Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.
This is an appeal from a determination of the Board of Review that Peter J. Sweeney was required to refund $450 paid to him as unemployment benefits.
Sweeney was a member of the International Brotherhood of Teamsters Union Local 680 and was employed in the production department of the Breyer Ice Cream Division of the National Dairy Products Corporation (Breyer). Local 680 was working under an existing collective bargaining agreement which expired April 30, 1962.
On March 2, 1962 Breyer posted a notice at its Newark plant stating that all manufacturing operations in the production department at that plant would be discontinued due to economic conditions, and that a layoff of all employees of the production department would commence March 31, 1962. About the middle of the month negotiations for a new collective bargaining agreement began between a bargaining unit representing Teamsters Union Locals 338, 680 and 757, and a committee representing Breyer and other New Jersey and Greater New York employers in the ice cream business.
Local 680 objected strenuously to Breyer's plans to close the production department at the Newark plant, a procedure which would then involve the bringing in of ice cream from other areas. Two of the major issues in these negotiations were the union's objection to the closing of the production department and its demand for a guarantee of employment for all employees for the ensuing three years irrespective of the volume of business. The union also warned that it would call a strike against the entire Newark plant for violation of the collective bargaining contract if the production department were closed.
As a result of negotiations involving these matters the notice posted on March 2, 1962 was rescinded and a new notice was posted changing the date of the closing of the production department and layoffs to April 27, 1962. For the same reasons this notice was rescinded a few days before it was to become effective and a third notice was posted which stated that the manufacturing operations in the production department would cease on May 4, 1962, and that the production employees would be laid off on that date.
The president of Local 680 notified Breyer's bargaining agent that there would be no settlement of the labor dispute unless the production department at the Newark plant continued to operate. No new collective bargaining agreement could be reached by the expiration date of the existing agreement, and a strike was called by Local 757 on May 1, 1962 against one of the Greater New York employers.
On May 2, 1962 Breyer closed its entire Newark plant and locked out all of its employees. George W. May, general manager of the Breyer Ice Cream Division and one of the negotiators for the employers, testified to the reasons for that decision:
"[I]n view of the fact that Local 757 had struck one plant and went on notice that it would be in their interest to strike one or more plants, whenever they saw fit, we decided to shut down all the plants because of the perishable products. We had milk, we had cream sitting around the streets, and it would be silly to receive this with no guarantee of the employees going to work."
On May 3, 1962 appellant filed a claim for unemployment benefits, stating therein that the last day he worked was May 1, 1962 and that he was not working because of an economic layoff. Appellant received benefits of $50 per week for a period of nine weeks, totalling $450. It is to be noted, however, that on May 7, 1962 the employer, in response to a request for information by the Division of Employment Security, reported that appellant's unemployment was due to an industrial dispute at the establishment in which he was employed.
On July 3, 1962 a new collective bargaining agreement was reached, and ratified by the three locals. On July 9 the entire Newark plant was reopened. All employees, including the appellant, returned to work ...