JOHN C. BUSTARD, ET AL v. BOARD OF REVIEW and JERSEY CENTRAL POWER & LIGHT COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3831-08T3A-3831-08T3

JOHN C. BUSTARD, ET AL.,

Appellants,

v.

BOARD OF REVIEW and

JERSEY CENTRAL POWER &

LIGHT COMPANY,

Respondents.

_____________________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Kestin and Sabatino.

On appeal from the Board of Review,

Department of Labor and Workforce

Development, Docket No. 59,754.

Cohen, Leder, Montalbano & Grossman, LLC, attorneys for appellants (David Grossman, on the brief).

Genova, Burns & Vernoia, attorneys for respondent Jersey Central Power & Light Company (Francis J. Vernoia, of counsel; Mr. Vernoia and Celia S. Bosco, on the brief).

Paula T. Dow, Attorney General, attorney for the Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Claimants, 891 employees of Jersey Central Power and Light Company (employer), contend they are entitled to unemployment compensation benefits for the period from December 8, 2004 through March 15, 2005, during the course of an employment dispute between their union and the employer. In Bustard v. Board of Review, 401 N.J. Super. 383 (App. Div. 2008) (Bustard I), we affirmed that portion of the Board of Review's June 14, 2006 decision embodying a finding that a "work stoppage" had occurred. We remanded, however, for further consideration of claimants' entitlements to the benefits they seek under the terms of a recently adopted amendment to N.J.S.A. 43:21-5(d)(2); that is, for a determination of who was responsible for the "work stoppage."

The Board has discharged its duty under the remand. In a decision dated March 4, 2009, the Board found that the "work stoppage" was attributable to claimants and their union, not to the employer. Accordingly, the Board held claimants to be disqualified under the terms of the statute. Claimants now appeal from those findings and that decision.

Our review of the record discloses that the findings concerning the locus of responsibility for such "work stoppage" as may have occurred are supported by substantial evidence in the record and, therefore, with due regard for the "agency's expertise and superior knowledge of [its] field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), they command our deference. See Brady v. Board of Review, 152 N.J. 197, 210-11 (1997) (quoting Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App. Div. 1985): "In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs."); Carpet Remnant Warehouse v. Department of Labor, 125 N.J. 567, 587 (1991); Zielenski v. Board of Review, 85 N.J. Super. 46, 54 (App. Div. 1964); Goebelbecker v. Board of Review, 53 N.J. Super. 53 (App. Div. 1958). See generally, In re Taylor, 158 N.J. 644, 655-61 (1999); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-89 (1988).

Nevertheless, an intervening development requires another remand for the Board's reconsideration of whether a "work stoppage" had occurred as a matter of law. On January 27, 2009, some five weeks before the Board's decision on the remand in this matter and more than six months after our decision in Bustard I, the Supreme Court decided Lourdes Medical Center v. Board of Review, 197 N.J. 339 (2009), in which it considered in detail -- and redefined -- the legal standard for applying the "work stoppage" requirement of N.J.S.A. 43:21-5(d)(2).

Claimants urge, in this appeal, that the issue of whether a "work stoppage" had occurred should be revisited because that determination is an essential ingredient of the question now before us. The employer argues that our affirmance in Bustard I of the Board's earlier determination that a "work stoppage" had occurred is "the law of the case," not subject to further review at this time. Were it not for the intervening change or clarification of law in Lourdes, we would adopt the view urged by the employer. Where, however, while a matter remains pending at any level, an authoritative declaration of law occurs that may affect the issues in the pending matter, all the tribunals involved are obliged to give full force and effect to that controlling determination. See Acuna v. Turkish, 384 N.J. Super. 395, 407 (App. Div. 2006), rev'd on other grounds, 192 N.J. 399 (2007); Sisler v. Gannett Co., Inc., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). While a matter pends, no issue previously determined therein is immune from reconsideration and modification for good and ample reason. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988); Ford v. Weisman, 188 N.J. Super. 614, 618-619 (App. Div. 1983). Accordingly, we are obliged to order another remand in this matter so that the Board may, on the existing record or any supplementation thereof that the Board may deem necessary or appropriate, make the requisite findings in order to determine whether, by the standards articulated by the Supreme Court in Lourdes, a "work stoppage" occurred in this matter during the pertinent period, December 8, 2004 through March 15, 2005.

Obviously, the question whether a "work stoppage" occurred is critical to the benefits entitlements claimants urge. In order for that ultimate question to be answered in accordance with current legal standards, the types of findings referred to in Lourdes must first be made, followed by a determination whether, at the bottom line, the legal standard for "work stoppage," as currently understood, has been met. It is the Board's responsibility and role, in the first instance, to make the necessary findings and to state the conclusions that flow therefrom. If there was no "work stoppage," as that term is currently defined in Lourdes, then there would be no basis for denying the benefits claimants seek. On the other hand, if it is found that a "work stoppage" did occur, then the Board's most recent determination regarding the locus of responsibility for the "work stoppage" will govern the outcome.

 
Affirmed in part; remanded in part. We do not retain jurisdiction.

(continued)

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A-3831-08T3

 

June 17, 2010