# Glover v. Simmons Co.

> Supreme Court of New Jersey · January 24, 1955 · 17 N.J. 313

URL: https://www.frixlaw.com/law-library/cases/9749321

## Case

- **Full name:** William E. Glover, Plaintiff-Respondent, v. Simmons Company, Defendant-Appellant, and Daniel Leeds Miller, Inc., Pingry School and Board of Review, Division of Employment Security, New Jersey Department of Labor and Industry, Defendants-Respondents
- **Court:** Supreme Court of New Jersey
- **Decided:** January 24, 1955
- **Citations:** 17 N.J. 313; 111 A.2d 404; 1955 N.J. LEXIS 294
- **Precedential status:** Published
- **Opinion:** Dissent by Burling
- **Judges:** Wacheneeld, Jacobs, Vanderbilt, Heher, Oliphant, Brennan, Burling
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9749321

## Opinion text

Burling, J.
(dissenting). The defendant employer, Simmons Company, contended that the plaintiff’s, Glover’s, unemployment for the two-week period for which Glover sought statutory relief, was voluntary under B. 8. 43:21-5(a), thereby disqualifying him. B. 8. 43:21-5(a), supra, declares disqualification for leaving work “voluntarily without good cause.” (Emphasis supplied.)
*323 The defendant’s argument that Glover’s leaving work was voluntary was premised upon vacation provisions contained in Article YII of a collective bargaining agreement between the defendant and the union of which Glover was a member. The pertinent provisions read:
“3. Effective 1952 employees who have at least fifteen (15) years accredited service as of September 30, 1952 will receive three (3) weeks vacation with pay. The first two (2) weeks of their vacation to be taken during the shutdown period and the third week to be taken at a time selected by Management.
5. All employees with sufficient amount of service to receive two (2) weeks vacation will take their vacation the second two (2) weeks of July, 1953, commencing July 6th.
6. All employees with sufficient amount of service to receive one (1) week’s vacation will take their vacation the second week in July, 1953, commencing July 6th.”
The court has heretofore held that a collective bargaining agreement is binding upon members of the union party thereto. Kennedy v. Westinghouse Electric Corp., 16 N. J. 280 (1954). The Kennedy case, supra, concerned contractual “fringe” benefits and the effect thereon of obligations of the employees and the union with reference to work stoppages. The Kennedy case, supra, was not concerned with statutory unemployment compensation benefits and therefore is not pertinent to the present matter. The conclusions in the present case must rest upon the statute and the facts considered in the light of sound judicial philosophy.
The defendant argues that a vacation is a period of freedom from duty, not an end of employment. Philco Corp. v. Unemployment Compensation Board of Review, 175 Pa. Super. 402 , 105 A. 2d 176 (Super. Ct. 1954); Kelly v. Administrator, Unemployment Compensation Act, 136 Conn. 482 , 72 A. 2d 54 (Sup. Ct. Err. 1950). This viewpoint encompasses the assumption that the rate of pay for working hours includes a portion allotted to a vacation granted without pay. This assumption is negatived when no vacation without pay or at reduced pay is expressly agreed upon and *324 other employees are expressly granted vacations with pay. Golubski v. Unemployment Compensation Board of Review, 171 Pa. Super. 634 , 91 A. 2d 315 , 30 A. L. R. 2d 362 (Super. Ct. 1952). Cf. American Bridge Co. v. Review Board of Indiana, etc., 121 Ind. App. 576 , 98 N. E. 2d 193 (App. Ct. 1951). Judge Hirt, who wrote the opinion in the Philco Corp. case, supra, and voted with the majority in the Golubski case, supra, distinguished the two cases on the facts. In the Golubski case, supra, the contract terms (not diseernibly different from those in the matter sub judice) were held not to contemplate vacations without pay but were held to constitute an involuntary layoff during a shutdown period in which employees entitled to vacations were required to take them. In the Philco Corp. case, supra, the distinguishing feature was the contractual provisions which related to vacations in terms that conceivably could include payless and reduced pay vacations. Thus in the Golubski case, supra, unemployment compensation was granted, but in the Philco Corp. case, supra, unemployment compensation was denied. The Philco Corp. case, supra, followed Mattey v. Unemployment Compensation Board of Review, 164 Pa. Super. 36 , 63 A. 2d 429 (Super. Ct. 1949) but approved the Golubski case, supra. The Mattey case, supra, involved a union contract construed as expressly providing vacations, both paid and payless, to be taken during a stated vacation period. In the Kelly case, supra [ 136 Conn. 482 , 72 A. 2d 55 ], the union contract called for a shutdown period and expressly provided “such week shall be deemed a week of vacation.” Not only was this so, but the circumstances proved in the Kelly case, supra, were that the individual plaintiffs each had received pay from the employer for that period. The Supreme Court of Errors of Connecticut in the Kelly case, supra, found “Each of these payments approximated $50, a sum in excess of the individual’s weekly unemployment benefit rate.” ( 72 A. 2d, at page 55 ). In the Kelly case, supra, the decision was expressly related to the agreement ( 72 A. 2d, at page 56 ):
