A-750 400 Series
A-750-400
Index
No. 1650D-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
13, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances – other
Appeal Board Case No. 7927-42
VOLUNTARY LEAVING OF EMPLOYMENT – DISSATISFACTION WITH EMPLOYER’S
METHOD OF OPERATION
(SECTION 506.2 OF THE LABOR)
Dissatisfaction with
employer’s reasonable method of operation of business 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. (9/18/42)
Appeal By: Claimant
Findings of Fact: Claimant worked for an employer engaged in
defense work for six months prior to January 16, 1942. Claimant was
dissatisfied with the manner in which the employer’s establishment was
operated. He contended that the piece-work rates were low, that he lost time
being transferred from one machine to another, that he had to be satisfied with
$35 a week while other employees earned $75 a week, and that he was not given
credit for spoiled work. On January 9, 1942 claimant requested his superior to
assign him to a sixteen-hour daily work schedule. This request was denied. On
January 16, 1942 claimant was reprimanded for mixing good work with twelve
pieces of scrap in order to obtain credit for the spoiled work. After this
incident claimant voluntarily left this employment, although he had no
prospects for other employment. It was a rule in the establishment that
employees would not receive in excess of their basic rate for work which was
spoiled through their own carelessness.
Appeal Board Opinion: Claimant voluntarily left his employment
because he was dissatisfied generally with the manner in which the employer
operated the establishment. The rules in the plant were not unreasonable and
applied to all of the employees alike. Furthermore, it does not appear that
claimant’s piece-work rate was substantially less favorable than the wages
prevailing for similar work in the locality. Claimant’s reasons for leaving his
employment do not constitute good cause within the meaning of law.
Decision: The initial determination disqualifying
claimant for voluntarily leaving his employment without good cause is
sustained. The decision of the referee is affirmed. (12/14/42)
INDEX
755 E.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE
February
19, 1943
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
A.B. 7959-42
AVAILABILITY
-RESTRICTION OF EMPLOYMENT WITHIN WALKING DISTANCE FROM HOME
Restricting employment to establishments within
walking distance from home, where there was no reasonable probability of
obtaining it, constituted unavailability.
Referee's Decision: Initial determination suspending claimant's
benefit rights for unavailability is sustained. (10/19/42)
Appealed by: Claimant.
Findings of Fact: On June 3, 1942 claimant, a dress finisher,
filed an application for benefits. Her last employer's establishment was
located a few blocks from her residence, which made it possible for her to be
at home from 12:00 non to 1:30 in the afternoon to prepare meals for her
family. Her children are five, nine and eleven, respectively. The youngest
child attends kindergarten. Her highest earnings with this employer were $10 a
week. On July 1, 1942 claimant was referred to a job as a dress finisher paying
a salary of $20 to $25 a week, depending upon her speed. She refused to accept
the referral for the following reasons: first, she was under the impression
that she could not earn more than $10 a week with the prospective employer;
second, it would not pay her to work for this salary because she has to hire a
maid to take care of her children; third, the prospective employer's
establishment is too far distant for her to travel to her home at noontime to
prepare meals for her children; and, fourth, her sick husband requires her care
and attention. Claimant was willing to accept a job paying at least $15 a week
if the prospective employer's establishment were within walking distance from
her home. This would permit her to attend to her family during lunchtime.
However, if she were required to travel a greater distance to reach the
employer's establishment, she refused to accept a job unless it paid $25 a
week. Under the latter circumstances, she would be required to pay a maid $8 a
week to take care of her children. There are available to claimant very slight
employment opportunities within waling distance from her home, other than her
former employer, who because of business conditions had no work for claimant
from December 1941 to at least October 3, 1942. Claimant was unemployed during
this period.
Appeal Board Opinion: Claimant refuses to accept any employment
which is not within walking distance of her home unless it pays at least $25 a
week. Considering the fact that in her previous employment her maximum
production amounted to about $10 a week, it is questionable whether this
contention was made in god faith. Aside from her former employer, there is very
little likelihood that employment can be obtained for her within walking
distance from her home. By reason of her domestic circumstances, claimant has
restricted her field of employment to such an extent that she cannot be
considered available for employment within the meaning of the law.
Decision: The initial determination suspending claimants
benefit rights as of June 3, 1942 on the ground that she was unavailable for
employment is sustained. The decision of the referee is affirmed. (12/28/42)
Index
No. 1650D-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 19, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances – Other
Appeal Board Case No. 7559-42
VOLUNTARY LEAVING OF EMPLOYMENT – AS PROTEST TO CO-WORKER’S
DISMISSAL
(SECTION 506.2 OF LABOR LAW)
Voluntary leaving as
protest against co-worker’s dismissal was without good cause.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (6/11/42)
Appeal By: Claimant
Findings of Fact: Claimant induced his co-worker to object to
the performance of certain menial work required of him, as the result of which
the coworker’s employment was terminated. Upon learning of the co-worker’s
separation, claimant voluntarily left his job in order, as he stated, "to
ease his conscience," feeling that his advice to the co-worker to refuse
to perform the menial work was the cause of the co-worker’s loss of employment.
Claimant thereupon determined to quit as a protest, hoping thereby to bring
about restoration of both the co-worker and himself to the payroll. The
employer, however, did not recall either of the men. At the time of his
separation claimant had no definite prospect of other employment.
Appeal Board Opinion: The Board adopts the decision of the referee
as the decision of the Board. Upon consideration of the facts, it appears that
claimant left his employment partly because of a feeling of contrition at
having persuaded a co-worker to protest an assignment given him, with the
consequent loss of the co-worker’s job, and partly in the expectation that by
quitting himself the employer would be compelled to rehire both men. However,
commendable claimant’s action may have been as an expression of loyalty to his
co-worker, it does not constitute good cause for voluntary separation of
employment. Without a definite prospect of employment elsewhere, claimant’s
failure to have continued in his employment cannot be excused.
Decision: Initial determination disqualifying claimant
for voluntary leaving of employment is sustained. The decision of the referee
is affirmed. (10/13/42)
Index
No. 1650D-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
19, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances – other
Appeal Board Case No. 7921-42
VOLUNTARY LEAVING – DISSATISFACTION WITH SUPERVISION SYSEM
(SECTION 506.2 OF LABOR LAW)
Dissatisfaction with
employer’s system of supervision over personnel, which was reasonable, was not
good cause for voluntary leaving.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is overruled. (11/30/42)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant, a maker of artificial flowers, was
employed for three years in a small shop in which four operators were employed.
Her maximum production was twelve dozen per hour. She was laid off on May 29,
1942 and filed an application for benefits. In July 1942 she was referred to an
accepted a job paying $16 a week for a maker of artificial flowers in a factory
in which about six hundred employees worked. The employees were kept under
constant surveillance by a floor lady to speed production. The quota of work
fixed for claimant was seven dozen an hour. The production record of each
employee was taken hourly by the floor lady. After working at this job for two
and a half days, she voluntarily left this employment on July 22, 1942. At that
time she was producing at the rate of five dozen flowers per hour. Claimant
attributed her greater production capacity in a smaller establishment to the
fact that her work was not watched constantly. She advanced three reasons for
leaving: (1) she worked under nervous tension because she was watched
constantly by the floor lady; (2) she could not stand the pressure for
production; and (3) she could not produce the quote of work demanded of her.
The employer testified that the employees were given a three to four week trial
period to acquire the production capacity necessary to meet their quota of
work; that during this period they were not discharged for failure to turn out
their quota, provided they showed ability to produce; that claimant was
occasionally reminded by the floor lady to accelerate her production to meet
her quota; and that the floor lady was satisfied with claimant’s work and
insisted that she remain with the employer. Claimant had no prospect of other
employment at the date of her leaving.
Appeal Board Opinion: Claimant complained that she worked under
nervous tension because the floor lady kept a close surveillance over the
employees in her department. Considering the large number of employees in the
establishment, it cannot be said that the employer’s system of supervision over
its personnel was oppressive or unreasonable. Claimant was not justified in
leaving her job for this reason. The employees were allowed a period of three
or four weeks within which to acquire the productive capacity demanded by the employer.
Claimant’s floor lady was satisfied with claimant’s ability to work and was
willing to have her continue in the establishment. Since claimant chose to
leave the job after working only two and a half days, it must be held that she
did not give it a fair trial. Moreover, she did not have any prospect of other
employment at the date of separation and remained unemployed for at least two
months thereafter. Claimant voluntarily left her employment without good cause.
Decision: The initial determination of the local office,
disqualifying claimant for voluntarily leaving her employment without good
cause, is sustained. The decision of the referee is reversed. (12/21/42)
Index
No. 1140-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
23, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
Disloyalty, attitude toward employer at work
Appeal Board Case No. 7946-42
MISCONDUCT – ACCEPTING WORK FROM EMPLOYER’S CUSTOMERS
(SECTION 504.2(a) OF LABOR LAW)
Acceptance of work from
employer’s customers to his detriment constituted misconduct.
Referee’s Decision: Initial determination suspending claimant’s
benefit rights for loss of employment due to misconduct is sustained.
(10/20/42)
Appeal By: Claimant
Findings of Fact: Claimant was employed for about five years as
an artist and layout man for the employer, who conducted a printing company.
His duties brought him in contact with customers of the employer. He admits
that he personally obtained from a number of these customers art work which had
formerly been performed by his employer’s firm. In such instances, the employer
lost not only the art work but the reproduction work formerly performed for
them. Claimant had business stationery printed containing his name as an
artist, together with the employer’s address and telephone number. He admits
that he obtained some business in this way, but stated that this work was done
on his own time, at his home, and with the employer’s knowledge. The employer
reported to the local office that claimant was discharged for misconduct after
repeated warnings not to work on his private jobs on the employer’s time and
not to use the telephone to communicate with his own accounts. He denied that
claimant’s activities were with his knowledge or consent. After the discharge
claimant was immediately replaced by another artist. Claimant states that he
was not discharged but was laid off because business was slow.
Appeal Board Opinion: The evidence amply sustains the referee’s
decision that claimant lost his employment through misconduct in connection
therewith. In spite of the serious conflict in the evidence as to the
privileges extended to claimant by his employer, it is undisputed that claimant
accepted work from his employer's customers which resulted in a loss of
business to the employer. The referee correctly reasoned that the nature of the
acts charged to claimant was detrimental to the employer's interests.
