Opinion
October 26, 1970
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 6, 1969, which granted claimant's application to reopen and reconsider the board's decision filed August 27, 1968, and adhered to said decision, reducing claimant's benefit rate from $55 to $35 per week, pursuant to section 600 Lab. of the Labor Law. Claimant's employment ended after 30 years with compulsory retirement, and he became entitled to receive a pension under a plan which his employer Liebmann Breweries, Inc. (hereinafter referred to as Liebmann) established in 1950 and to which both Liebmann and Rheingold Breweries, Inc., the successor to Liebmann, contributed. It is stipulated that from 1950 to July, 1961, when claimant became 65 years of age the employer contributed more than 50% of the amount contributed to such plan. After July, 1961 the employer made no further contributions on behalf of claimant, although he remained in its employ until January, 1968 at which time he filed for unemployment insurance benefits. In the meantime, sometime in 1965, Rheingold Corp. had acquired the stock of Rheingold Breweries, Inc. On January 13, 1969 the trustee of the pension plan tendered payment to claimant of all moneys due him from July 1, 1966 (the date on which he became eligible to receive retirement) through January 1, 1969. This tender included pension payments for the period of the unemployment insurance benefits year. The check was returned by claimant. Claimant first argues that since the purpose of section 600 Lab. of the Labor Law is to protect the same employer who established and contributed to the pension plan from being charged with his employees' unemployment benefits, and since Rheingold Corp. succeeded to all the funds and rights of the pension plan, all his pension benefits will be paid by it and he was never employed by it, section 600 Lab. of the Labor Law does not apply in view of the provision of subdivision 2 of said section. This contention has no merit. Claimant's pension rights became vested in July, 1961 upon his reaching the age of 65. The pension plan was financed by his employer Rheingold Breweries, Inc. (formerly Liebmann) and claimant's unemployment insurance benefits will be charged to Rheingold Breweries, Inc. It is immaterial that Rheingold Corp. subsequently acquired the stock of this employer. Subdivision 2 of the section, therefore, does not apply. Claimant further contends that his refusal to accept the pension payment tendered to him makes a reduction of his unemployment insurance benefits rate premature, and pursuant to subdivision 5 of section 600, benefits should be paid without any reduction, subject to review, etc. This contention is also without merit. Here there was a tender, and it has been established that claimant will receive his pension. Subdivision 5 is, therefore, inapplicable. Decision affirmed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.