Opinion
November 9, 1967
Appeal by the employer from so much of a decision of the Unemployment Insurance Appeal Board as terminated the suspension (imposed by initial determination and modified with respect to the effective date by the decision of a Referee) of the accumulation of benefit rights by claimants-respondents, the board finding that claimants' loss of employment did not occur "because of a strike, lockout, or other industrial controversy in the establishment in which [they were] employed" (Unemployment Insurance Law [Labor Law, art. 18], § 592, subd. 1). On September 11, 1961, claimants-respondents were employees of the Fisher Body Division of appellant General Motors Corporation in the Fisher plant at Tarrytown. The decision was adverse to another group of claimants, not appealing, who were employees of appellant's Chevrolet Motors Division plant close by; the two divisions functioning in separate buildings some 60 feet apart, connected by an enclosed passageway through which automobile bodies produced by Fisher were conveyed to Chevrolet for the completion of its work of assembling automobiles. In an earlier and unrelated case it was found "unnecessary to determine whether the plants constituted one establishment or were separate establishments" ( Matter of Carmack [ Catherwood], 15 N.Y.2d 768, 769, affg. 19 A.D.2d 766). In the case now before us, the board found that they were, in fact, separate establishments; but we do not reach this finding which seems to us unnecessary and irrelevant, in view of our conclusion that there is substantial evidentiary support for the board's finding that the work stoppage which is the subject of this case occurred because of a shortage of materials and not "because of a strike, lockout, or other industrial controversy" (§ 592, subd. 1), whether in the Fisher plant, the Chevrolet plant or elsewhere, and whether the plants constituted separate establishments or but one. Work was continuing at both plants on September 11, 1961, although a strike deadline had been established for 11:00 A.M. on that day, in the event of the failure of the collective bargaining that had been in progress for some time. Shortly before that hour agreement was reached with the Fisher union, but none was negotiated with the Chevrolet employees, who therefore went on strike at the appointed time. The strike at Chevrolet was settled within 24 hours and was legally terminated on September 13 when the settlement was ratified by the local union. There is no finding or any indication that the Chevrolet employees' strike was extended to the Fisher plant, conversely to the situation in Carmack ( supra) wherein the strike of Fisher employees extended the industrial controversy to the Chevrolet plant by reason of the presence there of a number of striking Fisher employees. Appellant asserts, however, that the plants constituted, in fact, but one establishment; contending, also, albeit mistakenly, that Carmack ( supra) so decided. There is, however, no evidence, nor did appellant make any attempt to prove, that the Fisher work stoppage was "because of" the Chevrolet strike, this being the only situation in which the question of "establishment" as respects the two buildings would have any relevance under subdivision 1 of section 592. Upon the evidence before it, the board could find either that the Fisher work stoppage was due to a Fisher strike, or to other factors not constituting a labor controversy. The question as to whether the two buildings constitute two establishments or one establishment is totally irrelevant to either alternative. The board found that the Fisher work stoppage was not due to any industrial controversy and we are limited on review to the ascertainment of whether or not there is substantial evidence in support of this finding. Thus, in arguing for reversal "in accordance with the overwhelming weight of the evidence", appellant misapprehends the test to which we are restricted; which is, of course, the presence or absence of substantial evidence supportive of the board's determination. In this case we cannot account that proof as less than substantial. Of prime importance are the conceded facts that agreement with Fisher was reached before the deadline and that no strike of Fisher employees was ever called. In support of the board's affirmative finding of causation — that the work stoppage was due to shortage of materials — appears the testimony of no less a company authority than Fisher's director of industrial relations, who was asked, whether there was "any reason for the unemployment of Fisher, Tarrytown employees between September 11 and October 2, other than the shortage of floor pans due to the national strike"; to which he replied, "That was the only reason." That there were, or may have been sufficient materials and parts on hand to finish the day's work on September 11 was by no means conclusive to the contrary, when it appears without contradiction that stocks on hand were insufficient to continue production beyond that day. Neither was the board bound to find that the work stoppage was due to a controversy, within the meaning of the statute, by reason of the fact that some employees left for lunch at 10:30 A.M., with the intention — in view of the 11:00 A.M. deadline — not to return or the fact that the late settlement and announcement caused great confusion and uncertainty among general and supervisory employees alike, with no conclusive or incontrovertible indication emerging as to the precise authority or the immediate occasion for the halting of the production line. The board might, perhaps, have found the stoppage on September 11 due to confusion, mistake and misunderstanding and the unemployment that continued after that day due to shortages of parts; but upon this record it was not, in any case, required to find that an industrial controversy was causative of either. Decision affirmed, with costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.