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Dimicele v. General Motors Corp.

Decided: July 10, 1958.

JOSEPH DIMICELE, ET AL., CLAIMANTS-APPELLANTS,
v.
GENERAL MOTORS CORPORATION AND BOARD OF REVIEW OF DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENTS-RESPONDENTS



Stanton, Hall and Gaulkin. The opinion of the court was delivered by Stanton, S.j.a.d.

Stanton

This is an appeal by the claimants from a decision of the Board of Review holding them ineligible for benefits during the period beginning June 25, 1956 and ending July 8, 1956.

The facts are not in dispute. The employer, General Motors Corporation, closed its plant at Linden for the purpose of taking inventory from Thursday, June 28, to and including Wednesday, July 4, 1956. This resulted in a mass layoff. Adequate notice of it was given in advance, the affected

employees were instructed to return to work on July 5 and they did so. The claimants were all regularly employed on the basis of a payroll period of seven consecutive days beginning on Monday and ending on Sunday. The time with which we are concerned here is within the weekly payroll periods ending on July 1 and July 8. The claimants worked on June 25, June 26 and June 27 and each of them received for the payroll week ending July 1, 1956 wages in excess of their weekly benefit rate of $35. During the payroll week ending July 8 they worked on July 5 and July 6. Under a collective bargaining agreement then in force July 4 was a paid holiday and they received pay for that day in varying amounts according to their status, ranging between $16.40 and $18.80. Consequently, they received for the payroll week ending July 8 wages in excess of the weekly benefit rate aforesaid. The claimants had waiting week credit previously established in their benefit year. They filed claims for benefits promptly on June 28, the first day of the lay-off, for the week of June 28, that is to say, for the seven-day consecutive period commencing June 28 and ending July 4, during which they performed no services and received remuneration of less than their weekly benefit rate.

While compensation is payable for partial as well as total unemployment, the statute does not specifically define each type of unemployment. Both are embraced in the following definition found in N.J.S.A. 43:21-19(m):

"Unemployment.

(1) An individual shall be deemed 'unemployed' for any week during which he is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate, * * *."

Pursuant to the authority given to it by the Legislature in N.J.S.A. 43:21-11(a), the Division of Employment Security adopted the following regulation:

"22.01 Weeks of Unemployment:

(a) Week of Total Unemployment. A week in which an individual performs no services and with respect to which he receives no remuneration.

(b) Week of Partial Unemployment. A week in which an individual performs some services and/or earns less than * * * an amount equal ...


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