Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The ten employees, who are respondents here, were granted unemployment compensation by the Division of Employment Security. On this appeal the sole contention is that the award was improper because of N.J.S.A. 43:21-5(b) which provides:
"An individual shall be disqualified for benefits:
(b) For the week in which he has been discharged for misconduct connected with his work , and for the five weeks which immediately follow such week (in addition to the waiting period), as determined in each case."
The Division's records show that six of the ten workers, Snyder, Heck, D'Ascendis, Jobes, Morgan and Leffler, actually received no payments either because they did not report to their employment office as the regulations require, or because they were working during the period covered by the award. Of the remaining four, Smith and Plunkett received $30 each; Van Sciver and Comegys were paid $300 and $405 respectively.
The record presented to us, particularly with relation to the employer's present contention, is in a rather confused state. Brief reference to the factual situation out of which the claims arose reveals this:
The employees involved in this proceeding were members of the Truck Drivers and Helpers, Local 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F. of L. By virtue of a written collective bargaining agreement, the union was their representative. The contract, although mentioned in passing in the decision of the Division, was never introduced at any of the hearings by the employer (who was not represented by counsel at them) or by the union representative or the
attorney for the claimants. Whether it was ever inspected by an investigator of the agency does not appear.
On January 22, 1955 one Posch, a truck driver, was discharged because of an alleged reckless driving record. Some of his fellow workers were dissatisfied about it. Five days later, on January 27, the employees reported for work at the usual time in the morning, then refused to begin their duties. After a short time the dispatcher at the terminal, on instructions from his superior, told them that if they did not return to work within an hour they would be discharged. Seventeen of them, including these claimants, declined to return. At the end of the hour, their time cards were removed from the rack and they were discharged.
The union agent Dodge was notified by the employer and he appeared on the scene about a half-hour after the discharge. He inquired as to the reason for the termination of Posch's employment and then instructed the men to go back to work but they refused. This agent characterized the work stoppage as "wildcat" and unauthorized as far as the union was concerned.
Later in the day Dodge again communicated with a member of the committee for the men and told him to get the men back to work the next day. Around 4:30 or 5:00 P.M. on January 27, several of the men reported at the loading platform and asked for reinstatement; others endeavored to return on January 28 and 29. All were refused.
Following the walkout on January 27 the employer's delivery service was at a standstill until around 5:00 P.M., when common carriers were engaged to transport its merchandise. By the middle of the following week 75% of the discharged men had been replaced.
When the claims for unemployment compensation were filed the answer of the employer charged a voluntary quit as a basis for disqualification under N.J.S.A. 43:21-5(a). During the course of the various hearings, section 5(d) was added as a ground for denial of benefits. This section provides for disqualification where the unemployment is due to
a stoppage of work caused by a labor dispute. Both of these grounds ...