A-750 300 Series
A-750-300
Index
1640C-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
APRIL
18, 1942
INTERPRETATION
SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Advancement, lack of opportunity for
Appeal Board Case Number 6539-41
VOLUNTARY LEAVING- LACK OF ADVANCEMENT (SECTION 506.2 OF LABOR
LAW)
No prospects for
advancement and preference for other work did not constitute good cause for
voluntarily leaving employment.
Referee's Decision: Initial determination disqualifying claimant
for voluntarily leaving employment without good cause is sustained. (10/28/41)
Appealed By: Claimant.
Findings of Fact: Claimant, twenty-five years of age,
attended a city college for four and one-half years at which he was enrolled
for a night course in accounting. For three and one-half years he was employed
as a shipping clerk during the daytime, receiving $18.00 a week for a
forty-hour week. He voluntarily left this employment contending that the wages
were inadequate; that there were no prospects for advancement; and that he was
desirous of obtaining work in the accounting field. Claimant was of the opinion
that his services as a shipping clerk were worth $25.00 per week. He did not
request an increase in salary or have any other prospects of employment at the
time of his separation from employment.
Appeal Board Opinion: The primary reasons advanced by claimant for
his separation from employment were that he was desirous of obtaining work in
the accounting field and that there were no prospects of advancement at the
employer's establishment. His immediate cause for leaving was that the wages
were not commensurate with the work performed. It does not appear that the
wages paid to claimant were substantially less favorable than those prevailing
for similar work in the locality. However commendable claimant's efforts to
better himself might be, none of the reasons advanced by claimant for leaving
his job constitute good cause.
Decision: The initial determination disqualifying
claimant for voluntarily leaving his employment without good cause is
sustained. Decision of the referee is affirmed. (1/19/42)
Index
1460D-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
APRIL
30, 1942
INTERPRETATION
SERVICE - BENEFIT CLAIMS
TOTAL OF PARTIAL UNEMPLOYMENT
Compensation without work
Matter of Skutnick, 268 App. Div. 357
Appeal Board Case Numbers 6435-41; 6437-41; 6438-41
TOTAL OR PARTIAL UNEMPLOYMENT - BACK PAY AWARD PERIOD (SECTION
502.10 OF LABOR LAW)
Total unemployment did
not exist during the period for which "back pay" awards were made by
the National Labor Relations Board.
Referee's Decision: Initial determinations holding that claimants
were not totally unemployed during the period for which awards for back pay
were made are sustained. (10/7/41)
Appealed By: Claimants.
Findings of Fact: On March 17, 1941 the union, of which
claimants were members called a strike in the employer's establishment. The
strike was terminated and settled two days later and all of the employees were
rehired with the exception of the claimants and a few others. The union filed
charges with the National Labor Relations Board alleging unfair labor practices
in unlawfully discharging these employees and demanding their reinstatement
with back pay for the period of their unemployment. Pending negotiations which
followed and late in March 1941 claimants filed applications for benefits
certifying to total unemployment weekly thereafter and receiving benefits in
varying amounts. On July 8, 1941 an agreement was made between the employer and
claimants' union under the terms of which claimants were reinstated on July 15,
1941 and were given checks in amounts approximating 80 per cent of the wages
lost by them during the periods of their unemployment. In making such payments
the employer deducted social Security contributions and also paid unemployment
contributions thereon into the Unemployment Insurance Fund. The local office
made a determination that claimants were not totally unemployed during the
period in question and were not entitled to the benefits received.
Appeal Board Opinion: Claimants contend that the monies paid by the
employer were in the nature of a gift and not in the nature of back wages and
that the company, in arriving at the settlement figures, took into account the
monies collected by claimants in unemployment insurance benefits. We believe
that the referee correctly concluded that the cash awards received by claimants
represented wages in excess of $3 per week during the periods of their
certified unemployment and that they cannot be deemed to have been totally
unemployed for such periods. In similar cases where awards have been made to
unlawfully discharged employees in amounts intended to recompense them for
wages they would have otherwise earned, it has been held that such payments
constitute wages. (Matter of Tonra, 283 NY 186; Matter of McCoy,
262 App. Div. 790) Since unemployment insurance contributions are payable on
the cash awards and may provide a basis for the payment of benefits to the
claimants in the following year, such amounts cannot be regarded other than
"wages" for the purpose of this appeal. The fact that the
unemployment insurance benefits received by the claimants may have influenced
the amounts of the cash awards or the claimants' willingness to accept them
does not alter our conclusion.
Decision: Claimants were not totally unemployed during
the periods in question. The initial determinations of the local office are
sustained. Separate orders are to be entered in each case. The decision of the
referee is affirmed.
Index
No. 750A.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
April
30, 1942
INTERPRETATION
SERVICE- BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of
Appeal Board Case. No. 6427-41
CAPABILITY -RECEIPT OF
WORKMEN' S COMPENSATION
Receipt of workmen's compensation did not
constitute proof of incapability for employment where there was satisfactory
evidence to the contrary.
Referee's Decision: Initial determination suspending claimant's
benefit for incapability as of April 1, 1941 is modified. Claimant was capable
of employment on June 18, 1941. (10/8/41)
Appeal by: Claimant
Findings of Fact: Claimant, fifty-six years of age, was employed
for fifteen years as a longshoreman. Claimant suffered an injury to his leg on
October 18, 1940 and collected workmen's compensation benefits at the rate of
$25.00 per week from October 18, 1940 to January 30, 1941, $15.00 per week from
January 30, 1941 to March 25, 1941 and $10.00 per week from March 26, 1941 to
June 18,1941. Claimant filed an application for unemployment insurance benefits
on April 1, 1941 but failed to report as instructed on April 18, 1941. He
refilled on April 25, 1941 and certified to weeks of total unemployment until
July 11, 1941. On August 13, 1941 the local office issued an initial
determination suspending claimant's benefit rights as of April 1, 1941 on the
ground that he was physically incapable of employment and charged the claimant
with an overpayment of $80.00 in benefit checks for the compensable period from
the week ending May 9, 1941 to the week ending July 11, 1941. Claimant
requested a hearing and the referee ruled that he was capable of employment as
of June 18, 1941. The report of claimant's physical condition by a physician on
the medical staff of the Bureau of Workman's Compensation dated March 25, 1941
disclosed that claimant was able to resume work in March 25, 1941. The report
of the claims department of claimant's employer stated that claimant had an
earning capacity after January 30, 1941.
Appeal Board Opinion: The medical evidence submitted to this Board
establishes that claimant was able to resume work on March 25, 1941. On the
basis of this evidence, we hold that claimant was capable of employment
throughout his reporting period at the local office. The suspension by the
local office of claimant's benefit rights because he was incapable of
employment was improper.
Decision: Initial determination of the local office
suspending claimant's benefit rights because he was incapable of employment is
overruled. Decision of the referee is modified accordingly. (2/9/42)
Index
735B.1
NEW
YORK STATE DEPRTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
4, 1942
INTERPRETATION
SERVICE - BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Appeal Board Case No. 5923-41
AVAILABILITY -MOVING TO
VICINITY WHERE NO PLACEMENT OPPORTUNITY IN USUAL OCCUPATION EXISTS.
