the complaint, holding that there was no violation of the National Labor Relations Act; this dismissal was upheld on appeal to their General Counsel.

1. Employers in the State of New Jersey are under a duty, imposed by the Common Law of New Jersey, to provide a reasonably safe and healthful place for employees to work, which includes the provision of adequate general ventilation.

Under the contract of employment it becomes the master's duty to use reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools and implements with which he may work, to inspect and repair the apparatus at reasonable intervals and with ordinary prudence, and to select and employ competent [e.g., sane, non-dangerous] workmen.

It is one of the duties of an employer to exercise reasonable care that the place in which he sets his servant [employees] to work, and the system or method adopted by the employer for the doing of the work, shall be reasonably safe for the servant and free from latent dangers known to the master or discernible by an ordinarily prudent master [employer] in the circumstances. Western Union Telegraph Co. v. McMullen, 29 Vroom 155.

That the duty of the master [employer] to exercise care with respect to the place of working extends to the system or method of arranging the work is established in this state. Belleville Stone Co. v. Mooney, 31 Vroom 323; 32 Id. 253.

It is suggested that the duty of a master [an employer] with respect to care as to the tools and appliances furnished for his servant's [employee's] work is limited to such as are in fact supplied by the master. But this has no appliancy [application] to the failure of the present defendant to supply gloves, boards or a platform. These articles, if furnished, would have been not tools and appliances for the work that the plaintiffs were doing but rather safeguards against the dangers that arose out of the work. In the absence of such dangers the plaintiffs could perform the work at which they were set just as well without gloves, boards, or platform as with them. See Belleville Stone Co. v. Mooney, 32 Vroom 254. It was not the exigencies of the work but the latent danger that inhered in the work and of which the jury have found

the plaintiffs were ignorant, that necessitated the use of gloves, boards or a platform.

2. The duty of the Employer to provide a reasonably safe place to work is necessarily subject to adjustment in light of increased knowledge of dangers and changed conceptions of social relations.

. . . Proof of an industry custom is not dispositive on the question of duty. The standard of conduct is reasonable care, that care which a prudent man would take in the circumstances. The customs of an industry are not conclusive on the issue of the proper extent of care; they are at most evidential of the standard. (Citations omitted.)

Even an entire industry by adopting such careless methods to save time, effort or money, cannot be permitted to set its own uncontrolled standards . . . and if the only test is to be what has been done before, no industry or group will ever have any great incentive to make progress in the direction of safety. . . . The much better view therefore is that of the great majority of the cases, that every custom is not conclusive merely because it is a custom, and that it must meet the challenge of 'learned reason,' and be given only the evidentiary weight which the situation deserves. It follows that where common knowledge and ordinary judgment will recognize unreasonable danger, what everyone does may be found to be negligent; and that there will be extreme cases where it is so clearly negligent in itself that it may even be excluded from evidence. Prosser, Torts Sec. 33, 170 (3d Ed. '64 ).

(3-5) "Duty is not an absolute conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably forseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549, 133 A.2d 12 (1957). In the field of negligence, duty signifies conformance "to the legal standard of reasonable conduct in

the light of the apparent risk"; the essential question is whether "the plaintiff's [employee] interests [e.g., safety] are entitled to legal protection against the defendant's [employer's] conduct." Prosser on Torts (2d Ed.), section 36. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct. (6) "Duty" is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows; and accordingly the standard of conduct is care commensurate with the reasonably forseeable danger, such as would be reasonable in the light of the recognizable risk, for negligence is essentially "a matter of risk * * * that is to say of recognizable danger of injury." Prosser, Ibid, section 30.

290. What Actor [Person] is Required to Know.

For the purpose of determining whether the actor [individual involved] should recognize that his conduct involves a risk, he is required to know:

(a) the qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community; and

(b) the common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of the other or third persons.

This section is explained in comment e. as follows:

(e) It is stated in 283 that unless the actor is a child, the standard to which he must conform to avoid being negligent is that of a reasonable man under the circumstances. In determining whether the actor's conduct is negligent, his personal inability to conform to the standard is immaterial.

