# Gerber v. BD. OF REV., ETC, NJ DEPT. OF LABOR & INDUS. > Supreme Court of New Jersey · February 13, 1956 · 20 N.J. 561 URL: https://www.frixlaw.com/law-library/cases/9860676 ## Case - **Full name:** Morris Gerber, Paul Hoffman, John Madden, John Malinchak, John O’neill and H. Howard Schuchman, Appellants-Appellants, v. Board of Review, Division of Employment Security, New Jersey Department of Labor and Industry, the Federated Metals Division of American Smelting and Refining Company and the Attorney General of New Jersey, Respondents-Respondents - **Court:** Supreme Court of New Jersey - **Decided:** February 13, 1956 - **Citations:** 20 N.J. 561; 120 A.2d 436; 1956 N.J. LEXIS 295 - **Precedential status:** Published - **Opinion:** Dissent by Hei-Iek - **Judges:** Olipiíart, Hei-Iek - **Cited by:** 13 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/9860676 ## Opinion text Hei-iek, J. (dissenting). N. J. S. A. 43:21-5(á) provides that an individual shall be disqualified for benefits for any *569 week with respect to which it is found that his unemployment is due to a "stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed,” provided that the section shall not apply if it is shown that "(1) lie is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and (2) lie does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; * * The six claimants were the entire group employed as watchmen or guards at the plant of the Federated Metals Division of the American Smelting and Refining Company, at 150 St. Charles Street in Newark, New Jersey. The employer had a collective bargaining agreement with Local 143 of the International Union, United Automotive, Aircraft and Agricultural Implement Workers of America (UAW-CIO), prescribing the terms and conditions of employment of all induction and maintenance employees and watchmen at the plant, running from July 1, 1952 to June 30, 1953. It was therein expressly provided that the watchmen would "at no time engage in any strike, mass-quit, work stoppage, slow-down, sit-down, picketing or any other conduct which may, in any way, interrupt or interfere with production at the plant,” but would “at all times fulfill and discharge their duties without regard to any” such strike, “or any other interruption of or interference with production at the plant.” The claimants all fulfilled their contractual undertaking in this regard. They were night watchmen whose duties “were entirely different from all other persons employed in the plant.” They did not participate in the strike beginning on July 29, 1953, but continued their full service as watchmen without interruption until December 2 or 3 ensuing, when they severally received this telegram from the employer: “Shutting down plant completely due to strike and have no *570 further need of your services”; also a “Notification of Separation from Payroll” stating that the recipient was “Discharged — your employment is terminated” for the reason given in the telegram. The employer’s personnel manager, Wahl, testified that he sent the telegrams to the claimant watchmen, and signed the termination notices. He said they “were actually discharged at that time,” and thereafter their duties were performed by “foremen”; that they would be “called back” if the plant reopened, but “At that time it looked like it was permanent.” The rationale of the holding of the Appellate Division, 36 N. J. Super. 322 (App. Div. 1955), is to be found in this passage of the opinion: “Not only did the labor dispute result in a stoppage of work, but the stoppage in turn inevitably resulted in the unemployment of all production workers and, eventually, the watchmen. It is understandable that the employer company retained the watchmen as long as there was hope that the negotiations might result in a new contract and a resumption of work. But when negotiations broke down and production did not resume, the watchmen were let go. The testimony for the company was that the company could not afford to keep the men on the payroll because of the prolonged strike. Their employment was therefore, in the words of the statute ‘due to a stoppage of work,’ stemming from a labor dipsute. * * * The fact that the company had its foremen take over the watchmen’s duties does not change the result. As supervisory personnel the foremen were not involved in the union demands or the strike. They became idle when production stopped, and it was natural and economically practical that the company have them substituted for the watchmen after December 2.” The judgment proceeds on the hypothesis that the layoffs of the watchmen were “directly attributable to the labor dispute” and were but temporary. But does not this reasoning lose sight of the contractual undertaking of the watchmen not to engage in a strike, work stoppage or slow-down, “picketing or any other conduct” that would “interrupt or interfere with production at the plant,” but would at all times fulfill and discharge their duties “without regard to any” strike, or “any other inter *571 ruption or interference” with plant production; and that the watchmen fulfilled the undertaking to the letter? There is no contention contra. The contract was designed to hold the watchmen to service in the event of a strike, to serve a need that would continue throughout the strike. And were they not told by the employer in clear and indubitable terms that they were “discharged,” and the employer-employee relation was at an end? True, the original term of the collective agreement had expired of its own limitation; but there was provision for its automatic renewal “from year to year thereafter.” Even on the contrary hypothesis, the nature of the service of necessity remained the same until the watchmen were discharged. There can be no doubt as to that. And it was the production work that came to a stop. Compare Board of Review v. Mid-Continental Petroleum Corporation, 193 Okla. 36 , 141 P. 2d 69 (Sup. Ct. 1943); Miners in General Group v. Hix, 123 W. Va. 637, 17 S. E. 2d 810 (Sup. Ct. 1941). There was no stoppage of the watchmen’s work. Thus, the unemployment of the watchmen was not due to a stoppage of work incident to a labor dispute in the statutory sense; it was due to their replacement by nine foremen whose work had been terminated by the strike, even though the watchmen had bound themselves to remain in service during a strike or work stoppage, and there was no action contra; they were discharged; as to them, the employer-employee relation was terminated to provide places for the foremen. Such being the case, there is no need to consider exceptions (1) and (2) to the rale of subsection (d) of the cited section 43:21-5. But, on the converse assumption, there was not in the particular circumstances, I would suggest, the disqualification of direct interest contemplated by these statutory exceptions. The employer’s personnel manager testified that the six watchmen had “duties entirely different from all other persons employed in the plant.” See Kieckhefer Container Co. v. Unemployment Compensation Commission (In re Bowen), 125 N. J. L. 52 (Sup. Ct. 1940); *572 same title (In re Aurich), 125 N. J. L. 55 (Sup. Ct. 1940). I would reverse the judgment. For affirmance — Chief Justice Vanderbilt, and Justices Oliphant, Burling and Jacobs — 4. For reversal — Justice Heher — 1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9860676. Public record. Not legal advice.