Decision: Claimant lost his employment due to misconduct
in connection therewith. The initial determination is sustained. The decision
of the referee is affirmed. (12/21/42)
Index
No. 1215B-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
23, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Other reasons for refusal
Appeal Board Case No. 7890-42
REFUSAL OF OFFER OF EMPLOYMENT – CONDITIONAL ACCEPTANCE
(SECTION 506.1 OF LABOR LAW)
Claimant’s refusal to
accept an offer of permanent employment, except on condition that she be
permitted to try out job for one or two weeks, which condition was rejected by
the employer, resulted in a disqualification for refusal.
Referee’s Decision: Initial determination disqualifying claimant
for refusing to accept an offer of employment without good cause is sustained.
(11/17/42)
Appeal By: Claimant
Findings of Fact: Claimant, a stenographer-bookkeeper, had been
employed by a manufacturer of artificial flowers for eight years. She lost this
employment on February 14, 1942. Her salary was $26 a week. On March 13, 1942
she applied for unemployment insurance benefits. On June 10, 1942 she was
referred to a job as a bookkeeper for an artificial flower manufacturer paying
$30 a week. She was interviewed by the prospective employer’s accountant, who
asked her to take the job at once on a permanent basis. Claimant requested
permission to take the job on a contingent basis for a "week or two to see
if I had a wrong impression of these people." Her request being denied,
claimant refused the offer. She did not care to work for the prospective
employer because she had learned in her former position that it was "not a
pleasant place to work."
Appeal Board Opinion: Claimant submitted a statement to the Board
which in part stated that because of her home responsibilities she had to be
particular about the position she accepts. While the Board sympathizes with
claimant’s desire to secure a position that she believes will best suit her
needs and family responsibilities, the Law is specific in denying benefits to
an employee who without good cause refuses to accept an offer of employment for
which he is reasonably fitted by training and experience. The reasons advanced
by claimant do not constitute good cause for refusal as defined in Section
506.1 of the Act. Neither are these reasons of such character as would raise
doubt as to the suitability of claimant for the job offered. She has had eight
years of experience as a bookkeeper-stenographer in the prospective employer’s
line of business. Her qualifications were such that the employer’s accountant
wished to employ her immediately before interviewing any other persons for the
job. There can be no doubt therefore that she was technically suited for the
position. Her objection to the job is based on speculation. It is possible that
if she tried it she might have found that the rumors she had heard would have
resulted in a conclusion that she "had a wrong impression of these people."
Decision: Initial determination disqualifying claimant
for refusing to accept an offer of employment without good cause is sustained.
The decision of the referee is affirmed. (12/14/42)
Index
No. 1205C-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March
15, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Offer, what constitutes
Appeal Board Case No. 7920-42
REFUSAL TO ACCEPT AN OFFER OF EMPLOYMENT – OFFER BY PRIVATE
EMPLOYERS
(SECTION 506.1 OF LABOR LAW)
A refusal without good
cause to accept an offer of employment made through a channel other than the
Employment Service may result in a disqualification of a claimant from
benefits.
Referee’s Decision: Initial determination disqualifying claimant
for refusal without good cause to accept an offer of employment is overruled.
(9/30/42)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant was employed for eight years by a
dress company as an examiner and cleaner. She was a member of the union and
earned about $23 a week. In June 1942 she was laid off for an indefinite period
because of lack of work. On June 4 she filed an application for employment and
unemployment insurance benefits. Subsequent to July 4, 1942 claimant’s former
employer resumed operations and several postcards were addressed to claimant
directing her to return to her former job. Claimant refused to accept this employment
and advised the employer that she would not work for him any more. Claimant
stated as the reason for refusing the employment that her former employer was
very nervous, high-strung and irritable.
Appeal Board Opinion: The referee ruled on the authority of Appeal
Board 43-38 that since the offer of employment was made to the claimant through
channels other than the Placement section, she may not be disqualified from
benefits because of her refusal to accept the employment offered. The
Industrial Commissioner has requested that the Board reconsider its position in
the case last mentioned. It is urged that we now recognize a disqualification
for refusal to accept employment in all cases where it is shown that the offer
meets the requirements of the statute, irrespective of the channels through
which an offer reached a claimant. We believe that the language of the statute
leaves room for either interpretation. We pointed out in our previous decision
that it was necessary in referring claimants to employment that reasonable
standards be set up to judge the suitability of the offer, and that it was
advisable that control over the flow of labor by way of placements be reposed
in the organizational unit created specifically for that purpose, rather than
that it be left to chance or be made the subject of competition among
employers. We still feel that these safeguards are not only wise but that they
also constitute the cornerstone upon which the solution of this problem rests.
Having this in mind, we have nevertheless considered the problem anew in the
light of present conditions and we have reached the conclusion that the
Industrial Commissioner’s position should be sustained. It should be pointed
out, first, that the placement unit as represented by the United States
Employment Service is now separate and apart from the Division of Placement and
Unemployment Insurance. The insurance section of the Division, which is charged
with the making of initial determinations, does not exercise placement
functions. We are advised that each case of refusal of a job offer arising from
a source other than the employment service will receive the same scrutiny as
that arising within the service, and that in making determinations the same
analysis will be made and similar standards be applied in order to determine
the adequacy of the job offer and related questions. In this way it is proposed
to safeguard the rights of the claimants involved and at the same time to
retain, in the place where it belongs, control of the flow of labor. The
Industrial Commissioner urges in brief that this method will accomplish the
purpose sought and that we accordingly relax our previous ruling that the offer
of employment must emanate from the employment service in order that a
disqualification may lie for a refusal. In the final analysis, this is the
Industrial Commissioner’s responsibility. In view of this and all the
foregoing, we are constrained to hold that a refusal without good cause to
accept an offer of employment made through a channel other than the United
States Employment Service may, under the circumstances which we have outlined,
result in a disqualification of a claimant from benefits. In the instant case,
claimant has failed to satisfy us that she had good cause for her refusal to accept
her former employer’s offer. In view of the fact that she had worked for him
for eight years, little credence can be given to her testimony with respect to
the reasons for her refusal. However, the record is not clear as to the exact
date when the offer and refusal occurred. Claimant states that it occurred
after July 15, and we are inclined to accept her testimony. We accordingly fix
the time of the refusal as July 16, 1942.
Decision: The determination of the local office
disqualifying claimant for refusing, without good cause, to accept employment
is hereby sustained. The effective date thereof should be changed from July 6,
1942. The decision of the referee is reversed. (1/25/43)
Index
No. 1735A-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
6, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wage increase refused
Appeal Board Case No. 7996-42
VOLUNTARY LEAVING – DENIAL OF PROMISED INCREASE
(SECTION 506.2 OF LABOR LAW)
Denial of promised wage
increase after promotion to more responsible position was good cause for
voluntary leaving of employment.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (10/27/42)
Appeal By: Claimant.
Findings of Fact: For approximately nine years prior to April
1942, claimant was employed as a stock control clerk for a chain store. She
commenced such employment at $8 per week and by April 1942 was receiving $20
per week. During April of 1942 claimant was advised by the employer that she
would be promoted to the position of assistant millinery buyer, in which capacity
she would be paid $25 per week. During May of 1942 claimant was promoted to the
position of assistant millinery buyer, but instead of the promised $25 per
week, claimant received $22 per week. When claimant protested to the employer
about his failure to pay the $25 per week as promised, she was advised to wait
and that she would received $3 more at a later date. After waiting for the
additional increase from May to September, claimant again approached the
employer for the promised increase. At that time she was told if she did not
like it should could quit. Claimant thereupon resigned.
Appeal Board Opinion: The position of assistant millinery buyer to
which claimant was promoted carried a salary of $25 per week. The employer
failed to keep his promise to the claimant that she would get that amount.
After the promotion, the employer made a new promise that claimant would
receive an increase to the full amount of the salary at a later time. Claimant
waited a reasonable time and approached the employer again about the promised
increase. Instead of a reasonable explanation, claimant’s complaint was
summarily rejected. Such conduct on the part of the employer justified claimant
in leaving her employment.
Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is overruled. The
decision of the referee is reversed. (12/31/42)
Index
No. 1290A-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
17, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF SUITABLE EMPLOYMENT
Wages
Appeal Board Case No. 8136-42
REFUSAL TO ACCEPT OFFER OF EMPLOYMENT – PREFERENCE FOR HIGHER
WAGES
(SECTION 506.1 OF LABOR LAW)
Preference for higher
wages because of financial and domestic responsibilities did not justify
refusal of employment for which fitted by prevailing wages.
Referee’s Decision: Initial determination disqualifying claimant
for refusal to accept an offer of employment without good cause is sustained.
(11/24/42)
Appeal By: Claimant
Findings of Fact: Claimant for three years prior to March 14,
1942 was employed as a Polish language typist. On March 15, 1942 her employment
terminated, at which time she was earning $20 per week. At the time of the
termination of her employment claimant was pregnant. Her child was born on July
29, 1942. On September 30, 1942 claimant was referred by the United States
Employment Service to three typist positions paying $18 to $20 per week.
Claimant refused to accept the referrals stating that she would not accept
employment at less than $20 per week. She contended that she needed more money
in order to hire a person to care for her infant child. The prevailing rate in
the locality for her type of services is from $18 to $20 per week.
Appeal Board Opinion: The offers to the claimant were at the
prevailing rates of wages for the type of skill possessed by her. Claimant was
not fitted by training and experience for any position carrying a higher
remuneration. While claimant had greater financial and domestic
responsibilities, such responsibilities did not justify her in demanding a
salary greatly in excess of the prevailing rate. We hold that she did not have
good cause to refuse the offers.
Decision: Initial determination disqualifying claimant
for refusing to accept offers of employment without good cause is sustained The
decision of the Referee is affirmed. (1/11/43)
Index
No. 1550-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
19, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING AND
CERTIFICATION
Misrepresentation or misstatement
Appeal Board Case No. 8385-43
MISREPRESENTATION – CONCEALMENT OF LAST EMPLOYER
(SECTION 504.2 OF LABOR LAW)
Deliberate concealment of
identity of last employer constituted wilful misrepresentation.
Referee’s Decision: Initial determination finding that claimant
misrepresented in order to obtain benefits is sustained. (1/5/43)
Appeal By: Claimant
Findings of Fact: Claimant filed an additional claim for
benefits on October 25, 1942, giving as his last employer M. Dress Co. On
November 16, claimant was interviewed in the local office, at which time he
disclosed that his last employer had been the A. Dress Co. He failed to name
this employer because of an alleged threat on the part of the employer to the
effect that he, the employer, would prevent claimant from obtaining benefits.