Voluntary leaving of employment to live at
summer resort where placement opportunities were non-existent constituted
unavailability because of temporary withdrawal from the labor market.
Referee's Decision: Initial Determination suspending claimant's
benefit rights for unavailability is sustained. (7/14/41)
Appeal by: Claimant
Findings of Fact: Claimant, an operator at dresses, filed for
benefits on May 6, 1941. The local office on May 15,1941, imposed a suspension
effective the original date of claimant's filing by reason of unavailability.
Claimant's husband owns a summer resort hotel at South Fallsburg, New York.
Prior to claimant's moving to South Fallsburg, she maintained a residence in
New York City. Claimant 's husband gave up his apartment and moved his family
to South Fallsburg. Claimant gave up her job and went to live with her family.
Claimant's husband claims claimant was to assist him in the hotel. Claimant
denies this.
Appeal Board
Opinion: The Referee having made
proper findings of fact and conclusions of law, the Board adopts said findings
of fact and conclusions of law as the findings of fact and conclusions of law
of the Board. There is no placement opportunity for claimant's usual occupation
in the vicinity where claimant moved. From the credible evidence in this case,
it was found that claimant quit her job in April 1941, prior to her moving to
South Fallsburg, and that she thereby removed herself from the labor market for
the period of her sojourn at South Fallsburg.
Decision: Local Office suspension of claimant's account by
reason of unavailability is upheld. Claimant had voluntarily removed herself
from the labor market by quitting her job in April 1941 and moving to South
Fallsburg. Decision of the Referee is affirmed. (10/10/41)
Index
1280-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MAY
4, 1942
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Distance
Appeal Board Case Number 6599-41
REFUSAL TO ACCEPT AN OFFER OF EMPLOYMENT - DOUBLE CARFARE
(SECTION 506.1 OF LABOR LAW)
The necessity for paying
double carfare was not good cause for the refusal of suitable employment.
Referee's Decision: Initial determination disqualifying claimant
for refusing to accept an offer of suitable employment is sustained. (10/23/41)
Appealed By: Claimant.
Findings of Fact: Claimant, a beautician, filed an
application for benefits on June 3, 1941. She last earned $18.00 a week plus
commission. On August 26, 1941 she was referred to two job openings in beauty
salons located in the general vicinity of her residence. Claimant refused to
accept such referrals or to visit the prospective places of employment on the
ground that the traveling distance from her home was too great and because
transportation would necessitate double carfare. She made no effort to inquire
into the conditions of employment or wage opportunities in such establishments.
Both establishments were above the average and the offered salaries
commensurate with claimant's former wages. To reach one of the establishments
from her home would require about twenty-five minutes of traveling time,
carfare seven cents. The traveling time to the other would be a maximum of
forty minutes with a ten cent carfare.
Appeal Board Opinion: The wages, hours and working conditions
offered at the two job openings in question are substantially the same as those
prevailing for similar work in the locality where claimant resides. The places
of employment were not at an unreasonable distance from claimant's home. The
conditions sought to be imposed by claimant in connection with prospective
employment are unreasonable. Under the circumstances of this case, claimant did
not have good cause for her refusal to accept the offers of employment.
Decision: Claimant refused without good cause to accept
an offer of employment for which she is reasonable fitted by training and
experience. The local office determination is sustained. Decision of the
referee is affirmed. (1/30/42)
Index
No. 1650B-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
20, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Grievances – Discrimination
Appeal Board Case No. 6849-42
VOLUNTARY LEAVING – DISCRIMINATORY ENFORCEMENT OF COMPANY RULE
(SECTION 506.2 OF LABOR LAW)
Discriminatory
enforcement of company rule constituted good cause for voluntary leaving of
employment.
Referee’s Decision: Initial determination disqualifying claimant
for voluntarily leaving employment without good cause is sustained. (1/14/42)
Appealed By: Claimant
Findings of Fact: Claimant was one of twenty-two employees
employed in the engineering department of a hotel. During October 1941, the
chief engineer posted a notice to the effect that the employees would be docked
fifteen minutes’ pay for every lateness of one minute to fifteen minutes, and
one-half hour pay for every lateness from 16 minutes to thirty minutes.
Claimant was late from one to four minutes on a few occasions, and his pay was
reduced accordingly. Other employees in the same department, although late,
were not penalized by the chief engineer. On December 3, 1941, the chief
engineer ordered claimant, who was the payroll clerk, to refund a penalty
previously imposed on a fellow employee. When claimant protested the refund,
demanding similar treatment for himself, he was severely reprimanded by the
department chief and claimant’s demand for refund was refused. Claimant
thereupon resigned.
Appeal Board Opinion: Had the rule relating to tardiness been
impartially enforced within claimant’s department, he would have had no
grievance. However, the manner of enforcement of the penalties amounted to
discrimination against claimant and created reasonable grounds for dissatisfaction
on his part.
Decision: Under these circumstances, claimant
voluntarily left his employment with good cause. The initial determination is
overruled. The decision of the referee is reversed. (4/6/42)
Index
1735A-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JUNE
20, 1942
INTERPRETATION
SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Wages, Increase refused
Appeal Board Case Number 6592-41
VOLUNTARY LEAVING- REFUSAL OF WAGE INCREASE COMMENSURATE WITH
ADDITIONAL DUTIES (SECTION 506.2 OF LABOR LAW)
Employer's failure to
fulfill repeated promises of salary increase, commensurate with additional
duties, constituted good cause for voluntary leaving of employment.
Referee's Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (10/8/41)
Appealed By: Claimant.
Findings of Fact: Claimant was employed as a clerical worker
for ten years starting at an initial salary of $14.00 a week which was raised
after ten years of service to $15.00 a week. Prior to June 3, 1941, claimant
was requested to take over the duties of another employee who was paid at the rate
of $19.00 per week. On June 3, 1941, claimant requested an increase of $4.00 to
equal the amount paid to the former employee performing the same duties.
Claimant was promised a $4.00 increase for the week ending June 7, 1941. On
June 6, 1941, claimant was informed that she would receive her increase on June
14, 1941. Claimant again failed to receive her increase as promised. Then she
vigorously protested the repeated broken promises of an increase, claimant was
advised that she might leave. Thereupon claimant left and filed an application
for benefits on June 17, 1941.
Appeal Board Opinion: Claimant's testimony which was clear and
convincing, established that the employer failed to keep repeated promises of
the increase, commensurate with her added duties. Under the circumstances of
this case, we believe that claimant was justified in leaving her employment.
Decision: Claimant's leaving of her employment was with
god cause. The initial determination of the local office is overruled. The
decision of the referee is reversed. (2/16/42)
Index
No. 750A.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
August
17, 1942
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of
Appeal Board Case No. 6748-42
CAPABILITY- WORKMEN’S
COMPENSATION AWARD FOR TOTAL DISABILITY
Workmen’s Compensation award for permanent total
disability, while creating a strong presumption of physical inability to work,
was not conclusive on question of capability within the meaning of the
Unemployment Insurance Law.
