A-750 600 Series
A-750-603
Index
No. 1250C-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
14, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Domestic and Personal Reasons
Appeal Board Case No. 11,483-44
REFUSAL OF REFERRAL TO EMPLOYMENT – PERSONAL REASONS –
INCONVENIENCE OF EARLY STARTING HOUR (SECTION 593 OF LABOR LAW)
Refusal of employment
which required thirty minutes traveling time from claimant’s home and which was
one of several offers during about seven weeks of unemployment solely because
the starting hour was 8 a.m. was held to be without good cause.
Findings of Fact: A hearing was held at which claimant and
representative of the Industrial Commissioner and of the United States
Employment Service appeared and testified. Claimant, a secretary-stenographer,
filed an original claim for benefits on September 11, 1944, and is currently
reporting. On October 24, 1944, claimant was offered a referral to employment
with J.D. Banks Company, 80 Broad Street, New York City, as a stenographer, at
$40 for a five-day week, hours 8 a.m. to 4:30 p.m. Claimant refused the
referral because of the early starting hour. On October 31, 1944, the claimant
was offered a job as a stenographer with the United Jewish Appeal, 250 West 57th Street,
at $137 monthly for a five-day week. Claimant refused this job because of the
salary. Upon the basis of the information received from the placement section
and from the claimant, the local office on November 9, 1944, issued an initial
determination with effective dates of October 24 and October 31, 1944,
disqualifying claimant from receiving benefits on the ground that she refused
employment without good cause. Claimant objected thereto and requested a
hearing. Claimant was last employed on July 28, 1944. This employment extended
for four months, at $35 weekly. Prior to that and up to the end of January
1944, claimant worked for eight years with one firm, at a base salary of $22
weekly, plus payment under a bonus system which brought her salary to
approximately $40 weekly. Claimant has no health condition or domestic
circumstances which prevent her from working during any reasonable hours.
Claimant has had at least eight referrals of employment from the United States
Employment Service dating from September 11, 1944. Five of the prospective
employers refused to hire claimant. One referral, on September 20, 1944, at $35
weekly, was refused by claimant because it involved employment in Brooklyn with
attendant traveling difficulties. The other two referrals are the subject
matter of this hearing. With the exception of the referral to the United Jewish
Appeal, the salaries of all the other jobs were at least $35 weekly. Claimant has
sought a minimum salary of $35 weekly. Claimant has made independent efforts to
obtain employment, but has failed to secure offers of more than $25 weekly. In
one instance she was offered $30 weekly by the employer for whom she worked
four months up to July 28, 1944. The prevailing wage rate for the type of
services claimant can perform during the period herein involved ranged from $30
to $35 weekly for a five-and-a-half day week. The traveling time from
claimant’s home to the prospective employer at 80 Broad Street was
approximately 30 minutes. It is claimant’s contention that to have been at work
at 8 a.m. she would have been required to arise at 6 a.m., and that since she
lives in an apartment not heated through a central hearing system, she would be
subjected to physical discomfort. Claimant was still unemployed at the date of
hearing.
Referee’s Opinion and
Decision: On October 24, 1944,
claimant was offered a position which met her salary requirements. She had no
health or domestic reasons which prevented her from accepting a position at a
starting hour of 8 a.m. The traveling time between the claimant’s home and the
prospective employer’s place of business was approximately one-half hour.
Considering claimant’s period of unemployment, the number of referrals which
she had received from the placement section and upon which her services were
declined by prospective employers, the failure of claimant’s efforts to secure
employment at a salary of more than $25 weekly, and the other facts herein, I
hold that on October 24, 1944, claimant refused an offer of employment for
which she is reasonably fitted by training and experience. Since claimant’s
prior earnings were not less than $35 weekly, and since the United States
Employment Service had on all prior occasions referred claimant to jobs which
paid at least $35 a week, I hold that claimant was justified in refusing the
job with the United Jewish Appeal on October 31, 1944. However, this becomes
academic because of the disqualification made effective on the earlier date.
The initial determination, as modified, is sustained, effective October 24,
1944. (12/9/44)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issue involved in
this case.
Appeal Board Decision: The decision of the referee is affirmed.
(1/15/45)
Index
No. 1215A-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
14, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other Reasons
Appeal Board Case No. 11,245-44
REFUSAL OF REFERRAL – CLERICAL TEST (SECTION 593 OF THE LABOR LAW)
Claimant’s refusal of
referral to the U.S. Civil Service Commission for the purpose of taking a
clerical test, which was a prerequisite to certification for employment, was
tantamount to a refusal of referral to employment and was held to be without
good cause.
Findings of Fact: Hearings were held herein at which claimant
and representatives of the Industrial Commissioner and the United states
Employment service appeared and testified. Claimant filed an original claim for
benefits on June 5, 1944, and is reporting currently. On July 10, an initial
determination was issued, disqualifying claimant from receiving benefits
effective June 22, because he refused employment without good cause. Claimant
objected and requested a hearing. Claimant was an actor for about 35 years. He
has been out of the field for the last six years. In the early part of 1943, he
worked on a war job for about four months. Later that year he got a job as an
assistant manager in a theater. He worked there about nine or ten weeks and
earned $40 a week. His last job was as a receptionist in an attorney’s office,
where he earned $30 a week. He worked there seven months to April 28, 1944. On
June 22, 1944, while claimant was in the United States Employment Service
Office he was told about an opening for a receptionist in that office. He was
referred to the manager of the placement office and was interviewed. Claimant
was told that he must take a routine clerical test given by the United States
Civil Service Commission, before he could be certified for the job. Claimant
refused to go down to the United States Civil Service Commission for this test,
saying that there was too much red tape there. After the termination of the
interview, the manager called the interviewer who had referred claimant to her,
and advised that claimant had refused to go down to the Civil Service
Commission for a test. When claimant was interviewed at the local office, he
stated that the United States Employment Service manager had told him that he
had referred two men to the Civil Service Commission and was waiting to hear
from them before she would refer claimant. He claimed that he had not been
asked to go to the Civil Service Commission. At the hearing, the United States
Employment Service manager testified that she had emphasized in the interview
that it was necessary to take the civil service test before the applicant could
be certified, and claimant had told her that he did not want to take the test.
If claimant had been willing to take the test, the usual procedure would have
been to send him to the United States Employment Service office at 11 West 42nd Street,
which would have attended to the necessary formalities and referred him to the
Civil Service Commission for the test. On May 31, 1944, the United States
Employment Service had previously referred claimant to the United States Civil
Service Commission. Claimant went to the latter office and was told to return
the following morning. He did so, and after waiting some time walked out
without being interviewed. At the hearing, he claimed that he left there in
order to go to a department store for an interview. He never returned to the
Civil Service Commission and never filed an application there, because he felt
he would not qualify since he had not been graduated from grammar school.
Claimant was referred to another job by the United States Employment Service on
June 21. He was not hired after the employer interviewed him. Claimant has been
trying to get back into the entertainment field. He was offered $100 a week by
the U.S.O. some time ago, but did not get that job. He is still trying to get
back into the theatrical business and has several prospects.
