20 N.J. Super. 80 | N.J. Super. Ct. App. Div. | 1952
The opinion of the court was delivered by
This case arises under , our Unemployment Compensation Law, R. 8. 43 :2l-l etc. The appellant conducts a large plant in which employment varies greatly with the seasons. The respondent Jesse Tomlinson
Relations between appellant and its employees were the subject of a contract in which the company had agreed to give all employees who had the requisite seniority “as of the eligibility date of July 1st, two weeks’ vacation with pay.” “It is the Company’s prerogative to determine when the vacation period shall take place.” ' The agreed “vacation payment” was not two weeks’ pay at the rate which the employee received when working, but was four per cent of his total earnings for the year ending in the preceding April. The company considered that employees, like Tomlinson, who had been laid off before July 1 and were not called back till after that date, were not entitled to vacations or vacation payments. The union held the view that they were entitled io vacation pay. By the end of August, the company accepted the union’s position and in a letter dated September 1, 1950, said: “We will pay to employees laid off on or after March 22, 1950, who were not actively employed on the eligibility date of July "1st and who were reinstated thereafter with seniority before January 1, 1951, their vacation payment.” Pursuant thereto, the company gave to Tomlinson on September 15 its check for $59.59. It was in form an ordinary payroll check for “Week ending 9-10-50” but was stamped “Vacation.” In addition, the company paid Tomlinson his earned wages for the week ending September 10, 1950. Such are the bare facts on which the appellant relies. How as to the proceeding before us.
The company, under date of September 7, 1950, addressed a letter to the agency’s office in Camden, saying, “We are forwarding pertinent information on our employees who will
Also that letter was accepted by the appeal tribunal of the agency as an appeal “from the payment of benefits for auv part of the first two calendar weeks of July, 1950.” Since the agency had demanded a refund of all benefits received by Tomlinson for any part of July, the appeal tribunal decided that “Therefore, there is no issue before the Tribunal.” Within the 10-day period allowed by B. 8. 43:21-6(e), the company appealed to the board of review, and urged for the first time that the vacation payment made in September, 1950, should be applied to the “last two weeks preceding the claimants’ recall to work.” Lt argued that those two weeks should be considered Tomlinson’s vacation. The board rendered its decision September 14, 1951, that “The claimant was eligible for benefits through June 29, 1950. He was ineligible thereafter.” Erom that decision, the company appeals to this court.
The company points out that its contract gives it the “prerogative to determine when the vacation period shall take place.” The meaning of this clause is not uncertain. The right to set the time for an employee’s vacation was given
Even did we agree with the company’s contention respecting the allocation of the September payment, we doubt if the appeal could be sustained, since there would still seem to be no basis for holding Tomlinson liable under B. S. é3:3116(d) to refund the benefits or to give credit against future benefits, and, at best, a doubtful basis.for deciding that the company’s account should not be charged with the.benefits paid.
The determination of the board of review is affirmed.