The local office issued an initial determination that claimant had wilfully
made a false statement to obtain benefits.
Appeal Board Opinion: The issue to be determined herein is whether
the deliberate failure of a claimant to disclose his last employer, naming a
prior employer instead, constitutes in an of itself a wilful false statement to
obtain benefits. Had claimant disclosed the identity of his last employer, he
would have been entitled to benefits under the facts found by the referee. The
proper operation of many of the provisions of the Unemployment Insurance Law
hinges upon the disclosure of the identity of a claimant’s last employer.
Section 504-1, which pertains to "Suspension of accumulation of benefit
rights," and Section 506, which pertains to "Disqualification for
benefits," are examples. Local office procedure has been promulgated pursuant
to which information is obtained from the last employer. Access to this
information is the safeguard which makes these sections of the Law more than
dead letters. When claimant deliberately referred the local office to an
employer other than his last employer, he committed a wilful misrepresentation
to obtain benefits pursuant to the language of Section 507-a of the
Unemployment Insurance Law. He attempted to deprive the local office of access
to information without which it could not properly make a determination. The claimant
contends that the alleged threats of the employer excuse the misrepresentation.
If such threats were based on facts which would lead to an initial
determination adversely affecting claimant’s benefit rights, then clearly
claimant was bound to disclose not only his employer's identity, but also the
facts themselves. If the alleged threats were without foundation, claimant
should have had nothing to fear. He should have given the local office the name
of his last employer as required under the Law.
Decision: Initial determination finding that claimant
wilfully misrepresented in order to obtain benefits is sustained. The decision
of the referee is affirmed. (3/8/43)
Index
No. 1640B-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
19, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances – transfer to other work not desired
Appeal Board Case No. 8337-43
VOLUNTARY LEAVING – OBJECTION TO TRANSFER (SECTION 506.2 OF LABOR
LAW)
Transfer to other work
comparable to work previously performed without change of pay 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 overruled. (12/19/43)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant worked in a laundry for about eleven
years prior to August 16, 1942. For over five years preceding this date she
work in the capacity of an assistant forelady in the shirt department. Her
duties were to inspect, assign work, make production cards and supervise the
girls. Claimant was on vacation from August 1 to August 15, 1942. When she
returned to her employer’s establishment on August 16, 1942 she discovered that
another person had taken over her duties. The employer, with the approval of
the business agent of the union, transferred claimant on the same day to
another department of the plant which handled family wash. Her title and wages
remained the same. Claimant complained to the shop chairman about her transfer.
The latter advised her that nothing could be done about the matter. Thereupon
claimant undertook the new assignment and worked all day on August 16, 1942.
The work performed in both departments was substantially the same. After
completing the day’s work, claimant voluntarily left her job, stating that she
could not do the work required in the new assignment.
Appeal Board Opinion: The referee held that claimant had good cause
for her leaving because she had received unfair treatment from the employer.
The record fails to establish, however, that the employer acted unreasonably or
arbitrarily in assigning her to different duties. Neither her title nor her
rate of pay was changed. The transfer was approved by her union and her attempt
to adjust her grievance through union channels was unsuccessful. Furthermore,
it does not appear that she gave the job a fair trial. There is no showing that
the new assignment involved more onerous duties or created any hardship on the
claimant. Under the circumstances, her mere statement that she could not
perform the new duties assigned to her cannot be accepted as constituting a
sufficient basis for holding that she had good cause for leaving.
Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. The
decision of the referee is reversed. (3/8/43)
Index
No. 1280-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
22, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Distance
Appeal Board Case No. 7823-42
REFUSAL TO ACCEPT AN OFFER OF EMPLOYMENT – UNREASONABLE DISTANCE
NOT SUBSTANTIATED
(SECTION 506.1 OF LABOR LAW)
Contention that
proffered employment was at an unreasonable distance was overcome by the fact
that a large number of residents of claimant’s community were employed by
proposed employer and additional expenses were provided for by increased
compensation.
Referee’s Decision: Initial determination disqualifying claimant
for refusing to accept an offer of employment without good cause is overruled.
(8/21/42)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant, a telephone operator, had been
employed by the New York Telephone Company in Niagara Falls on a temporary
basis as a night worker. Her salary was $23 for a work week of 30 hours. Day
operators employed by the company earned $23 for a work week of 40 hours.
Claimant has two children, aged two years and six months respectively. On April
30, 1942 claimant filed an application for benefits. On May 28, 1942 she was
offered a day job as a telephone operator in a war plant located about ten
miles from Niagara Falls. The rate of pay was $25 for a work week of 40 hours
with overtime pay at the rate of time and a half for all hours in excess
thereof. Claimant refused the referral on the ground that "the hours were
longer and it would take longer to go and come from it. Also the cost of
transportation would be greater." The plant to which claimant was referred
was about forty-five minutes distance from downtown Niagara Falls. The round
trip fare at the time of referral was 45 cents. On September 1, 1942 the fare
was reduced to 35 cents for the round trip. Buses are operated to an from the
plant on an hourly schedule. About 4,000 persons living in Niagara Falls make
the trip daily to and from the plant. Claimant lived within walking distance
from her last employment. She will accept no work other than that of a
telephone operator. Placement opportunities for telephone operators in Niagara
Falls are negligible. Opportunities for employment in war factories are
plentiful for women with no experience in production work. The job offered was
at the rate prevailing for similar work in the community.
Appeal Board Opinion: In all respects except distance from her
residence the job offered claimant compared favorable with her former job.
About 4,000 persons whose homes are in Niagara Falls are employed in the plant
to which claimant was referred. They make the trip to and from the plant daily.
The job offered to claimant paid $2 per week more, exclusive of overtime pay,
than claimant’s previous employment. The additional traveling expense entailed
in the offered employment was thus overcome by the increased pay. Furthermore,
in the Niagara Falls district the war has precipitated a manpower shortage.
Under all of the facts and circumstances herein, we believe that the offered
employment was not at an unreasonable distance from claimant’s residence and
that travel to and from the place of employment did not involve expense
substantially greater than that required in her former employment.
Decision: The initial determination of the local office
disqualifying claimant for refusing to accept referral without good cause is
sustained. The decision of the referee is reversed. (3/8/43)
Index
No. 1685-B1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
22, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Other personal affairs
Appeal Board Case No. 8840-43
VOLUNTARY LEAVING OF EMPLOYMENT – ALLEGED INADEQUATE LIVING
ACCOMODATIONS
(SECTION 506.2 OF LABOR LAW)
Failure to substantiate
claimed lack of suitable living quarters at site of employment and no prospects
of other employment resulted in finding that voluntary leaving was without good
cause.
Referee’s Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (2/25/43)
Appeal By: Claimant
Findings of Fact: Claimant was employed from June 1942 to
November 30, 1942 as a laborer by a construction company at a naval base
located at Sampson, New York. During the period of his employment he lived at a
private boarding house in Geneva. The proprietor of the boarding house was
taken sick and informed claimant that he would have to seek living quarters
elsewhere. Claimant made inquiry at two other places for room accommodations.
His efforts in this respect were unsuccessful. He voluntarily left this
employment, stating that he could not find suitable living quarters. Barracks
are maintained at the naval base for the housing of construction workers. The
barracks are under the supervision of the government and a guard is employed to
see that occupants conduct themselves in a proper manner. Admittedly claimant
could have secured living quarters at the barracks located at the naval base.
However, he alleged that living conditions at the barracks were unsuitable
because there were numerous altercations among the occupants. The barracks at
which the construction workers live afford the same accommodations which are
had by the naval men who are receiving training at the naval base. Claimant had
no prospects for other employment at the date of his separation.
Appeal Board Opinion: The record amply sustains the referee’s
conclusion that claimant voluntarily left his employment without good cause.
Claimant did not make a diligent effort to seek living accommodations. There is
no evidence that conditions at the government barracks were such that living
there would create an unreasonable hardship on claimant. He had no prospect for
other employment at the date of his separation.
Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. The
decision of the referee is affirmed. (4/28/43)
Index
1210A-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JUNE
25, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other reasons for refusal
Appeal Board Case Number 8273-42
REFUSAL OF OFFER OF EMPLOYMENT - NON DISCLOSURE OF JOB DETAILS
(SECTION 506.1 OF LABOR LAW)
Non-disclosure of job
details was not good cause for refusal where claimant's attitude and conduct
discouraged or prevented disclosure.
Referee's Decision: Initial determination disqualifying claimant
for refusing to accept an offer of employment without good cause is sustained.
(12/2/42)
Appealed By: Claimant.
Findings of Fact: On August 21, 1942 claimant was referred to a
job, for which she was qualified by training and experience, at the prevailing
rate for similar work in the locality. She refused the referral, stating that
she expected one or two days' notice before she could accept the job; that it
was 4:30 p.m. when she visited the employment office in response to a call-in
card; and, further, that she was not given the full details of the job offer.
Appeal Board Opinion: The documentary evidence establishes that the
placement office had a job offer for which claimant was qualified by training
and experience; that it paid the prevailing rate for similar work in the
locality and that such job was offered to claimant. The fact that she was not
given the full details of the job offer does not, under the circumstances of
this case, justify her summary refusal to accept the referral. Accepting
claimant's version of the incident, this situation was brought about by her
insistence that she would not accept the job unless she was given a few days'
notice. In view of her arbitrary attitude, it would have been a futile gesture
for the employment service to have given her any further details. In any event,
had claimant evinced an interest in the job offer, she could have obtained such
information either from the employment office or the employer. Furthermore, it
appears from claimant's entire course of conduct that she was more interested
in collecting unemployment insurance benefits than in working.
Decision: Initial determination disqualifying claimant
for refusing to accept an offer of employment without good cause is sustained.
The decision of the referee is affirmed. (3/22/43)
Index
755 E.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE
June
26, 1943
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
A.B. 8603-43
AVAILABILITY - CANNERY
WORKER - NON-EXISTENCE OF PLACEMENT OPPORTUNITIES
Unwillingness to work elsewhere than in a
community which offered no reasonable prospect of employment constituted
unavailability.
Referee's Decision: Initial determination suspending claimant's
rights for unavailability is sustained. (1/19/43)
Appealed by: Claimant.
