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Division of Unemployment and Disability Insurance v. Board of Review

Decided: January 26, 1983.


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

Bischoff, J. H. Coleman and Gaulkin. The opinion of the court was delivered by J. H. Coleman, J.A.D.


This appeal raises the same question previously addressed in Schatz v. Board of Review, 177 N.J. Super. 246 (App.Div.1981), vis-a-vis how should unemployment compensation benefits be computed where successive employments are involved. For the reasons which follow, we disagree with the method of computing the weekly benefit rates approved in Schatz. Hence, we reverse the decision of the Board of Review which relied on Schatz.

The facts germane to our determination are not in dispute. Rocky N. Covino became unemployed on January 30, 1980. His most recent employment was with Eastern Airlines, Inc., from October 1, 1979 to January 29, 1980. He worked a period of 16 weeks, earning $2,266. He also worked for Sterns Department Store for a period of 35 weeks ending December 28, 1979, earning a total of $2,258. Additionally, he worked for Prudential Insurance Company of America from May 23, 1979 to August 31, 1979, earning $1,640 for 14 weeks. His claim for unemployment benefits was filed on February 1, 1980. His base year was January 21, 1979, through January 19, 1980.*fn1

Since claimant was employed by three successive employers during the base year, we must, therefore, look to the statute to determine his benefit rate. Our analysis must begin with N.J.S.A. 43:21-3(c), which provides generally that the weekly benefit rate for a qualified claimant shall be two-thirds of his average weekly wage subject to other conditions that are not here pertinent.

The crux of this appeal centers around the method to be employed in computing the average weekly wage. N.J.S.A. 43:21-19(u) defines average weekly wage as

The local unemployment office and the Appeal Tribunal applied N.J.S.A. 43:21-19(u) literally. They determined that since the claimant's latest employment with Eastern Airlines from October 1, 1979 to January 29, 1980 lasted less than 20 base weeks,*fn2 the job with Sterns Department Store constituted the most recent employment during the base year in which the claimant had worked at least 20 base weeks. The claimant's average weekly wage at Sterns Department Store was determined to be $65.51, which yielded a weekly unemployment benefit rate of $44. On appeal to the Board of Review, the decision of the Appeals Tribunal was reluctantly reversed based on the holding in Schatz. The Board redetermined the benefit rate based on the claimant's 16-week employment with Eastern Airlines. The rate was determined to be $95 a week.

The Division of Unemployment and Disability Insurance (Division) has appealed, contending that the rate should be $44 rather than $95. The Board made it clear that it fixed the rate at $95 a week only because it was bound by the holding in Schatz.*fn3 The Schatz court imported the $2,200 minimum earnings provision from subsection 4(e) to subsection 19(u). In so doing it determined that an employee who cannot establish the 20 base weeks with the last employer in the base year, can nevertheless use the $2,200 minimum earning from that employer during the base year as an alternative method for computing

the average weekly wage. N.J.S.A. 43:21-4(e), in pertinent part, provides:

(e) With respect to a base year . . . the individual has established at least 20 base weeks . . ., or, in the alternative, has earned $2,200.00 or more in the individual's base year, . . .

A determination of the correct weekly unemployment rate requires an examination of the legislative intent to ascertain whether the Legislature intended to import the minimum earning alternative found in N.J.S.A. 43:21-4(e) to the average weekly wage determination required by N.J.S.A. 43:21-19(u). In our endeavor to fathom the legislative intent, we must be guided by certain well delineated principles of statutory construction. Judge Fritz recently outlined our role in MacMillan v. Taxation Div. Director, 180 N.J. Super. 175 (App.Div.1981), aff'd o.b. 89 N.J. 216 (1982), in which he stated:

But we remain judges and as such cannot succumb to the humanistic pressures or substitute our concern in place of the legislative design. Indeed, we may not even permit ourselves the luxury of liberal construction -- or, as a matter of fact, any construction -- if the words of the statute plainly convey the legislative intent, as we are persuaded they do here. We must enforce the legislative will as written. Dacunzo v. Edgye, 19 N.J. 443, 451 (1955). We certainly may not supply a provision no matter how confident we are of what the Legislature would do if it were to reconsider today. ...

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