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Draus v. Board of Review

Decided: April 20, 1951.

STANLEY T. DRAUS, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND CAMPBELL SOUP COMPANY, RESPONDENTS-RESPONDENTS



Eastwood, Bigelow and Freund. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

[13 NJSuper Page 232] The claimant, Stanley T. Draus, appeals from the decision and final judgment of the Board

of Review, Division of Employment Security, Department of Labor and Industry, State of New Jersey (hereinafter referred to as the "Board"), sustaining the deduction of one day's pay from his benefits for the first week of July, 1949. Approximately 1,000 employees are affected by the Board's decision and this appeal has been taken as a test case.

On July 1, 1949, the respondent, Campbell Soup Company, employer of the claimant-appellant, suspended production temporarily. It resumed operations approximately two weeks thereafter, during which period of time Draus was unemployed. On July 22, 1949, Draus received a check representing the four days of his employment in the last week of June and an extra day's pay. The company contends that the extra day's pay was intended to cover July 4, whereas Draus, although he did no work on July 1, insists it represented pay for that day. In processing Draus' claim for unemployment benefits, Edward J. Hull, Chief of Unemployment Benefits, concluded that the extra day's pay was received for July 4 and it was deducted from that week's benefits. On claimant's appeals, respectively, to the Appeal Tribunal and the Board of Review, a similar determination was made.

The statutory provisions pertinent to this issue are:

"(b) Weekly benefits for unemployment. Each eligible individual who is unemployed (as defined in subsection (m) of section 43:21-19 of this chapter) in any week shall be paid with respect to such week (except as to final payment) an amount equal to his weekly benefit rate less any remuneration in excess of three dollars ($3.00) paid or payable to him for such week; provided, that such amount shall be computed to the next highest multiple of one dollar ($1.00), if not already a multiple thereof." R.S. 43:21-3 (b).

"(m) Unemployment.

(l) An individual shall be deemed 'unemployed' for any week during which he is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate." R.S. 43:21-19 (m).

"(p) 'Remuneration' means all compensation for personal services, including commissions and bonuses and the cash value of all compensation in any medium other than cash." R.S. 43:21-19 (p).

The record submitted for our consideration is not too satisfactory. It consists largely of statements made before the Senior Appeals Examiner of the Appeal Tribunal by representatives of the company and the union, of which latter organization the claimant is a member.

The management-labor contract between the company and the union provided, inter alia , for payment of a day's wages to employees entitled thereto for certain specified holidays, one of which was July 4. In 1949, this holiday fell on Monday. At the time the company suspended operations, there were approximately 5,000 employees, 4,000 of whom were entitled to vacation pay. As July 4 came within the vacation period, the company decided to make an extra day's payment of wages to all of its employees, regardless of any legal right thereto. The claimant contends that as the result of a verbal agreement made between respective representatives of the company and the union, an extra day's pay was made for July 1 and not July 4; that "* * * the payment by the company to the employees of a sum equivalent to eight hours pay for July 1, 1949, represented the establishment, as a managerial expedient, of an emergency or special holiday so as to forestall protests by workers who were cut off from work on July 1, 1949. It should be definitely borne in mind that these workers, who were not entitled to vacation pay and who were given the day's pay for July 1, 1949, did not get one cent more pay for that week than if they had actually worked on July 1, 1949. Had the arrangement initiated by the company not been agreed upon, these employees would have worked on July 1, 1949, in any case, and would have been entitled to receive pay for that date, obviously. Therefore, having received a full week's pay ...


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