Findings of Fact: Claimant worked during the past four years in
a cannery located near her home in Egypt, New York. The work was seasonal and
usually lasted from July to December of each year. During the slack periods
claimant remained at home. This is the only industry in the town and no other
placement opportunities existed. Claimant filed an application for benefits on
December 10, 1942, her employment having terminated on December 8. She was
interviewed in the placement section with respect to the possibility of her
accepting work in Rochester, which is seven miles away. She stated that she
could not accept work there because she had no means of transportation and that
although buses ran through the town they were not dependable. The town of Egypt
is located about four miles from Fairport, where there are factories and
employment opportunities. Claimant testified at the hearing before the referee
that she would be unwilling to work either in Fairport or Rochester.
Appeal Board Opinion: The referee had ample basis for his ruling
that claimant failed to meet the statutory test for availability. Upon her own
admissions she is unwilling to work elsewhere than in her own town, which
offered no opportunities for employment. Thus she removed herself from the
possibility of obtaining employment.
Decision: Initial determination suspending claimant's
benefit rights for unavailability is sustained. The decision of the referee is
affirmed. (3/22/43)
Index
1215A-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JULY
6, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other reasons for refusal
Appeal Board Case Number 8179-42
REFUSAL OF OFFER OF EMPLOYMENT - PREFERENCE FOR DIFFERENT JOB
(SECTION 506.1 OF LABOR LAW)
Where a claimant was not
misled as to her rights and had indicated an unwillingness to accept a referral
to a job for which she was fitted by training and experience, because it was
not to her liking, as charged, an employment interviewer's promise to secure
another job more to claimant's liking was not good cause for refusal of the
offered job.
Referee's Decision: Initial determination disqualifying claimant
for refusing to accept without good cause referral to employment is overruled.
(11/24/42)
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant for two years had worked as a
bookkeeper in New York City, receiving a salary of $22 per week. She terminated
this employment to join her husband in Baltimore. On July 29, 1942 claimant filed
an original application for benefits in the State of Maryland against New York
as the liable state. On August 26, 1942 the United States Employment Office in
Baltimore referred claimant to a position as typist-bookkeeper for a rug
manufacturer at $25 per week for a forty-hour week. Claimant was advised that
she would be required to work on accounts receivable. She refused to accept the
referral, stating that she preferred work as a full-charge bookkeeper. Claimant
upon her return to New York City was interviewed at the local office, at which
time she stated that her experience was as a full-charge bookkeeper and that
she refused the referral because she preferred working in a smaller office. At
the hearing before the referee claimant testified that when she told the
Baltimore interviewer her preference for a different type of work, she was
advised that an effort would be made to secure such a job for her. Claimant
further contended that if she accepted the referral it would entail a loss of
previously acquired skill.
Appeal Board Opinion: The job offered claimant was one for which she
was reasonably fitted by training and experience and satisfied the requirements
of the statute. The fact that the type of work offered did not satisfy
claimant's personal conditions and that she preferred full-charge bookkeeping
is not sufficient of itself to justify her refusal of the referral. The referee
overruled the initial determination on the theory that claimant was justified
in refusing the referral because the employment interviewer indicated that an
attempt would be made to secure employment more in keeping with claimant's
expressed desires, as the result of which claimant believed that she would be
referred to employment more in keeping with her former experience and training.
We cannot agree with the referee's conclusion. Accepting the claimant's own
version of the interview, there is no indication that she was misled as to her
rights. It might be that the Baltimore interviewer did promise to endeavor to
secure for claimant a job more to her liking. However, the choice of accepting
or refusing the offer lay with claimant and she had already indicated her
unwillingness to accept. We have consistently held that where work is available
for which a claimant is reasonably fitted, he must accept the offer of
employment or suffer the penalty of disqualification of his benefit rights. In
the absence of circumstances justifying the refusal, the initial determination
must be upheld.
Decision: Initial determination disqualifying claimant
for refusing to accept referral without good cause is sustained. The decision
of the referee is reversed. (3/31/43)
Index
770.9
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JULY
1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
AVAILABILITY - SEASONAL WORKER - NO RECORD OF EMPOYMENT DURING
SLACK PERIOD
A race track mutuel
clerk and cashier, who for the past three years worked only seven months a year
and never sought or wanted any other employment during the five-month slack
season of each year, held unavailable for employment because he was not truly
in the labor market during the slack season.
A.B. 8929-43
Referee's Decision: The initial determination suspending
claimant's benefit rights for unavailability effective January 25, 1943 is
sustained. (3/11/43)
Appealed By: Claimant.
Findings of Fact: During 1940, 1941 and 1942 claimant was
employed as a mutuel clerk and cashier at various racetracks situated in the
State of New York. During each of these years he worked about seven months. In
1940 he only worked part time, earning a total of $896 for that year. In 1941
his working hours were increased so that he earned a total of $1424 during the
year. In 1942 he worked full time at the tracks. When thus employed claimant's
earnings were about $60 per week. Claimant's duties consisted of accepting
wagers, making change and filling in records of receipt and other data for his
employers. He is a member of the Mutuel Agents Union. Prior to 1940 claimant
was employed for short periods of time as a clerical worker at various race-
tracks. During each of the five-month periods in 1940, 1941 and 1942, when
claimant was not associated with racetracks, he remained totally unemployed.
During these periods of unemployment he never answered a newspaper
advertisement for a position nor did he ever seek or obtain an interview with a
prospective employer. During these periods of unemployment, claimant played
billiards, betting on his own games and sometimes winning and at other times
losing various sums of money. On November 15, 1942 claimant filed an
application for employment and unemployment insurance benefits and reported
regularly thereafter up to the date of the hearing before the referee, March 4,
1943. He received eight benefit checks, each in the sum of $18. On February 4,
1943 claimant signed a statement at the local office, stating in part:
"I
am not willing to accept any work in a war plant because I do not want to be
frozen in that job. It would prevent me from returning to my usual job as a
mutuel clerk at tracks. I expect to become employed at the J. racetrack which
opens on April 8, 1943."
On February 10, 1943 an
initial determination was issued suspending claimant's benefit rights effective
January 25, 1943 on the ground that he was not available for employment.
Claimant requested a hearing on February 11, 1943. On February 12, 1943
claimant was referred by the United States Employment Service to a position as
a guard at the United States Army Port of Embarkation. The salary offered was $39.29
per week. Claimant accepted the referral and was interviewed by the personnel
interviewer at the Port of Embarkation. Claimant informed the latter that he
intended to return to his racetrack employment in about six weeks. Claimant did
not obtain the position. No formal initial determination with respect to
claimant's alleged refusal of employment was made by the local office.
Appeal Board Opinion: The sole issue herein is whether or not
claimant was available for employment as of January 25, 1943. During the last
three years claimant's only employment was at the racetracks for about seven
months of each year. During the balance of each year he made no attempt to
obtain other employment. Claimant concedes that he is qualified to perform
general clerical services and that he has the capacity to act as cashier or
bookkeeper for commercial firms. He states, however, that as a bookkeeper he
desires to work for $60 per week but that in no event would he work for less
that $40 either as a bookkeeper or as a cashier. We believe from all of the
facts before us that claimant was not truly in the labor market during each of
the five-month periods in 1940, 1941 and 1942 when he was not associated with
the race tracks. There has been no change in claimant's lack of desire to be
gainfully employed during said five-month periods. His entire course of conduct
indicates clearly that he has been unavailable for employment from at least
January 25, 1943, the effective disqualification date set by the local office.
Decision: Initial determination suspending
claimant's benefit rights for unavailability as of January 25, 1943 is
sustained. The decision of the referee is affirmed. (5/20/43)
Index
785.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
AUGUST
1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
AVAILABILITY - NON-EXISTENCE OF PLACEMENT OPPORTUNITIES
Where a claimant resided
in a community of no present or past placement possibilities and her husband,
the owner of an automobile, was unwilling to furnish the necessary four-mile
transportation to the nearest possible place of employment, it was decided that
claimant was unavailable for employment.
A.B. 9030-43
Referee's Decision: The initial determination holding that
claimant had withdrawn from the labor market is overruled. (2/24/43)
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant worked for the past six years in a
paper mill in Pulaski, New York. Up to December 1942 she resided in Altmar, New
York. She then moved to her husband's farm located in Richland, New York, which
is about four miles from her place of employment. Claimant's husband is
postmaster at Richland and uses the family car every day. Up to January 6, 1943
claimant had been riding back and forth from her home to her place of
employment in the automobile of a friend who also worked in Pulaski. At that
time claimant's friend left her employment. Claimant thereafter had no means of
transportation to her place of employment and was compelled to give up the job.
She filed an application for benefits on January 18, 1943. There is no bus,
railroad or other service from claimant's home to her place of employment.
There is no possibility of claimant obtaining employment at Richland or at any
other location to which she can find transportation. Claimant's husband
testified at the hearing before the referee that because of his farm work he
was not available to use his automobile to take his wife back and forth to her
former place of employment.
Appeal Board Opinion: The referee ruled that since the only
reason for claimant's inability to continue her employment was the lack of
transportation and she otherwise would have been employed, she had not withdrawn
from the labor market and was available for employment. We cannot agree with
the referee's conclusion. It must be said that in this case claimant's avowed
willingness to work is not sufficient of itself to constitute a basis for a
determination of availability. As a practical matter there is no possibility of
claimant working while matters remain as they are, since no place of employment
exists to which she can be transported. Since claimant's husband is unwilling
to furnish the necessary four-mile transportation to the nearest possible place
of employment, it must be held that family and other circumstances compelled
claimant to withdraw from the labor market.
Decision: Claimant withdrew from the labor market and is
unavailable for employment. The initial determination is sustained. The
decision of the referee is reversed. (5/20/43)
Index
1460E-3
1460G-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
AUGUST
23, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work
Appeal Board Case Number 8808-43
TOTAL UNEMPLOYMENT - COMPENSATION WITHOUT WORK - PROVISIONS OF
UNION AGREEMENT
(SECTION 502.10 OF LABOR LAW)
Where claimant, under an
agreement between his employer and his union received fifty per cent of his
regular weekly salary during weeks for which no work was available to him from
his employer, such payments constituted remuneration and claimant was not
totally unemployed during those weeks.
Referee's Decision: Initial determination suspending claimant's
benefit rights on the grounds that he was not totally unemployed is sustained.
(2/10/43)
Appealed By: Claimant.
Findings of Fact: Claimant, a clothing cutter, had been
employed by a single employer for approximately eight years. His regular weekly
salary was $65. Under an arrangement existing between claimant's employer and
his union of which claimant is a member, each of the cutters in the employer's
establishment received $32.50 per week during the weeks in which there was no
work available for them. If partial employment was available in a given week,
the cutters would be compensated in accordance with the work actually
performed, but in no event did they receive less than the said sum of $32.50
each. Claimant, however, could not perform work for any other employer during
slack periods without forfeiting the minimum payment of $32.50 in its entirety.
