Freund, Proctor and Rogers. The opinion of the court was delivered by Proctor, J.A.D.
These two cases, consolidated by order of this court, involve benefit disputes under the Unemployment Compensation Law. They are here upon the employer's appeal from decisions of the Board of Review of the Division of Employment Security in the Department of Labor and Industry.
The claimants, Cortez and Ferris, employees of appellant, were discharged following what the employer characterized as a deliberate slowdown of their work in the plant. Cortez was discharged on November 17, 1949, and Ferris was discharged on the next day. Both Cortez and Ferris applied for unemployment benefits.
A determination in each case was made by the deputy that the claimant was ineligible for benefits for the period November 17 to December 10, 1949, because he had been engaged in a deliberate slowdown, constituting misconduct connected with his work and justifying his discharge. On appeals from these determinations the appeal tribunal, on February 9, 1950, received evidence relating to the conditions pertaining to the discharge of the claimants. During the pendency of the claims before the appeal tribunal a further period of unemployment ensued, and it appeared that claimants during a part of such period had been devoting their full time to picketing. On March 1, 1950, the appeal tribunal determined that the claimants were ineligible for benefits because, during the initial period, they had been unemployed as a result of a discharge for misconduct and, during the later period, they had been devoting their full time to picketing. On March 8, 1950, Cortez gave notice of appeal to the Board of Review. His notice of appeal contained a statement that he was appealing only from that portion of the decision which held him to be
ineligible for benefits during and after the time he was engaged in picketing. Ferris did not appeal, but the Board of Review, on its own motion, on March 15, 1950, removed to itself the claim from the appeal tribunal.
On March 30, 1950, the Board of Review conducted a hearing on both claims. Evidence was presented relating to the availability for employment of the claimants, as to Cortez after February 8, 1950, and as to Ferris after February 5, 1950. Other evidence was also presented. The claimants testified to their respective availability for work after the specified dates as their time had not been devoted fully to picketing. They also testified as to their unsuccessful efforts to obtain employment. Their employer, the appellant, presented additional evidence relating to the slowdown preceding claimants' discharge. The employer also introduced production records into evidence for the purpose of showing that claimants' production had declined and that less experienced men, hired in their stead, had produced as much or more than claimants.
The Board of Review found and decided that claimants had not been guilty of misconduct in connection with their work and that their discharge was not justified. The Board further found that Cortez as of February 9, 1950, and Ferris as of February 5, 1950, were available for employment and that, therefore, they were entitled to unemployment benefits from and after those dates.
The appellant, in seeking to set aside the decisions of the Board of Review, contends: (1) the Board had no jurisdiction to review the decisions of the appeal tribunal since said decisions had become final; (2) the Board could not determine as an initial matter claimants' rights to benefits after February 9, 1950; (3) the discharge of the claimants was for misconduct within the meaning of R.S. 43:21-5(b).
The applicable statute is R.S. 43:21-6, as amended by P.L. 1945, c. 308, p. 893. (The later amendment by P.L. 1950, c. 167 is inapplicable to the present case.) Subsection (c) relating to a decision of the appeal tribunal provides:
"Such tribunal's decision * * * shall be deemed to be the final decision of the board of review, unless within ten days after the date of notification or mailing of such decision, further appeal is ...