Referee’s Opinion and
Decision: Claimant was
interviewed with reference to a position as receptionist in the United States
Employment Service. He was not considered for this job because he told the
interviewer that he would not go to the United States Civil Service Commission
for the necessary clerical test. This routine test is a prerequisite to
certification. Claimant’s refusal to take the required examination is
tantamount to a refusal to accept a referral to employment. Claimant contends
that he was not told to go to the United States Civil Service Commission for
the test. He claims that he was merely told that he would be considered only in
the event that two prior applicants did not get the job. However, the manager
at the United States Employment Service who interviewed the claimant testified
at the hearing that she emphasized the necessity of taking the test in order to
be certified, and claimant told her that he would not go down to the Civil
Service Commission to take the test. The manager repeated the substance of the
interview soon thereafter in a telephone conversation with the interviewer who
had referred claimant to her. From all the credible evidence and the testimony
in this case, I find that the facts were as testified to by the manager of the
United States Employment service. If claimant had not refused to go to the
Civil Service Commission, he would have been sent to another office of the
United States Employment Service to complete the necessary formalities in order
to take the examination. This step was not taken. The United States Employment
service manager’s testimony, that claimant had refused to go to the United
States Civil Service Commission, is further corroborated by the fact that
claimant had failed to file an application with the Civil Service Commission on
a prior occasion. He had been referred there on May 31. While he reported
there, he did not wait for the interview. He never returned and has no
application on file there. In view of all the facts and circumstances in this
case, it is held that claimant failed to accept the referral to the position as
receptionist which was offered to him on June 22. The initial determination is
sustained. (8/28/44)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issues involved in
this case.
Appeal Board Decision: The decision of the referee is affirmed.
(1/15/45)
Index
No. 1250C-10
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
April
14, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Work Week
Appeal Board Case No. 11,285-44
REFUSAL OF REFERRAL – DESIRE FOR FIVE DAY WORK WEEK (SECTION 593
OF LABOR LAW)
When the majority of
available positions in claimant’s occupation required Saturday employment, a
refusal of employment, because it necessitated Saturday employment, which was
based entirely upon personal preference, was held to be without good cause.
Findings of Fact: Hearings were held at which there appeared the
claimant and representative of the Industrial Commissioner and the United
States Employment Service. Testimony was taken. Claimant, a teletype operator,
filed an original claim for benefits on June 14, 1944 and reported to July 26.
An initial determination was made on June 28, effective June 15, 1944,
disqualifying the claimant from receiving benefits because she had refused
employment without good cause. She objected thereto and requested a hearing.
Claimant was last employed for a period of six and a half years by a large
chain furniture store. For the past two years she worked as a tele-type
operator. She worked only five days a week because it was convenient for both
herself and her employer. She is 29 years old and is married. She was
frequently absent from work because of her husband’s illness and she was given
the choice to either accept a leave of absence from her position or to
terminate her services. She chose the latter and her employment ended on May
23, 1944. Until she filed her original claim, claimant was not available for
employment. As of July 26, 1944, claimant again became unavailable for
employment. On June 15, 1944, claimant again became unavailable for employment.
On June 15, 1944, the United States Employment Service made two offers of
employment to the claimant to work as a tele-type operator. There was some
question about the sequence in which the offers were made. However, one paid
$25 a week, the same salary as the claimant had received in her former employment
when her services terminated, for a five-and-a-half day week. The claimant
rejected this offer because of the salary, although she indicated that she did
not wish to be employed on Saturday. The other employment offered was at the
rate of $30 a week with a firm engaged in war work. There is some question
about the work-week. The claimant stated that she understood that she would be
required to work five and a half-day a week, until noon each Saturday. The
representative of the United States Employment Service stated that to her best
recollection the claimant was told that there would be only occasional work on
Saturday. In any event, the regular work-week was to consist of 40 hours. The
claimant rejected this offer of employment because of the necessity to work
Saturday and because there would be the added expense of double carfare, which
was admitted. Claimant’s unwillingness to work on Saturday was based purely on
personal convenience. The customary rate of pay for tele-type operators is $28
weekly, as testified to by the representative of the United States Employment
Service. This is based upon the preponderance of jobs available with government
agencies through the United States Civil Service Commission. However, this $28
level apparently has been accepted by the United States Employment Service as
being the prevailing rate of pay for a base week consisting of 40 hours
Referee’s Opinion and
Decision: It is evident from the
testimony of the representative of the United States Employment Service that
the rate of pay offered to the claimant in one of the offers made to her,
namely, at a salary of $25 a week, was less than that which it considered to be
the customary level of wages for the claimant’s occupation. It can thus not be
regarded as a good offer of employment, even though the claimant received but
$25 a week in her last position. But there is no doubt about the fitness of the
salary offered to the claimant in the second employment under consideration.
The $30 weekly rate is well above the customary rate of pay even after the
extra carfare is taken into consideration. Claimant’s position with regard to
the double carfare in this instance is not well taken. As for her refusal to
work Saturday, and she made it very clear that at the time the job was offered
she would not have accepted any employment entailing Saturday work, this is
based entirely upon a personal preference on her part. In view of the testimony
of the placement representatives that most jobs available for tele-type
operators are with government agencies, entailing Saturday work, the claimant’s
refusal to work Saturday must operate against her. I find, therefore, that when
the claimant rejected the offer of employment paying $30 a week, she refused an
offer of employment without good cause. The initial determination is sustained
as modified. (9/14/44)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issue involved in
this case.
Appeal Board Decision: The decision of the referee is affirmed.
(1/15/45)
Index
No. 1440-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
April
23, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Commission basis
APPELLATE DIVISION DECISION
Matter of Abraham Katz
268 App. Div. 1075
TOTAL OF PARTIAL UNEMPLOYMENT – COMMISSION SALESMAN
Claimant, continuously
employed as a commission salesman, was not totally unemployed irrespective of
the amount of commissions earned during any particular period of time.
Referee’s Decision: The initial determination of the local office
which suspended claimant’s benefit rights because he was not totally unemployed
is sustained. (6/11/44)
Appeal By: Claimant
Appeal Board Findings of
Fact: We have reviewed the
evidence adduced at the hearing before the referee, and we find that such
evidence supports the following findings of fact made by the referee:
"Claimant filed an
original claim for benefits on November 5, 1943. He reported through April 18,
1944. As a result of certifications by claimant to total unemployment during
the above reporting period, he received 17 checks in the amount of $18 each,
totaling $306. On May 25, 1944, based on information obtained by the local
office, initial determinations were issued, effective November 5, 1943,
disqualifying claimant because of unavailability, because he had not been
totally unemployed; and also charging that he made wilful false statements to
obtain benefits as a result of which he had been overpaid the sum of $306, and
reducing his rights to future benefits by 20 effective days. Claimant objected
to the local office action and requested a hearing.
"Claimant is 72
years of age. He is of foreign extraction. At one time claimant was a tailor.
Because of failing eyesight, he had to give up this work. He made arrangements
with a coal company to act as a commission salesman. For over 20 years he has
been soliciting orders for coal and oil receiving a commission of 25 cents for
each ton delivered, and also a commission of one-half cent for each gallon of
fuel oil delivered.
