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Board of Review of Division of Employment Security v. Bogue Electric Co.

Decided: October 21, 1955.

BOARD OF REVIEW OF THE DIVISION OF EMPLOYMENT SECURITY OF THE DEPARTMENT OF LABOR AND INDUSTRY OF THE STATE OF NEW JERSEY, AND WILLIAM A. MCKENNA, JOHN KAMMERER, ALBERT C. HORNE, ANTHONY COLAZZO, MICHAEL LOMUTI, PLAINTIFFS-RESPONDENTS,
v.
BOGUE ELECTRIC CO., DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

The five individual respondents are former employees of the appellant, Bogue Electric Co., which operates a plant in Paterson, New Jersey. The collective bargaining agent for the approximately 500 production workers there employed is Local 867 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The contract between Local 867 and the Bogue Electric Co. contains the following provisions:

"ARTICLE XIV STOPPAGE OR INTERRUPTION OF WORK.

SECTION 1. Under no circumstances shall there be any strike, sympathy strike, lockout, cessation of work, sit-down, slow-down, picketing, boycott, refusal to perform any part of duty or other interference with or interruption of the normal conduct of the Company's business during the term of this agreement.

SECTION 2. The Union shall forthwith suspend from membership and the Company shall immediately discharge any Employees engaged in or encourages or suggests any strike, or sympathy strike, or cessation of work, or sit-down, or slow-down, or picketing, or boycott or wildcat strike, during the term of this agreement."

On Saturday, December 4, 1954, John Green, a shop steward for Local 867, was discharged by the appellant. On Monday, December 6, at about 9 A.M. between 40 and 60 employees walked out of the appellant's plant in protest against the discharge of Green. Their cards were forthwith

removed from the timerack, which prevented their returning to work. Later, the individual respondents left their places of employment, either in protest at Green's discharge or at the appellant's refusal to permit the employees who had previously walked out to return to work. Their timecards were likewise removed from the rack and all who had participated in the unauthorized walkout were notified by telegram that they had been discharged. A picket line was thereupon set up.

The testimony and signed statements of each of the individual respondents disclose the following: Kammerer and Lomuti admitted they walked off their jobs in sympathy with the union steward who had been discharged. McKenna, shortly after reporting for work on December 6, upon learning that Green had been discharged, got his hat and coat and punched out his timecard. When he went to return to work he found his timecard had been removed and he joined the picket line when it was formed. Colazzo's signed statement discloses that during the morning of December 6 he stamped out his timecard and walked out of his job in sympathy with the union steward. As to the fifth respondent, Horne, the scant record is confusing. It would appear that he did not testify; there is a disparity in his signed statement as to whether he worked on December 6, although it seems fairly clear that he did not report for work on December 7, but his statement gives as the reason that he attended to some personal business that day and did not join the picketing.

The five individual respondents applied for unemployment compensation benefits. Their claims were denied, and the denial affirmed by the Appeal Tribunal, which found that the plaintiffs had walked off their jobs in protest at the discharge of the shop steward, without authority from their union or notice to the employer, that they had voluntarily absented themselves from their employment to the detriment of the employer's interest, and that they were discharged for misconduct in violation of the union agreement. The Board of Review in five separate findings of fact reversed the Appeal

Tribunal, disregarding any question of breach of contract and holding that the acts of the employees were not misconduct.

The employer appeals arguing that a worker who voluntarily walks off his job thereby breaching the collective bargaining agreement between the employer and the union of which he is a member is guilty of misconduct, and if discharged therefor is ...


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