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Bustard v. Board of Review

July 15, 2008

JOHN BUSTARD, ET AL., APPELLANT,
v.
BOARD OF REVIEW AND JERSEY CENTRAL POWER & LIGHT COMPANY, RESPONDENTS.



On appeal from the Board of Review, New Jersey Department of Labor and Workforce Development, Docket No. 59,754, et al.

The opinion of the court was delivered by: Kestin, J.A.D.(retired and temporarily assigned on recall).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 28, 2008

Before Judges Stern, C.S. Fisher and Kestin.

John Bustard is the first-named of some 891 claimants, all members of System Council U-3, International Brotherhood of Electrical Workers (union), employed by Jersey Central Power & Light Company (employer). Claimants appeal from a decision of the Board of Review (Board) holding them to be disqualified from unemployment compensation benefits for the period from December 8, 2004 through March 15, 2005. The Board left the question of claimants' potential liability for refund of benefits received to be determined administratively "in accordance with N.J.S.A. 43:21-16(d)."

To reach its decision, the Board reversed a contrary determination by the Appeal Tribunal. The Appeal Tribunal, in turn, had reversed a determination by the Director's deputy that claimants were disqualified because they had engaged in a work stoppage.

Our review of the record discloses that the Board inadequately considered a focal issue in the matter, as framed by the parties and presented in the evidentiary record. Accordingly, we remand the matter for further consideration.

The events at issue began with a labor dispute. The collective bargaining agreement between the union and the employer, a public utility, had, by it terms, expired on October 31, 2004. The parties, however, twice acted to extend the term of the agreement through December 7, 2004. No further extension occurred and, beginning at 12:01 a.m. on December 8, 2004, claimants rendered no services to the employer until the labor dispute was resolved as of March 16, 2005. Following the cessation of work, claimants sought unemployment compensation benefits. As we have noted, the claims were administratively denied. The reason for that determination given by the Deputy on behalf of the Director was that, under the terms of N.J.S.A. 43:21-5(d), as it then read, claimants had been "involved in a stoppage of work caused by a labor dispute[,]" an unconditional disqualifying factor at the time if a finding was made, by application of the well-settled definition of the term, that a work stoppage had occurred.

Claimants appealed. On June 27, 2005, two days before the second day of the three-day hearing before the Appeal Tribunal, an amendment to N.J.S.A. 43:21-5(d) was enacted in L. 2005, c. 103, § 1, adding a new provision, an exception to the time-tested work-stoppage disqualification:

(2) For any claim for a period of unemployment commencing on or after December 1, 2004, no disqualification under this subsection (d) shall apply if it is shown that the individual has been prevented from working by the employer, even though:

(a) The individual's recognized or certified majority representative has directed the employees in the individual's collective bargaining unit to work under the pre-existing terms and conditions of employment; and

(b) The employees had not engaged in a strike immediately before being prevented from working.

In ยง 2, the Legislature provided that the amendment was to "take effect on the ...


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