"Claimant lives in
a residential area in Brooklyn. Practically all of his customers consist of
neighbors who own one or two-family houses. He has no large accounts who use
fuel in substantial volume. Most of the Fuel orders are obtained by claimant
during the spring and summer months. This is the period of his greatest
earnings. Thereafter, he continues to receive commissions on any additional
fuel delivered to his customers. Since their storage facilities are generally
ample to hold a full winter’s supply, the amount of additional tonnage ordered
and delivered during the winter is small compared to his summer volume. At
times, during the winter, claimant’s customers made contact with him in order
to obtain additional deliveries. Only on limited occasions does claimant call
upon his customers. Because of his advanced age and general physical
infirmities, and because there is a certain element of personal relationship
existing between the customers and claimant, they call upon him when fuel is
needed. Claimant thereupon either takes or transmits the order to the coal
company, or has the customer make direct contact. In all instances, claimant
receives full commission.
"Claimant’s
eligibility for benefits is based upon earnings had by him as a coat commission
salesman. During 1942, claimant’s base year, he had total earnings of
$1,083.11. these were received as follows: First Quarter, $69.86; Second
Quarter $401.25; Third Quarter $451.18; Fourth Quarter $160.82.
"During the period
from November 5, 1943 to March 24, 1944, claimant had earnings in the sum of $107.42.
His relationship with the coal company has at all times continued. After the
above period, he continued to receive checks based upon commissions earned for
subsequent deliveries.
"There is some
question about what took place at the local office at the time claimant
certified to unemployment and signed for benefit checks. I find that claimant
in good faith believed that he was totally unemployed and available for
employment at the time he received the benefits which were paid to him during
the period in question."
As an additional
finding, the Board includes the schedule of commissions received by claimant
during the period in question:
|
November 16,1943 |
$11.95 |
|
December 7, 1943 |
$ 7.75 |
|
December 17, 1943 |
$ 8.75 |
|
January 6, 1944 |
$15.50 |
|
January 14, 1944 |
$22.42 |
|
January 28, 1944 |
$ 4.50 |
|
February 18, 1944 |
$ 3.00 |
|
February 25, 1944 |
$ 2.46 |
|
March 24, 1944 |
$ 5.75 |
Appeal Board Opinion: The sole issue herein is whether or not
claimant was totally unemployed within the meaning of the Law during his
reporting period at the local office. The facts are not in dispute. The referee
ruled, on the authority of Appeal Board 424-38 and Appeal Board 762-39, that
since claimant was continuously employed as a commission salesman, he did not
suffer total unemployment irrespective of the amount of commissions earned
during any particular period of time. We cannot accept the referee’s conclusion
for the reason that we believe that the principles of those cases do not govern
here. Claimant’s situation is closely akin to that of the claimant in Matter
of Orsen A. Bryant, 246 Appellate Division 970, affirming Appeal Board
6265-41. In our decision in that case we said:
"The referee held
that claimant was not totally unemployed. He ruled that since claimant had not
severed his connection with his employers and continued in their services, he
must be considered in the category of an ordinary salesman working on a
commission basis. Arguing in support of the decision, the Industrial
Commissioner contends that the principle of Appeal Board case number 762-39
applies to this case, and that it is immaterial under the circumstances herein
whether claimant earned in excess of the statutory amount during any week.
"However, a
consideration of the facts adduced in the instant case leads us to the opinion
that this situation is an exception to the general rule and that the principles
enunciated in case number 762-39 do not apply here. The fact that claimant did
not sever his relationship with the newspapers is not sufficient in itself to
justify a finding that he was not totally unemployed. His efforts on their
behalf during the period in question were confined to isolated transactions and
were exerted only on rare occasions when he had a reasonable prospect that a
renewal subscription cold be obtained. This is not true of the ordinary commission
salesman who exerts an effort to obtain business with some degree of regularity
and continuity. Rather, claimant falls within the category of a part-time
employee who may be called upon to render slight services on rare occasions. He
could have accepted full-time employment without interfering in any way with
his activities on behalf of the newspapers.
"Under these
circumstances we believe that, with the exception of the week during which he
earned in excess of three dollars, claimant meets the statutory test of total
unemployment and he should be held eligible for benefits."
Likewise, it is held
that the instant claimant met the statutory test of total unemployment and was
eligible for benefits. However, he did have some remuneration for employment on
certain days during his reporting period. It is impossible to determine these
exact days on the state of the present record. This case therefore is referred
back to the local office for further inquiry to determine the specific days of
total unemployment during claimant’s reporting period and to re-compute the
effective days for which he should receive credit.
Appeal Board Decision: Claimant was totally unemployed and eligible
to receive benefits except as provided herein. This case is returned to the local
office in accordance with the foregoing opinion. The local office determination
is modified accordingly. The decision of the referee is modified accordingly.
(9/25/44)
Appeal By: Industrial Commissioner
Appellate Division
Opinion: No opinion written.
Appellate Division
Decision: Determination of the
Appeal Board reversed and that of the Referee reinstated, without costs.
(1/2/45)
Index
755 C.5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE
May
7, 1945
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restriction of Employment
Days - Hour
AVAILABILITY AND
CAPABILITY-RESTRICTION AS TO SHIFT - DOMESTIC CIRCUMSTANCES
Claimant with a history of night shift
employment and whose domestic circumstances prohibited work on other than night
shifts was found to be available upon a conclusive showing that there was a
reasonable prospect of obtaining night shift work.
A.B. 11,437-44
Referee's Decision: Claimant was not available for employment.
(11/7/44)
Appealed by: Claimant.
Findings of Fact: Claimant is married and the mother of three
children, aged five, eight and twelve years. She resides in Utica. She was
employed in a war plant in Ilion as an inspector of gun parts from January 4,
1943 to January 29, 1944. In this employment she worked on the afternoon and
night shifts and she was laid off because of a cutback in the employer's work.
Claimant filed application for employment and unemployment insurance benefits
on August 10, 1944. About that time her husband was not feeling well and
expected to be laid off from his employment. Claimant was interviewed at the
office of the United States Employment Service and told the interviewer that
she wanted work on the afternoon or night shift. Claimant had three years of
Normal School training and was classified as a teacher. On September 9, 1944
claimant was offered employment at the Rome Air Depot as a storekeeper at the
basic salary of $1440 per year. The hours of employment were from 7:45 A.M. to
4:15 P.M. Claimant refused the offer of employment, stating that she preferred
work in Utica. When interviewed at the local office claimant stated that she could
not accept work on the day shift because she was unable to find any person to
take care of her children on mornings. She stated further that she had made
arrangements with a neighbor to look after her children in the afternoons and
evenings and for that reason she could only accept work on the afternoon or
night shifts. On October 3, 1944 an initial determination was issued
disqualifying claimant from benefits for refusal to accept the offer of
employment of September 19, 1944. The employment interviewer testified before
the referee that when the referral was made to the Rome Air Depot it was not
known that the claimant was looking for work on the night shift. It was stated
that there were opportunities on the night shift in Rome at the time and that claimant
would have been referred to such jobs. It developed at the hearing before this
Board that the original employment registration card of the claimant had been
lost. A supplementary employment history card was produced, from which it
appears that no inquiry was made of claimant as to what hours of work she had
previously worked or then sought. Claimant continued to report weekly to the
insurance office and periodically at the employment office until December 20,
1944. During this period claimant received at least six referrals to
employment. She visited the prospective employer on each occasion. In three
instances there were no jobs available. In one instance there was no work on
the afternoon shift and she was told to return two months later. In another
instance she was offered work which she was unable to do and in the last case
the employer refused to hire her because the job called for strenuous manual
labor. It was testified that during this period there were a large number of
women working in mills in and about Utica on the afternoon and night shifts.
