Beaunit Mills, Inc. v. Board of Review, Division of Employment Sec., Dept. of Labor and Industry

• Decision Date: 28 December 1956
• Docket Number: A--663,Nos. A--658,s. A--658
• Citation: 43 N.J.Super. 172,128 A.2d 20
• Parties: BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR& INDUSTRY, State of New Jersey, and John J. Plunkett, Respondents. BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR& INDUSTRY, State of New Jersey, and Thomas R. Heck, Respondents. BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR& INDUSTRY, State of New Jersey, and Albert S. Van Sciver, Respondents. BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR& INDUSTRY, State of New Jersey, and Clarence P. Comegys, Respondents. BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR& INDUSTRY, State of New Jersey, and Peter G. Leffler, Respondents. BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR& INDUSTRY, State of New Jersey, and Frank Smith, Respondents. to . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 172

43 N.J.Super. 172

128 A.2d 20

BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR& INDUSTRY, State of New Jersey, and John

J. Plunkett, Respondents.

BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR& INDUSTRY, State of New Jersey, and

Thomas R. Heck, Respondents.

BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR& INDUSTRY, State of New Jersey, and

Albert S. Van Sciver, Respondents.

BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR& INDUSTRY, State of New Jersey, and

Clarence P. Comegys, Respondents.

BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR& INDUSTRY, State of New Jersey, and Peter

G. Leffler, Respondents.

BEAUNIT MILLS, Inc., Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR& INDUSTRY, State of New Jersey, and Frank

Smith, Respondents.

Nos. A--658 to A--663.

Superior Court of New Jersey.

Appellate Division.

Argued Nov. 19, 1956.

Decided Dec. 28, 1956.

S. David Harrison, Union City, argued the cause for Beaunit Mills, Inc., appellant on all appeals (Platoff, Platoff & Heftler, Union City, attorneys; George Heftler, Union City, of counsel).

Clarence F. McGovern, Jersey City, argued the cause for respondent Board of Review, Division of Employment Security.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The question to be determined on this appeal is whether the employees involved are barred from unemployment compensation on the ground that they had been 'discharged for misconduct connected with (their) work.' N.J.S.A. 43:21--5(b).

The cited section of the Unemployment Compensation Law provides as follows:

'An individual shall be disqualified for benefits:

'(b) For the week in which he has been discharged for misconduct connected with his work, and for the five weeks which immediately follow such week (in addition to the waiting period), as determined in each case.'

The matter was before us on an earlier occasion. However, the facts had not been fully developed and we remanded for completion of the record. 38 N.J.Super. 547, 120 A.2d 48 (App.Div.1956).

Guilt of the type of misconduct condemned by the statute is a conclusion which can be reached only through the avenue of the facts of the particular case. Consequently it is necessary to detail them here.

Prior to the events with which we are concerned, Beaunit Mills, Inc. and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 676, American Federation of Labor, had executed a collective bargaining contract covering employees of the Beaunit Trucking Division at Delran, New Jersey. Article VIII thereof lists insubordination as a cause for dismissal and provides:

'* * * When an employee is dismissed for reasons other than the lack of business, he May upon request, have a hearing before the committee composed of representatives of the Employer and the Union. If Representatives of the Employer and the Union are unable to agree, an outside neutral Arbitrator selected by the Employer and the Union may be called in to settle the difference. In case the Employer and the Union are unable to agree upon an Arbitrator then the Director of Federal Mediation and Conciliation Service shall be requested to designate and (sic) arbitrator. Such arbitration decision shall be final and binding on both the Employer and the Union and the Employee. * * * All such cases of discipline or discharge shall be taken up within ten (10) working days from the date of such discipline or discharge or the employee * * * waives his * * * rights therein. * * *.' (Emphasis added.)

Article IX deals with the appointment of a shop steward whose 'sole function * * * shall be to see that the terms of this Agreement are fulfilled both by the Employer and the Employees.'

Arbitration generally is treated under Article XIII as follows:

'Differences arising out of the interpretation and application of the terms of this agreement that have not been resolved between the Employer and the Union may, at the option of either party, be submitted to arbitration. * * *.'

