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Marczi v. Board of Review

Decided: September 19, 1960.


Goldmann, Freund and Hetfield. The opinion of the court was delivered by Goldmann, S.j.a.d.


This is an appeal by 43 claimants from the decision of the Board of Review, Division of Employment Security, Department of Labor and Industry, affirming a decision of the Appeal Tribunal modifying a determination of the Division and holding claimants disqualified for unemployment benefits under N.J.S.A. 43:21-5(d) from Sunday, March 8, 1959, through Saturday, March 21, 1959.

Defendant Riegel Paper Corporation has approximately 1,510 employees in its four New Jersey plants at Milford, Warren Glen, Hughesville and Riegelsville. Claimants are employed in the company power houses at these locations and are members of the International Brotherhood of Electrical Workers, AFL-CIO, Local 1940 (IBEW), the bargaining agent for the approximately 55 men so employed. The United Paper Makers and Paper Workers Union, AFL-CIO, Local 712 (UPMPW), represents about 1,100 production and maintenance workers in the company's employ.

On Friday, February 27, and Saturday, February 28, 1959, as the climax to a dispute between the company and its production and maintenance workers, UPMPW called a strike and set up picket lines at the entrances to the four plants. There was mass picketing, and claimants, in violation of their contract, stopped reporting for work on Tuesday, March 3, 1959, and did not return until the end of the strike on March 19, 1959. The company meanwhile obtained a temporary restraining order on March 6, which enjoined mass picketing or picketing in close formation at the plant entrances or upon the public streets immediately adjacent thereto, but permitted peaceful picketing by not more than six pickets, spaced at least ten feet apart, at each entrance. The order further prohibited the hindering or obstructing of office, clerical, management and supervisory personnel, as well as employees, from entering or leaving the company's plants for the purposes of working or doing business. The

company mailed a copy of the restraining order to all of its employees by certified mail on Saturday morning, March 7. Beginning Monday, March 9, and continuing thereafter throughout the period of the labor dispute, the picketing proceeded in strict compliance with the restraining order. Work was available during the entire period, but claimants, although requested by the company to report for work, stayed away.

All supervisory and clerical employees, as well as several hourly rate employees, entered the plant on Monday, March 9, and continued at their work thereafter. Some of the production and maintenance workers also returned to work that day, with additional numbers of their co-workers returning to work each day thereafter. Full production was resumed at the plants on Thursday, March 19. During the progress of the strike, trucks and freight cars were loaded at the plants and finished products shipped without interference.

The initial determination of the Division, made upon the information then before it, was that claimants were eligible for unemployment benefits without disqualification for the period March 3 through March 21, 1959, because they were afraid to go to work. The Division investigator found there was a reasonable basis for such fear. On appeal by the employer, the Appeal Tribunal, after a full hearing, modified the Division's determination. It held that from March 3 through March 7, the date copies of the restraining order were mailed to all employees, the mass picketing and threats gave the power house employees good reason to believe that any effort to cross the picket lines might result in personal injury, so that no disqualification arose for that period. The Appeal Tribunal further held that claimants had failed to establish that their failure to report to work from March 8 on was due to a genuine fear for their personal safety, and they were therefore disqualified for benefits under N.J.S.A. 43:21-5(d) from March 8 through March 21, 1959. On appeal by claimants to the Board of Review, the Board

affirmed the decision of the Appeal Tribunal on the basis of the record below.

Claimants contend that they did not participate in or finance, nor were they directly interested in the labor dispute which caused the work stoppage, within the meaning of N.J.S.A. 43:21-5(d)(1). Further, they allege that their refusal to cross the picket lines was solely due to fear of injury to themselves, their families and property, so that their refusal was entirely involuntary. The final contention advanced is that the Board of Review, in not granting claimants a hearing on their appeal from the Appeal Tribunal, denied them due process of law.

N.J.S.A. 43:21-5(d) provides in significant part that:

"An individual shall be disqualified ...

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