Throughout this entire period claimant continuously make independent efforts to
seek work. Her husband was unable to work steadily and it was necessary for her
to find work in order to provide for the household expenses. Early in January
1945, through her own efforts, she finally obtained work in a spinning mill in
Utica as a roller picker. Her hours of work are from 2:00 P.M. to midnight and
she receives about $29 per week.
Appeal Board Opinion We cannot accept the conclusion of the
referee that claimant was unavailable for employment. The record conclusively
shows that claimant's circumstances made it imperative that she work in order
to supplement the family income. Her entire course of conduct shows a diligent
search for employment which she finally obtained through her own efforts. The
fact that she confined herself to the afternoon or night sifts should not alter
her status. Her base year earnings were built up on such shifts and it is clear
that her family obligations and inability to obtain help justified her refusal
to accept employment on the day shift. For the reasons above stated we hold
that claimant's refusal to accept the offer of employment on September 19, 1944
was with good cause. We believe that the failure to refer claimant to available
jobs on other shifts on that day is explained by the loss of her original
employment history card and the misunderstanding resulting therefrom. There is
no indication that any of the offers of employment made to claimant following
her disqualification were such as she could be reasonably expected to accept.
Decision: Claimant did not, without god cause, refuse to
accept an offer of employment. Claimant was available for employment throughout
the period of her reporting. The initial determination is overruled. The
decision of the referee is reversed. (3/26/45)
Index
No. 1735B-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
May
7, 1943
Appeal Board Case No. 11,420-44
VOLUNTARY LEAVING – FAILURE TO PROMOTE AS AGREED (SECTION 593 OF
LABOR LAW)
Where employer failed to
keep his definite promise made at the time of hiring to promote claimant to a
higher paying job, it was held that claimant had good cause to leave when it
was shown that a vacancy at the higher rate had occurred.
Referee’s Decision: Claimant voluntarily left employment without
good cause. (11/16/44)
Appeal By: Claimant
Findings of Fact: For many years prior to April 1943 claimant
had been employed as a clerk in various hotels and lodging houses. In April of
1943 claimant was employed as a clerk in a lodging house located on Park Row in
the City of New York. On or about that time a representative of the employer
herein approached claimant and offered him employment as a night clerk in the
lodging house operated by the employer. The rate of pay was to be at $20 per
week. Claimant was reluctant to accept the offer of employment because he had
been previously discharged without notice by this employer. Thereupon the
representative of the employer promised claimant that if he would accept the
offer of employment he could be promoted as soon as a vacancy occurred to clerk
in a family hotel owned by the same employer. Clerks in the family hotel were
being paid at that time at the rate of $30 per week for day work and $40 per
week for night work and in addition thereto received tips from the patrons of
the hotel. In reliance on the promise of the employer that he would be promoted
as soon as a vacancy occurred, claimant accepted the offer of employment at $20
per week although at that time he had an offer of employment from a different
employer at $25 per week. Claimant was thus employed from about April 28, 1943
to August 7, 1944. At the end of July 1944 or at the beginning of August of
that year claimant discovered that a vacancy had occurred in the family hotel
about the end of 1943 and that the employer had failed to keep its promise to
the claimant and appinted some other person as a clerk to fill the vacancy.
Upon the discovery of this fact claimant gave a week’s notice to the employer
and at the end of the week terminated his employment. On September 7, 1944
claimant filed an application for employment and for unemployment insurance
benefits and reported thereafter. Based upon an investigation of the
circumstances surrounding the termination of claimant’s employment and on an
interview held at the local office, an initial determination was made holding
that claimant’s voluntary leaving of employment was without good cause.
Claimant contested the initial determination and demanded a hearing. The
referee sustained the initial determination and claimant appealed.
Appeal Board Opinion: The sole issue on this appeal is whether or
not claimant’s leaving of his employment was without good cause. This in turn
depends as to whether or not a promise had in fact been made by the employer to
the claimant that he would be promoted to night clerk in the family hotel as
soon as a vacancy occurred. In deciding the issue of fact against the claimant
the referee was largely influenced by his belief that claimant was not
qualified for the job in the family hotel. We believe that that is not
determinative of the issue. We believe that such a promise was made by the
employer to the claimant. Whether or not the employer ever intended to keep
that promise in view of claimant’s qualifications, has no bearing on the issue
of the leaving of his employment. Having found that the employer made a promise
of the promotion to the claimant and broke that promise, it follows as a matter
of course that claimant was justified in leaving his employment.
Decision: Claimant’s voluntary leaving of his employment
was with good cause. The initial determination of the local office is
overruled. The decision of the referee is reversed. (3/5/45)
Index
785.5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MAY
24, 1945
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Domestic Circumstances
Transportation Facilities
AVAILABILITY - DOMESTIC CIRCUMSTANCES - LACK OF TRANSPORTATION
Inability to obtain
transportation to only possible night work, which was the only shift she could
work because of domestic circumstances, rendered claimant unavailable.
A.B. 11,550-45
Referee's Decision: The initial determination which held that
claimant was unavailable for employment, effective November 6, 1944, is
sustained. (1227/44)
Appealed By: Claimant.
Findings of Fact: Claimant worked from February 3, 1943 to
October 1944 as a crib attendant at a defense plant located in Ilion, New York.
Following a layoff from this employment she filed an application for benefits
on October 9, 1944. Claimant is the mother of five children, two of whom live
with her. She resides at Middleville, New York, a rural community located about
eight miles north of Herkimer. On November 6, 1944 she was offered two jobs
with her former employer, one as a milling machine operator on the night shift
and the other as an inspector on the day shift. Because of a thyroid condition
claimant cannot work on a machine and was compelled to reject the night job.
Although she was willing to accept the job as an inspector she refused the
offer of employment on the day shift due to domestic circumstances. There is no
public or other facilities available to claimant to enable her to reach the
prospective employer's plant or other nearby industrial localities for the
night shift. On November 17, 1944 the local office issued an initial
determination, effective November 6, 1944, holding that claimant was
unavailable for employment. On December 21, 1944 claimant was offered a job as
an inspector on the night shift with her former employer. She informed the
employment interviewer that she could not accept the job offer because she
could not obtain transportation to the place of employment.
Appeal Board Opinion: The referee sustained the initial
determination. On this appeal claimant contends that she should be held
available for employment from November 6, 1944 to December 21, 1944, the date
when she refused an inspector job on the night shift because of lack of
transportation. Claimant argues that since the referral of November 6, 1944 was
to work for which she was not suited, the question of transportation was
academic at that time and may not be used as a basis upon which to judge her
availability. We find no merit to claimant's contention. Irrespective of the
propriety of the referral of November 6, 1944, claimant was available only for
night work and she admittedly could not have accepted any job on the night
shift at that time due to her inability to obtain transportation. The referee
properly held that claimant failed to meet the test of availability commencing
November 6, 1944, which is the effective date of the initial determination.
Decision: The initial determination holding that
claimant was unavailable for employment as of November 6, 1944 is sustained.
The decision of the referee is affirmed. (1/31/45)
Index
755 B.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restriction of Employment
Wages
WAGES RESTRICTION - ABOVE PREVAILING - IN EXCESS OF PREVIOUS RATE
A dress buyer who insisted upon a salary of at
least $100 per week, which was above the prevailing rate and in excess of her
previous salary and which precluded referring her to employment for which she
was fitted was held to be unavailable.