One Posch, a truck driver, became the shop steward. On January 22, 1955, after at least three and a half years service, he was discharged; whether it was effective that same day or at a later time is not clear. So far as the men involved in these proceedings are concerned, it was a sudden and unceremonious discharge. To their knowledge, no reason was assigned by the company and they were not award of the basis for the action. And Posch told some of the men that he did not know why he had been fired. It seems fairly obvious that his statement was untruthful, but it is even more obvious that the men believed him. Since he was their shop steward, they apparently were leaderless without him.

In any event, on January 26 a few of the men discussed engaging in a work stoppage for a day to protest Posch's discharge. As the early morning shift of truck drivers began to arrive on Thursday, January 27, talk began about refraining from work until they found out why Posch had been fired summarily. Posch was among these men but whether he was to drive that day does not appear. As the result, 17 drivers and platform workers decided to engage in what was variously described as a 'work stoppage,' a 'strike' or a 'walkout,' in order to find out the reason for the discharge. None of them at any time intended to quit their jobs. One driver in this testimony seemed to express the common feeling, namely: 'I was willing to go to work right then if they told us why he was laid off.' Another expressed his bewilderment by saying that 'if they could do that to anybody' he was wondering 'if they could do it' to him. Still another testified that the drivers were 'a pretty good gang'; 'one of the fellows got a raw deal,' and 'everybody in general' said there was a strike. No union official (outside of Posch) was present and the union had not ordered the strike.

The employer's truck dispatcher appeared on the scene. He urged the necessity of getting the trucks rolling and said 'We will settled it later.' No one spoke or answered for the men. The record does not reveal whether they advised him of the reason for their strike or that it was mentioned at all by anyone.

The dispatcher telephoned William A. Dodge, the executive vice-president of Local No. 676, and explained the situation to him. Dodge told him to instruct the men to go to work. However, there is nothing to indicate that he informed the men of this conversation. Then, following telephone orders from the Supervisor of the Trucking Division, he announced that if they did not begin their operations within a half hour, they would be discharged. At no time did he make any statement regarding the dismissal of Posch, although it must be that he knew the source of the difficulty. One of the drivers asserted at the Board of Review hearing that if the reason had been given, even if he thought it was an unfair one, he would have resumed work. The men did not yield, and at the end of the period their time cards were removed from the rack as the signal of their discharge.

Later in the morning the union executive Dodge appeared on the scene. Some of the men ('a couple') were still there. Dodge told them why Posch had been let go by the company and informed them also that as far as the union was concerned, the strike was unauthorized. Still later, an unnamed number of the strikers reported for work and were permitted to do so by management; others who undertook to return later in the afternoon were rejected.

About 3 P.M. Dodge tried to arrange a meeting to discuss the matter but the Supervisor of the Trucking Division refused. Then he sent a formal written request for a conference and was informed of the company's willingness to meet but not to discuss the Posch discharge. At Dodge's order, the strikers appeared for work on Friday and Saturday mornings, the reason being that he thought management would relent and take them back. As he put it, the union was willing 'to sit down and arbitrate Posch's case' and he 'didn't see why the men should be involved.' However, on both days, the men were ordered off the company's premises; according to one of the repentant strikers they were told they were trespassers and would be arrested if they did not leave. Another of the strikers telephoned the employer's dispatcher around 7 P.M. on January 27 and inquired as to what was going on. The dispatcher said to him: 'I have nothing to say. * * * You just quit this morning.'

Some months thereafter, all of the men who wished to return, except two, Posch being one of them, were reinstated and their full seniority rights restored. This was done voluntarily by the company after conferences with the union. By way of explanation, the Supervisor said the men were 'victims of circumstances' and they had ability and character and were 'worthwhile considering as continued employees inasmuch as they, in the main part, were long time employees of the company.' He thought also 'from hearsay' that they were possibly 'coerced' into the situation. On the other hand, Posch's case went to arbitration and the dismissal was sustained.

Upon the introduction of the circumstances outlined, the Board of Review held that section 5(b) of the law did not bar recovery of unemployment compensation.

The employer contends now, as it did before the Board, that the employees having been discharged properly for misconduct connected with their work, are disqualified. More specifically, the misconduct charged in engaging in a strike or work stoppage which constituted a breach of the collective bargaining agreement between the company...