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Mortimer v. Board of Review

Decided: June 4, 1985.

WENDY MORTIMER, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, RESPONDENT-RESPONDENT, AND CUSTOM MEATS OF NEW JERSEY, INC. AND ANTONOVICH FURS, RESPONDENTS



On certification to Board of Review, Department of Labor.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Stein, J.

Stein

We granted direct certification, 99 N.J. 189, (1984), to resolve the conflict between two Appellate Division decisions that reached different conclusions as to the proper interpretation of the provision of the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.19, that governs the computation of "average weekly wage" for the purpose of determining a claimant's weekly unemployment benefit rate.

Claimant, Wendy Mortimer, worked for two employers during the statutory base year that preceded the filing of her March 7, 1983 claim for unemployment benefits.*fn1 She worked 39 weeks part time for Custom Meats of New Jersey, Inc., earning $1,950 from January 10 through November 28, 1982, and 17 weeks from November 14, 1982 to March 6, 1983 as a full-time sales clerk for Antonovich Furs, earning a total of $6,242.30. Her employment with each employer terminated because of lack of work and it is not disputed that claimant is entitled to unemployment benefits. The issue is the amount of benefits to which she is entitled.

Based on these facts the Appeal Tribunal computed claimant's average weekly wage by dividing her total earnings at

Custom Meats by the number of base weeks during which she had held that job, resulting in an average weekly wage of $50 and unemployment benefits of $34 per week. See N.J.S.A. 43:21-3(c) (weekly benefit rate is two thirds of claimant's average weekly wage). The Appeal Tribunal made this calculation in accordance with N.J.S.A. 43:21-19(u), which, read literally, requires such calculation to be based on wages earned from the "most recent base year employer with whom [claimant] has established at least 20 base weeks * * *." The decision of the Appeal Tribunal was affirmed by the Board of Review. Claimant contends that since she would have been eligible for unemployment benefits solely on the basis of her employment at Antonovich Furs, her average weekly wage should have been computed on the basis of those earnings, which were substantially higher than her earnings at Custom Meats.

I

A question of statutory construction arises because of a theoretical inconsistency between N.J.S.A. 43:21-4(e), which sets forth conditions of eligibility for unemployment benefits, and N.J.S.A. 43:21-19(u), which defines average weekly wage for the purpose of computing unemployment benefits. N.J.S.A. 43:21-4(e), as it read at the time Mortimer's claim was filed, accorded eligibility to those claimants who had at least 20 weeks of employment during the base year or in the alternative earned at least $2,200 during that year.*fn2 Section 19(u) required average weekly wage to be determined solely on the basis of the most recent single employment, if any, in which the 20-week test was met, disregarding all other weeks worked during the base year. Section 19(u), however, did not accord the same

exclusivity to the monetary alternative test, since employees qualifying under that standard could not calculate the average weekly wage on the basis of the most recent employment in which the monetary alternative was satisfied, but were required to include all weeks of employment during the base year in calculating their average weekly wage.*fn3

The Appeal Tribunal and the Board of Review read N.J.S.A. 43:21-19(u) literally. They observed that during the base year claimant had only one employer with whom she had established at least 20 base weeks, and therefore they computed her average weekly wage and weekly unemployment benefits on the basis of her earnings with that employer. Relying on the statutory language, the Appeal Tribunal and the Board of Review disregarded claimant's earnings with Antonovich Furs because claimant had not been employed there for 20 weeks.

Claimant relies on Schatz v. Board of Review, 177 N.J. Super. 246 (App.Div.1981), to support her claim that her unemployment benefits should be calculated on the basis of her higher earnings with Antonovich Furs. In that case the claimant also had held two jobs during the base year, one as a part-time waitress for 23 weeks at an average weekly salary of $57 and then as a United Airlines employee where she earned a total of $2,230 during 13 weeks at an average weekly wage of ...


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