A.B. 11,333-44
Referee's Decision: The initial determination of the local office
holding that claimant was unavailable for employment is sustained. (10/5/44)
Appealed by: Claimant
Findings of Fact: Claimant has been a dress buyer for fifteen
years. From 1929 to 1933 she had earned about $75 a week. From 1933 to 1940 she
worked in a similar capacity for one employer, starting at $50 a week and
earning $90 a week at the time of her separation. Claimant voluntarily left
this employment in December 1940 due to pregnancy. Her baby was born May 1941.
Claimant was out of the labor market from December 1940 to December 7, 1942.
Her husband was inducted into military service in August 1942. She reentered the
labor market in December 1942 in order to contribute to the support of her
family. Claimant worked from December 7, 1942 to February 15, 1944 as a dress
buyer in a department store. She started at a salary of $55 a week and at the
time of her separation she earned $65 a week. Claimant is the mother of two
children, the oldest of which is three years of age. While claimant worked for
the last employer she hired a nurse to attend to her children. Difficulties
arose in the home because the domestic did not properly attend to her duties in
caring for claimant's children. Since her domestic problems interfered to some
extent with her duties in the employer's establishment, it was mutually agreed
between claimant and the employer that claimant would resign. Following her
separation on February 5, 1944 claimant personally attended her children.
Claimant attempted to file an application for benefits in February 1944. she
was informed that she was ineligible due to insufficient earnings in 1942. She
filed an application for benefits on June 8, 1944. She was called in for an
interview at the local office on June 27, 1944. At this interview claimant
stated: "After consideration, I will not take less than $100 to $125 per
week." The United States Employment Service had a limited number of jobs
in claimant's field. It referred claimant to a private employment agency which
specialized in placements in claimant's line of work. The local office received
a report from the operator of this employment agency that the only jobs for
claimant were those paying from $3000 to $4000 a year, that in her application
filed with the employment office claimant specified that she would not work for
less than $125 a week and that there was no probability of placing claimant
under such circumstances. On July 6, 1944 the local office issued an initial
determination that claimant voluntarily left her employment with good cause,
but under circumstances indicating a withdrawal from the labor market. This was
superseded by another determination dated July 11, 1944 holding that claimant
was unavailable for employment effective June 8, 1944. The basis of this
determination is that claimant imposed such conditions relative to the salary
which she is willing to accept as to preclude any possibility of placing her in
employment. At the hearing claimant stated that by reason of her training and
experience in her specialized field she rated the salary mentioned at the
various conferences at the local office and at the private employment agency.
She also contended that she was underpaid in her last employment and that she
had accepted low starting salary because she was out the labor market for some
time and her economic situation made it imperative for her to work. The
operator of the private employment agency who specializes in placing persons in
claimant's field testified that the prevailing rate in the locality for a buyer
such as the claimant was between $3000 and $4000 a year and that the
possibilities of obtaining employment for claimant in the locality meeting her
specifications were very remote. He further testified that the value of a
buyer's services in the labor market is measured by the person's background,
type of experience, volume of work handled, personality and other factors which
influence an employer in hiring a prospective employee. No definite offer of
employment was made to claimant. Claimant testified that she made independent
efforts to seek employment paying a salary acceptable to her by answering
advertisements in the newspapers, contacting private employment agencies and
manufacturers, and applying for work at various department stores. Her efforts
in this respect were unsuccessful. Claimant's husband was discharged from
military service in August 1943. Claimant was still unemployed at the date of
the adjourned hearing on September 26, 1944.
Appeal Board Opinion: Claimant takes the position that she will
not consider any offer of employment in her usual line as a dress buyer at less
than $100 per week. The sole basis of the initial determination of
unavailability in this case is that claimant's salary demands are excessive and
preclude the possibility of her obtaining employment. It is contended that she
has in effect removed herself from the labor market. At best it is a difficult
matter to appraise the value of claimant's services in her chosen field.
Claimant stresses the fact that many buyers of comparable experience and
background are receiving the salary which she aspires. A glance at her previous
work history, however, hardly bears out her contention. She never earned more
than $90 per week and since that time has been out of the labor market for
considerable periods. In her last employment her maximum salary was $65 a week.
There is expert testimony in the record that the maximum prevailing rate in the
locality for a buyer in claimant's category is $4000 a year. Consequently, we
find little basis for claimant's flat refusal to entertain any offer of
employment at less than $100 to $125 a week. Since claimant set up a minimum
wage of $100 as an essential condition of employment, no specific offers of
employment at lesser rates were made to her. In spite of all of the efforts
made by the employment agencies and the independent canvass for employment by
claimant, she remained unemployed for at least seven and one-half months. We
believe that under these circumstances claimant has established such
unreasonable and arbitrary barriers to employment that she fails to meet the
test of availability under the Unemployment Insurance Law. The referee properly
held that claimant rendered herself unavailable for employment effective June
8, 1944.
Decision: Claimant was unavailable for employment
effective June 8, 1944. The initial determination is sustained. The decision of
the referee is affirmed. (1/15/45)
Index
No. 1205E-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification period
Prior to registration
Appeal Board Case No. 10,920-44
REFUSAL OF EMPLOYMENT – NO ACTIVE CLAIM FOR BENEFITS.
Disqualification may not
be imposed against a claimant whose claim is inactive at the time of refusal of
employment.
Referee’s Decision: The initial determination of the Out-of-State
Resident Unit disqualifying claimant for refusal, without good cause, to accept
an offer of employment is overruled. (5/9/44)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant filed an additional application for
benefits in Miami, Florida against New York as the liable state on February 14,
1944. Claimant remained in Florida until about March 26, 1944. On March 20,
1944 the Miami office of the United States Employment Service sent for claimant
and offered her employment as bookkeeper, which claimant refused because she
wanted work as a photographer. Claimant returned to New York City and
reinstated her claim on March 28, 1944. On April 17, 1944, as a result of a
report received from the Florida Employment Service an initial determination
was issued, effective March 20, 1944, disqualifying claimant for refusal
without good cause to accept an offer of employment.
Appeal Board Opinion: On this appeal the Commissioner challenges the
referee’s decision that claimant was justified in refusing the offer of
employment. It appears that claimant had discontinued reporting for insurance
purposes between March 12, 1944 and March 28, 1944. The offer of employment was
made on March 20, 1944. We have held that a claimant may not be disqualified
from benefits for refusing any offer of employment during a period when he was
not an applicant for benefits. On this question we stated in Appeal Board,
5743-41 in relation to Section 506 (now Section 593) of the Labor Law:
"It
is inherent in this section, that before a disqualification for benefits may be
imposed against an employee who refuses to accept an offer of employment, that
benefit rights exist from which he might be disqualified. Similarly, it must be
noted, that before an employee may be the subject of a disqualification
pursuant to Section 506, the following prerequisites must exist: (1) That said
individual is unemployed and 92) is a claimant for unemployment insurance
benefits. (Labor Law, Section 510; Regulation UI 1-39)."
Accordingly, the
disqualification of claimant for refusal to accept the offer of March 20, 1944
must be overruled.
