On appeal from the Superior Court, Appellate Division, whose opinion is reported in 36 N.J. Super. 322.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling and Jacobs. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J. Heher, J. (dissenting).
This is an appeal from a judgment of the Superior Court, Appellate Division, which affirmed a decision of the Board of Review of the Division of Employment Security which denied the six claimants unemployment compensation and disability benefits for the period of December 2, 1953 through February 1, 1954. The Appellate Division modified the decision below to the extent that the Board of Review denied temporary disability benefits to the claimant Hoffman and allowed such benefits for one week for a period of illness after the labor dispute and the work stoppage ended.
We granted certification under R.R. 1:10-1(d)(e).
The claimants were employed as watchmen at the plant of the respondent Federated Metals Division of American Smelting and Refining Company. They were members of a labor union recognized by the employer which had a collective bargaining contract with the employer covering the terms and conditions of employment for all production and maintenance employees and watchmen at the plant.
On June 30, 1953 the existing labor contract between the employer and the union expired and the union and employer entered into negotiations for a new contract. 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. There is no dispute that the terms and conditions of employment of the watchmen were involved in these negotiations.
After the strike started the claimant-watchmen continued their work pursuant to the provisions of the expired contract. The particular provision referring to the watchmen provided as follows:
"(g) That watchmen at no time engage in any strike, mass-quit, work-stoppage, slow-down, sit-down, picketing or any other conduct which may, in any way, interrupt or interfere with production at the plant and that they will at all times fulfill and discharge their duties without regard to any strike, mass-quit, work-stoppage, slow-down, sit-down, picketing or any other interruption of or interference with production at the Plant."
The six claimants continued to perform their duties until December 2 or 3, 1953, when each received a telegram from the employer stating "Shutting down plant completely due to strike and have no further need of your services." Further, each one was given a notification of separation from the payroll effective December 3, 1953, at 11:30 P.M. The employer then assigned foremen who are part of the supervisory personnel to perform the watchmen's duties. All six watchmen filed their claims for unemployment compensation benefits on December 4, 1953, immediately after they had been let out of work. Several made attempts to get other work but the claimant Hoffman became ill on January 2, 1954, was hospitalized
until February 4, 1954, and finally returned to work on February 8, 1954.
In the meanwhile, as a result of negotiations a new contract was effected and the plant was reopened and operation resumed on February 1, 1954.
The Board of Review after a hearing held that the claimants were disqualified for unemployment compensation benefits from December 2, 1953 to February 1, 1954, by reason of the provisions of N.J.S.A. 43:21-5(d), which provides that an individual shall be disqualified under the following circumstances:
"(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; ...