For reversal -- Chief Justice Weintraub, and Justices Heher, Oliphant, Burling, Jacobs and Francis. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
These are consolidated appeals from decisions of the Board of Review which determined that the claimants were not disqualified under N.J.S.A. 43:21-5(d) from receiving unemployment compensation benefits. The appellant Westinghouse Electric Corporation and the individual claimants-respondents have entered into a stipulation which portrays the following circumstances.
In the course of a labor dispute, employees at certain Westinghouse plants struck in October 1955 and caused stoppages of work. The striking employees were members of unions which had collective bargaining agreements with Westinghouse. In March and April 1956 the labor dispute and the work stoppages were terminated. The striking employees with whom we are concerned on this appeal (including claimants standing in the same position under
N.J.S.A. 43:21-5(d)) took temporary employment elsewhere during the strike. Some of them had substantial periods of work with other employers, others had very short periods of work during the Christmas season in 1955 with department stores and express companies, and still others "shaped up" daily at breweries and other places of employment. None of the claimants resigned from Westinghouse or surrendered the right to return to work for Westinghouse upon termination of the strike. They all intended to return to Westinghouse as soon as the strike ended and in fact they did so. During the strike Westinghouse advanced contributions under its Social Insurance Plan for its striking employees in order to avoid cancellation or lapse of the insurance, and tendered loans which were accepted by some of the claimants. Westinghouse also offered work to the striking employees but they rejected it because of the continuance of the strike. Neither Westinghouse nor the striking employees did anything which was designed to effect a severance of their employment relationship; and all the parties concede that there was no such severance. See Browning King Co. of N.Y. v. Local 195, 34 N.J. Super. 13, 26 (App. Div. 1955); Textile Workers Union of America v. Paris Fabric Mills, Inc., 22 N.J. Super. 381, 383 (App. Div. 1952); Jeffery-De Witt Insulator Co. v. N.L.R.B., 91 F.2d 134, 112 A.L.R. 948 (4 Cir. 1937), certiorari denied 302 U.S. 731, 58 S. Ct. 55, 82 L. Ed. 565 (1937).
The claimants did not seek unemployment compensation benefits from the commencement of the strike in October 1955 and acknowledged that the labor-dispute disqualification (N.J.S.A. 43:21-5(d)) precluded such benefits. But they did seek benefits for subsequent periods during which they did not work after their interim or temporary work with other employers had terminated. They contended that the disqualification was inapplicable to these subsequent periods. The Board of Review held that the disqualification did not bar benefits to claimants who had in good faith obtained work elsewhere, even though their work was only "stop-gap" in nature and was not intended to interfere with
their eventual return to Westinghouse at the end of the strike. Westinghouse appealed and advances the contention that under a proper interpretation of N.J.S.A. 43:21-5(d) disqualification of a striking employee continues during the strike notwithstanding bona fide interim or temporary employment which is not intended to sever the employment relationship at the strike-bound plant. On the other hand the claimants advance the opposing contention that under a literal interpretation of N.J.S.A. 43:21-5(d) the disqualification is inapplicable to periods of unemployment after bona fide interim or temporary employment, notwithstanding the continuance of the employment relationship at the strike-bound plant.
New Jersey's Unemployment Compensation Law was adopted in 1936. L. 1936, c. 270; R.S. 43:21-1. It designated, in section 4, those who would be eligible for benefits and, in section 5, those who would be disqualified. Paragraph (d) of section 5 contained the labor disqualification clause which now 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, that this subsection shall not apply if it is shown that:
(1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and
(2) He does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that if in any case in which (1) or (2) above applies separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment, or other premises."
Through the years many unsuccessful attempts have been made to amend paragraph (d). See Ablondi v. Board of Review, 8 N.J. Super. ...