Decision: The initial determination disqualifying
claimant for refusal to accept an offer of employment during a period when she
was not an applicant for benefits is overruled. The decision of the referee is
affirmed, as modified. (8/14/44)
Index
No. 1480E-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Other employments
Appeal Board Case No. 11,422-44
QUESTION OF "TOTAL UNEMPLOYMENT" – CHURCH ORGANIST
Claimant was not totally
unemployed on the days she performed services as a church organist since she
received wages for those services at the rate of $7.00 to $10.00 per day under
a contract of hire.
Referee’s Decision: Claimant’s request that her previously
registered days of employment be credited to her as compensable period was
properly denied by the local office. (10/24/44)
Appeal By: Claimant
Findings of Fact: Claimant, a musician and organist, filed an
application for benefits on February 9, 1944. She certified to the local office
that she was not totally unemployed on May 21 and May 28, 1944. Claimant filed
another claim on June 5, 1944. During her subsequent reporting period she
certified to the local office that she had earnings and was not totally
unemployed on July 26, July 30 and August 2, 1944. At an interview at the
insurance section on August 17, 1944 claimant requested credit for May 21, 28,
July 26, 30 and August 2, 1944 as compensable period because she was totally
unemployed on these days despite her previous certifications to the contrary.
The local office denied claimant’s request on the ground that the days in
question were properly registered as employment period in her identification
booklet. Claimant is an organist in a church. She also gives private
instruction in music. On the five days mentioned above claimant played the
organ during church services. Her compensation for her services as an organist,
which ranged from $7 to $10 a day, was fixed pursuant to an agreement between
herself and the minister of the church. The minister fixed the period of the
church service during which claimant was required to play the organ. Claimant
purchased her own music. The program of selections to be played was
pre-arranged by the choir director of the church after consultation with the
claimant. Claimant contends that as to her church engagements she falls within
the category of a self-employed person who was available for employment during
her reporting period.
Appeal Board Opinion: Section 402.10 of the Labor Law (now Section
522) reads as follows:
"’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 an available for employment to obtain any employment in his
usual employment or in any other employment for which he is reasonably fitted
by training and experience, including employments not subject to this
article."
The issue on appeal is
whether claimant suffered total unemployment within the meaning of the above
section on the days when she performed as an organist in a church. Claimant
contends that she is a self-employed person and received a professional fee for
such services. This contention cannot be accepted under the circumstances
herein. We believe that there was sufficient testimony before the referee to
hold that claimant’s services as an organist in the church were performed
pursuant to a contract of hire. Necessarily, the church services were under the
control of the minister. Claimant’s hours of work and the program were dictated
by the functionaries of the church. Claimant undertook to perform her services
subject to such conditions. It must be held, therefore, that she did not occupy
the status of a self-employed person on the days in question.
Decision: The initial determination denying claimant’s
request to be credited with additional effective days of total unemployment is
sustained. The decision of the referee is affirmed. (1/15/45)
Index
No. 1640B-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances- Other
Appellate Division
Matter OF Smith, 269 App. Div. 795
Appeal Board Case No. 11,255-44
VOLUNTARY LEAVING-OBJECTION TO MENIAL TASK
Where an accountant quit
because he was asked to do routine work of a clerical nature associated with
his regular work with no loss in pay, it was held that his quitting was without
good cause.
Findings of Fact: A haring was held herein at which claimant and
representatives of his former employer and of the Industrial Commissioner
appeared. Testimony was taken. Claimant, an accountant, was employed by a firm
of certified public accountants for a period of approximately five weeks until
May 31, 1944 at a salary of $250 monthly. He was assigned to make an audit upon
the books of one of his employer’s clients. This assignment continued until a
few days prior to the termination of his employment. About a week prior to the
conclusion of the audit, claimant inquired of his employer concerning his next
assignment, but was advised at that time that the employer had not determined
what work he would assign to claimant. A few days prior to the separation from
his employment, while claimant was at the client’s place of business, he was
requested by a member of the employer’s firm to perform certain duties in
connection with the mailing of statements to verify the accounts receivable
shown on the client’s books of account. Claimant felt that this work was of a
clerical nature and objected thereto. He thereupon telephoned the employer and
made known his objection. When the employer advised him to continue with that
assignment, he told the employer that he intended to resign at the end of the
month. When he completed his work at the client’s place of business, claimant
returned to the employer’s office and was given an assignment which he again believed
was of a clerical nature, and continued in that assignment until the end of the
month, when his employment terminated as a result of the resignation he had
offered. The work to which claimant objected was responsible work requiring the
supervision of an accountant and is work usually performed by an accountant. No
diminution in pay resulted to claimant because of the performance of those
duties. When claimant advised the employer that he intended to resign, he had
no prospect of any other employment. He had communicated with a firm of
accountants with regard to a newspaper ad for an accountant, and after speaking
with a representative of that firm over the telephone, had arranged for an
interview to take place after the date when he intended to resign. However, he
was unaware of whether he would obtain that employment, and ultimately when the
interview was held, he was not hired. He remained unemployed until about June
30, 1944. When the employer hired claimant, he had obtained certain references
from him. After claimant commenced working, his references were checked.
Certain items therein caused the employer to observe claimant’s work closely.
The employer was not entirely satisfied with claimant’s work, but nevertheless
had no intention of discharging claimant at the time his resignation was
submitted. It was the employer’s intention to keep claimant and to try
assigning him to other duties to see whether he was better fitted for duties of
a different nature. Nevertheless when claimant’s resignation was submitted, the
employer accepted it. About six weeks following the termination of claimant’s
employment, at his request the employer wrote a letter advising a firm to whom
claimant had applied for a job, that claimant had been in their employ, and after
giving the dates of such employment, stated that his work was not suited to the
employer’s needs and that his voluntary resignation was accepted in order to
obviate the necessity for requesting his resignation. Notwithstanding the
contents of that letter, the employer had not, prior to the date claimant
submitted his resignation, given claimant any indication that his discharge was
imminent, and claimant had no cause to believe that if he were willing to
continue on the job, the job was not available for him. After he filed his
claim for benefits, the employer advised the Industrial Commissioner’s
representative that work was available for this claimant and that he had
voluntarily left. An initial determination was made on July 19, 1944,
disqualifying claimant from receiving benefits for a period of six weeks
following his resignation, because he was deemed to have left his employment
voluntarily without good cause. Claimant objected to such determination and
requested a hearing.
Referee’s Opinion and
Decision: The first question to
be disposed of herein is whether or not claimant actually resigned from his
last position or whether he merely anticipated that he was to be discharged and
submitted his resignation before being formally advised of his discharge. On
the credible evidence herein, I am satisfied that when claimant submitted his
resignation, he had no reason to suspect that any discharge was imminent. He
was not justified in suspecting that, because the employer had assigned duties
to him, which he felt, were unimportant, the employer contemplated discharging
him. Under these circumstances, he is not permitted to substitute his judgment
for the employer’s judgment concerning the duration of his employment. (Appeal
Board Case 6179-43) I conclude that claimant’s voluntary leaving be without
good cause, then the disqualification imposed by the Industrial Commissioner’s
representative is in accord with the statute. The only fact upon which claimant
relies to justify his voluntary leaving is the nature of the duties which had
been assigned to him. Upon the evidence, I conclude that the assignment of
those duties did not constitute good cause for voluntary leaving within the
meaning of the Unemployment Insurance Law. (Appeal Board Cases 10,056-43,
10,532-43) In my opinion, the duties to which claimant had been assigned were
duties ordinarily performed by a person following his occupation, and since
they did not result in any diminution in his wages, nor did they impose upon
him any more onerous tasks or result in any impairment of his abilities or
endanger his health, he cannot rely upon that to justify his voluntary leaving
under the terms of the Unemployment Insurance Law of this state. The initial
determination is therefore sustained. (9/7/44)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issues involved in
his case.
