Opinion
June 16, 1955.
Appeal from Unemployment Insurance Appeal Board.
Present — Foster, P.J., Bergan, Coon, Imrie and Zeller, JJ. [See post, p. 977.]
This case involves the construction of the vacation clauses of two different labor contracts at two different plants of the employer, Remington Rand, Inc., one at Ilion and the other at Herkimer. The Unemployment Insurance Appeal Board held that when the plants were shut down during the vacation periods provided in the agreements employees covered by the contracts were not entitled to unemployment insurance benefits because they had, for the vacation period, voluntarily withdrawn from the labor market. The hearing referee had found a distinction between the two contracts, but this distinction was not recognized by the appeal board. The pertinent provision of the Ilion agreement was: "The Company agrees that the plant will be shut down for two (2) weeks during the aforementioned vacation period and generally employees entitled to a vacation will be required by the Company to take their vacation during the period of such shutdown." The Herkimer agreement provided: "If, in any year, the Company contemplates a plantwise shutdown for vacation purposes, notice to the employees shall be given on or before May 1". The referee felt that the Ilion agreement constituted a consent by the employees represented in the making of the contract to a closing of the shop; but he felt that in the Herkimer contract the election to close the plant could be exercised solely by the employer and was thus unilateral. We think the view taken by the appeal board was correct. The Herkimer agreement, providing for vacations generally, left open to the company the right to provide such vacations by closing the entire plant. This was a consent by all the parties represented in the collective bargaining arrangement to a method to be followed for providing vacations, which on the whole were regarded by both contracting parties as beneficial to union members. There can be no doubt that it constituted a consent by the union to a method by which the shop would be closed during a vacation period. The case is not exactly like Matter of Rakowski ( Corsi) ( 276 App. Div. 625), where the union could be found to have requested the plant closing or Matter of Naylor ( Corsi) ( 306 N.Y. 794), where there also was a request for closing; but in principle the same rule applies and a consent by the claimants through their labor union could be found here. Determination of the Unemployment Insurance Appeal Board unanimously affirmed, without costs.