Referee’s Decision: Initial determination suspending claimant’s
benefit rights as of the date of her registration for benefits because of
unavailability for and incapability of unemployment is sustained. (12/6/41)
Appealed by: Claimant
Findings of Fact: Claimant was employed from November 1933 to
September 21, 1940 as a saleslady in a department store. During such employment
and in February 1937 claimant suffered a serious eye injury. She filed a claim
for Workmen’s Compensation in 1937 and on May 24, 1939 the Industrial Board
affirmed the award of the referee for 7½ per cent loss of vision of claimant’s
both eyes. The aware amounted to $12.03 per week plus $500 for a serious facial
disfigurement. A report of the medical examiner of the Workmen’s Compensation
Bureau dated January 23,1940 states that by reason of claimant’s diminution of
vision, claimant is permanently, totally disabled. Claimant, however, was
advised that she may continue to work. Claimant left her employment prior to
September 23, 1940, and on that date another hearing was held before the
Workmen’s Compensation Board, pursuant to claimant’s request for a rehearing of
her claim. An award was thereafter rendered canceling all previous awards and
adjudging claimant to be permanently and totally disabled and awarding her
benefits at the rate of $15 per week. Claimant filed an application for unemployment
insurance benefits on September 30,1940. She reported regularly thereafter and
certified weekly to her total unemployment until she exhausted her benefit
rights on January 23,1941. Claimant received thirteen benefit checks in the
amount of $169 during the benefit year. On April 1,1941 claimant filed an
application for benefit for the new benefit year. Her former employer reported
that claimant had been adjudged totally disabled by the Workmen’s Compensation
Bureau. On the basis of the information received from the Bureau of Workmen’s
Compensation, the local office issued an initial determination to the effect
that claimant was unavailable for an incapable of employment from the date of
her original filing on September 30,1940, demanded repayment of the $169 in
benefits previously collected by claimant and suspended payment of her benefits
on the April 1, 1941 filing. Claimant is a widow, sixty-two years of age and
has had four years of high school and some schooling in stenography at business
college. For a number of years her work has been as a saleslady. Claimant
contends that she was at all time ready, willing and able to work. She admits
that she could no longer work full time at her former job because it became too
strenuous and caused dizziness and headaches. She stated that she could work as
a saleslady for only several hours a day. Her physician testified that claimant
was capable of performing light work, provided the work did not entail the use
of her eyes to any great extent. He stated that she could work only brief
periods of time at position which required continuous use of normal vision for
detail work.
Appeal Board Opinion: The basis of the initial determination of
incapability in this case was the Workmen’s Compensation Bureau award to claimant
for permanent total disability. We cannot accept the contention that such an
award for permanent total disability operates to automatically bar a claimant
from benefits. While we agree that an award of that nature raises a strong
presumption of physical inability to work, we do not believe, that it can be
considered conclusive on the question of capability for work within the meaning
of the Unemployment Insurance Law. The determination of capability is a
question to be decided on the evidence and the fact as present in each
particular case. We take notice of the fact that in workmen's compensation
cases any permanent disability in excess of 80 per cent is adjudged to be a
permanent total disability for the purposes of a compensation award. It cannot
be denied that in many such cases there may remain to the workman powers of
labor which are of some value in the labor market. It is significant to note
that with respect to the instant claimant she continued to work at her usual
occupation for more than six months after the medical examiner had reported to
the Workmen's Compensation Bureau that, in his opinion, claimant. was
permanently totally disabled. Whether the claimant possessed powers of labor to
such a degree as to constitute capability for work within the meaning of the
Unemployment Insurance Law must be measured in the light of the tests
previously laid down by us. With respect to the period for which claimant has
collected benefits, there is sufficient testimony in the record to resolve the
doubts in the claimant's favor. Although the evidence tends to show that
claimant loss of vision was a progressive condition, it does not appear that
her physical condition had changed appreciably during the period from September
30, 1940 to January 23, 1941. The credible evidence establishes that during
that period she continued to have powers of labor which were of some value in
the labor market. We believe that she was still capable of performing some
light work during that period and that there was a reasonable possibility that
such work was obtainable. We accordingly hold that during the period for which
claimant has collected benefits, she was capable of work and she is entitled to
the benefits she received. However, with respect to the period following claimant's
filing of April 1, 1941, we hold that claimant was not available for or capable
of work. After a consideration of all the evidence we are of the opinion that
claimant failed to establish that she was capable of work at that time. Taking
into consideration the progressive nature of her eye condition, the passage of
time and all the attendant circumstances, we reach the conclusion that
claimant's physical condition at that time was such that she was not available
for and capable of work within the meaning of the Unemployment Insurance Law.
Decision: Claimant was available for and capable of
work during the period September 21, 1940 to January 23, 1941. Claimant was
unavailable for and incapable of employment during the period commencing April
1, 1941 and her benefit rights were, properly suspended for that period. The
initial determination of the local office is modified. The decision of the
referee is modified accordingly. (5/11/42)
Index
No. 775.3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
August
17, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Total of partial Unemployment
Self Employment
Appeal Board Case No. 6855-42
TOTAL OF PARTIAL
UNEMPLOYMENT – SELF EMPLOYMENT DURING SLACK SEASON (SECTION 522 OF LABOR LAW)
Claimant was not
regarded as totally unemployed during slack season where his past employment
history indicated that during such slack season he devoted substantially all of
his time to the conduct of an enterprise in which he had a large investment.
Referee’s Decision: Initial determination holding that claimant
was not totally unemployed during his reporting period at the local office is
sustained. (12/30/41)
Appeal By: Claimant
Findings of Fact: Claimant, a presser in the garment industry,
filed an application for benefits on April 30, 1940. He certified
intermittently to weeks of total unemployment up to and including the week of
December 16, 1940. He accumulated three weeks of waiting period and five
compensable weeks. Claimant collected $75 in benefit checks during his
reporting period. On November 24, 1941 the local office learned that claimant
in the past fourteen years had a half interest in a grocery store which was
operated by a partnership consisting of claimant and his brother. Thereupon and
on said date the local office issued an initial determination suspending
claimant’s benefit rights on the grounds that claimant was not totally
unemployed during his reporting periods at the local office and made demand for
repayment of $75 in benefit checks. Claimant requested a hearing on this issue.
It appeared that claimant is employed as a presser in the garment industry during
approximately eight months of the year. His hours of work in this employment
average forty-two hours a week. He does not work on Saturday. The slack season
in this industry extends over a period of four months in the year. While
employed at his regular occupation, claimant works in the grocery store an hour
or two every day and all day on Saturday. During slack seasons in the garment
industry, claimant customarily worked about six and a half-hours per day in the
grocery store. Claimant’s earnings as a presser were deposited to the account
of the grocery business. Each partner drew a certain salary a week and divided
the profits equally at the end of the fiscal year. Claimant’s share of the
profits in the grocery store for 1940 amounted to $1,789.87. Claimant invested
about $4,000 in this enterprise. His brother devoted all of his time to the
grocery store and claimant’s wife also works in the store but during the period
that claimant collected benefits she did not work there.