Claimant was also required to hold himself available to the employer at all
times if his services were required. On May 21, 1942 claimant filed an
application for benefits. The local office denied claimant credit for the weeks
in which claimant performed no services for the employer and during which he
received the minimum payment of $32.50 per week. The employer paid social
security taxes and unemployment insurance contributions based on payments made
to claimant and the other cutters in accordance with the foregoing
arrangements.
Appeal Board Opinion: The issue is whether claimant was totally
unemployed within the meaning of the Law for the periods in question. It would
appear from the facts of this case that claimant received the sum of $32.50 per
week from his employer when no work was available by reason of an agreement or
arrangement between the employer and claimant's union. This arrangement
contemplated that claimant would not work for any other employer while
receiving this sum and that claimant would be subject to call whenever needed.
Under such circumstances it cannot be said that there is present herein a
"total lack of any employment . . . together with the total lack of all
compensation . . .", as required under Section 502.10 of the Labor Law.
Clearly, the money paid to the claimant during the weeks in question must be
regarded as compensation pursuant to a contract of hire under a continuing
employer-employee relationship. This money was paid to the claimant only on
condition that he remain subject to call by the employer and that he refrain
from performing work for any other employer.
Decision: Claimant was not totally unemployed during the
weeks in question. The determination of the local office is sustained. The
decision of the referee is affirmed in all respects. (5/28/43)
Index
1250D-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
SEPTEMBER
4, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Hours
Appeal Board Case Number 8951-43
REFUSAL TO ACCEPT OFFER OF EMPLOYMENT - UNWILLINGNESS TO WORK
OVERTIME
(SECTION 506.1 OF LABOR LAW)
Unwillingness to work
occasional overtime customary in the trade and for which extra compensation
would be paid was not good cause for refusal of employment for which reasonably
fitted by training and experience.
Referee's Decision: Initial determination disqualifying claimant
for refusing without good cause an offer of employment is sustained. (2/26/43)
Appealed By: Claimant.
Findings of Fact: Claimant has been married since June 1942 and
resides with her husband, a patrolman at an army base. They have no children.
From March 6, 1942 to September 18, 1942 claimant was employed as a sorter of
ladies' dresses. She earned from $16 to $20 per week, including overtime pay.
She voluntarily left this job for an undisclosed reason. Claimant refiled on
November 2, 1942. On November 27, 1942 she was referred to a dress firm as a
sorter of dresses. The salary offered was $24 per week plus time and a half for
overtime. Claimant called at the prospective employer's place of business and
was interviewed by the two partners of the employer. One informed her that no
overtime work would be required and the other told her "about an hour or
so might be necessary." Claimant refused to accept the job because she did
not desire to work overtime.
Appeal Board Opinion: The position offered to her paid a salary
greater than that received by her in her previous employment. Claimant's stated
reason for the refusal of the job was the fact that she would be required to
work overtime. Under the facts presented herein this excuse is insufficient to
constitute good cause for her refusal. It is customary in the dress industry to
work overtime on occasion. There is nothing in the record to indicate that
claimant would be required to work overtime more than occasionally.
Furthermore, claimant's domestic circumstances were not such as to necessarily
require her presence at home at an early hour.
Decision: Initial determination disqualifying claimant
for refusing without good cause an offer of employment is sustained. The
decision of the referee is affirmed. (6/21/43)
Index
No. 1605A-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
24, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
GRIEVANCES - Annoyance from supervisor
Appeal Board Case No. 8936-43
VOLUNTARY LEAVING – OPTION OF RESIGNING AS AGAINST DISMISSAL
(SECTION 506.2 OF LABOR LAW)
Where claimant, given
the option to resign or be discharged because of disagreements with foreman,
resigned, it was held leaving was not voluntary.
Referee’s Decision: Initial determination disqualifying claimant
for voluntarily leaving employment without good cause is sustained. (2/19/43)
Appeal By: Claimant
Findings of Fact: Claimant was employed from February 7, 1942 to
April 1948 as an expert clothing consultant and designer by a federal
governmental agency engaged in war work. During this period of employment
claimant had difficulties with his immediate supervisor who was also a clothing
designer. It is the contention of the claimant that said supervisor improperly
claimed credit for clothing designs which in fact were designed by the
claimant. Their disagreements came to the attention of the chief supervisor,
who, after listening to both parties, informed the claimant that he would have
to resign or be discharged. Claimant did not desire to have a discharge against
his record. Consequently he submitted his resignation which was accepted by the
employer.
Appeal Board Opinion: In the booklet entitled "Issues Involved
in Decisions on Disputed Claims for Unemployment Benefits" reprinted from
the Social Security Yearbook, 1940, by the Social Security Board, the
applicable principle is aptly summarized as follows:
"If an employer
gives the claimant the choice of leaving or being discharged and the claimant
resigns in order to avoid discharge, it is generally held that he does not
leave voluntarily." (at p. 48)
We believe that this
concept is applicable to the instant facts. We therefore hold that claimant did
not leave his employment voluntarily.
Decision: Initial determination disqualifying claimant
for voluntarily leaving employment without good cause is overruled. The
decision of the referee is reversed. (6/21/43)
Index
1615-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
SEPTEMBER
24, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
GRIEVANCES
Annoyance from Supervisor
Appeal Board Case Number 9189-43
VOLUNTARY LEAVING - ERRONEOUS BELIEF OF DISMISSAL
(SECTION 506.2 OF LABOR LAW)
Assumption by claimant
that because of an argument with his foreman in a war plant he would be
discharged did not constitute good cause for voluntary leaving of employment.
Referee's Decision: Initial determination disqualifying claimant
for voluntarily leaving employment without good cause is sustained. (3/30/43)
Appealed By: Claimant.
Findings of Fact: Claimant had been employed as a machine
operator by the B. Manufacturing Company of the City of Utica, New York, at a
rate of fifty-five cents per hour. He operated a turret lathe and, because of
the mechanical condition it was in, he could not turn out any great volume of
work. The machine fixer advised him it would take about four days to repair and
told claimant to take it easy while it was being fixed. Before the machine was
repaired the shop foreman stopped at the claimant's machine and requested
information with reference to the condition it was in. An argument ensued as to
who had been the cause of the machine's failure. After the argument claimant
left his employment of his own volition. He contends that he felt he was going
to be fired because of the volume of work he was turning out. The employer at
no time threatened to dismiss the claimant. During claimant's period of
employment with the employer herein, he had applications to file with the S.A.
Corporation and the R.A. Corporation and, if he were successful in obtaining
employment with either of these corporations, he would receive higher wages
than those paid him by the instant employer. The employer herein is engaged in
the manufacture of equipment necessary for the successful promotion of the war.
After leaving his employment, the claimant immediately contacted the R.A.
Corporation, and this corporation requested a release from the employer herein.
In answer to this request, the employer advised that as far as it was concerned
the claimant was still in its employ and refused to issue a release in favor of
the claimant.
Appeal Board Opinion: A claimant seeking unemployment insurance
benefits must conform with the provisions of Section 506 of the Labor Law and
demonstrate that his separation from employment was founded on a good and
reasonable cause rather than on the arbitrary or capricious will of the
claimant. (See Appeal Board, 6179-41) The claimant concedes that he left his
employment as a result of an argument with his foreman, who, up to that time,
had no knowledge of the alleged breakdown of claimant's machine. In this time
of national emergency much stress is placed upon the employer and employee in
establishments engaged in the war effort. Arguments, disputes and differences
of opinion are bound to arise during the course of one's daily employment. The
claimant did not have the right to infer that as a result of the alleged
argument the employer was about to discharge him. As a matter of fact, the
employer's refusal to grant a release of the claimant to the R.A. Corporation
on the ground that the employer considered claimant still in its employ, tends
to negate claimant's contention that he anticipated being discharged.
Decision: The initial determination that claimant
voluntarily left his employment without good cause is sustained. The decision
of the referee is affirmed. (6/14/43)
Index
1750-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
SEPTEMBER
24, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Method of Computation
Appeal Board Case Number 8876-43
VOLUNTARY LEAVING OF EMPLOYMENT - WAGES - METHOD OF COMPUTATION
UNKNOWN
(SECTION 506.2 OF LABOR LAW)
Where claimant's hourly
earnings were computed by a formula applied by employer, but unknown to
claimant, and claimant, in order to determine adequacy of pay, requested
employer to furnish basis of payment, the employer's non-compliance with this
request constituted good cause for voluntary leaving of employment.
Referee's Decision: Initial determination disqualifying claimant
for voluntary leaving employment without good cause is overruled. (2/27/43)
Appealed By: Employer.
Findings of Fact: Between March 4, 1942 and June 19, 1942,
claimant was employed as an assembler by a firm engaged in manufacturing
drawing instruments, school supplies and defense materials, on a forty-hour
weekly basis with time and a half for overtime. During this period of
employment, she was paid on an hourly basis which varied weekly from a minimum
of 33 4/7¢ per hour to a maximum of 57¢ per hour. The rate was fixed by the
employer at the end of each week. The employer's explanation for the
differences in the hourly rate from week to week was that claimant's rate of
production determined her hourly rate. During the course of her employment,
claimant repeatedly asked to be informed with regard to the basis upon which
she was being paid. At no time was claimant (a) apprised of the system under
which she was working; (b) furnished with a schedule so that she could
determine her hourly rate; or (c) furnished with a daily or weekly statement of
her production to verify employer's computations. Accordingly, she terminated
this employment on June 19, 1943.
Appeal Board Opinion: Under the facts of this case, claimant
voluntarily left her employment with good cause. The wages paid to claimant
were allegedly the result of the use of a formula applied unilaterally by the
employer without the knowledge or consent of claimant. She could not determine
whether she was adequately compensated in any week. No opinion is expressed
with regard to the good faith of this employer in the use of the formula. It is
the method of its use that is objectionable, since there were no standards,
schedules or production records furnished to the employee that would enable her
to determine whether the formula was justly applied.
Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is overruled. The
decision of the referee is affirmed. (6/7/43)
Index
770.11
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
OCTOBER
1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
AVAILABILITY - CANNERY WORKER - NO WORK HISTORY DURING OFF
SEASON )
The fact that a worker
had no employment during off-seasons was insufficient in itself to support a
determination of unavailability.
A.B. 9155-43
Referee's Decision: The initial determination suspending
claimant's benefit rights for unavailability is sustained. (3/31/43)
Appealed By: Claimant.