Appeal Board Decision: The decision of the referee is affirmed.
(11/20/44)
Appellate Division
Opinion: No opinion written
Appellate Division
Decision: There was substantial
evidence to support the determination. Decision affirmed without costs. All
concur. (5/9/45)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------
MATTER OF KARMAN
2 A.D. 2d 626
SUPREME COURT
APPELLATE DIVISION
THIRD JUDICIAL DEPARTMENT
May
10, 1956
Appeal Board Case No. 51,207-55
In the Matter of the
Claim for Benefits under Article 18 of the Labor Law made by HENRY KARMAN,
Appellant, ISADOR LUBIN, as Industrial Commissioner, Respondent.
Appeal by claimant from
a decision of the Unemployment Insurance Appeal Board which upheld a
determination disqualifying claimant from receiving benefits for 42 consecutive
days on the ground that he voluntarily left his employment without good cause.
(Unemployment Insurance Law, Sec. 593, subd. 1, par. c).
The facts are
undisputed. Claimant was employed as an assistant bookkeeper. On April 28,
1955, the employer’s certified public accountant gave claimant some figures to
be posted in making opening entries in a new set of books for a new fiscal
year. The employer was present and directed claimant to make the entries. Claimant
objected to making these entries because he considered it beyond the duties of
his job, and felt that the head bookkeeper should make them. Claimant sat in
the employer’s office for approximately three hours brooding about the matter,
and finally refused to make the entries and was discharged. It has been found
as a fact that claimant’s refusal to perform the work assignment given to him
brought about his dismissal, and that under such circumstances this constituted
a voluntary leaving of the employment without good cause. What constitutes
"good cause" is not defined in the statute, and would ordinarily be a
question of fact. When claimant made the choice, amounting to an election not
to meet a condition of the work, he became separated from his employment by his
own choice, and it must bee deemed within the fact-finding power of the Board
to determine, under the particular circumstances, that the separation was a
voluntary one. (Matter of Malaspina [Corsi], 209 N.Y. 413, affg. 285 App. Div.
564).
Decision of the
Unemployment Insurance Appeal Board unanimously affirmed, without costs.
Index
No. 1655-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Health
Affected by Working Conditions
Appeal Board Case No. 11,524-45
VOLUNTARY LEAVING OF EMPLOYMENT – HEALTH – COOPERATION WITH
EMPLOYER TO ERADICATE ADVERSE WORKING CONDITIONS
Claimant, whose health
was adversely affected by her work but who refused transfers to locations which
would overcome the objections and at similar work, was held to have voluntarily
quit without good cause.
Referee’s Decision: The initial determination of the local office
disqualifying claimant from receiving any benefits until forty-two consecutive
calendar days have elapsed after her registration for benefits on the ground
that she voluntarily left her employment without good cause is overruled.
(12/14/44)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant, thirty-two years of age, was
employed by a large New York City department store for eleven years. She
started as a sales clerk at $15 per week plus commissions. From time to time
she received promotions and increases in salary. Throughout her employment,
claimant worked in the basement of the store. In 1941, she was promoted to
service manager. In this position, she supervised various sales clerks,
arranged work schedules and performed training, sales promotion, and personnel
work. In March 1944 her salary was increased from $38 to $43 per week. In the
spring of 1944, she was placed in charge of an important spring promotional
sale which ran for several months. As a result of the work entailed in the
supervision of this sale, claimant became run-down and nervous. About the
middle of September 1944, claimant requested her personnel supervisor for a
transfer to a different section of the store, preferably to the receiving or
buying departments, so that the pressure and tension would be less than in her
basement job. About a month later, claimant had another conversation with her
personnel supervisor at which time she informed her that she decided to resign
from her position. Claimant was thereupon offered a position comparable to the
one she held and at the same salary on the second floor of the store. Claimant
refused the offer and resigned on October 16, 1944 effective October 20, 1944.
On October 19, while claimant was still employed at the store, one of the
vice-presidents of the employer spoke to the claimant and offered to transfer
her out of the basement and to a section of the store which would be more
favorable to claimant’s health. Claimant refused to accept the offer of the
vice-president and on the next day left her employment. On October 23, 1944
claimant filed a claim for unemployment insurance benefits. She reported
regularly thereafter to March 6, 1945. When the local office was informed by
claimant’s former employer that she had "resigned because she did not like
job," the local office interviewed claimant with respect to the
circumstances surrounding her leaving. As a result thereof and on November 14,
1944, an initial determination was made by the local office disqualifying her
from receiving any benefits until forty-two consecutive calendar days have
elapsed after her registration from benefits on the ground that she voluntarily
left her employment without good cause. Claimant objected thereto and requested
a hearing. In a letter dated January 6, 1945 to the Department of Labor, the
employer’s representative stated:
"At the time of
resignation Miss E. was offered a similar job at the same salary on our second
floor. Two weeks later when she came in to pay us a visit she was offered
another job at the same salary on another floor with full reinstatement.
"Although both
these opportunities were turned down by Miss E., we will be glad to consider
her for re-employment, if she is interested."
At the time of her
resignation, claimant had no other offer of employment. Two weeks prior thereto
she had filed an application for a position as an employment interviewer with
the United States Employment Service. Up to the date of the hearing before the
Board, held on March 28, 1945, this employment had not materialized. Since her
resignation, claimant has not had any employment. On December 31, 1944 claimant
was married. Claimant has received eight benefit checks for the period
subsequent to the termination date of her disqualification.
Appeal Board Opinion: There is no question but that claimant
voluntarily left her employment. The only issue presented is whether or not her
leaving was with good cause. Claimant predicates her case on the fact that her
position as service manager in the basement section of the store impaired her
health and that she could not effect a transfer to a more favorable section of
the store. It is clear from the record that her health was impaired but it is
equally clear that her employer made genuine efforts to have her transferred to
a more desirable section of the store. On Monday, October 16, claimant was
offered a position on the second floor, and on Thursday, October 19, one of the
vice-presidents of the store informed claimant that he could have her
transferred from the basement. Claimant refused both offers. Claimant was an
"excellent" and conscientious worker. Her employer was anxious to
retain her services. We feel certain that had claimant exercised a little
patience the employer would have transferred her to a position more conducive
to her physical well-being. When she resigned claimant had no other job and no
reasonable prospect of immediate employment elsewhere. Under the circumstances
herein, we hold that claimant’s reasons for voluntarily leaving her employment
do not constitute good cause within the meaning of Section 593.1(c) (formerly
Section 506.2(c)) of the Labor Law.
Decision: The initial determination made by the local
office disqualifying claimant from receiving any benefits until forty-two
consecutive calendar days have elapsed after her registration for benefits on
the ground that she voluntarily left her employment without good cause is
hereby sustained. The decision of the referee is reversed. (4/9/45)
Index
No. 1215B-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Delay in Acceptance
Appeal Board Case No. 11,751-45
REFUSAL TO START WORK UNTIL FOLLOWING MORNING
When claimant was
interviewed by employer late in the afternoon and was requested to start work
immediately, her refusal to begin work until the following morning, due to
domestic circumstances, did not constitute a refusal of employment without good
cause.
