Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff sued defendant company for libel. He appeals from a judgment for defendant entered in the Superior Court, Law Division, on defendant's motion at the close of all the evidence.
Plaintiff had been employed by defendant as a millwright for eight years, and generally worked the night shift. On Sunday, August 15, 1954, he reported for work at about 11 P.M. He had known since the previous Wednesday or Thursday that a fellow member in the local volunteer fire company wanted him to get some emery cloth and steel brushes for use in connection with painting a fire truck. Defendant had on a few occasions in the past given the fire company odd items of small value, and these had been taken through the plant gate after formal permission asked and received.
The practice in the plant is for employees to draw materials necessary in their work from the company storeroom on requisitions. Although the storeroom is manned by a regular storekeeper on weekday nights, no one is in attendance on Sunday nights, when employees are expected under an honor system to fill out a withdrawal slip. Plaintiff went to the storeroom during his lunch hour at 3:30 A.M., Monday, August 16, and, without filling out a withdrawal slip, took three new wire brushes and put them in his locker, and also 18 sheets of emery cloth which he put in his lunch bag. He had not, as was required, requested permission
from any one in authority to take company property out of the plant, even though a supervisor had been present on Thursday and Friday and was readily available at the plant on this weekend. At quitting time, between 7 and 7:30 Monday morning, plaintiff wrapped the brushes in his overalls, took his lunch bag and proceeded to the company gate. He was stopped by one Pascale, chief of plant protection, who called him into the gatehouse and interrogated him. Plaintiff admitted he had taken the company property without permission -- an admission repeated during cross-examination. His excuse then, as now, is that he had on previous occasions taken articles for the volunteer fire company without asking permission.
Company Rule 19 provides:
"19. Theft. Any employee who steals, carries away or applies to his own use, without authorization, property of the Company or of other employees shall be discharged. * * *"
This rule was one of the 32 company rules conspicuously posted throughout the plant, as required by the labor agreement then in effect between the company and plaintiff's union. Plaintiff was familiar with these postings. Article XV of the labor agreement not only made express reference to the posting of these rules, but also provided that:
"* * * Refusal or failure to comply with the rules of the Company may be cause for immediate discharge. Any employee discharged shall have the right of immediate appeal to management through Article XI, Step 3 (Complaints and Grievances) and a hearing on the case shall be held within two (2) working days."
Plaintiff admitted that neither company rule 19 nor Article XV of the labor agreement contained language which would authorize him to take company property without prior permission obtained, merely because it was for a volunteer fire department.
Some time before 9 A.M. Monday Pascale informed the company supervisor of industrial relations, Reynolds, of what had transpired at the gatehouse that morning. Reynolds
told him to notify plaintiff not to come to work that evening and to report at 9 o'clock the next morning for a hearing. Pascale also informed plant engineer Merrill, head of the department where plaintiff worked, of the incident. Merrill testified that it was he who determined to discharge plaintiff, that being within his jurisdiction, after checking with the personnel department to see if the penalty was consistent with company action in other matters. He apparently did this after consulting with Reynolds, because the latter had authority to act in an advisory capacity where discharge was involved and had decided upon plaintiff's discharge after hearing from Pascale and checking plaintiff's personnel record.
In accordance with Article XV of the labor agreement, the company promptly notified plaintiff's union representatives and arranged with them for a hearing on plaintiff's discharge to be held the following day, August 17. Union president Shuleski notified plaintiff, who appeared at the hearing and participated in the discussion of his discharge. In addition to plaintiff, there were three union and five management representatives at the meeting. The original notes of the meeting reveal that plaintiff said he should have asked Pascale for permission to take the brushes and emery paper out of the plant; "There was always someone around, but in this case there wasn't [parenthetically, the record shows a supervisor was in the plant, readily reachable -- as plaintiff knew -- through the gatehouse guard] and he didn't think it was necessary to ask for permission inasmuch as the material was for his own use." He stated: "I admit I was wrong. I should have asked for the taking. I have a disability to my hand and can't get another job." Shuleski asked if the discharge could be reduced to a lesser penalty. Reyonlds replied that it could not in view of company policy, but said that the company would take the matter under consideration.
After the longhand notes had been transcribed, they were turned over to Reynolds who put the minutes of the meeting in the form in which they ultimately appeared and sent
five mimeographed copies to union president Shuleski and 13 copies to management personnel. The entire claim of libel in the second count of the complaint rests upon the following statement of defendant concerning plaintiff, appearing in paragraph IV of the minutes:
"The Company stated that it felt that in view of the fact that the employee had taken Company property out of the plant, it had no other recourse but discharge."
The first count of the complaint is based on the letter sent by defendant to union president Shuleski on August 24, 1954, reading:
"After due consideration, the Company wishes to inform you that they uphold the discharge of Thomas Murphy, clock No. 14613, for theft.
This decision was reached after reviewing the facts as presented in our grievance meeting discussing the discharge of ...