Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal by six claimants to review the decision of the respondent Board of Review of the Division of Employment Security, denying them unemployment compensation benefits. Claimant Hoffman also appeals the denial of his claim for temporary disability benefits. The claims were heard jointly and decided jointly.
Claimants were all employed as watchmen at the plant of respondent Federated Metals Division of the American Smelting and Refining Company in Newark. The employer had a collective bargaining contract with Local No. 143, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), covering the terms and conditions of employment for all production and maintenance employees and watchmen at the plant. Claimants were members of the local union and therefore covered by the contract. The contract ran from July 1, 1952 to June 30, 1953. It specially provided that watchmen should at no time engage in any strike, work stoppage, picketing, or any other conduct which might in any way interrupt or interfere with plant production, and that they would at all times fulfill and discharge their duties without regard to any strike or other interruption of or interference with plant production.
In view of the June 30, 1953 expiration date of the existing contract, the union and the employer entered into negotiations for a new contract. It is undisputed that the terms and conditions of employment of the watchmen were involved in these negotiations. The parties were unable to come to an agreement, with the result that on July 29, 1953 the
union called a strike which brought about a complete stoppage of production. All union members walked out, but the claimant watchmen continued their work pursuant to the mentioned provision of the expired contract.
Claimants continued to perform their duties until December 2, 1953 when each of them received a telegram from the company stating: "Shutting down plant completely due to strike and have no further need of your services." They also received a regular notice of discharge, the reason assigned for the action being in the same language as the telegram. Thereafter the employer assigned foremen, who were part of the supervisory personnel and therefore not within the union contract, to perform the watchmen's duties.
After their discharge, claimants made varying efforts to find other employment. Claimant Gerber was successful in getting a job on January 7, but quit after two weeks because he considered the work too hard for a man of his age. Claimant Hoffman became ill on January 2, 1954 and was hospitalized until February 4, 1954. Meantime, negotiations between the union and the company had resumed, a new contract had been effected and the plant reopened on February 1, 1954. All employees, including claimants, returned to work on that date, except for Hoffman who returned on February 8, 1954.
All six watchmen filed their claims for unemployment compensation benefits on December 4, 1953, immediately after they had been let out of work. Hoffman filed his claim for disability benefits on January 21, 1954. The claims were rejected by the Division of Employment Security and, after hearing on appeal, by the Appeal Tribunal of the Division. There was a further appeal to the Board of Review which held, after hearing, that claimants were disqualified for unemployment compensation benefits from December 2, 1953 to February 1, 1954, under N.J.S.A. 43:21-5(d) (unemployment due to stoppage of work resulting from a labor dispute), and, in the case of Schuchman and O'Neill, for the additional reason that they had not been available for work under N.J.S.A. 43:21-4(c). Claimants
then obtained an order to show cause why this omnibus decision, entered June 25, 1954, should not be set aside and a new decision made. There was a further hearing and on November 16, 1954 the Board of Review issued six separate orders, one for each of the claimants, holding they were all disqualified for benefits during the stated period because of a labor dispute at the establishment where they were last employed, under N.J.S.A. 43:21-5(d). In the case of Hoffman the board held he was disqualified for disability benefits from January 2 to February 8, 1954 under N.J.S.A. 43:21-4(f), because though unable to work due to illness, he was not eligible to receive unemployment compensation benefits under the act and hence not entitled to disability benefits. The board stated there was no evidence as to his eligibility for 4(f) benefits from the time the plant opened (February 1) until he returned to work on February 8.
N.J.S.A. 43:21-5(d), as in the case of similar legislation in more than 40 of the states, was taken from the labor dispute disqualification clause of the Social Security Board Draft Bill (section 5). Fierst and Spector, Unemployment Compensation in Labor Disputes, 49 Yale L.J. 461 (1940). It provides that an individual shall be disqualified for benefits:
"(d) For any week with respect to which it is found that his 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 ...