Appeal Board Opinion: The evidence establishes that during slack
seasons in the garment industry, claimant customarily devoted substantially all
of his time to the conduct of an enterprise in which he had a large investment.
It appears that during the period for which he collected benefits, claimant had
relieved his wife of the duties in the store, which she had performed on his
behalf. He thereby rendered himself unavailable for other employment at least
until such time as he was to resume his employment in the garment industry. Claimant
states that he was willing to accept an offer of employment during the slack
seasons in the garment industry. This contention must be viewed in the light of
the evidence. For the past fourteen years, claimant, during the slack seasons,
has devoted substantially all of his time to the grocery store. The presence of
either the claimant or his wife was necessary to the conduct of the enterprise.
Since claimant chose to take the place of his wife during the slack seasons in
his trade, he cannot be considered as available for employment during such
periods within the meaning of the Unemployment Insurance Law. We hold,
therefore, that claimant was not available for employment or totally unemployed
during his reporting period at the local office.
Decision: The initial determination of the local office,
charging claimant with an overpayment of benefit checks is sustained, on the
ground that claimant was not available for employment or totally unemployed
during his reporting period at the local office. The decision of the referee is
affirmed. (5/11/42)
Index
1650B-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
17, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wage increase refused
Appeal Board Case No. 6442-41
VOLUNTARY LEAVING – REFUSAL OF PROMISED WAGE INCREASE (SECTION
506.2 OF LABOR LAW)
Employer’s failure to
fulfill promise to increase salary constituted good cause for voluntary leaving
of employment where co-workers in the same establishment received considerable
more for the same work.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause was sustained. (10/9/41)
Appeal By: Claimant
Findings of Fact: Claimant, an experienced Marrow machine
operator, was employed by the employer from April 1, 1940 to June 3, 1941. When
claimant commenced working for this employer, she received $14.00 a week. Prior
thereto her earnings had been $18 to $20 per week with other concerns. Claimant
asked for an increase of $2.00 per week, after a period of fourteen months. The
employer promised her an increase of $1.00 but failed to do so, whereupon claimant
left her employment. Other Marrow machine operators in employer's establishment
earned as high as $40 per week.
Appeal Board Opinion: Claimant was an experienced Marrow machine
operator. Prior to her employment with this employer she had received at least
$18 per week with other concerns. Claimant worked continuously with the
employer for fourteen months without receiving an increase despite the fact
that other operators in the establishment received considerably more. The
employer failed to keep his promise of an increase for claimant. Under all the
circumstances, claimant had good cause to voluntarily leave her employment.
Decision: Claimant voluntarily left her employment with
good cause. The decision of the referee is reversed. (2/11/42)
Index
No. 1040-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
25, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
HEARINGS AND APPEALS Rules for appeal
Appeal Board Case No. 6868-42
HEARINGS AND APPEALS – JURISDICTION OF REFEREE TO MODIFY INITIAL
DETERMINATION (SECTION 530 OF LABOR LAW)
Referee had jurisdiction
to change the reason for withholding benefits stated in the initial
determination where the issues were related and when the same state of facts
could lead to more than one reason for denying benefits.
Referee’s Decision: Claimant temporarily removed herself from the
labor market and was unavailable for employment as of the date of the filing of
her application. (12/19/41)
Appeal By: Claimant
Findings of Fact: Claimant in contemplation of marriage,
requested and received a two months’ leave of absence from her employer
commencing June 15, 1941. Claimant filed an application for benefits on July
16, 1941 and reported intermittently thereafter. She was married on June 24,
1941. During September 1941, claimant visited her employer and although her
fellow employees were working at the time, she did not ask for employment. No
offer of employment was made to her by the employer. On these facts, the local
office issued an initial determination disqualifying claimant for refusal of
employment, effective September 9, 1941, the approximate date of claimant’s
visit to her employer. The referee modified this initial determination and held
that claimant temporarily removed herself from the labor market as of June 15,
1941, and that claimant returned to the labor market on September 5, 1941.
Appeal Board Opinion: It is the contention of the claimant that the
referee had no jurisdiction to determine that she was unavailable for
employment as of the date of the filing of her application. Claimant argues
that since the local office made no initial determination as to her
availability at the time of the filing of her application, the referee was
without power to act. We do not agree with the contentions of the claimant.
Undoubtedly, the local office has sole jurisdiction to make an initial
determination on any issue arising between it and the claimant. However, where
the issues are related and when the same state of facts may lead to one
conclusion or another and the local office reaches an erroneous conclusion, the
referee has jurisdiction to modify the determination of the local office.
Obviously, the state of facts giving rise to the initial determination of the
local office as the claimant’s refusal of an alleged offer of employment
involved claimant’s availability. The record clearly discloses that claimant
received no offer of employment on September 9, 1941 and the referee correctly
so found. Claimant admits that at the time she filed the application she had
taken a leave of absence for two months and that she had no intention of
working. Although the two months had expired, claimant made no effort to return
to employment. Employment was available to the claimant with her former
employer during the period of claimant’s registration. Under the circumstances,
the conclusion is inescapable that claimant voluntarily removed herself from
the labor market at the time of her separation from employment. However, the
evidence is insufficient to sustain the finding that claimant returned to the
labor market on September 5, 1941. We believe that on that issue the local
office should have the opportunity of making an initial determination.
Decision: Claimant temporarily removed herself from the
labor market as of June 15, 1941 and was unavailable for employment from that
date. The matter is referred to the local office for an initial determination
as to the time of claimant’s return to the labor market. The initial
determination of the local office is modified accordingly. The decision of the referee
is modified accordingly. (4/24/42)
Index
No. 1280-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
25, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Distance
Appeal Board Case No. 6530-41
REFUSAL TO ACCEPT OFFER OF EMPLOYMENT – REASONABLE DISTANCE
(SECTION 506.1 OF LABOR LAW)
Necessity of walking
eight blocks to an from work was not good cause for refusing to accept
employment for which claimant was fitted by training and experience.
Referee’s Decision: Initial determination disqualifying claimant
for refusal to accept suitable employment was sustained. (10/20/41)
Appeal By: Claimant
Findings of Fact: On April 10, 1941, the date that claimant
filed an application for benefits, the local office offered her a job as a
statistical clerk with an employer located in Yonkers, New York. The wages
offered were $80.00 a month. Claimant contacted the prospective employer but
refused to accept the job, advancing as her reason that it was a hardship for
her to travel from her residence to the employer’s establishment. Claimant, who
is twenty-seven years of age, resides in Yonkers about a mile from the
prospective employer’s establishment. The nearest bus station from which she
could be transported to the employer’s place of business is about six blocks
from her home. She was required to walk this distance to reach the bus station.
The bus traveled a distance of about eight blocks and stopped at a station
located about two blocks from the employer’s establishment. Claimant was
required to walk these additional blocks to reach the employer’s establishment.
The bus fare from claimant’s residence to the employer’s place of business is
five cents each way. Claimant was required to walk the same number of blocks
returning to her residence.
Appeal Board Opinion: The evidence discloses that claimant would be
required to walk a distance of eight blocks each way, going to an returning
from the employer’s establishment. We do not believe that walking this distance
each day is a hardship that would justify claimant in refusing to accept the
offer of employment. We hold, therefore, that the local office properly
disqualified claimant for refusing to accept an offer of employment.
