p. 13In the Matter of the Claims of Edward J. Wentworth, Jr., et al., Respondents. Martin P. Catherwood, as Industrial Commissioner, Appellant.
p. 14Louis J. Lefkowitz, Attorney-General (Samuel Stern and Paxton Blair of counsel), for appellant.
I. Since the striking drivers of the concrete trucks, though not employed by claimants’ employer, belonged to the same union as the truck drivers who were so employed, the employer was without means of getting concrete to the sites. Hence, the carpenters employed by the employer, not having concrete with which the forms built by them could be filled, were laid off by the employer because of a strike in the ‘1 establishment in which [they were] employed ’ ’. II. That weather conditions may have been responsible for layoffs on certain days does not render inapplicable the suspension provisions of subdivision 1 of section 592 of the Labor Law.Robert A. Longman, Charles H. Tuttle and Daniel F. O’Connell for Edward J. Wentworth, Jr., and others, respondents.
I. The unanimous determinations of the Appellate Division and the Appeal Board are supported by substantial evidence and accord with the settled law of this State. The claimants had no £ £ industrial controversy ’ ’ whatever with their employer or with anyone else. They were laid off because their employer felt that a strike by truck drivers who were employees of another firm and in another establishment, but who delivered the concrete, would make impractical continued work by the claimants. Claimants were the innocent victims of a strike in another establishment. (Ford Motor Co. v. Park, 355 Mich. 103 , 360 U. S. 251 ; Matter of Machcinski [Ford Motor Co.— Corsi], 277 App. Div. 634 ; Matter of Bucklaew [Robertson Elec. Co.— Corsi], 277 App. Div. 805 ; Matter of Wittlaufer [Ferguson Elec. Constr. Co.—Corsi], 277 App. Div. 805 ; Matter of Freeman,
p. 159 A D 2d 1008 .) II. The “ functional integrality ” test proposed by appellant has previously been reviewed and rejected in this State. Moreover, the concept is totally irrelevant where separate employers are involved. (Spielmann v. Industrial Comm., 236 Wis. 240 ; Chrysler Corp. v. Smith, 297 Mich. 438 ; Nordling v. Ford Motor Co., 231 Minn. 68 ; Tucker v. American Smelting & Refining Co., 189 Md. 250 .) III. This is a remedial statute which should be accorded a liberal and humanitarian interpretation.Howard A. Levine for Nicola Pisotti and others, respondents.
I. The voluntary work stoppage which caused the loss of employment was not in claimants’ establishment. (Matter of Lasher [Bethlehem Steel Co.— Corsi], 279 App. Div. 505 ; Matter of Bucklaew [Robertson Elec. Co.— Corsi], 277 App. Div. 805 ; Matter of Wittlaufer [Ferguson Elec. Constr. Co.— Corsi], 277 App. Div. 805 ; Matter of Sprague [Lubin], 4 A D 2d 911 ; Matter of Freeman, 9 A D 2d 1008 ; Randall v. Bailey, 288 N. Y. 280 ; Blek v. Blek, 306 N. Y. 27 .) II. Weather conditions were a contributing cause of claimants’ loss of employment and further indicated the remoteness of the strike in the establishment as such a cause.In this case, as in Matter of Curatalo (Catherwood) (supra, p. 10), the Industrial Commissioner also appeals by our permission.
The claimants were employed as carpenters and timbermen by Tully & DiNapoli, Inc., a construction firm working on road construction projects in the New York City area. Their duties consisted of constructing wooden forms and performing other work in preparation for the pouring of concrete. On Monday, February 3, 1958, Local 282 of the Teamsters’ Union called an industry-wide strike. Among those who struck were the truck drivers of the Colonial Sand & Gravel Company, the outfit from which the employer obtained its concrete. As a result, since there were no deliveries of concrete to fill the wooden forms, the claimants were laid off on various dates over a period from Friday, January 31, the last working day preceding the strike, to February 7, some days after the strike began. The employer’s own dump truck drivers, who carted materials from one part of the project to another, also participated in the strike.
p. 16The claimants’ application for full unemployment insurance benefits was rejected by the Industrial Commissioner and by the Referee. However, both the Appeal Board and a unanimous Appellate Division took a different view; it was their opinion that the employer’s decision to curtail operations and the claimants’ loss of employment occurred because of a combination of unfavorable weather and the strike of the Colonial Sand & Gravel truck drivers. It is clear that the claimants’ loss of employment was not attributable to the participation of the employer’s dump truck drivers in the Teamster strike. Rather, the effective action, insofar as the claimants were concerned, was taken by Colonial’s truck driver. For the reasons set out in
Matter of Ferrara (Catherwood) (supra, p. 1), we conclude in this case, too, that the industrial controversy which gave rise to the layoff did not occur in the establishment in which the claimants were employed.
The order of the Appellate Division should be affirmed, without costs.
Chief Judge Desmond and Judges Dye, Froessel, Burke and Foster concur with Judge Fuld; Judge Van Voorhis dissents and votes to reverse and to reinstate the determination of the Industrial Commissioner upon the ground that a restricted interpretation of the word “ establishment ” as used in subdivision 1 of section 592 of the Labor Law was not intended by the Legislature and would operate to defeat the purpose of the statute.
Order affirmed.