For the prosecutor, French, Richards & Bradley and Blaine E. Capehart.
For the defendants, Clarence F. McGovern.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
DONGES, J. The question involved herein is the propriety of allowing a claim for unemployment compensation benefits for the time when claimant, Bowen, was unemployed by reason of the stopping of all work in the prosecutor's plant due to a labor dispute. Bowen admittedly was an employe of prosecutor for about fourteen years. He was not a member of any labor union; did not attend any meetings of a labor union; did not contribute to a labor union nor participate in the dispute. Prosecutor argues that he was in a grade or class of employes who were participating in, financing and directly interested in the labor dispute which caused the cessation of work.
It is practically conceded that Bowen is entitled to the benefits claimed, unless he comes within the provisions of the statute, now R.S. 43:21-5 (d) which are as follows:
"An individual shall be disqualified for benefits: * * *
"(d) For any week with respect to which it is found that his total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed; provided, that this subsection shall not apply if it is shown to the satisfaction of the board of review that:
"(1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and
"(2) He does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that if in any case in which (1) or (2) above applies separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment, or other premises."
As to the first phase, namely, participation in or financing of the dispute, the testimony is clear and uncontradicted that Bowen took no part therein. Prosecutor insists that, inasmuch as he would benefit by the agreement entered into between the employer and the labor unions representing the striking employes, by the limitation of working hours, increase of pay for over-time work and temporary assignment to higher paid jobs, pay for reporting for work when there was no work to do, a vacation with pay, and concessions with ...