Findings of Fact: Claimant is a resident of Holley, New York,
which is about twenty-six miles from Rochester. For the past seven years,
during the season which extends about six or seven months, commencing in June
or July of each year, claimant worked in a canning factory located in Holley.
Her only other work experience for the past thirty years has been in fruit
packing houses and occasional work in the field around harvest time. She is
fifty years old, married and has a nineteen-year old daughter who is working.
Her husband works in Rochester. At interviews at the local office claimant
signed statements to the effect that in the previous seven years she worked
during the canning season and that during the off season did not look for work
outside of Holley. She stated also that she would work during the hours 6:30
A.M. to 4:30 PM. and that with these restrictions she was willing and able to
work. No rights were suspended for unavailability.
Appeal Board Opinion: The referee upheld the initial
determination on the theory that "claimant admits that she is only
desirous of working during the canning season." We have carefully examined
the written statements of the claimant and the testimony before the referee and
are unable to find any basis for the referee's conclusion; nor did the local
office have any basis for its initial determination of unavailability. Far from
admitting her unwillingness to work, claimant in her written statement and in
her testimony expressed a contrary contention. At the hearing she testified
that she knew that she was required to be available for work in order to be
eligible for benefits and that she had made efforts to obtain work elsewhere.
No offer of employment was ever made to her and she at no time indicated that
she would refuse to entertain one. In cases where it appears that a seasonal
worker has had no employment during the off season over a long series of years,
it may be an indication that the person has no desire to work after the season.
However, the fact that the person had no work is not sufficient in itself to
support a determination of unavailability. Each individual case must be
carefully scrutinized with a view to determine whether all the circumstances as
well as the claimant's entire course of conduct warrant the conclusion that
there was no desire to work. The record herein falls short of establishing that
essential fact.
Decision: The initial determination suspending
claimant's benefit rights for unavailability is overruled. The decision of the
referee is reversed. (7/31/43)
Index
1230-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
OCTOBER
15, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Domestic and personal reasons
Appeal Board Case Number 9228-43
REFUSAL OF REFERRAL TO EMPLOYMENT - PREFERENCE FOR WORK IN NEW
YORK (SECTION 506.1 OF LABOR LAW)
Where claimant's work
experience was solely of a live-in nature, at an out-of-the city children's
camp, and she was offered a job at an out-of-the city children's camp for
substantially similar work as that previously performed by her, held that in
the absence of changed domestic circumstances, her refusal of the offered job,
on the ground that she could not leave the city because of her domestic
circumstances, was not with good cause.
Referee's Decision: Initial determination disqualifying claimant
for refusing without good cause referrals to employment is overruled. (5/5/43)
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant, twenty-nine years of age,
married and the mother of a child about one and a half years of age, resides
with her husband and child in the Borough of Manhattan, New York City. Form
1931 to 1940 she had no work experience. During the first six months in 1941 claimant
was employed in a factory engaged in making belts for ladies' hats at a salary
of about $15 per week. During July, August and September of 1941 claimant lived
at a children's camp located at Ulster Park, New York, the beneficial owners
and operators of which were her father-in-law and mother-in-law. Claimant
contended that she was employed at said camp as a camp mother and that she
earned a total of $409.75 during the third quarter of 1941; that during the
fourth quarter of 1941 she was employed at the New York City office of the camp
as "clerk", earning $50. During July, August and September 1942
claimant again lived at the camp and allegedly was employed there as camp
mother. She testified that she earned about $100 in the first quarter, about
$200 in the second quarter and about $400 in the third quarter of 1942. In
February 1942 claimant's baby was born and the child spent the summer of 1942
with the claimant at the camp. On November 10, 1942 claimant filed an
application for benefits and in stating her previous work experience to the
employment interviewer, claimant failed to mention her previous experience to
the employment interviewer, claimant failed to mention her previous factory
employment. She did, however, stress her alleged employment as camp mother at a
children's camp during the summers of 1941 and 1942. On February 3, 1943
claimant was referred to two living-in positions at children's camp located
outside the City of New York. The primary function of the positions to which
claimant was referred was to work with and care for children. One position was
at Binghamton, New York and the other at Chappauqua, Westchester County, New
York. Claimant had no objection to the compensation offered but refused the
referral on the ground that she "could not accept any jobs outside of New
York City because of my family." The local office disqualified claimant
and claimant in her request for a hearing stated "Placement had no right
to send me out of town for a job." Claimant has no knowledge of or
experience in stenography, typing or bookkeeping. She does not desire to work
in a factory or work at a salary less than $25 per week.
Appeal Board Opinion: Viewing all of the facts in this record as a
whole, we are not convinced that claimant's alleged employment as "camp
mother" during the summers of 1941 and 1942 was genuine employment.
However, that issue is only collateral to the issue before us and we therefore
need not decide it herein. Even if we assume that her employment as "camp
mother" was genuine, her position with respect to the issue before us is
unaided. The work experience revealed to the employment interviewer by the
claimant herself indicates employment solely of a living-in nature and at an
out-of-the city children's camp during the two summers immediately preceding
the referral in question. Yet when offered two positions at children's camps
out of the city to perform work substantially similar to that allegedly
performed by her in her previous employment, claimant refused the referral. We
believe from all of the fact and circumstances herein that claimant had a
desire to collect unemployment insurance benefits and not to obtain employment.
We hold that claimant refused the referrals without good cause.
Decision: The initial determination disqualifying
claimant for refusing without good cause to accept referrals to employment is
sustained. The decision of the referee is reversed. (7/19/43)
INDEX
755 A.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE
June
26, 1943
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence
EMPLOYEE
Part-time worker
A.B. 9358-43
AVAILABILITY - THREE DAYS A WEEK ONLY
Unwillingness to work more than three days a
week rendered claimant ineligible for benefits since she could not have
"four or more days of total unemployment" or accumulate any
"effective" days in any statutory week.
Referee's Decision: Claimant was available for employment as a
short-time worker and is eligible for benefits as such, subject to the
regulations of the Industrial Commissioner. (5/12/43)
Appealed by: Industrial Commissioner.
Findings of Fact: For nine years prior to January 1941 claimant
was employed as a full-time worker for a life insurance company. When she
became separated from this employment she was pregnant. Her baby was born about
September 1941. Claimant was last employed as a bookkeeper on a part-time basis
from November 1941 to January 1943. From November 1941 to May 1942 claimant
worked mornings only. From May 1942 to January 1943 she worked three full days
a week. Her hours of work were changed to enable her to save carfare and
lunches. On January 26, 1943 claimant filed an application for benefits. On
February 11, 1943 she was referred to two full-time jobs at defense plants.
Claimant refused to accept these referrals as, because of her domestic duties,
she would not consider working more than three days a week. Claimant resided in
the same building with her mother, who was willing to take care of claimant's
child during claimant's absence.
Appeal Board Opinion: Claimant's most recent history is that of
a part-time worker on a three day a week basis. Because of her domestic duties
she is unwilling to accept any other type of employment. Claimant, therefore,
is available for employment on only three days during any calendar week. It is
argued on behalf of the Industrial Commissioner that claimant cannot, in any
event, qualify for benefits because she cannot accumulate any effective days in
any statutory week. The Commissioner's position is well taken. The pertinent
subsections of Section 502 of the Labor Law read as follows:
"10. 'Total
unemployment' means the total lack of any employment on any day,
including employment not subject to this article, caused by the inability of an
employee who is capable of and available for employment to obtain any
employment in his usual employment for which he is reasonably fitted by
training and experience, including employment not subject to this
article." (Underscoring ours)
"12. 'Effective
day' means a full day of total unemployment provided such day falls
within a week in which an employee had four or more days of total unemployment
and provided further that only those days of total unemployment in excess of
three days within such week shall be deemed 'effective days,' except that
no effective day shall be deemed to occur in a week in which the employee has
days of employment for which he is paid remuneration exceeding an aggregate of
twenty-four dollars." (Underscoring ours)
"13. A 'week' means
seven consecutive days beginning with Monday." Claimant is available for
work only three days a week. On this basis she could not have "four or
more days of total unemployment" in any statutory week and would be unable
to accumulate any "effective days." It must be held, therefore, that
claimant cannot qualify for benefits by reason of her unwillingness to work on
more than three days a week.
Decision: The claimant cannot qualify for benefits
because she cannot accumulate any effective days in a statutory week. The
initial determination of the local office is sustained. The decision of the
referee is reversed. (9/1/43)
Index
865B-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
NOVEMBER
8, 1943
INTERPRETATION
SERVICE - BENEFIT CLAIMS
RESIGTRATION, REPORTING AND CERTIFICATION
Misinformation
Delay in registering
Appeal Board Case Number 9440-43
FAULURE TO REGISTER - RELIANCE ON ERRONEOUS INFORMATION NOT
FURNISHED BY DIVISION
(SECTION 510.1 OF LABOR LAW)
Registration was not
predated where claimant's delay was due to his reliance on erroneous
information received from sources outside the Division.
Referee's Decision: Initial determination refusing predating of
claimant's application for benefits to January 11, 1943 is overruled. (6/7/43)
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant worked for thirty-one years prior
to January 1943 as an assistant manager in the revenue accounting department of
a telegram company. He was retired by his employer in January 1943. Claimant
filed an application for employment at the United States Employment Service on
January 11, 1943. He was assigned a reporting date of March 8, 1943 at
placement. Claimant failed to meet this reporting date because commencing about
January 31, 1943 he was visiting his son who was stationed at an army camp in
Louisiana. Claimant filed an application for unemployment insurance benefits on
April 26, 1943 and reported currently. On May 4, 1943 claimant requested the
local office to credit him with his period of unregistered unemployment
commencing January 11, 1943. The local office denied claimant's request on the
ground that he had not filed a claim for benefits prior to April 26, 1943.
Claimant stated that he had not filed a claim for benefits prior to April 26,
1943 because (a) he did not need the money and (b) he relied upon erroneous
information received from his employer and other governmental agencies outside
of the Division of Placement and Unemployment Insurance that he was not
eligible for benefits. Claimant knew that he was not filing a claim for
benefits when he made an application for employment at the placement section on
January 11, 1943.
Opinion: Claimant having relied upon outside sources of
information, it must be held that his failure to file a claim for unemployment
insurance benefits prior to April 26, 1943 cannot be excused. Claimant knew
that he did not file a claim for benefits when he applied for employment at the
placement section on January 11, 1943. Moreover, he admits that he had no
intention of doing so at that time.
