RICHARD E. DOMINICUS et al. v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3352-04T23352-04T2

A-3353-04T3

RICHARD E. DOMINICUS and

WILLIAM DOMALEWSKI,

Petitioners-Appellants/

Cross-Respondents,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

Respondent-Respondent,

and

AMERGEN ENERGY COMPANY,

Respondent-Respondent/

Cross-Appellant.

________________________________________________________________

 

Submitted December 6, 2006 - Decided January 2, 2007

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from Board of Review, New

Jersey Department of Labor, Docket

Numbers 04-B-00775-077-XO and 04-B-

00775-033-XO.

Richard E. Dominicus, appellant-cross-

respondent, submitted a pro se brief.

William Domalewski, appellant-cross-

respondent, submitted a pro se brief.

Ballard, Spahr, Andrews & Ingersoll,

attorneys for respondent-cross-appellant

Amergen Energy Company (Steven W. Suflas

and Richard S. Swartz, on the brief).

Stuart Rabner, Attorney General, attorney

for respondent Board of Review (Patrick

DeAlmeida, Assistant Attorney General, of

counsel; Ellen A. Reichart, Deputy

Attorney General, on the brief).

PER CURIAM

Generally, unemployment benefits are designed to "ameliorate the impact of involuntary unemployment. Sweeney v. Bd. of Review, 43 N.J. 535, 539 (1969). Ordinarily, an employee is disqualified for unemployment benefits when the employee has stopped work because of a labor dispute. N.J.S.A. 43:21-5(d); N.J.A.C. 12:17-12.1(a)1. To disqualify such an employee, however, the work stoppage, or strike, must substantially curtail production so that the employer is not able to produce "more than 80 percent of [its] normal . . . goods or services." N.J.A.C. 12:17-12.2(a)2.

In this consolidated appeal, two striking employees, Richard Dominicus and William Domalewski, who were employed by AmerGen, a nuclear generating facility, claim they were entitled to unemployment benefits because the facility continued to produce 100% of its electricity output during the entire labor dispute. Consequently, they appeal from the Board of Review's final decision denying unemployment benefits to all employees who participated in the strike. We agree with the Board and affirm.

In November 1999, AmerGen purchased Oyster Creek Generating Station from GPU Nuclear. At the time of sale, GPU Nuclear had a union contract with Local 1289 of the International Brotherhood of Electrical Workers Union, whose members included 217 of the plants 439 employees. AmerGen assumed this contract, which was due to expire on January 31, 2003.

Two months prior to expiration, AmerGen and the Union began negotiations for a new contract. The parties' efforts proved largely unproductive, though they agreed to abide by the contract until the new one could be negotiated. The Union's primary grievances involved the broadening of individual responsibilities and plant safety. In the Spring of 2003, AmerGen provided a "last best and final offer," which was rejected by the Union. The company nevertheless began implementing parts of the new contract, and the Union responded with a strike.

Approximately half of the AmerGen workforce walked the picket line twenty-four hours a day, seven days a week, until August 7th, when a new contract was ratified. During the strike, AmerGen transferred employees from its other generating facilities and utilized a number of "non-bargaining unit personnel" to perform many of the functions that had been handled by the striking employees. The non-union personnel included approximately 240 managers, supervisors, and technical personnel. AmerGen did not hire any permanent replacement workers.

It is undisputed that the plant electric production remained at 100% during the strike. However, due to the re-routing of personnel, the responsibilities of the management sector were temporarily set aside. The plant manager estimated that approximately fifty to sixty percent of the overall work of the plant was being done during the strike. This calculation was based on the plant's internal financial monitoring of expenses caused by importing employees from other AmerGen plants, and redirecting Oyster Creek's remaining employees.

After the strike concluded, forty-five of the Union employees filed for unemployment benefits. The Board rejected these applications, concluding that focusing exclusively on the electricity output in applying N.J.A.C. 12:17-12.2(a)2 would mean "there could never exist any disqualifying work stoppage during a labor dispute involving a New Jersey public utility." The Board instead cast the issue as one concerning "whether the normal work processes of the employer were substantially curtailed by the work stoppage." This conclusion was based on the scale of the strike and the reduction, postponement, or non-completion of routine work processes at the plant.

On appeal to this court, Dominicus and Domalewski both contend that the Board's findings were not supported by substantial credible evidence in the record.

It has long been recognized that a work stoppage sufficient to disqualify a worker from unemployment benefits "need not be complete and that it will suffice if there has been a substantial curtailment of operations." Ablondi v. Bd. of Review, 8 N.J. Super. 71, 77 (App. Div. 1950). "An employer is considered to have a substantial curtailment of work if not more than 80 percent of the normal production of goods or services is met." N.J.A.C. 12:17-12.2(a)2. We interpret this regulation as including, within "goods or services," not only the goods and services that the plant normally supplies to customers, but also the goods and services that are provided within the plant to facilitate production and planning for future activities. This interpretation includes, for example, managerial and business services, training activities, monitoring or assessment services, and similar functions that are normally performed by the plant for safe, efficient production, and future operations.

