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Wm. Flemer''s Sons Inc. v. Board of Review

Decided: November 25, 1980.

WM. FLEMER'S SONS, INC., A NEW JERSEY CORPORATION, T/A PRINCETON NURSERIES, APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, AND PEDRO SANTOS DIAZ, RESPONDENTS. WM. FLEMER'S SONS, INC., A NEW JERSEY CORPORATION, T/A PRINCETON NURSERIES, APPELLANT, V. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, AND NATANAEL CRUZ DIAZ, RESPONDENTS



On appeal from Board of Review, Department of Labor and Industry.

Seidman, Antell and Lane. The opinion of the court was delivered by Seidman, P.J.A.D.

Seidman

These appeals, involving like issues of law and fact, have been consolidated on the court's own motion. In each the employer appeals a determination by the Board of Review that the claimant, a Puerto Rican agricultural laborer, was eligible for unemployment benefits.

Underlying the claims is an agreement entitled "Agricultural Agreement between Employers and Puerto Rican Agricultural Workers-1978," entered into between the Commonwealth of Puerto Rico and Garden State Service Cooperative Ass'n., Inc., an association of New Jersey farmers, growers and agricultural organizations. The purpose of the agreement was to make available to qualified New Jersey farmers or growers agricultural

workers from Puerto Rico on the terms and for the wages specified in the agreement. It appears that each worker engaged by a farmer or grower would be required to sign a copy of the contract, signifying his acceptance of its terms. Particularly relevant to these appeals is the provision therein that "[T]his Agreement shall be in effect from the date of its execution until not more than 28 weeks of employment or until December 1, 1978, whichever comes first unless extended or terminated under the terms provided for herein." (Emphasis in original).

Pedro Santos Diaz and Natanael Cruz Diaz (apparently not related) were engaged by appellant on April 6, 1978. That claimants' employment was under and subject to the aforementioned contract is not in dispute. The controversy is over the effect of the termination of claimants' employment in October 1978 and their return to Puerto Rico upon their eligibility for unemployment compensation. Both claimants filed claims in Puerto Rico on October 29, 1978. Each claim was rejected by the local deputy on the ground that the claimant had left work voluntarily without good cause attributable to the work and, therefore, was disqualified for benefits under N.J.S.A. 43:21-5(a).

Pedro appealed to the Appeal Tribunal which, after a hearing, affirmed the deputy's determination. On further appeal, the Board of Review reversed, holding that the claimant was not disqualified. In Natanael's case, his appeal to the Appeal Tribunal produced a reversal of the action taken by the deputy. But, on the employer's appeal, the Board of Review remanded the matter for a rehearing. Upon such rehearing the Appeal Tribunal changed its previous ruling and decided to affirm the deputy. However, as in the case of Pedro, the Board of Review reversed. The employer thereupon filed the appeals which are before us.

The facts in each case are not in substantial dispute, except with respect to the interpretation of the employment agreement. Both claimants maintained that they returned to Puerto

Rico when their contracts ended upon the expiration of 28 weeks of employment. They agreed that the employer had offered them further employment, but neither accepted the offer, desiring to return home for personal, family reasons. The employer contended before the Appeal Tribunal that the period of employment did not expire until December 1, 1978, and that work was available for both at least until December 15, but both refused to stay on.

In affirming the deputy the Appeal Tribunal took the position in each case that the contract of hire was until December 1, 1978, and that the claimant's personal reason for leaving was voluntary and did not constitute good cause attributable to the work. However, the Board of Review disagreed. Construing the agreement as providing for a 28-week employment period, the board held that since the employee completed the period, his separation from work could not be considered voluntary and no disqualification existed. It also held in both cases, though noting in the case of Natanael that "the Appeal Tribunal took no testimony regarding the claimant's availability or search for work," that "the claimant was not obliged to accept the employer's offer of work for an additional period, and no disqualification applies under R.S. 43:21-5(c)." As for Pedro, the board also held, though without supporting factual findings, that his search for work "was sufficient to meet the eligibility requirements from October 29, 1978, to the date of hearing on February 1, 1979."

The employer argues on these appeals that the Board of Review unreasonably concluded from the proofs that the claimants were not disqualified for benefits under N.J.S.A. 43:21-5(a) and N.J.S.A. 43:21-5(c), and that "the extension of benefits to this claimant without disqualification is contrary to the purpose and public policy of the unemployment ...


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