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On behalf of our member companies that provide more than 1 million jobs in the state and make the New Jersey Business & Industry Association the largest statewide business association in the country, we are writing to express our Opposition to S-1046.

The legislation would amend the unemployment compensation law to provide that claimants would not be disqualified from collecting unemployment compensation if a labor dispute is caused by the failure or refusal of the employer to comply with an agreement or contract between the employer and the claimant, including a collective bargaining agreement with a union representing the claimant, or a state or federal law pertaining to hours, wages, or other conditions of work.

Currently, if an employer violates a collective bargaining agreement (CBA) the union can file a grievance and go to arbitration and seek a remedy. If the alleged violation relates to wages, benefits, etc. the arbitrator can award damages and other relief.

If an employer is going outside of a CBA and does damage, the union can go to the National Labor Relations Board (NLRB) and file an unfair labor practice charge and seek remedy before the NLRB.

If an employer is violating state or federal law, employees and unions have legal remedies including going to government agencies and the courts to get relief.

Additionally, the language in section 1 (d) (3) is very broad. Who decides whether or not a labor dispute is caused by the failure or refusal of the employer to comply with an agreement or contract? Those disputes typically go to the NLRB or the Public Employment Relations Commission. If the unemployment division makes these decisions and concludes an employer has failed to comply with an agreement, wouldn’t the employee then be able to use that decision in another proceeding?

The National Labor Relations Act (NLRA) clearly sets out when an employer can use permanent replacements. Under the NLRA employees who strike for a lawful object fall into two classes “economic strikers” and “unfair labor practice strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs.

If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.

Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.

If the NLRB finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the NLRB may award such strikers back pay starting at the time they should have been reinstated.

Furthermore, New Jersey Supreme Court Lourdes Medical Center v. Board of Review Section and New Jersey Department of Labor and Workforce Development regulations (N.J.A.C 12:17-12.2) have addressed labor disputes.

For these reasons we respectively ask you to vote NO on S-1046.

Employment & Labor Law News

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