*325 “* * * It is the plain intendment of that statute [Conn. General Statutes, § 7508] that, when there is an agreement in the contract of employment for a vacation and compensation is provided in an amount substantially equivalent to the pay an employee would have received for services rendered if he had actually worked, he is not eligible for unemployment benefits during the period of his vacation.”
Comparable to the Kelly case, supra, is American Central Mfg. Corp. v. Review Board of Indiana Employment Security Division, 119 Ind. App. 430 , 88 N. E. 2d 256 (App. Ct. 1949). Cf. Wellman v. Riley, 95 N. H. 507, 67 A. 2d 428 (Sup. Ct. 1949). In the Wellman ease, supra, the employee had also received vacation pay for the week for which he sought unemployment compensation.
The defendant in the present case stressed among other decisions of courts in other jurisdictions, the Mattey case, supra; In re Buffelen Lumber & Mfg. Co., 32 Wash. 2d 205 , 201 P. 2d 194 (Sup. Ct. 1948); Jackson v. Minneapolis-Honeywell Regulator Co., 234 Minn. 52, 47 N. W. 2d 449 (Sup. Ct. 1951); Moen v. Director of Division of Employment Security, 324 Mass. 246 , 85 N. E. 2d 779 , 8 A. L. R. 2d 429 (Sup. Jud. Ct. 1949); and Paden City Pottery Co. v. Board of Review, 7 C. C. H. Unemployment Ins. Rep. W. Va. § 8090 (W. Va. Cir. Ct. 1949). Cf. In re Rakowski, 276 App. Div. 625 , 97 N. Y. S. 2d 309 (App. Div. 1950); Naylor v. Shuron Optical Co., Inc., 281 App. Div. 721 , 117 N. Y. S. 2d 775 (App. Div. 1952); Beaman v. Bench, 75 Ariz. 345 , 256 P. 2d 721 (Sup. Ct. 1953). It seems to me that the Jackson, Mattey, Buffelen, Moen and Paden City Pottery Co. cases, supra, were properly distinguished by Judge Baldwin in his opinion written for the Supreme Court of Errors of Connecticut in Schettino v. Administrator, Unemployment Compensation Act, 138 Conn. 253 , 83 A. 2d 217, 219 (1951), upon the ground that the statutory provisions underlying the decisions in the foreign cases provided disqualification for mere voluntary leaving of employment, whereas the Connecticut statute limited the disqualification by the use of terms including the phrase “without sufficient *326 cause.” The Kelly case, supra, was also distinguished in the Schettino case, supra, on the facts, and unemployment compensation was awarded to Schettino. It should be noted that Krauss v. A. & . Karagheusian, Inc., 13 N. J. 447, 465 (1953), turned on the question whether the employee voluntarily left work without good cause.
It seems clear to me that the disqualification for benefits obtains only where there is an express agreement providing for vacations without pay, or where vacations with pay are accepted by the claimants, or where the statutory disqualification of “voluntary” leaving of employment is not limited by the phrase “without good cause” or phraseology comparable thereto. In the contractual terms in the present case it seems to me that the shutdown period was merely recognized by the union as a time when plant functions would be stopped, as a matter of company convenience and policy, regardless of the desires of the employees. No agreement to voluntarily cease employment was expressed, nor was any payless vacation adverted to. Under these circumstances it seems to me no waiver may be inferred even if waiver of statutory benefits were to be deemed valid. See R. S. 43:21-15. Cf. Yobe v. Sherwin-Williams Company, 122 N. E. 2d 202 (Ohio Com. Pl. 1954). There is nothing within the provisions of the union contract which would give rise, even inferentially, to a reasonable construction that employees who were not eligible for vacations were affected in any way by the designation of the shutdown period as a vacation périod for eligible employees.
On this view of the case, the question is whether Glover left work “without good cause.” It seems to me that the decision of this court in Campbell Soup Co. v. Board of Review, Division of Employment Security, 13 N. J. 431, 435 (1953), is controlling. In this respect it seems to me the Campbell Soup Co. case, supra, requires the holding here that the cessation of work was with good cause, i. e., not the result of personal reasons of the employee but the result of company policy imposed upon the employees through the *327 medium of recognition in their collective bargaining agreement.
For the reasons hereinabove set forth I would affirm the judgment of the Superior Court, Appellate Division.
Mr. Justice Wacheneeld and Mr. Justice Jacobs authorize me to state that they join in the views expressed in this opinion.
For reversal — Chief Justice Vanderbilt, and Justices Heher, Oliphant and Brennan — 4.
For affirmance — Justices Wacheneeld, Burling and Jacobs — 3.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749321. Public record. Not legal advice.