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Myerson v. Board of Review

Decided: January 2, 1957.

ELEANOR MYERSON, APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND FEDERAL TELEPHONE & RADIO CORP., RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

This is an appeal from a decision of the Board of Review denying unemployment compensation. On March 2, 1956 the Federal Telephone & Radio Corp., which had employed the claimant, Mrs. Eleanor Myerson, for 13 years, required her to discontinue work because of pregnancy. The collective bargaining agreement between Federal and the union to which she belonged, provides:

"An expectant mother shall be entitled to a leave of absence for not more than a year without pay. In no case shall an expectant mother be permitted to work beyond the end of the fifth month of pregnancy."

Several days before Mrs. Myerson was laid off, her doctor made a statement in writing (presumably for her to hand to her employer) declaring that her child was expected in four months, namely, on July 1, and that she was capable of working until June 1. That statement was in no way questioned by the agency. It should be noted that her job with Federal, as an assembler, solderer and wire stripper, called merely for the use of her hands while she was seated.

The Unemployment Compensation Law contains no provision expressly disqualifying a claimant from receiving benefits for any period during pregnancy. Compare the Temporary Disability Benefits Act, N.J.S.A. 43:21-39 and 43:21-4(g)(2), which denies benefits "for any period of disability due to pregnancy." However, the latter act (it may be noted parenthetically) is itself to be contrasted with the unemployment compensation laws in 17 states, which provide a disqualification period extending for a specified period of time before childbirth, as follows: Connecticut, 2 months; District of Columbia, 6 weeks; Idaho, 6 weeks; Illinois, 13 weeks; Kansas, 2 months; Louisiana, 12 weeks; Maine, 8 weeks; Maryland, 2 mouths; Massachusetts, 4 weeks; Nebraska, 12 weeks; North Carolina, 3 months; North Dakota, 12 weeks (the disqualification may be eliminated if claimant submits a doctor's certificate or a work record during previous pregnancies); Oklahoma, 6 weeks; Oregon, 6 weeks; Pennsylvania, after 7 1/2 months of pregnancy; Utah, 12 weeks; Washington, 10 weeks. See Commercial Clearing House Service, Unemployment Compensation Law.

In New Jersey, as indicated, there is no such statutory provision. However, the Board of Review believed Mrs. Myerson's claim was barred by Glover v. Simmons Co. , 17 N.J. 313 (1955). The Board's theory was that the claimant may be said to have entered into the foregoing collective bargaining agreement herself since it was made by her agent, the union; and therefore that the unemployment following March 2 was voluntary, and hence noncompensable. See Rzepski v. Unemployment Compensation Board of Review ,

182 Pa. Super. 16, 124 A. 2 d 651 (Super. Ct. 1956). The fact situation in Glover was quite different. There the court was concerned with a collective agreement made by claimant's union with claimant's employer, which called for certain vacations for employees with one or more years of service and also authorized the company to shut down the plant for a two-week vacation period. This meant a layoff for two weeks without pay in the case of employees, including claimant, whose term of service was less than one year. Under the circumstances, as the Supreme Court held, claimant was not entitled to unemployment benefits.

The Board in the instant case seems to look upon Glover as authority for the general proposition that any unemployment caused by a collective bargaining agreement between claimant's union and the employer is voluntary and, accordingly, without the purview of the Unemployment Compensation Law. This, we think, is error. That proposition, in fact, had been espoused by the Appellate Division in Campbell Soup Co. v. Board of Review , 24 N.J. Super. 311 (App. Div. 1953), but the Supreme Court reversed, 13 N.J. 431 (1953), rejecting it squarely. In Campbell , the courts were dealing with a collective bargaining agreement, made by claimants' union, which required employees to retire at age 65. Notwithstanding the agreement, the Supreme Court held by a vote of 6 to 1 that the unemployment thus brought upon claimants at age 65 "was involuntary in the statutory sense" (13 N.J. , at page 435) and entitled them to unemployment benefits. The court asserted unequivocally:

"The fact * * * that the claimants through their agent, the union, voluntarily subscribed to the contract is * * * unimportant * * *."

It must be remembered that in reality the unemployment was not voluntary on the part of the particular claimants. The court went on to say that there is a "general public interest" (13 N.J. , at page 436) in the distress caused by ...


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