Decision: The initial determination disqualifying
claimant for refusing to accept an offer of employment is sustained. Decision
of the referee is reversed. (4/24/42)
Index
No. 1245-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
25, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Working conditions
Appeal Board Case No. 6976-42
REFUSAL TO ACCEPT OFFER OF EMPLOYMENT – WORKING CONDITIONS –
ADVERSELY AFFECTING HEALTH NOT ESTABLISHED (SECTION 506.1 OF LABOR LAW)
Belief based upon
conjecture and not fact that work would adversely affect health was not good
cause for refusing to accept employment for which claimant was reasonably
fitted by training and experience.
Referee’s Decision: Initial determination disqualifying claimant
for refusing to accept suitable employment is overruled. (2/10/42)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant, twenty year of age and a high school
graduate, worked for seven months assembling and cleaning switches and
carburetor parts for an automobile company, at which she earned thirteen
dollars a week. She also worked a few weeks as a substitute cashier during the
summer vacation. She did not have any other employment experience. In May 1941
claimant left her employment as an assembler allegedly because the odor of the
lacquer and tar used in connection with her work made her sick. She filed an
application for benefits on September 17, 1941. On November 17, 1941 the local
office referred claimant to a job as a packer in an establishment which
assembled cardboard window advertising material. Claimant, without contacting
the prospective employer, refused this referral because of her belief that the
odor of the printer’s ink might adversely affect her health. She did not object
to the wages offered by the prospective employer. No printing work was done in
the establishment of the proffered employment. The printing work was done
elsewhere. The job did not require any experience and the employer was willing
to hire a beginner.
Appeal Board Opinion: Claimant was not justified in refusing to
accept the referral in question. Her belief that the odor of printer’s ink
would be present in the establishment of the employer and that it might
adversely affect her health was purely conjectural and not based on fact. We
believe claimant had a duty to contact the prospective employer and to test the
conditions of employment in order to ascertain whether the type of materials
used in the establishment was such as would cause her discomfort. Her summary
refusal of the job offer leaves us no alternative but to sustain the local
office determination.
Decision: The local office determination disqualifying
claimant on the ground that she refused to accept a referral to employment is
sustained. The decision of the referee is reversed. (5/18/42)
Index
No 710.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
28, 1942
INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
Appeal Board Case No. 7074-42
AVAILABILITY - CORPORATE
OFFICER
Claimant’s duties as president of and financial
interest in a new corporation prevented him from accepting other work and thus
rendered him unavailable Employment.
Referee’ s Decision: Initial determination suspending
claimant's benefit rights for unavailability is overruled. (3/10/42)
Appeal by: Industrial Commissioner.
F!indings of Fact: Claimant filed application for benefits on
September 5, 1941. For three years preceding this application claimant worked
as a construction foreman for his brother-in-law. Claimant’s regular occupation
was that of ornamental plasterer. Subsequent to the aforesaid application and
on November 6, 1941, claimant and another plasterer by trade organized a
corporation for the purpose of engaging in business as plasterer contractors.
Claimant was the president and the other party secretary of the corporation.
Four shares of stock were issued by the corporation, of which
claimant’s wife held two and the other party’s wife the remaining two shares.
The husbands and wives were also the directors of the corporation. There were
no other stockholders in the corporation. The claimant and the other party
borrowed $600 tram a bank, which was used as the initial capital of the
corporation. Claimant signed corporate checks. Both the claimant and the other
plasterer were active in the affairs of the corporation. Claimant solicited
construction jobs and estimated the contract price for the work. The other
party performed services in connection with the construction work and took
charge of the office. At the date of the hearing before the referee on January
30, 1942, the corporation had completed four construction jobs. Neither officer
received any salary from the corporation. It was agreed that the profits of the
corporation were to be divided between them. The corporation did not show any
profits. Claimant submitted his resignation to the corporation, which he later
retracted advancing as a reason for the retraction the fact that he did not
want to relinquish his right to sign corporate checks because of his personal
liability to the bank. Claimant contended that, despite his interest in the
corporation, he was ready and willing to accept an offer of employment during
his reporting period.
Opinion: In overruling the local office
determination, the referee held that claimants duties as president of the new
corporation did not prevent him from accepting work in his regular line. This
decision is contrary to the facts in the case and at variance with the
established- principles enunciated by this Board on this subject. The record
shows that claimant entered into a new enterprise in which he had Q substantial
interest. The corporation immediately began to do business and claimant
admitted that he devoted his time and effort to its affairs. It was necessary
that he do so in order to protect his investment. In Appeal Board Case No.
5768-41 we stated that the test of availability for employment in these
situations is "Whether the enterprise is of such a nature that it requires
the continuous attention of the claimant and thus removes him from the labor
market."
Applying this test to
the circumstances in this case, we hold that claimant was unavailable for
employment during the period in question. It is immaterial that the claimant
drew no compensation from the corporation for his services. (See Appeal Board
Case No.1372-39)
Decision: The initial determination of the local
office suspending claimant’s benefit rights on the ground that as an officer of
a corporation he was not available for employment is sustained. The decision of
the referee is reversed. {6/30/42}
Index
No. 1660B-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
28, 1942
INTERPETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Hours – Overtime
Appeal Board Case No. 7302-42
VOLUNTARY LEAVING – COMPENSATED OVERTIME (SECTION 506.2 OF LABOR
LAW)
Resigning rather than
comply with employer’s request to work overtime which was usual and reasonable
and for which claimant was compensated did not constitute good cause for
voluntary leaving of employment.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause under circumstances
showing a withdrawal from the labor market is modified to the extent that
claimant voluntarily left her employment with good cause but under circumstances
showing a withdrawal from the labor market. (5/1/42)
Appeal By: Claimant
Findings of Fact: Claimant was employed as a bookkeeper for
about ten years by a bank, her regular hours of employment being between 8:45
a.m. and 4:45 p.m. Because of the pressure of business during the middle of the
month, claimant was required to work overtime, for which she was paid time and
a half. On August 19, 1941, claimant resigned for the reason that she did not
desire to work overtime. Upon receiving assurance that in the future she would
be permitted to perform her duties within the regular hours, she was persuaded
by her superior to withdraw this resignation. On December 15, 1941, due to a
continuation of the condition regarding the overtime, claimant again tendered
her resignation, giving as a reason for leaving on this occasion that she
contemplated marriage. Claimant did in fact marry on December 27, 1941, but
actively sought employment with other banks and commercial firms.
Appeal Board Opinion: Claimant has advanced no satisfactory reason
for voluntarily leaving her employment. There is no evidence that the overtime
requested by claimant’s employer was unusual or unreasonable. The record,
however, is barren of any proof which would indicate that claimant contemplated
withdrawing from the labor market. On the contrary, the record reveals that
claimant applied for a position with other banks as well as with commercial
firms. Under these circumstances, there was no withdrawal from the labor
market.
Decision: Claimant voluntarily left her employment
without good cause, but did not withdraw from the labor market. The initial
determination of the local office and the decision of the referee was modified.