Decision: Initial determination denying claimant's
request to be credited with his unregistered period of unemployment is
sustained. The decision of the referee is reversed. (8/18/43)
Index
No. 735A.2
785.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
19, 1943
INTERPRETATION
SERVICE- BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILTY AND CAPABILITY
Evidence of
REFUSAL OF EMPLOYMENT
Distance
Transportation facilities - lack of
Appeal Board Case No.9431-43
AVAILABILITY - NON-EXISTENCE
OF PLACEMENT OPPORTUNIITIES
REFUSAL OF REFERRAL TO EMPLOYMENT- TRANSPORTATION FACILITIES
Where a claimant, having a family permanently
residing in his own house in a community where no placement opportunities
presently exist, and no transportation facilities to offered work are
available, it was decided that claimant had good cause for refusing employment
and was available for employment.
Referee's Decision: Initial determination disqualifying claimant
refusing to accept an offer of employment is modified to hold that claimant was
unavailable for employment. (6/7/43)
Appeal By: Claimant
Findings of Fact: Claimant a construction laborer, filed an
application for employment and for unemployment insurance benefits on December
1, 1942 in the Ithaca local office and reported to April 28,1943. Claimant
resides in Ludlowville, which is ten miles from Ithaca. On April 9, 1943
claimant was referred by the United States Employment Service to a job as a
construction laborer at a government project at Horseheads, New York. The
prospective employer furnished facilities to transport its employees from
Ithaca to the plant, at a distance of twenty-seven miles. Claimant refused the
referral on the ground that no facilities were available to transport him from
his residence in Ludlowville to Ithaca in time to make connections with the
employer's truck. On April 22, 1943 the local office issued an initial
determination, effective April 9, 1943, holding that claimant, without good
cause, refused to accept referral to employment. Claimant is the father of four
children. He owns his own home in Ludlowville. Prior to filing his claim for
benefits he worked in nearby localities. He arranged transportation by sharing
a ride with a worker who commuted daily from Ludlowville. This means of
transportation was no longer available to claimant after November 1, 1942, when
claimant became separated from his employment. No employment opportunities
exist in Ludlowville. Claimant is unwilling to live away from his home in
Ludlowville. On April 27, 1943 claimant was referred by the United States
Employment Services to a job as a laborer at a tool factory in Ithaca. Claimant
accepted the referral and reported to the employer's establishment. He was
willing to accept the job providing transportation to the employer's plant was
made available to him. He could not accept employment due to lack of
transportation facilities.
Appeal Board opinion: The referee ruled that claimant had good
cause to refuse the offer of employment on the ground that no means of
transportation was available to claimant to reach the employer's establishment.
He also ruled that claimant was unavailable for employment. We agree with the
referee's conclusion that claimant had good cause to refuse the offer of
employment because of no means of transportation was available to claimant to
reach the proposed employer's place of business. We do not agree with the
referee's conclusion that claimant rendered himself unavailable for employment
by continuing to live in Ludlowville where no opportunities for employment
exist for him.
If he had good cause to
refuse the job offer because of lack of transportation, then he may not be held
unavailable for employment for the identical reason. Claimant has made efforts
to secure employment within walking distance of his home, without avail. It is
not questioned that he desires work. In disposing of an analogous case in
Appeal Board 7222-42 we said:
"The referee ruled claimant to be
unavailable because there are no opportunities in the place of her residence
and she is without means of transportation to any place of possible employment.
It is not questioned that claimant is willing to work or that she has been and
is making an honest effort to solve her transportation problem. Claimant's
inability to secure work is not due to her unavailability but rather due to the
fact that work was not available because of conditions over which she had no
control.
"Under these circumstances, it would be a harsh rule that would deny to
the claimant her benefits, at least pending the solution of her difficulties.
We believe that the suspension of claimant's benefits rights was
improper."
The same reasoning
applies in the instant case.
Decision: Claimant with good cause, refused to accept a
referral to employment. Claimant was available for employment. The initial
determination of the local office is overruled. The decision of the referee is
reversed. (9/21/43)
Index
No. 780A.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
December
27, 1943
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of
Appellate Division Decision
Marie Salavarria Case
AVAILABILITY – DATE OF
SUSPENSION
In the absence of proof
of claimant’s unavailability prior to her refusal of employment, suspension for
unavailability was sustained as of the date of such refusal.
Appeal Board Decision
Case No. 7831-42: Claimant was
unavailable for employment on and after April 19, 1942. Initial determination
is modified accordingly. The decision of the referee is reversed. (12/7/42)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant, a homeworker operator of embroidery
machines, filed an application for benefits at a local office in New York City
on June 21, 1941. She refiled in the same office on December 26, 1941 and
reported to March 23, 1942. On March 28, 1942 claimant filed a claim through
the United States Employment Office in Washington, D.C. against New York as the
liable state. She certified to weeks of total unemployment until about April
19, 1942. On April 21, 1942 claimant was referred to a job as a sewing machine
operator in an establishment in Washington. The prospective employer offered to
train claimant for this type of work. Claimant refused to accept the referral
on the grounds that she had always worked at home, that she had to take care of
her ten-year-old child and could not accept employment outside of her home. For
four years prior to June 21, 1941 claimant had worked as an embroidery machine
operator at home for an undergarment company located in New York City. Her
earnings averaged about $25 a week. She resided with her husband in New York City
prior to March 28, 1942. The family moved to Washington, D.C. so that the
husband might seek more remunerative employment. He has since been employed
there, earning about $45 a week. When claimant filed her inter-state claim she
registered as a homeworker. The Employment Service at Washington, D.C. does not
employ homeworkers. Claimant attempted to find homework in Washington but her
efforts have been unsuccessful. On May 25 the Out-of-State Resident Unit issued
an initial determination holding that claimant was unavailable for employment
as of March 28, 1942 and had withdrawn from her labor market on that date.
Claimant requested a hearing on this issue. The referee overruled the initial
determination, from which an appeal was taken to the Appeal Board by the
Industrial Commissioner. The Appeal Board reversed the referee and modified the
initial determination, stating as follows:
"As
a result of the determination by the Out-of-State Resident Unit, fixing the
date of her unavailability as March 28, 1942, claimant was deemed overpaid in
the amount of $30, representing three checks of $10 each which she received for
the period subsequent thereto. It cannot be said in this case that claimant
committed any false representation or that she withheld any information from
the employment office. The information upon which the determination of May 25,
1942 was based was available and ascertainable at all times after claimant’s
removal to Washington and the filing of her claim there. We believe, therefore,
that it would be unfair to ask the claimant to return the benefit checks, which
are charged as overpayments. We accordingly fix the date of her unavailability
as April 19, 1942. The determination is modified to the extent that there is no
overpayment of benefits to claimant."
The Industrial
Commissioner appealed from so much of the decision of the Appeal Board as fixed
the date of claimant’s unavailability for employment as of April 19, 1942.
Appellate Division
Opinion: On April 21, 1942 the
Washington employment office certified to the New York Unemployment insurance
office that claimant had refused a job to which she had been referred. It was
impossible to obtain employment in Washington as a homeworker since that city
is not a manufacturing city as there are only a few factories and the
employment service received no call for homeworkers. April 21, 1942 was the
first time that there was any evidence in the case, which showed that the
claimant was not available for employment. The Board, therefore, had to report
it had evidence of claimant’s unavailable as of April 21, 1942.
Appellate Division
Decision: Decision of the Appeal
Board affirmed. (9/22/43)
Note: It will be noted that the Appellate Division
in this case fixed the date of claimant’s unavailability as of the date
"that there was any evidence in the case which showed that the claimant
was not available for employment." It emphasizes the importance of
promptly procuring all pertinent information pertaining to an application for
benefits in order to assure adequate protection of the Fund.
Index
1245.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY
8, 1944
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Safety and health
Appeal Board Case Number 9718-43
THE REFUSAL OF AN OFFER OF EMPLOYMENT - ADVERSE EFFECT ON HEALTH -
(SECTION 506.1 OF LABOR LAW)
Refusal of employment on
an alternating day and night basis, which basis might have adversely affected
claimant's health, was with good cause.
Referee's Decision: Initial determination disqualifying claimant
for refusing, without good cause, a referral to employment is sustained.
(8/12/43)
Appealed By: Claimant.
Findings of Fact: Claimant is single and lives with her parents.
For the past fourteen years and up to April 11, 1943 she was employed as an
information telephone operator. Her salary was $34 per week. She left her
employment upon the advice of her physician because the work affected her
health. Claimant registered for employment and unemployment insurance benefits
on April 26, 1943. On May 28, 1943 she was referred to a job as telephone
operator in a large hotel. The employment called for alternating day and night
work, six days a week, at a weekly salary of $22.50. Claimant refused the
referral on the grounds that the salary was insufficient, that she would not
work nights and that she would not work for less than $30 a week. On the same
day she was referred to a job in a retail store as a salesclerk, hours nine to
six, five and one-half days a week, at a weekly salary of $18. Claimant refused
to accept this referral on the ground that the salary was insufficient. From
the date of her registration on April 26, 1943, claimant made independent
efforts to secure employment. Her physician advised her that she was capable of
working except at her old position. She visited factories in Long Island
soliciting work as a telephone operator, which she was unable to secure. She
registered for a training course in war production work and secured a position
with an airline company as a mechanic's helper. Her starting salary was $26 for
a week of forty hours, with overtime for all hours in excess of forty. She
works forty-eight hours a week.
Appeal Board Opinion: The sole issue in this case is whether
claimant's refusal to accept the referral as a telephone operator in a hotel
was without good cause. Claimant had been compelled because of her health to
resign from her position. She recovered and was able to work. The salary in the
job offered to her was substantially less than she had formerly received. It
involved day and night work. Claimant's reluctance to accept such a referral is
understandable, not only because of the salary, but also because of the
possibility that alternating days and night work might adversely affect her
health. Claimant's desire to work cannot be questioned. She took a war-training
course. She secured a job as a mechanic's helper with an airline company at a
salary more commensurate with her former salary. Under such circumstances we
believe that claimant had good cause to refuse the referral in question.
Decision: Initial determination disqualifying claimant
for refusal, without good cause, referral to employment, is overruled. Decision
of the referee is reversed. (10/25/43)
Index
1710-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY
8, 1944
INTERPRETATION
SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Risk of injury
Transfer to other work not desired
Appeal Board Case Number 571-43
VOLUNTARY LEAVING OF EMPLOYMENT - RISK OF PERSONAL INJURY
(SECTION 506.2 OF LABOR LAW)
Voluntary leaving of
employment rather than accept work as a jig learner was with good cause where
the offered work was hazardous in nature and claimant's past experience did not
fit him for it.
