For the prosecutor, Winne & Banta (Horace F. Banta, of counsel).
For the Commission, Charles A. Malloy (Herman D. Ringle, of counsel).
For the Board of Review, Clarence F. McGovern.
For the defendant Carlucci, Rothbard, Harris & Oxfeld (Samuel L. Rothbard, of counsel).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
COLIE, J. Vito J. Carlucci, an employee of Tube Reducing Corporation, filed on August 23d, 1945, an initial claim for benefits under the provisions of the Unemployment Compensation Law, R.S. 43:21-1, et seq., stating therein that the reason for unemployment was "lack of work." Within a short time after the filing of the initial claim and prior to the payment of any benefits thereunder, Carlucci was recalled to work by the employer. At about this time, the employer and the union of which Carlucci was a member were attempting to negotiate a new contract of employment. On September 28th, 1945, the negotiations broke down, the employees ceased work and a picket line was established in which Carlucci served from time to time. Three days later, the employer addressed a letter to the United States Employment Service, directed to the attention of the Unemployment Compensation Commission, advising it that certain of its named employees, among whom Carlucci was one, had gone out on strike. Thereafter Carlucci went to the office of the Commission and signed a form entitled "Continued Claim for Benefits" wherein he claimed benefits for the period from September 29th to October 8th, 1945. The form in part reads: "2. I am unemployed, able to work and available for work; 3. I have not refused to work nor failed to apply for
work when so directed." At the bottom is a legend reading: "I sign this statement with full knowledge that the law provides for a fine of $50.00 for false statements to obtain benefits." Seven like claims were filed covering the period up to November 26th, 1945. What happened when the first of the series of continued claims was filed is best given in Carlucci's own words:
"Q. When you reported for the week ending October 5th, or 4th rather, did you tell them that you were out on strike? A. You mean when when I went down the Unemployment?
"Q. That's right. A. Well, when I went down the Unemployment, all I did was walk up to the girl there and she says to me, are you working, and I says, no. That's the only question she asked me.
"Q. Didn't you know that while a place is on strike or a possibility of a strike, you're not entitled to any benefits? A. Well, as I said before, I didn't ...