(7/6/42)
Index
No. 1535-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
1, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING AND
CERTIFICATION
Misrepresentation
Appeal Board Case No. 7306-42
MISREPRESENTATION – CONCEALMENT OF TRUE REASON FOR TERMINATION OF
EMPLOYMENT (SECTION 507 OF THE LABOR LAW)
Deliberately
misrepresenting the reason for separation from employment in order to obtain
benefits constituted wilful misrepresentation.
Referee’s Decision: Initial determinations disqualifying claimant
for voluntarily leaving employment with good cause but under circumstances
indicating a withdrawal from the labor market and finding that claimant
wilfully made a false statement in order to obtain benefits were overruled.
(5/5/42)
Findings of Fact: On January 30, 1942 claimant filed an
application for unemployment insurance benefits. On February 27, 1942 the
employer advised the local office that claimant voluntarily left her employment
due to pregnancy. On March 6, 1942 claimant was called in for an interview at
the local office relative to this information. At that time she signed a
statement which in part read as follows;
"I
did not leave the job voluntarily but was laid off January 30, 1942. I make
this statement deliberately with the foreknowledge that a misstatement to
collect benefits constitutes a misdemeanor. I am now in the seventh month of
pregnancy."
On the same day the
local office again communicated with the claimant’s employer to make further
inquiry with respect to the circumstances of claimant’s leaving and on March 9,
1942 the employer reiterated his previous information to the local office that
claimant voluntarily left her employment due to pregnancy. Before leaving her
job claimant requested her employer that he consider her laid off. It appears
that the employer consented to do so. Claimant did not dispute that she left
her employment voluntarily. She contended that had the employer refused to
report her as being laid off, she would have continued working in the
establishment. Her work was of a sedentary nature at which she could remain
seated. Claimant left her employment in reliance on the employer’s alleged
promise that he would report her as being laid off. Claimant was in her sixth
month of pregnancy when she terminated her employment on January 30, 1942. She
was familiar with the law and knew that she would be disqualified in the event
that she voluntarily left her employment without good cause. Claimant denied
that she withdrew from the labor market. She testified that it was embarrassing
to work with her co-employees in the establishment due to her pregnant
condition and that she preferred working elsewhere.
Appeal Board Opinion: The referee overruled the initial
determination made by the local office. His decision is not warranted on the
record. Claimant left her job because of the advanced stage of her pregnancy.
Her duties were of a sedentary nature and she could have continued working for
some time after her separation. The determination that claimant voluntarily
left her employment with good cause but under circumstances indicating a
withdrawal from the labor market was amply sustained. With respect to the
initial determination that claimant made a wilful misrepresentation to obtain
benefits, we hold that the action of the local office must be sustained. The
basis of the charge is that claimant, by misrepresenting the reason for her
separation from her last employment, sought to obtain benefits to which she was
not entitled. It is clear in this case that claimant deliberately falsified
with a desire to draw benefits in violation of the statute and with full
knowledge of the consequences of her act. Her purpose was frustrated by her
unsuccessful attempt to prevail upon her employer to report her as laid off. We
find no mitigating circumstances in favor of the claimant. The penalty must
therefore be upheld.
Decision: The initial determinations of the local office
that claimant voluntarily left her employment with good cause but under
circumstances showing a withdrawal from the labor market and that she made a
wilful false statement to obtain benefits are sustained. The decision of the referee
is reversed. (7/24/42)
Index
No. 1650C-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
18, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Disciplinary action – Reprimand
Appeal Board Case No. 7464-42
VOLUNTARY LEAVING – JUSTIFIABLE REPRIMAND (SECTION 506.2 OF LABOR
LAW)
Justifiable criticism of
work was not good cause for voluntary leaving of employment.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (6/22/42)
Appeal By: Claimant
Findings of Fact: On March 17, 1942 claimant, an experienced
packer of china and glassware, was employed by a corporation doing business as
a wholesale jobber of china and glassware. On the day that claimant was
employed the employer showed the claimant just how he wanted his articles
packed. After about three weeks of claimant’s employment and after the
employer’s customers received various cartons of merchandise previously packed
by the claimant, the employer began to receive complaints from customers with
respect to breakage of merchandise. Several times after receiving said
complaints, the employer requested claimant to pack the cartons tight. On April
24, 1942, after the claimant had been employed for about five weeks, the
employer noticed that several cartons which claimant had packed were not filled
tightly with excelsior but that discarded carton paper ordinarily used for
partitions had been used by the claimant. The employer asked claimant why he
did not put in more excelsior, to which claimant responded that he was quitting
the job. Two days later, to wit, on April 26, 1942, claimant left this
employment. Claimant contended that the employer continually found fault with
his work and was constantly picking on him, that he could not take it any
longer and that he told his employer he was leaving.
Appeal Board Opinion: In the instant case we cannot say that the
employer’s several admonitions to the claimant to "pack the carton
tight" and to use more excelsior constituted extreme or unwarranted
reprimands. We believe that the employer was justified in his criticism of
claimant’s work and had a right to instruct and direct him to pack in a manner
best suited for out-of-town shipping purposes. We concur with the referee and
hold that claimant voluntarily left his employment without good cause.
Decision: The initial determination made by the local
office disqualifying the claimant from receiving any benefits until six weeks
have elapsed after his refiling for benefits on the ground that he voluntarily
left his employment without good cause is hereby sustained. The decision of the
referee is affirmed. (8/24/42)
Index
No. 1710.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December
2, 1942
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Working Conditions – Risk of Injury
Appeal Board Case No. 7671-42
VOLUNTARY LEAVING – WORKING CONDITIONS – RISK OF INJURY
(SECTION 506.2 OF LABOR LAW)
Voluntary leaving of
employment rather than comply with employer’s request to perform work which was
dangerous and risky was found to be for good cause.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (8/4/42)
Appeal By: Claimant
Findings of Fact: Claimant is a carpenter and handyman. For
eight months prior to May 22, 1942 he was employed as a handyman in an
apartment house. His duties consisted of making minor repairs to plumbing,
shelves and closets. Incidental to such minor repairs, he occasionally did
minor painting jobs, such as touching up a few spots. During the month of May
1942 claimant was requested to whitewash a penthouse wall, which in part was
fifteen feet high. He was supplied with an extension ladder ten feet high on
which to do the job. In order to accommodate the superintendent of the
building, claimant did the job, although dangerous, to the best of his ability.
While whitewashing the penthouse walls, claimant was required to climb on the
roof and chimney in order to do the work. After claimant completed the job, the
tenant was not satisfied and complained to the superintendent. The
superintendent ordered claimant to do the job over again, which claimant
refused because the work was not within the scope of his duties and was
dangerous. The superintendent then advised claimant that he would have to do
the job or he would get another man in his place, whereupon claimant quit the
job.
Appeal Board Opinion: Claimant is not a painter and has had no
experience in working on an extension ladder. The record abundantly shows that
painting a fifteen-foot wall on a ten-foot extension ladder is exceedingly
dangerous. Claimant was very fearful and highly nervous in doing the job. It is
also questionable as to whether the assignment to whitewash the walls was part
of claimant’s duties under his contract of hire. At any rate, it is clear that
the job was dangerous and risky and that claimant was justified in refusing to
do this work.