Referee's Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is sustained. (6/28/43)
Appealed By: Claimant.
Findings of Fact: Claimant is forty-one years of age, six
feet tall and weighs 220 pounds. He was graduated from high school and
completed a two-year college course in aeronautical engineering. In addition he
attended business school for one year. From 1929 to 1942 claimant was
continually employed as a traveling salesman of food products, selling to
wholesale and retail grocers. On November 16, 1942 claimant obtained a position
as planning clerk with a manufacturing firm engaged in war work. About two
weeks thereafter he was transferred to the inspection department of the firm to
perform inspection work. Because of some personal difference between claimant
and the foreman of this department claimant was transferred to the jig building
department as a jig learner. Claimant did not desire to work at jig building
because he felt he was not suited for it. He so informed the personnel director
of the firm. Claimant was advised that he could either transfer to the jig
building department or leave his position as an inspector. Two days later
claimant left his position. On January 14, 1943 claimant refiled an application
for employment and unemployment insurance benefits and reported to February 3,
1943. On February 22, 1943 he obtained a position as inspector in a different
war plant situated in the same locality. Upon being informed that claimant had
voluntarily left his employment, the local office issued an initial determination
disqualifying the claimant. At the hearing before the referee claimant
testified that in jig building there was considerable climbing to do and that
because of his weight, climbing made him dizzy.
Appeal Board Opinion: Claimant was not fitted by reason of his past
training and experience and by reason of his physical stature for the offered
job of jig builder. That he is fitted for work as an inspector is substantiated
by the fact that within one month after leaving the employment in question he obtained
such work in a war plant and continued in that employment.
Decision: Initial determination disqualifying claimant
for voluntary leaving of employment without good cause is overruled. The
decision of the referee is reversed. (9/7/43)
Index
770.6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MARCH
1944
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of
AVAILABILITY - WORK HISTORY AS EVIDENCE OF AVAILABILITY
Where claimant for ten
years worked as a bartender only during summers, the balance of each year
living with his daughter in Long Island and in the South, and did not seek
employment outside the summer season, or consider employment not in close
proximity to his home, where no employment opportunities existed, benefit
rights were properly suspended for unavailability.
A.B. 9388-43
Referee's Decision: The initial determination suspending
claimant's benefit rights for unavailability is sustained. (5/19/43)
Appealed By: Claimant.
Findings of Fact: Claimant is sixty years of age. For ten years
past he has resided at his own home in Paradox Lake, N.Y. which is a summer
resort and was employed as a bartender in either of two establishments at
Paradox Lake and Schroon Lake. The latter locality is a summer resort seven
miles from claimant's residence. Claimant's employment was seasonal and
commenced on Decoration Day and ended about Labor Day. As a bartender, claimant
earned about $20 a week plus meals and tips. There are no employment
opportunities in Paradox Lake and the vicinity after the summer season.
Claimant did not work after the closing of the summer season. After his
seasonal employment ended, claimant and his wife would leave Paradox Lake to
visit their daughter at Lindenhurst, L.I. were they made their home for the
winter season. During some years claimant and his wife would spend the winter
in the South. In the Spring they would return to their home in Paradox Lake.
Claimant made no effort to obtain employment while visiting with his daughter.
On September 17, 1942 claimant filed for benefits and reported to October 28,
1942. He then refiled on November 10, 1942 and reported to January 20, 1943 at
which time he received his thirteenth check. He refiled on April 1, 1943 and
reported to May 26, 1943. On April 1, 1943 claimant was referred by the
U.S.E.S. to a job as laborer in a mill engaged in defense work located at
Chestertown, N.Y., a distance of about thirty miles from claimant's residence
in Paradox Lake. Claimant refused to accept this referral because of the
distance, stating that he was unwilling to accept employment more than seven
and one-half miles from his home; that he was not physically able to do the
work due to an asthmatic condition and a hernia and that he preferred a salary
of $45 a week. On April 2, 1943 an initial determination was issued holding
that claimant, without good cause, refused to accept a referral to employment
and was unavailable for employment.
Appeal Board Opinion: During the last ten years claimant's only
employment was that of a bartender during the summer season. During the
remaining months of the year he would either take a trip South or make his home
with his daughter in Long Island. He made no attempt to seek employment after
the close of the summer season. He refuses to consider employment which is not
in close proximity to his home in Paradox Lake. No employment opportunities are
available in the latter locality after the summer season. Claimant's entire
course of conduct indicates that he was not available for employment on and
after April 1, 1943. In view of the conclusion reached by us it is unnecessary
to pass on the question whether claimant's refusal to accept the referral to
employment was with good cause.
Decision: The initial determination suspending
claimant's benefit rights for unavailability as of April 1, 1943 is sustained.
The decision of the referee is modified accordingly. (9/1/43)
Index
805-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MARCH
7, 1944
INTERPRETATION
SERVICE - BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING AND CERTIFICATION
Filing and Certifying Requirements
Appeal Board Case Number 9384-43
REPORTING - FAILURE TO REPORT TO PLACEMENT OFFICE AS DIRECTED
(SECTION 510 OF LABOR LAW)
Deliberate disregard of
specific direction to report daily to the employment office resulted in
suspension of benefit rights.
Referee's Decision: Initial determination suspending claimant's
benefit rights for failure to report to placement office is sustained. (6/3/43)
Appealed By: Claimant.
Findings of Fact: Claimant, a legal secretary, stenographer
and bookkeeper of twenty years' experience, received $40 a week in her last
employment, which terminated on March 6, 1943. She filed an application for
benefits on March 8, 1943. During an interview at the secretarial section of
the placement office claimant stated she believed she was entitled to receive
$40-$45 per week. Claimant was advised the prevailing rate of wage was $30-$35
per week. On April 28, 1943 claimant reported to the placement office and was
placed on a daily reporting basis and instructed to return on April 29.
Claimant did not do so. On April 30 she advised the claims examiner that she
had deliberately failed to report to placement on the preceding day and that
she would refuse to report there in the future. Claimant's benefit rights were
suspended. She continued to report to insurance but refused to report to
placement. At the hearing claimant sought to establish that her past training
and experience justified her demand for $40 per week minimum salary. She sought
also to establish that the requirement that she report daily to placement was
unreasonable in view of the fact that they had no job offers for her and that
it interfered with her search for employment through private agencies and
newspaper advertisements. In support of her contention, claimant submitted
names of fifteen private employment agencies with which she had registered
specializing in placement at higher wage scales. She also listed twenty-seven
interviews with prospective employers in connection with applications made for
employment in her line at $40-$50 per week.
Appeal Board Opinion: The issue before the referee was whether or
not the local office had properly suspended claimant's benefit rights for
failure to report to the placement office. The local office determination was
based on claimant's refusal to report in accordance with the prescribed
procedure. There is no question that she failed to so report. The local office
properly warned claimant that her continued refusal to report to placement
would result in a suspension of her benefits. It cannot be said that the local
office action was improper.
Decision: The local office determination suspending
claimant's benefit rights for failure to report to placement is hereby
sustained. The decision of the referee is affirmed. (9/21/43)
Index
1295-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MARCH
7, 1944
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other reasons for refusal
Appeal Board Case Number 9541-43
REFUSAL TO ACCEPT REFERRAL TO EMPLOYMENT - UNWILLINGNESS TO REMOVE
UNIFORM
(SECTION 506.1 OF THE LABOR LAW)
The fact that claimant,
a member of the enlisted reserve of the United States Army, was subject to duty
on twenty-four hours' call, did not justify refusal of employment for which he
was reasonably fitted by training and experience.
Referee's Decision: Initial determination disqualifying claimant
for refusing, without good cause to accept referral to employment and
suspending claimant's benefit rights for unavailability is overruled. (6/29/43)
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant, a mason's helper during the last
three years, was referred to a job as a stock handler or laborer in a machine
shop engaged exclusively in war work. He refused to accept the referral on the
grounds that he was a member of the enlisted reserve of the United States Army
and was subject to report for duty on twenty-four hours' call; that he refused
to remove his uniform and that the job in question was not one for which he was
reasonably fitted by training and experience. An initial determination was
issued that claimant, without good cause, refused to accept a referral to
employment and that he was unavailable for employment. At the date of the hearing
claimant expected to be called to active duty in two weeks. Under army
regulations the wearing of a uniform by reserve members is optional.
Appeal Board Opinion: It is not compulsory for a reserve member of
the United States Army to wear a uniform. Considering claimant's past work
history, the job to which he was referred meets the statutory test. The fact
that claimant might have been subject to twenty-four hour call does not justify
his refusal. At the date of the hearing he expected to be called to active duty
in two weeks. The reasons advanced by claimant for his refusal cannot be
accepted as constituting good cause within the meaning of the law. The question
of whether or not claimant was unavailable is academic.
Decision: Claimant, without good cause, refused to
accept a referral to employment. The initial determination is modified
accordingly. The decision of the referee is reversed.
Index
1245-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MARCH
7, 1944
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF MEPLOYMENT
Safety and Health
Appeal Board Case Number 9282-43
REFUSAL TO ACCEPT REFERRAL - BASEMENT WORK - HEALTH ADVERSELY
AFFECTED
(SECTION 506.1 OF LABOR LAW)
Arthritic claimant
justified in refusing to accept referral to job in basement on the
uncontroverted ground that the dampness there would adversely affect her
health.
Referee's Decision: Initial determination disqualifying claimant
for refusing, without good cause, to accept referral to employment is
sustained. (4/1/43)
Appealed By: Claimant.
Findings of Fact: Claimant filed an application for
employment and unemployment insurance benefits on November 4, 1942. On November
25, 1942 she was referred to a job as a sales clerk in a basement of a
department store. She refused this referral on the ground that working in a
basement would aggravate her ailment. Claimant is afflicted with arthritis in
the back. Prior to May 18, 1942 claimant was employed as a sales clerk in the
basement of a department store. She left this employment on the latter date
because the dampness in the basement caused her discomfort and headaches and
adversely affected her physical condition.
Appeal Board Opinion: Claimant bases her contention that working in
a basement would aggravate her ailment on her previous experience while working
under similar conditions. Claimant should not be compelled to accept a job
which adversely affects her health.
Decision: Initial determination disqualifying claimant
for refusal to accept the referral is overruled. The decision of the referee is
reversed. (6/30/43)