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Kenney v. McLean Trucking Co.

Decided: March 20, 1959.

FRANK KENNEY, PLAINTIFF-RESPONDENT,
v.
MCLEAN TRUCKING COMPANY, A CORP., DEFENDANT, NORTH JERSEY JOINT LOCAL COMMITTEE AND WALLACE O'REILLY, INDIVIDUALLY AND AS SECRETARY OF NORTH JERSEY JOINT LOCAL COMMITTEE, DEFENDANTS-APPELLANTS



Price, Schettino and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.

Price

[54 NJSuper Page 534] Defendants North Jersey Joint Local Committee (Committee) and Wallace O'Reilly its secretary, appeal from an order of the County Court denying their respective motions for judgment in an action in which plaintiff sought recovery of damages for alleged interference

by said defendants with plaintiff's "rights as an employee of McLean Trucking Company." (McLean.) The record before us contains no information with reference to McLean's response to said suit which contained a count seeking recovery against it for wages of which plaintiff alleged he was deprived unlawfully.

Defendant O'Reilly moved, with a supporting affidavit, for summary judgment pursuant to R.R. 4:58. The Committee moved for judgment "on the basis of the complaint and defendants' answer, upon the ground that the plaintiff failed to comply with the provisions of New Jersey Statutes 2 A:24-7 * * *." We granted defendants' application for leave to appeal from the trial court's order denying both motions.

Plaintiff, an employee of defendant McLean, is a member of Local 641 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers. At the time of the happening of the events which form the basis of the present controversy, a general trucking agreement was in force between local unions and the employers, including McLean. The agreement provided for the creation of a "Joint Local Committee" to have jurisdiction over disputes and grievances involving the employers and the locals. The Committee was composed of persons selected on an equal basis by the employers and the local union.

The institution of this suit had its origin in the discharge of plaintiff by defendant McLean on February 8, 1957. Plaintiff on February 4, 1957 informed his shop steward that he would not be able to work that day. He failed to report for work on February 4 or 5. On the evening of February 5 plaintiff demanded his pay check at McLean's office. Defendants allege that plaintiff was intoxicated at the time. Defendants further allege that plaintiff was told that his check was in the safe; that on hearing this he used abusive language and threatened to assault the person then in charge of the office; that plaintiff similarly used abusive language and threatened to assault the McLean terminal manager who had been called as a result of the

altercation; that plaintiff left the premises only after he had been given his check and the terminal manager had summoned the police. The company discharged plaintiff through the medium of the following memorandum:

"February 6th, 1957

A. J. Sorrentino -- Terminal Manager -- Jersey City.

Mr. Frank Kenney -- Platform -- Jersey City Terminal.

This is to advise that effective this date, you are discharged from the McLean Trucking Company. The reason for this discharge is as follows:

Failure to report to work, and then you came to the premises of McLean Trucking Company on the night of February 5th, 1957 in an intoxicating condition seeking your paycheck. When informed by the warehouse supervisor, Mr. Joe Foligno, that your check was locked in the safe, you then threatened him with physical violence if he did not obtain your check. Mr. Foligno then contacted the writer by telephone and I returned to the terminal whereby I had to inform you that unless you left the premises I would have been forced to call the police.

AJS:hmp

c.c Mr. Mike Calabrese -- Local ...


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