In re the Claim of Wittlaufer

The employer has appealed from a decision of the Unemployment Insurance Appeal Board which affirmed a decision of an unemployment insurance referee, which latter decision reversed a determination of the Industrial Commissioner denying claimant benefits. The Industrial Commissioner determined that claimant lost his employment as a result of an industrial controversy. Claimant, an electrician, filed for benefits on May 10, 1948. He was employed on a job at the Western Electric Company in Buffalo, N. Y., until April 30, 1948. He was a member of the International Brotherhood of Electrical Workers Local No. 41, an A. F. of L. affiliate, and had belonged to that union since 1924. On May 1, 1948, a strike occurred by A. F. of L. unions in the building trades, not including Local No. 41, and picket lines were maintained around the Western Electric Company plant by members of certain trade unions. Local No. 41 had no controversy with the employer and none with the Western Electric Company. Claimant refused to cross the picket line at the Western Electric Company plant. He did, however, report for work on that day. The employer had other work and claimant made known his availability to do other work but the employer was unable to give him such employment. It appeared that no electricians were on strike and the referee and the board found that claimant did not lose his employment as the result of a strike at the establishment where he was employed. Decision affirmed, with costs to the claimant against the employer-appellant. Foster, P. J., Heffernan, Bergan and Coon, JJ., concur; Brewster, J., dissents, in the following memorandum: This case differs from Matter of Bucklaew (Robertson Elec. Co.) (ante, p. 805) which is being decided herewith in that the only evidence as to the reason why this claimant did not cross the picket line and *806continue his employment was that he elected to respect it as a matter of principle and that his decision in that regard was “ strictly his individual prerogative.” There was also evidence that had he not made such decision he would not have suffered unemployment because his employer had work available for him at the workplace to which he was assigned. Thus, in effect he initiated a labor controversy with his employer as a result of which he lost employment. This, in my opinion, was initially determined correctly by the Industrial Commissioner.