[Ed. Note: Smokers may indeed have a "personal inability to conform to the standard," i.e., to the rules or laws. A smoker may indeed not be "a person of normal sensibilities," Aldridge v Saxey, 242 Oregon 238; 409 P2d 184 (1965). This is their loss, Barylski v Paul, 38 Mich App 614; 196 NW2d 868 (1972), not their nonsmoker victim's. A smoker may indeed be unable “to appreciate the wrongfulness of his conduct,” and “to conform hisconduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982). This is a case involving physical deterioration of the brain due to typical smoker aspects, alcoholism and drug abuse), in the context of determining whether the person is insane within the meaning of the law for criminal responsibility purposes. "For almost four hundred years, European and American physicians have observed the toxic effect of tobacco . . . . physicians have known for centuries that smokers were daily taking into their bodies large quantities of one of the most poisonous substances known to man," says Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 67. "We need look no further . . . than the Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health," Grusendorf v. City of Oklahoma City, 816 F.2d 539, 543 (10th Cir. 1987). "The normal use of cigarettes is known by ordinary consumers to present grave health risks . . .'tobacco has been used for over 400 years . . . [k]nowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge,'" Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988).

He [the individual doing the wrongful act(s)] is treated as though he were a reasonable man and, therefore, he is treated as though he knew those things which the reasonable man at that time and place would know even though the actor is himself excusably ignorant of them. As a reportable man, the actor is required to possess such scientific knowledge as is common among laymen at the time and in the community. Thus, he is required to know the ordinary operation of well-known natural laws. He is required, among other

things, to know the poisonous qualities of many drugs, chemicals, and gases and the explosive or inflammable qualities of many chemical compounds and the intoxicating quality of certain liquids. So too, the actor as a reasonable man is required to know the ordinary operation of natural forces in the locality in which he lives which are likely to be affected by his conduct. (Emphasis added.)

495. Knowledge Which Master [Employer] is Required to Have

A master [employer] is subject to a duty to his servants [employees] to conduct his business in the light of knowledge which he has, and of such knowledge as to the conditions likely to harm his servants [employees] as persons experienced in the business and having special acquaintance with the subject matter have.

c. Scientific knowledge. The knowledge which is required of an employer includes a knowledge of generally known scientific discoveries and inventions applicable to conditions of safety in his business. He is required to inform himself of current advances and of the progress in industries of the same nature as his own. He is required not only to know of the operation of natural forces, but of the tendencies which are shown by men under conditions similar to those which exist in his employment. Thus, he must not only know something concerning the breaking strength of materials which he uses, but he must also realize the effect of the work which he requires upon the human instrumentalities who perform it. He is also under a duty to realize the limits of knowledge of those whom he employs, so that he can guard them against dangers which he is required to know, but of which he should know they may be unaware.

3. The Courts of New Jersey have jurisdiction to enforce the Common Law and statutory duty of the employer to provide a reasonably safe and healthful place for employees to work by the grant of equitable relief.

Independent Dairy Workers v. Milk Drivers Local No. 680, 23 N.J. 85, 30 N.J. 173 (1959);

Cooper v. Nutley Son Printing Company, Inc., 36 NJ. 189 (1961); and

Johnson v. Christ Hospital, 84 N.J. Super. 541 (Ch. Div. 1964), affirmed per Currium 45 N.J. 108 (1965).

(7) . . . If the trial court finds the individual plaintiffs' constitutional rights have been infringed upon, it can exercise its vast equitable powers and grant the relief which the circumstances dictate. As was stated in Westinghouse Electric Corp. v. United Electrical, Radio and Machine Workers of America, Local No. 410, 139 NJ. Eq. 97, 108 (E. & A. 1946):

"A wrong suffered without a remedy is a blot upon the sound administration of justice. In the dissenting words of Cardozo, C.J., in Graf et al v. Hope Building Corp., 254 N.Y. 1; 171 N.E. SS4, SSS, 70 A.L.R. 984, * * * Let the hardship be strong enough and equity will find a way, though many a formula of inaction may seem to her the path. Griswold v. Hazard, 141 U.S. 260, 254, 11 S. Ct. 972, 999; 35 L. Ed. 678. Cf. Fifth Avenue Bank (of New York) v. Compson, 113 N.J. Eq. 152, 153; 166 A. S6. This is justice in action. This is giving meaning to the proper exercise of the jurisdiction of the Court of Chancery."

The broad extent of equity's power to remedy a wrong was aptly described by Justice Heher in Sears, Roebuck & Co. v. Camp, 124 N.J. Eq. 403, 411-412 (E. & A. 1938):

"Equitable remedies are distinguished for their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties." Pomeroy's Equity Jurisprudence, sec. 109

A lack of precedent, or mere novelty in incident, is no obstacle to the award of equitable relief, if the case presented is referable to an established head [body, number] of equity jurisprudence [precedents]--either of primary right or of remedy merely.

