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Febbi v. Board of Review

Decided: October 23, 1961.

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



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

Haneman

This case involves a construction of section 5(d) of the Unemployment Compensation Law. (N.J.S.A. 43:21-5(d).)

Claimants are employees of Ford Motor Company (Ford), at its Mahwah plant. Ford suspended manufacturing operations on August 22, 1958 in order to retool for the production of its 1959 models. Claimants were laid off on this date and did not return to work until they were recalled on Monday, September 15. They worked on Monday, September 15, Tuesday, September 16, and until 10 A.M. Wednesday, September 17, when they ceased work pursuant to a strike order issued in a labor dispute with Ford. On Thursday, September 18, the dispute was settled and the

strike was terminated but, because of a lack of work, claimants were not recalled to work until the following week.

Claimants applied for and received benefits for total unemployment for the period of August 25 to September 14, inclusive. They chose to have these benefits computed on the basis of a benefit week beginning on Monday and extending through Sunday. Regulation 22.02 (c) of the Division of Employment Security (Division) which was adopted pursuant to N.J.S.A. 43:21-19(q) gives employees claiming total unemployment benefits the right to so choose.

Claimants also applied for partial unemployment benefits for the benefit week beginning Monday, September 15. No choice, however, as to the days comprising that benefit week was available because Regulation 22.02(a) requires that in applications by weekly employees for benefits for partial unemployment the benefit week must correspond to the payroll week which, in the case of Ford, was Monday through Sunday. Claimants were disqualified by the Bureau of Unemployment Benefits from any payments due to unemployment on September 17 on the grounds that the loss of work on that day was due to a labor dispute. N.J.S.A. 43:21-5(d).

On appeal by the claimants and Ford, the Appeal Tribunal of the Division held that claimants were not entitled to any benefits for the entire week in which the strike occurred. This decision resulted from its view that N.J.S.A. 43:21-5 forbids the payment of unemployment benefits in any week during which there has been a loss of work due to a labor dispute.

The Board of Review of the Division affirmed the Appeal Tribunal and ruled further that claimants were not entitled to the benefits already paid for the benefit week ending September 14. It based this conclusion on the fact that Regulation 23.01 provides that once it is determined that a disqualification exists in any week the disqualification applies to the entire calendar week. Thus it is seen that the disqualification, due to the labor dispute, for the benefit

week beginning Monday, September 15, resulted in disqualification for the calendar week in which that labor stoppage occurred. The outgrowth of that reasoning made Sunday, September 14, the first day of the calendar week, a day of disqualification. This day was also part of the benefit week for which total unemployment benefits had been awarded claimants and since an individual is not entitled to benefits for that part of a week preceding a day of disqualification the benefits paid were ordered to be repaid.

Claimants appealed to the Appellate Division which court remanded the matter in limine to the Board of Review for a resolution of a factual issue as to which there arose a dispute, i.e., the cause of the unemployment on September 18 and 19. The Board of Review found that the stoppage of work on September 18 was caused by a labor dispute and that the stoppage of work on September 19 was due to a lack of work. This determination is not now questioned by any of the parties. The Appellate Division reversed the conclusion of the Board of Review disqualifying claimants, holding that they were entitled to receive total unemployment benefit for the benefit week ended September 14 as well as partial benefit for the week ended September 21. Febbi v. Board of Review, Div. Empl. Sec., 65 N.J. Super. 57 (1961). Petition for certification was granted by this court, 34 N.J. 323 (1961).

Upon oral argument all parties agreed that claimants are entitled to benefits for the week of September 8 to 14. The problem before this court is therefore reduced to a construction of the Unemployment Compensation Law in order to ascertain whether claimants are entitled to benefits for a week in which their partial unemployment was caused for two ...


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