Marinelli v. Board of Review of Dept. of Employment Sec., s. 3195

• Decision Date: 28 May 1965
• Docket Number: 3196,Nos. 3195,s. 3195
• Citation: 99 R.I. 716,210 A.2d 599
• Parties: William A. MARINELLI v. BOARD OF REVIEW OF DEPARTMENT OF EMPLOYMENT SECURITY. Edward BOULE v. BOARD OF REVIEW OF DEPARTMENT OF EMPLOYMENT SECURITY. Eq.
• Court: Rhode Island Supreme Court

Page 599

210 A.2d 599

99 R.I. 716

William A. MARINELLI v. BOARD OF REVIEW OF DEPARTMENT OF EMPLOYMENT SECURITY.

Edward BOULE v. BOARD OF REVIEW OF DEPARTMENT OF EMPLOYMENT SECURITY.

Eq. Nos. 3195, 3196.

Supreme Court of Rhode Island.

May 28, 1965.

Rabinowitz & Zimmerman, Sidney L. Rabinowitz, Providence, for petitioners.

Aaron S. Helford, Providence, for respondent.

PAOLINO, Justice.

These are two separate petitions to review the decision of the respondent board in each cause denying the claim of each petitioner for benefits under the provisions of the employment security act, G.L.1956, chapters 42-44 of title 28. After a hearing thereon before a justice of the superior court a decree was entered in each cause sustaining the decision of the board of review denying employment security benefits. Each cause is before us on the petitioner's appeal from such decree pursuant to the provisions of § 28-44-55.

Since the same issues are present in each appeal, the parties have by agreement and for convenience briefed and argued only the appeal of William A. Marinelli with the understanding that our decision in that cause will apply as well to the appeal of Edward Boule.

The claimant, William A. Marinelli, was employed by the Corning Glass Works in Central Falls, hereinafter referred to as the company, where he had worked for more than one year prior to July 1, 1963. He was a member of the union which as the bargaining agent had negotiated a contract with the company. This contract insofar as pertinent here provides that employees with one year of continuous service on July 1 of the vacation year will qualify for one week of vacation; that effective January 1, 1963, persons qualifying for a vacation under the vacation plan of the union contract will receive vacation pay in the following amount: One week's vacation pay will be 3 per cent of total earnings for the prior fiscal year ending December 31; that vacation will, so far as possible, be granted at times most desired by employees, but the final right to allotment of vacation period is reserved by the company.

The contract also provides that if, in the opinion of the company, the vacation plan interferes with the attainment of maximum production, an eligible employee may be required to continue to work and receive vacation pay in lieu of actual vacation from work. Article XVI, section 6, further provides that: 'In the final analysis, whether an employee takes his vacation or not is up to the Company; in other words vacations shall not be compulsory. Further, the Company reserves the right to shut down any or all of its departments or plants for part or all of the vacation periods and to have the employees take their vacations at such times.'

Article IV, section 1, vests exclusively in the company the right to manage the company and to direct the working force. The pertinent portions thereof are as follows: 'The management of the Company and the direction of working forces, including the right to hire, schedule shifts and hours to be worked, promote, demote, transfer, lay off, suspend, and discharge employees for proper cause * * * are vested exclusively in the Company provided * * *.'

The company closed its plant for a threeweek period from the week ending July 6 through the week ending July 27, 1963, for its annual vacation period. As an employee who had worked for more than one year but less than five years for the company, the claimant was entitled under the union contract to one week of vacation for which he was entitled to be paid an amount equal to 3 per cent of his total earnings during the fiscal year ending December 31, 1962. This 3 per cent amounted to $136, which sum he was paid.

The questions raised in this appeal involve the application of § 28-44-21 and rule XXIV of the regulations of the department of employment security. The pertinent portion of § 28-44-21 is as follows:

'Vacation periods.--An individual who has established eligibility for benefits * * * and who files a claim for waiting period credits or unemployment compensation benefits during a bona fide vacation period * * * shall be ineligible for such waiting period credits or benefits, unless he can show to the satisfaction of the director

'(a) that such individual did not receive and is not entitled to receive directly or indirectly as an incident to a vacation period any vacation pay, remuneration, or similar payment; or

'(b) that such vacation pay, remuneration, or similar payment, which such individual receives or is entitled to receive in connection with said vacation period, is less than his weekly benefit rate, in which case such individual shall be entitled to waiting period credits or benefits in the same manner as if he were partially employed; provided, however, that * * * the total sum of the vacation pay or other allowances shall be apportioned to the weeks of unemployment comprising a vacation period, as shall be determined by regulations adopted as hereinbefore prescribed; and

'(c) that such vacation period was not the result of an individual request on his part for a vacation during a period where there was work for him at the establishment at which he was customarily employed and at a time when such establishment was not shut down for a vacation period.'

Rule XXIV, which was approved and adopted June 20, 1963, is entitled 'Vacation Regulation' and is in evidence as exhibit #3. The pertinent portion of the rule reads as follows:

'When a claimant meets the eligibility requirements set forth in Section 28-44-21 of the * * * Act for the receipt of benefits during a vacation period, any vacation pay received by him for that period shall be allocated as follows:

'I. If the total amount received is less than or equal to his average weekly wage, such amount shall be apportioned to the first week of unemployment during such vacation period.

'II. If the total amount received is more than his average weekly wage, such amount shall be apportioned to each week of unemployment during such vacation period in such a manner that no more than an amount equal to his average weekly wage will be apportioned to any one week; provided, however, that where vacation pay is paid on the basis of a contract designed to give the employee a week's pay for each week of vacation, such amounts may be substituted for the 'Average Weekly Wage.'

'The term ...