Here, the Board recognized that "nearly half of the employer's workforce [, over 200 workers,] withdrew their services during the strike." Consequently, the Board found it "difficult to believe that the employer's normal procedures would not have been substantially affected." Although AmerGen agreed that safety was not sacrificed during the strike, the Board referenced the assessment team's report listing numerous instances where projects or work was delayed or not completed at all, giving "credence to the employer's assertion that routine processes were reduced, postponed or left undone."

These tasks included a number of internal assessment processes "designed to improve operations at the facility, make [it] more cost competitive, [and] improve radiological exposure to individuals," and internal processes that document "conditions adverse to quality" as mandated by regulatory requirements. It is apparent that numerous responsibilities were being set aside at the plant during the strike. Significantly, the plant manager testified that somewhere between fifty and sixty percent of the usual plant work was being done.

This evidence was sufficient to sustain the Board's decision excluding unemployment benefits. Henry v. Rahway State Prison, 81 N.J. 147, 153 (1980). In addition, the decision being far from "arbitrary, capricious, or unreasonable," deserves to be affirmed. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Because we agree with the Board, it is not necessary to consider AmerGen's other arguments justifying denial of unemployment benefits to claimants.

Affirmed.

 

We consolidated forty-five Board of Review cases involving striking employees of AmerGen. Forty-three of these cases were dismissed for failure to file a timely brief, leaving only A-3352-04T3, involving Dominicus, and A-3353-04T3, involving Domalewski. As we have addressed these two appeals in our opinion, all cross-appeals are dismissed as moot. To simplify the matter, we have captioned the appeal in the names of the two claimants who perfected their appeals. The dismissed matters are listed herein:

Robert G. Mclaughlin v. Bd. of Review A-3044-04T3

Gary S. Hutton v. Bd. of Review A-3046-04T3

Joseph E. Wyjas v. Bd. of Review A-3074-04T2

Edward J. Brennan, Jr. v. Bd. of Review A-3075-04T2

Michelle M. Junay v. Bd. of Review A-3091-04T3

Kathleen F. Molyneux v. Bd. of Review A-3094-04T3

Diane A. Moser v. Bd. of Review A-3130-04T3

Karen Summers v. Bd. of Review A-3131-04T2

John C. Biruk v. Bd. of Review A-3156-04T3

Diane M. Marrone v. Bd. of Review A-3175-04T2

Eugene J. Roberts v. Bd. of Review A-3176-04T2

Daniel J. Smith v. Bd. of Review A-3208-04T3

Douglas K. Hartmann v. Bd. of Review A-3213-04T2

Anita Russell Spady v. Bd. of Review A-3222-04T2

Bernard R. Fleming v. Bd. of Review A-3249-04T2

Alfred R. Decker v. Bd. of Review A-3257-04T3

Fiona M. Roberts v. Bd. of Review A-3261-04T3

Robert F. Swift v. Bd. of Review A-3262-04T3

Gary C. Shunk v. Bd. of Review A-3287-04T3

Lawrence S. Pallino v. Bd. of Review A-3295-04T2

Mark E. Hartmann v. Bd. of Review A-3296-04T2

Edward G. Morris v. Bd. of Review A-3302-04T2

Robert C. McNamee v. Bd. of Review A-3323-04T3

Lisa Hawtin v. Bd. of Review A-3401-04T2

Earl Lautenschlager v. Bd. of Review A-3402-04T2

Robert K. Hemmann v. Bd. of Review A-3403-04T3

Mark G. Croushore v. Bd. of Review A-3405-04T3

Marie L. Tarantino v. Bd. of Review A-3545-04T2

Michael Bahrle v. Bd. of Review A-3546-04T2

Russell L. Smith v. Bd. of Review A-3548-04T3

Anna M. Verde v. Bd. of Review A-3566-04T3

Thomas Rizzo v. Bd. of Review A-3578-04T2

Joseph J. Cicalo v. Bd. of Review A-3618-04T3

Linda J. Rikeman v. Bd. of Review A-3627-04T3

Maureen D. Selvage v. Bd. of Review A-3666-04T3

Kim M. Manno v. Bd. of Review A-3669-04T3

Sharon R. Gray v. Bd. of Review A-3798-04T2

Richard M. Brown v. Bd. of Review A-3818-04T2

Kevin T. Commons v. Bd. of Review A-3889-04T3

Linda L. Hahn v. Bd. of Review A-4047-04T3

Jon Osenko v. Bd. of Review A-4426-04T3

Eugene Risinski, Jr. v. Bd. of Review A-4427-04T2

Deborah O. Prusik v. Bd. of Review A-5722-04T3

(continued)

(continued)

8

A-3352-04T2

January 2, 2007