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Febbi v. Board of Review

Decided: January 4, 1961.

DOMINICK G. FEBBI, ET AL. (BRL-1017-1-C TO BRL-1017-407-C, INCLUSIVE), CLAIMANTS-APPELLANTS,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY AND FORD MOTOR COMPANY, RESPONDENTS



Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D. Gaulkin, J.A.D. (concurring).

Sullivan

[65 NJSuper Page 59] This appeal involves an interpretation of the New Jersey Unemployment Compensation Law, R.S. 43:21-1 et seq. Claimants-appellants were employees of the respondent Ford Motor Company at its Mahwah,

New Jersey plant, which plant suspended production on August 22, 1958, to prepare for a new model automobile. During the period of shutdown claimants applied for and received unemployment compensation from the State of New Jersey. Because Ford's payroll week ran from Monday through Sunday, claimants chose the same seven-day period as a benefit week for the payment of unemployment compensation. This resulted in claimants' having a benefit week ending Sunday, September 14, 1958, for which they received unemployment compensation.

On Monday, September 15, retooling operations being completed, production was resumed and claimants were called back to work. They worked Monday and Tuesday, September 15 and 16. On Wednesday, September 17, at about 10 A.M., a strike was called at the plant and work ceased. The strike was settled late Wednesday night or early Thursday morning but claimants were not recalled to work until the following week.

The statute, N.J.S.A. 43:21-3, provides for weekly benefits to individuals if eligible, and unemployed as defined in subsection (m) of section 19 of the act. This subsection provides as follows:

"(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, * * *."

The weekly benefit rate under the statute is usually $35. Accordingly, many of the Ford workers who, on Monday, Tuesday and Wednesday of the week in question, had earned less than their weekly benefit rate applied for partial unemployment benefits for the benefit week Monday, September 14, 1958, through Sunday, September 21, 1958. (It is to be noted that claimants' benefit week was not a calendar week.)

At the hearing on these claims in the Division of Employment Security, Department of Labor and Industry, State of New Jersey there was a dispute as to whether claimants'

unemployment on Thursday, September 18, and Friday, September 19, was due to the strike or to lack of work. Ultimately it was determined by the Board of Review of the Division, upon a remand to it by this court for a resolution of this issue, that the unemployment of claimants on Thursday, September 18, 1958, was due to the labor dispute stoppage of work, but that the unemployment on Friday, September 19, 1958, was due to lack of work. Saturday, September 20, was not a normal workday. This resulted in a situation where, for the calendar week beginning Sunday, September 14, 1958, and ending Saturday, September 20, claimants worked Monday and Tuesday, were unemployed on Wednesday and Thursday due to a stoppage of work which existed because of a labor dispute, and were unemployed on Friday due to lack of work.

The Board of Review held that claimants were disqualified from receiving any unemployment benefits for this week by virtue of N.J.S.A. 43:21-5(d) which 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."

Ancillary to the foregoing statutory provision is Regulation 23.01 adopted by the Division of Employment Security pursuant to authority granted by N.J.S.A. 43:21-19(q) and which provides as follows:

"(a) A week with respect to any disqualification arising under Section 43:21-5 of the Unemployment Compensation Law shall be a calendar week."

The Board of Review interpreted the statute to mean that any unemployment due to a stoppage of work which exists because of a labor dispute disqualified a worker for unemployment benefits for the entire calendar week in which such ...


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