Decision: Claimant’s voluntary leaving of his employment
was with good cause. The initial determination is overruled. The decision of
the referee is reversed. (9/24/42)
Index
795.8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY
1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
AVAILABILITY-DESIRE TO RETURN TO FORMER EMPLOYER
Unwillingness to accept
employment other than with former employer was found to indicate
unavailability. Specific referral was unnecessary as a condition for suspending
for unavailability.
A.B. 7680-42
Referee's Decision: The initial determination suspending
claimant's benefit rights for unavailability and removal from the labor market
as of May 12, 1942 is overruled. (7/30/42)
Appealed By: Industrial Commissioner.
Findings of Fact: For about ten years prior to April 3, 1942
claimant was employed with one concern as a hand finisher on ladies' coats. The
work was seasonal and during the slack periods claimant remained at home. On
April 30, 1942, claimant's employment was terminated for that season by the
arrival of the slack period. On May 3, 1942, claimant was advised by the United
States Employment Service that there were several referrals available for her.
Claimant refused to accept any referral because of her desire to return to her
last employer. Upon receiving a report from the United States Employment
Service, claimant was called to the local office and was interviewed on May 18,
1942. At that time claimant stated that she would not accept referral to any
employer other than her last employer and signed a statement to that effect.
Before signing such statement, the contents thereof were explained to claimant
through the help of an interpreter. At the hearing before the referee claimant
testified that she was ready and willing at all times to accept a temporary
job. She further stated that although she actually did not return to her
employment until July 21, 1942, at the time of her visit to the local office on
May 18, 1942 she expected to return to her former employer within two or three
weeks. Claimant's expectation was based upon alleged information received from
a co-worker who allegedly spoke to the employer. The representative of the
local office and of the United States Employment Service denied that claimant
ever expressed a willingness to accept even temporary employment with any new
employer.
Appeal Board Opinion: Claimant does not deny her statement to
the United States Employment Service and the local office that she would not
accept a job with any new employer. Her contention before the referee to the
effect that she had advised the local office and the United States Employment
Service that she was ready to take a temporary job is not borne out by the
evidence. At the time of claimant's interviews, she was undoubtedly aware of
the fact that she would not be normally re-employed with her last employer
until about July. She was not justified, therefore, in refusing referrals to
employment to new employers (A.B. 1425-39). Much stress has been laid by the
referee on the fact that no specific referral was given to the claimant.
Claimant, however, was not disqualified for refusal of an offer of employment.
When claimant advised the United Stated Employment Service and the local office
that she would not accept any referral to any new employer, they were justified
in concluding that claimant was unavailable for employment. No specific
referral was necessary as a condition for imposing the statutory
disqualification for unavailability.
Decision: The initial determination suspending
claimant's benefit rights for unavailability from May 12, 1942 to July 20, 1942
is sustained. The decision of the referee is reversed. (10/27/42)
Index
No. 1440-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
2, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL EMPLOYMENT
Compensation without work
Appeal Board Case No. 7658-42
TOTAL OR PARTIAL EMPLOYMENT – COMMISSIONS RECEIVED SUBSEQUENT TO
TERMINATION OF EMPLOYMENT (SECTION 502.10 OF LABOR LAW)
Where claimant performed
no services but received commissions on orders obtained prior to termination of
employment, he was totally unemployed.
Referee’s Decision: Initial determination that claimant was not
totally unemployed is sustained. (7/23/42)
Appeal By: Claimant
Findings of Fact: Claimant was an outside woolen goods
commission salesman. He ceased his last employment on November 30, 1940 and
filed for unemployment insurance benefits on December 3, 1940. Claimant had
worked under an agreement which provided as follows:
"As
sole compensation for your services we are to pay you 2% of the net amount
charged by us on orders solicited by you and accepted by us.
"Settlement
shall be made monthly on the 15th of each month and shall be
based upon the goods charged during the preceding (sic) month."
Subsequent to November
30, 1940, merchandise was charged and shipped by claimant’s former employer
pursuant to orders solicited and obtained by claimant prior to November 30,
1940, upon which claimant received commissions in excess of $3.
Appeal Board Opinion: An analysis of Section 502.10 of the
Unemployment Insurance Law discloses that the definition of "total
unemployment" is comprised of three elements as follows: first, the total
lack of any employment; second, the total lack of all compensation; and third,
the capability of an availability for employment on the part of the claimant.
It is conceded that the claimant had a total lack of employment and was capable
of and available for employment. The basic element of "employment" is
a contract of hire, either express or implied, written or oral. It is
undisputed that claimant ceased his employment on November 30, 1940 and was not
employed during all the time he reported to the local office. The $3 maximum
earnings provided for in Section 502.10 apply only to a claimant’s current
earnings in employment during the weeks in question. Since the claimant was not
employed during such weeks, and performed no services subsequent to November
30, 1940, he was totally unemployed within the meaning of the Law.
Decision: Claimant was totally unemployed from November
30, 1940 up through July 24,1941. The decision of the referee is reversed.
(9/24/42)
Index
No 725.8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
16, 1943
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
Appeal Board Case No.7747-42
CAPABILITY - INCAPABLE
OF REGULAR WORK
Physical incapability to perform usual to
perform usual work and preference for a job at a salary which there was no
reasonable probability of obtaining constituted unavailability.
Referee's Decision: Initial determination suspending claimant’s
benefit rights for incapability and unavailability is overruled. {8/12/42}
Appeal by: Industrial Commissioner.
Finding of Fact: Claimant is a building construction laborer
and was last employed on May 22, 1942. On May 23, 1942 he was operated on for
appendicitis and was confined to the hospital for twelve days. He was advised
by his physician not to do heavy lifting. He was capable of and willing to do
light work. On June 29, 1942 he was referred to a job as a watchman paying $18
a week. Claimant refused to consider this referral because the salary was -too
low and expressed a preference for a job paying no less than $30 to $35 a week.
In his last employment claimant earned $42.50 a week.
Appeal Board Opinion: Claimant was under directions from his
physician to refrain from heavy work during the period of recovery from his
operation. Such precautions were essential to assure restoration to good health
and prevent the opening of the incision. We do not believe that claimant could
have disregarded his physician's instructions. Claimant is a building
construction laborer and has no other work experience. This is a field of hard
labor. There is no such thing as an "easy job" for a building
laborer. In order .To secure light work claimant would be required to go into
another employment field. We doubt that he could find employment in another
field at a rate of pay that would be satisfactory to him. While we have
previously held that physical handicaps do not, under all circumstances, render
claimant unavailable for employment, in the instant case, however, claimant’s
unwillingness to consider a job as a watchman at $18 a week and his statement
that he would like a job at $30 to $35 a week erected barriers that rendered
him unavailable for employment during the period in question. There is no
reasonable opportunity of securing employment for him under these
circumstances.
