it should be exercised if it exists, before a directive order will issue.

2. The telegram did not determine this question. The telegram was the usual telegram sent in strike cases and did not order the city to reinstate the strikers. The question of principle, however, as to whether such an obligation ought to rest on employers and on this particular employer, will be properly arguable before the Board. The pattern thus set will probably apply for future cases. The pattern had not been set prior to the sending of the City of Newark telegram.

The City of Newark Municipal Employees' strike now before this Board involves a basic principle of whether or not government employees have the right to strike and whether or not they, as employees, come under the jurisdiction of the War Labor Board in the same manner as do all industrial employees.

While the various questions of wage increase, overtime payment, and various other phases of collective bargaining are concerned, the union does not at this time press for a decision from the War Labor Board on these various issues. Its main contention is that the employees do have a right to strike and if they are suspended for such action under Civil Service rules. they must be reinstated prior to hearing by the proper authorities or prior to appeal to the proper Civil Service body. The union further contends that proper grievance and arbitration machinery must be set up by the governing body concerned and proper recognition given union representatives for their members so that the provisions of collective bargaining shall be carried on at all times for the employee and as between the union and as in this case, the City of Newark.