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Dimicele v. General Motors Corp.

Decided: March 16, 1959.

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



On certified appeal from the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

[29 NJ Page 428] The appeal here concerns the right of the plaintiff employees of the defendant General Motors Corporation

to employment benefits under N.J.S.A. 43:21-1 et seq. in these circumstances: Pursuant to notice given its employees and their union, the defendant corporation's Linden, New Jersey, plant was closed to normal operations beginning Thursday, June 28, 1956, and continuing through Wednesday, July 4, 1956, for the purpose of taking the annual inventory. The advance notice of the layoff informed the employees that regular plant operations would be resumed at the usual time on Thursday, July 5, 1956, and the claimant employees would receive holiday pay for Independence Day, July 4, 1956, in keeping with the provisions of the then current collective bargaining agreement between the employer and the union. The claimants reported for work at the plant on July 5, 1956 in accordance with the notice so given. The employer's payroll week is and then was the period of seven consecutive days commencing Monday and ending Sunday. In the payroll week ending July 1, 1956 the claimants worked on Monday, Tuesday and Wednesday, June 25 to June 27, 1956, inclusive, when the planned layoff began; and, as said, the return to work was on Thursday, July 5 ensuing, in the payroll week ending July 8. The claimants performed no service during the layoff; but they all received holiday pay for July 4, 1956 varying, according to the individual claimant's daily wage rate, from $16.84 to $18.80.

In the several payroll weeks ending July 1 and 8, 1956, the latter week including the holiday pay, the claimants all earned more than their weekly benefit rate of $35.

The Division of Employment Security denied benefits under the statute on the ground that the claimants had earned more than their weekly benefit rate during each of the given payroll weeks ending July 1 and July 8. On appeal, the Division's Appeal Tribunal affirmed the determination thus made, holding that employees claiming partial benefits "are limited to the employer's payroll week." The Board of Review reversed on what was later found to be an erroneous factual assumption that the claimants had been laid off "indefinitely without promise of early recall," and then

affirmed after proof on further hearing that the layoff was in fact for a definite period, and the claimants are ineligible for benefits.

The Appellate Division of the Superior Court affirmed the administrative action, 51 N.J. Super. 167 (1958); and we certified the judgment for appeal. 28 N.J. 35 (1958).

The argument contra is that the "benefit week 'shall be any seven-consecutive-day period of unemployment chosen by the individual,' and is not confined to the payroll week," citing Teichler v. Curtiss-Wright Corporation, 24 N.J. 585, 586 (1957); "[t]otal benefits must be paid during any seven-consecutive-day period, although partial benefits are limited to a payroll week," a "policy" dictated by the "administrative burden of accepting the filing of claims on the first day of unemployment." In a word, the insistence is that upon the "commencement of his unemployment period, a claimant cannot foresee and determine at that time whether a claim should be filed on the basis of partial unemployment or total unemployment because he cannot then know the period of his unemployment nor the likelihood of other employment," and if the Legislature "had intended that the payroll week should coincide with the seven-consecutive days of unemployment as the regulation requires, then all the amendments and changes made during the recent years would have included this intention which the Legislature never found necessary or wise to adopt in accordance with the change which was made in Regulation 22.02"; and if this regulation applies to all claims of "partial benefits, then a distinction should not be made on the basis of a payroll period of seven consecutive days." The Division of Employment Security, it is said, "is not empowered to take over the legislative functions nor may it limit the beneficent purposes of a statute as intended by Legislature."

In sum, it is affirmed that if the work done on Monday, Tuesday and Wednesday, June 25 to 27, 1956, inclusive, "had been included in the same week with the work done on Thursday and Friday, July 5 and 6, then the claimants would certainly have received a week of unemployment compensation

benefits whether in the first or in the second week"; and that the Division's function is to promulgate administrative "rules and practices," but not to make "substantive changes" in the law. The employer denies the right to unemployment compensation benefits "where there was no period of 7 consecutive days during which they were totally unemployed and ...


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