Decision: The initial determination is sustained. The
decision of the referee is revered. ( 11/30/ 1942 )
Index
No. 1650B-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
23, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances – Discrimination
Appeal Board Case No. 7965-42
VOLUNTARY LEAVING OF EMPLOYMENT – DISCRIMINATION –PROMOTIONS
CONTRARY TO PREVAILING CUSTOM (SECTION 506.2 OF LABOR LAW)
Promotion in disregard
of seniority rights established by prevailing custom indicated discrimination
and was good cause for voluntary leaving.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (10/22/42)
Appeal By: Claimant
Findings of Fact: Claimant, a barber, worked for two years with
one employer. Throughout this period of employment he was stationed at the
seventh chair in the barber shop. The chairs with the lowest numbers were
considered the more lucrative stations. There were eight chairs in the
establishment attended to by separate barbers. Whenever a vacancy occurred in
the more lucrative stations, it was customary to promote the barber with the
longest service to this chair. The fifth chair was left vacant on two occasions
during claimant’s employment. The employer promoted two other barbers with less
seniority rights to this chair. On August 8, 1942 the employer transferred a
barber who had been working for him only two months from the eighth chair to
the fifth chair. Claimant thereupon voluntarily left this employment because he
felt the employer discriminated against him by not promoting him to the more
lucrative station. At the date of separation claimant received a basic wage of
$18 a week plus commissions of fifty percent of the gross receipts in excess of
$33.
Appeal Board Opinion: The uncontradicted evidence establishes that
claimant left his employment because the employer promoted other barbers to a
more lucrative post in disregard of claimant’s longer period of service. This,
it appears, was contrary to the custom prevailing in the establishment and in
the industry generally. The circumstances under which claimant left his
employment indicate that he was discriminated against without apparent reason
and constitute good cause within the meaning of the Law.
Decision: The local office determination is overruled on
the ground that claimant voluntarily left his employment with good cause. The
decision of the referee is reversed. (12/21/42)
Index
No. 1210A-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
30, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Evidence of
Appeal Board Case No. 7598-42
REFUSAL TOACCEPT OFFER OF EMPLOYMENT – REQUEST FOR SHORT
POSTPONEMENT FOR REPORTING TO PROSPECTIVE EMPLOYER (SECTION 506.1 OF LABOR LAW)
An offer of employment
was deemed withdrawn because the referral card was taken back from a claimant
who had requested, upon reasonable grounds, to be allowed to report to the
prospective employer on the following morning.
Referee’s Decision: Initial determination disqualifying claimant
for refusal to accept an offer of employment is sustained. (7/22/42)
Appeal By: Claimant
Findings of Fact: On March 18, claimant was offered a job as a
sewing machine operator in a factory making defense garments. Claimant stated
to the interviewer that she did not have her working glasses with her and
requested that she be given the referral card in order that she could call on
the employer early the following morning. The interviewer thereupon took back
the referral card from claimant and made the following notation upon it:
"Refused to take referral – ‘too late today’ 12:30 p.m." On March
24,1942 an initial determination was issued disqualifying claimant for refusal
to accept employment. On May 12,1942 claimant returned to employment.
Appeal Board Opinion: Claimant contended that she did not refuse the
referral but rather requested that she be permitted to report to the employer
on the following morning because she had forgotten her glasses and could not
work without them. This does not appear to have been an unreasonable request on
her part, nor is there anything in the record to show that the job offer was
open for only that day. The circumstances would appear to point to a withdrawal
of the job offer by the local office.
Decision: Initial determination disqualifying claimant
for refusal to accept an offer of employment is overruled. The decision of the
referee is reversed. (9/29/42)
Index
No. 735A.1
785.3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
9, 1943
INTERPRETATION
SERVICE- BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of
Appeal Board Case No. 7954-42
AVAILABILITY- NON
EXISTENCE OF PLACEMENT OPPORTUNITIES
Removal to community with no placement
possibilities and no transportation to communities where employment might be
found, resulted in unavailability.
Referee's Decision: Initial determination suspending
claimant's benefit rights for unavailability is sustained. (10/21/42)
Appeal By: Claimant.
Findings of Fact: Claimant is married. She worked as a sewing
machine operator on ladies' straw hats in New York City during the season,
which usually commences about Christmas or New Year's and ends the following
April. After the busy season in this industry ended, she resided with her
husband at his farm located at Elk Creek, New York, which is in Otsego County.
Throughout the year claimant's husband managed the farm, from which he derived
his livelihood. This farm is located about nine miles from Worcester. No means
of transportation either by bus or train are available from Elk Creek to
Worcester. Claimant's husband owns an automobile but because of gas rationing
and the poor condition of the tires on his car, he is unable to furnish
transportation for claimant. On July 14, 1942 the local office referred
claimant to a job as a machine operator in a glove factory located at
Worcester, New York. Claimant refused to accept the referral because there were
no means of transportation available to her to reach the prospective employer's
establishment and, further, she never did that type of work.
Appeal Board Opinion: Since there are no means of transportation
available to claimant by which she may reach the prospective employer's
establishment in Worcester, it must be held that she had good cause to refuse
the offer of employment. The determination of the local office disqualifying
claimant for refusing the offer of employment is overruled. However, all the
circumstances herein compel the conclusion that claimant was unavailable for
employment. There are no placement opportunities in Elk Creek, where she
resides. No means of transportation are available from the farm to any place of
possible employment. Having removed herself to a community in which there is no
likelihood that placement of any sort may be obtained it may be held that
claimant has thereby rendered herself unavailable for placement within the
meaning of the law.
Decision: Determination suspending claimant's benefit
rights for unavailability is sustained. The determination disqualifying
claimant for refusing to accept an offer of employment is overruled. The
decision of the referee as modified is affirmed. (12/14/42)
Index
No. 1235-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
9, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Permanency
Appeal Board Case No. 7951-42
REFUSAL TO ACCEPT OFFER OF EMPLOYMENT – TEMPORARY POSITION
(SECTION 506.1 OF LABOR LAW)
Refusal of employment
because temporary was not justified.
Referee’s Decision: Initial determination disqualifying claimant
for refusal to accept an offer of employment without good cause is sustained.
(10/21/42)
Appeal By: Claimant
Findings of Fact: Claimant was offered a temporary position of
two or three months’ duration at $120 per month for a thirty-seven hour work
week. By virtue of her previous work history claimant was reasonably fitted for
the position offered to her. Claimant refused the referral on the grounds that
it was a temporary job and that the salary offered was less than her previous
salary. The evidence indicated that $120 per month was a little better than the
prevailing wages for the type of job offered claimant.
Appeal Board Opinion: Both reasons given by claimant for refusing
the referral are insufficient to constitute good cause. The fact that the
position offered was temporary does not in and of itself constitute sufficient
reason for refusing the referral. An offer of employment of temporary or
part-time nature does not necessarily render it unsuitable. Claimant’s second
reason for refusing the referral is that the salary offered was less than her
previous salary. This excuse does not aid the claimant. The testimony is not
whether the offered position paid less than claimant’s last position but is
rather whether the offered position meets the prevailing rate of pay for the
particular type of work for the locality in question. The facts in this case
satisfy the latter test.
Decision: The initial determination is sustained. The
decision of the referee is affirmed. (12/14/42)