The plaintiffs seek the specific relief of reinstatement with back pay for the discharged employees and reinstatement for the striking employees. They would have this court issue a mandate requiring the trial court to so order if it finds the facts to be as alleged by the plaintiffs. However, before this court or any court possessing equitable powers ordains a particular type of relief, it should have the full facts before it. This case has reached us with the barest of records. No evidence of any kind was introduced in the trial court. As we noted above, the court has the broadest equitable power to grant the appropriate relief. The court can and should mold the relief to fit the circumstances, but it can hardly do so without knowing just what the circumstances are. 'Generalizations are treacherous in the application of large constitutional concepts.' Hughes v. Superior Court of State of California, supra, 339 U.S., at p. 469, 70 S. Ct, at p. 723, 94 L. Ed., at p. 994.

When all of the facts are developed and equitable principles and defenses are considered, it may well be that the relief sought by the plaintiffs will be appropriate under the circumstances. When the United States Supreme Court was concemed with a violation of employees' rights to organize and bargain collectively as granted by the Railway Labor Act of 1926, it said that reinstatement with back pay could be a proper remedy for unlawful discharges in contravention of those rights. Texas and New Orleans Railroad Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 50 S. Ct. 427, 74 L. Ed. 1034 (1930). Reinstatement is the conventional correction for discriminatory discharges. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 187, 61 S. Ct. S45, 85 L. Ed. 1271, 1279 (1941). In answering a contention that only a statute and an administrative agency can properly deal with labor-management relations, Chief Justice Weintraub, speaking for this court, in Independent Dairy Workers Union of Hightstown v.

Milk Drivers and Dairy Employees Local No. 680, 30 N.J. 173 (1959) said, at p. 182:

"It should not be assumed that it is beyond the capacity of the judiciary to remedy the wrongs which appellants claimed. For the discharge of employees in violation of their right under Article 1, paragraph 19 of the Constitution, an action for damages may well lie, and as well a suit to reinstate with back pay and to forbid discharge because of union activity. * * * (Citing cases.) Such enforcement of the constitutional guaranty would give to employees the assurance they need to permit them to pursue their own self-interest. * * *"

The above principles apply to the present case. Reinstatement with back pay may well lie. Of course, this also means that reinstatement with partial back pay or reinstatement without back pay or no reinstatement at all may be the proper result in this case. After the facts have been fully developed, equity has the power to tailor the remedy to insure a just result. See Crane v. Bielski, 15 N.J. 342, 346 (1954).

person for injunctive relief where the aggrieved person did not seek in any way to use the administrative procedure established under the New Jersey law.

4. Equity Courts have afforded protection from dangerous and
    seriously annoying smoke conditions for more than a century.

5. The authority of Chancery Courts in New Jersey to enforce the duty to provide a reasonably safe and healthful work place has not been affected by the Workmen's Compensation Act.

"shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation or determination thereof than is provided in this article and in acceptance of all the provisions of this article, and shall bind the employee himself, and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." (emphasis added)

6. Serious health hazards, both to the plaintiff, and to all persons with [being caused to develop] respiratory or cardiac conditions, exist from the inhalation of "side stream" or "second-hand" tobacco smoke.

1. An atmosphere contaminated with tobacco smoke can contribute to the discomfort of many individuals.

2. The level of carbon monoxide attained in experiments using rooms filled with tobacco smoke has been shown to equal, and at times to exceed, the [then too permissive] legal limits for maximum air pollution permitted for ambient air quality in several localities and can also ex-

ceed the occupational Threshold Limit Value [legal limit] for a normal work period presently in effect for the United States as a whole. The presence of such levels indicates that the effect of exposure to carbon monoxide may on occasion, depending upon the length of exposure, be sufficient to be harmful to the health of an exposed person. This would be particularly significant for people who are already suffering from chronic bronchopulmonary disease and coronary heart disease.

3. Other components of tobacco smoke, such as particulate matter and the oxides of nitrogen, have been shown in various concentrations to adversely affect animal pulmonary and cardiac structure and function. The extent of the contributions of these substances to illness in humans exposed to the concentrations present in an atmosphere contaminated with tobacco smoke is [allegedly] not presently [1972] known.