Opinion
March 12, 1952.
Appeal from Unemployment Insurance Appeal Board.
The employer operates a shipbuilding and repair yard in which employment is irregular and uncertain. Work is furnished to employees solely on a day to day basis. To meet its peculiar conditions, the employer utilizes a shape-up system. Those who seek work must report each day and to the extent that when work is available, men will be selected and put to work. The employees are divided into so-called seniority groups, A, B, C, etc. In assigning work those in Class A have preference over those in Class B and those in Class B likewise have a preference over those in Class C and so on down. There is no preference within a class. At the end of each day's work the employees are through. The record shows that the employer fixed as a vacation period the week beginning May 16, 1949, as to some employees; as to some others the vacation period was fixed for June; and for others the period was fixed for July; and for others during the month of August. During these so-called vacation periods the plant continued to operate. The sole issue here is whether the unemployment of the claimants during the so-called vacation periods was due to a genuine rest period or whether it was due to the continuance of a period of insufficient work during that time. The general contract of hiring applicable to these claimants is the labor agreement dated June 8, 1948, between the employer and the claimants' bargaining agent. Under this contract employees do not lose the employee status and their rights as such providing they present themselves for employment once every twelve working days. Qualified employees are entitled to one, two or three weeks vacation with pay. The appeal board found the claimants had no employment with the employer during the so-called vacation period and they were entitled to benefits. The board also held that the vacation money was a bonus for the last year's work which terminated on May 1, 1949, and the amount could not be allocated to a subsequent so-called vacation period. The board also found that the employer arbitrarily fixed the commencement of the vacation periods. The evidence sustains the finding of the board. Decisions affirmed, with costs to claimants-respondents.
Foster, P.J., Heffernan, Bergan and Coon, JJ., concur;
By virtue of claimants-respondents' membership in their labor union they sustained an employee relationship with the appellant employer during the periods in question. This arose under the labor agreement by certain provisions of which they became entitled to and were granted vacations with pay. During those periods claimants were not unemployed within the meaning and intent of the statute. (Labor Law, § 522; Matter of Mullen [ Corsi], 277 App. Div. 1073.)