In re the Claim of Granich — 46 N.Y.2d 871

Majority

p. 871

In the Matter of the Claim of Nicholas Granich et al., Respondents. Marquette Cement Co., Appellant. Philip Ross, as Industrial Commissioner, Respondent.

Argued January 4, 1979;

decided February 8, 1979

p. 872

APPEARANCES OF COUNSEL

George W. Moehlenhof of the Illinois Bar, admitted on motion, pro hac vice, for appellant.

John Filippone, Jr., for claimant-respondent.

Robert Abrams, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz, Murray Sylvester and Frederick M. Paola of counsel), for Philip Ross, as Industrial Commissioner, respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

There is substantial evidence in the record to sustain the determination of the Unemployment Insurance Appeal Board, and its determination is not erroneous as a matter of law. The proof submitted supports the conclusion that the weeks during the company layoff in the last months of 1975 unilaterally and arbitrarily allotted by the employer as vacation were not "time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union, or his representative” within the contemplation of the first sentence of paragraph (b) of subdivision 3 of section 591 of the Labor Law. Indeed, section 7 of article 11 of the basic collective bargaining agreement expressly provides: "In exercising its right to allot vacation periods, the Company will not require any employee who is on layoff to take his vacation during periods of plant shutdown or curtailment of operations.”

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.