Eastwood, Freund and Francis. The opinion of the court was delivered by Francis, J.A.D.
The question here is whether an employee, who is a member of a labor union which negotiated a collective bargaining agreement with his employer for vacations with pay after certain periods of service, is entitled to unemployment compensation when the plant is closed down for vacation purposes in accordance with the contract and his period of employment is not long enough to qualify him for a paid vacation.
Respondent is a member of the Upholsterers' International Union of North America, A.F. of L., and at the inception of his employment with appellant he signed an authorization to the union to represent him "for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment."
An agreement was consummated between the union and the employer which, among other things, provided for paid vacations of one week for employees with one to five years' service, of two weeks for those with five or more years, and of three weeks for those with at least 15 years. It stipulated further that those who were entitled to one week would take the vacation for 1953 during the week beginning July 6; those with two weeks would be off duty for two weeks beginning July 6; and those whose service qualified them for three weeks would take the first two during the same two weeks of July and the third at a time to be selected by management.
The plant shut down July 6, 1953, for the two-week vacation period. Glover, who had been employed for less than a year and so was not qualified for vacation with pay, was notified that he was being laid off for the two weeks.
During the lay off period he undertook to find other work and the Board of Review found as a fact that he was "able to work, was available for work, and sought work actively." At the end of the two weeks, he returned to appellant's employ and has continued to work there.
The Board of Review concluded that he was unemployed and eligible for benefits.
On this appeal the employer contends that Glover was voluntarily unemployed under section 5(a) of the Act, N.J.S.A. 43:21-5, and so disqualified because the union, acting as his representative, voluntarily agreed for him that he would not be entitled to a vacation and that the plant would be shut down for the purpose of vacations during the period in question. Consequently, the claim is that the shutdown was with his consent and as the result he was not involuntarily unemployed.
The effect of the argument is that by engaging a union to represent him in dealing with the employer as to conditions of employment, an employee either authorizes in
advance a waiver or release of his unemployment benefits under the act if the union deems it advisable to do so, or ratifies such a waiver or release if he joins the employer's service during the life of the bargaining agreement. But this cannot be done. Section 15 expressly declares that "Any agreement by an individual to waive, release, or commute his rights to benefits * * * shall be void." N.J.S.A. 43:21-15. The Legislature thus established the public policy of our State and the courts should not allow it to be circumvented indirectly, no matter with what good faith that ...