Gerard v. American Can Co., A--592
| Decision Date | 06 October 1954 |
| Docket Number | No. A--592,A--592 |
| Citation | 32 N.J.Super. 310,108 A.2d 293 |
| Parties | John F. GERARD, Plaintiff-Respondent, v. AMERICAN CAN COMPANY, Respondent-Appellant. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Milton A. Dauber, Jersey City, for appellant (Carpenter, Gilmour & Dwyer, Jersey City, attorneys; Carl S. Kuebler, Jersey City, of counsel).
Fred Feinberg, Jersey City, for respondent (Jack Geddy Goldberg, Jersey City, attorney).
Before Judges CLAPP, JAYNE and FRANCIS.
The opinion of the court was delivered by
FRANCIS, J.A.D.
Both the Division of Workmen's Compensation and the County Court found that respondent on this appeal was entitled to compensation because he suffered injuries arising out of a work connected assault and battery.
The employer and a labor union had entered into a collective bargaining agreement relating to working conditions in the plant. Among other things, it was agreed that employee grievances were to be processed according to certain procedural steps therein outlined.
Gerard was employed on a machine in the production department, and in addition he was the union shop steward in the department. In this capacity he policed the bargaining agreement in his department, watched for violations of its conditions, and received and processed grievances of other production employees. Under the contract, shop stewards were allowed four hours a week off with pay for the handling of grievances. He testified that in practice part of his obligation was to listen to complaints of employees and endeavor to maintain harmonious relations between them and the employer. According to the personnel manager, Gerard could leave his machine during working hours in order to discuss with him the work of the production men; the door was 'always open.' In this connection, we note that the contract provided:
'The parties intend that agreement upon and application of the terms and conditions set forth * * * shall promote and maintain effective and harmonious industrial relationships between the company and its employees.'
Manifestly, when Gerard was investigating or processing a grievance or engaged in a matter reasonably incident to or arising out of a grievance, he was engaged in the course and scope of his employment. In doing so he was furthering the contractual and union.
One Frank Miller was a machine maintenance man in the plant; Gerard was not his steward. The duty of the maintenance men apparently was to keep the production machines in working order. When the machines were being repaired, the production men were usually sent to another line, but if not, they were unable to work and were, for the duration of the repairs, off the payroll. Naturally, therefore, they were anxious to have the machines resume operation as quickly as possible.
Shortly before the incident occurred out of which this action arose, a production worker complained to Gerard that the production line was running without proper employees; that mechanical employees were running it in violation of the contract. The complaint had its origin in some repair work that Miller and some fellow workers had to do on the production line. Specifically, the charges seems to have been that the maintenance men had taken too long for the repairs and that they were in fact running production, contrary to the contractual stipulation that skilled men should not perform work out of their job assignments.
Gerard, in pursuit of his duty, undertook to process the grievance with the employer's representatives. In addition he filed the complaint with the union. Before the matter had been adjusted under the contract grievance machinery, the union sent a notice to Miller that it would hold a hearing as to whether he had violated the company-union contract.
The hearing was scheduled for an inconvenient time for Miller and in addition involved a 60-mile trip for him. At the time he was working a night shift, from 12:45 a.m. to 7:45 a.m. On returning to work after receiving the union notice, he visited Gerard, who was working on the production line and was unable to talk with him. However, as soon as relief could be obtained, Gerard went to Miller's department. Miller wanted to know...
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...activity which directly accrued to the employer's benefit, compensation has generally been permitted. In Gerard v. American Can Co., 32 N.J.Super. 310, 108 A.2d 293 (App.Div.1954), a union steward was injured by a co-employee during an attempt to resolve a grievance based on purported viola......
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...merely a 'provocation,' not an 'aggression' so as to transform him into an aggressor, in the language of Gerard v. American Can Co., 32 N.J.Super. 310, 315, 108 A.2d 293 (App.Div.1954); Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (1948). Petitioner having struck the first blow, she canno......
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