Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
[64 NJSuper Page 303] This is an appeal by the individual defendant and his collective bargaining representative from
a Law Division judgment setting aside that portion of an arbitrator's adjudication which awarded back wages to the employee.
The employee, William Zwald, first entered the service of plaintiff in 1951, assuming the duties of guard. He worked a regular 48-hour week and, except for one minor infraction in 1953, his record was spotless and his performance satisfactory. In due course he was promoted to the position of sergeant.
On March 24, 1958 Zwald was assigned by plaintiff to guard a valuable shipment at the Baltimore Transfer Co., in Jersey City, on the midnight to 8 A.M. shift. Zwald's testimony before the arbitrator was to the effect that he had a severe cold that day, and before reporting for duty he attempted to provide home medication for his condition in the form of a number of drinks of whiskey. He had intended to phone in ill, but because the electric and telephone wires were down, as the result of a crippling storm in the area, he could not inform the company of his illness and therefore reported for work.
At 12:45 A.M., 45 minutes after Zwald's tour of duty had commenced, two F.B.I. agents entered the Jersey City plant. They found Zwald asleep, his feet propped up on a desk. The representatives of the Baltimore Company and a supervisor of the Burns Agency were summoned to the scene. In their presence, Zwald was awakened and was found to be in a state of intoxication.
Zwald was forthwith discharged from plaintiff's employ pursuant to section 5 of the existing collective bargaining agreement between the plaintiff and the defendant union, which provides as follows:
"5. The management of the work, the direction of the working force and the right to discharge an employee for just cause are vested exclusively in the Employer. It is not the intention to hereby encourage the discharge of employees. However, if an employee considers himself unjustly discharged by the Employer, he shall have the right, upon submitting his case in writing to the
Union, to have the matter taken up with the Employer for review and final decision by arbitration, provided the Union shall have notified the Employer of its intention to so proceed in writing within one (1) week following the discharge."
The union, after several weeks of fruitless negotiation, notified the employer of its intention to seek review and final decision by arbitration as to the reasonableness of the discharge. No objection to the tardiness of the union's notification was ever raised by the plaintiff.
The matter came on for arbitration on October 3, 1958, on the sole submitted issue of "* * * whether the Company, Burns International Detective Agency, is justified in discharging William Zwald under the provisions of the Union Contract for the offenses hereinafter enumerated, and if not, to what relief he is entitled." The employer sought to justify Zwald's discharge on the ground that he had been guilty of five separate infractions of company rules, contained in a "Handbook For Guards" prepared by the employer and distributed to all employees at the time of their employment. The parties are in strong disagreement as to whether the handbook, which specifies certain violations -- including Zwald's -- as grounds for dismissal, is to be taken as a part of the collective bargaining agreement. But since the arbitrator's decision assumed Zwald's guilt of all five offenses, and since the employer does not here contest the ruling as to discharge, but only as to the award of back pay, the question is moot. The alleged infractions are: failure to make a routine check on various locations, failure to complete his log, parking his automobile on the premises, falling asleep on the job, and being under the influence of intoxicating liquor during working hours. The union did not deny any of the ...