Referee’s Decision: Claimant, without good cause, refused to
accept an offer of employment. (2/13/45)
Appeal By: Claimant
Findings of Fact: Claimant filed an application for employment
and unemployment insurance benefits on December 6, 1944. She was last employed
as a saleslady in a retail millinery shop in New York City for about ten months
and was laid off on November 4, 1944 because of slackness of business. Prior to
1940 claimant had been the proprietor of a store dealing in sports wear and
ladies apparel. Thereafter she was employed intermittently by a large general
department store as buyer and manager. She was also employed for a short period
by an interior decorator. On December 21, 1944 claimant was referred to a job
as a saleslady at a retail millinery store located on Fulton Street in New York
City. The referral was made late in the afternoon of that day and claimant
immediately called on the employer. She was interviewed in the store and the
employer offered to give her a tryout, asking her to go to work at once. The
claimant resides on West 86th Street in Manhattan with her
husband and adult daughter. She had planned on preparing dinner at home that
evening and advised the employer that she could not work that evening, but that
she was willing to start work the next day. The employer stated that unless claimant
would go to work that night he would not hire her. She thereupon left the
establishment. A report was forwarded by the United States Employment Service
to the local office to the effect that claimant had refused the offer of
employment in question. Claimant was interviewed at the local office and signed
a written statement containing various objections to the job offer and also
contending that she was not hired because she could not start work at once. An
initial determination was issued disqualifying claimant for benefits for
refusing, without good cause, to accept an offer of employment. Claimant
requested a hearing on the issue. On January 18, 1945 claimant through her own
efforts obtained a position as a saleslady, at which she was tried out for a
single day and worked until 10 p.m. On January 29 claimant obtained other
employment and worked during that week and part of the following week. In a
letter addressed to the Board claimant advises that she was called back to work
by her former employer on about February 24 and has been working there since.
Appeal Board Opinion: The referee ruled that the reasons advanced by
claimant for rejecting the offer of employment did not constitute good cause
and he accordingly sustained the initial determination. We agree that claimant
had no legitimate objection to the job offer on the ground of salary, hours of
work, distance from her residence or the type of work involved. However, the
undisputed testimony is to the effect that claimant did not refuse the offer.
She merely requested that she be permitted to report for work on the following
day. This was not an unreasonable request on her part, since the referral and
the interview occurred late in the afternoon and claimant had previously made
plans to prepare dinner for her family. The testimony shows that claimant has
always been willing to work during evening hours provided she had opportunity
to make the necessary arrangements in connection with her domestic obligations.
The circumstances herein would appear to point to a withdrawal of the offer of
employment by the employer. We are of the opinion that it cannot be said in
this case that claimant’s conduct constituted a refusal, without good cause, of
the offer of employment.
Decision: Claimant did not, without good cause, refuse
to accept an offer of employment. The local office determination is overruled.
The decision of the referee is reversed. (4/16/45)
Index
No. 1250D-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Hours – Overtime
Work Week – Refusal of Six Day
Appeal Board Case No. 11,730-45
REFUSAL – SIX DAY – 48 HOUR WORK WEEK
In the absence of any
valid circumstance, either economic, domestic, or condition of health, which
would make the work an undue hardship, claimant’s refusal of employment because
it required a six day work week of forty-eight hours was without good cause.
Referee’s Decision: Claimant, with good cause, refused to accept a
referral to employment. (2/14/45)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant worked for over six years prior to
September 24, 1943 for a life insurance company. With the exception of one
year, when she performed clerical work, claimant worked as a mimeograph machine
operator for this employer. Her work week consisted of thirty-seven hours, five
days a week and she earned $29.50 a week plus lunches. At the time claimant
left her employment her husband was about to be inducted into military service
and he entered the armed forces on November 15, 1943. Claimant stayed at home
and remained out of the labor market until the following October. Claimant
filed an application for benefits on October 9, 1944. She received eight
benefit checks to the week ending December 17, 1944. On December 21, 1944
claimant was referred to a job with the United States Civil Service Commission
as a mimeograph operator paying a basic salary of $1440 a year, plus overtime
for the excess over forty hours. In this employment claimant would be required
to work forty-eight hours for a six-day week. Claimant refused to accept the
referral, stating that it would be too great a strain on her to work
forty-eight hours a week and that the salary was inadequate. She stated that
she was willing to work forty hours a week. On December 28, 1944 claimant was
interviewed at the local office regarding the job refusal. Claimant offered to
produce medical evidence in support of her contention that the work offered was
too strenuous for her and referred the local office to a doctor who had treated
her. The local office communicated with the doctor in order to obtain
information concerning any physical restrictions on claimant’s ability to work.
He informed the local office that claimant was not under his care. The local
office thereupon issued an initial determination hold that claimant, without
good cause, refused to accept a referral to employment. Claimant requested a
hearing stating "I don’t want a 6 day week job." Claimant is
twenty-eight years of age. She last visited a doctor prior to her separation
from employment in September 1943. She admitted that she did not suffer from
any physical impairment which prevented her from working forty-eight hours a
week. She testified that mimeographing work required constant standing and that
on the basis of her previous experience it would be too strenuous to work in
excess of forty-hours a week in that line. No medical or other evidence was
produced by claimant in support of her contention.
Appeal Board Opinion: The referee ruled that claimant’s refusal of
the job offer was with good cause because the working time was too long and
therefore the job would be too strenuous for her. We failed to find any support
in the record for the conclusion reached by the referee. The fact that during
her last employment claimant was transferred from the mimeographing to another
department lends little support to the referee’s conclusion, since the record
shows that claimant at her own request was transferred back to mimeograph work
and performed that work for the entire last year of her employment.
Furthermore, this occurred some fifteen months prior to the referral in
question. Claimant’s principal objection to the job offer appears to be that it
called for a six-day work week of forty-eight hours. She failed to show the
existence of any valid circumstances either economic, domestic or relating to
her physical condition which constituted a sound or sufficient reason for
restricting her hours of work. Her contention that she gave up her last job
because the work was too strenuous was negated by her own testimony and by the
written statement of the physician who allegedly advised her to take that step.
The job offer in question was with the United States Government and paid at
least the equivalent of claimant’s last earnings. It cannot be said that as to
this claimant the forty-eight hour work week entailed any unusual or exorbitant
requirement. Under all the circumstances herein it must be held that none of
the reasons advanced by claimant for her refusal of the job offer constituted
good cause within the meaning of the Unemployment Insurance Law. (See also
Appeal Board, 7853-42).
Decision: The initial determination holding that
claimant, without good cause, refused to accept a referral to employment is
sustained. The decision of the referee is reversed. (5/7/45)
Index
No. 1210A-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
June
21, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other Reason for Refusal
Appeal Board Case No. 11,590-45
REFUSAL OF EMPLOYMENT – INDEFINITE STARTING DATE
A referral to part time
sales work to commence at an undetermined future date, the actual hiring to be
done at that later date, was not a firm offer of or referral to employment.
Disqualification from benefits cannot rest on such referrals.
Referee’s Decision: Claimant, without good cause, refused to
accept an offer of employment for which she was reasonably fitted by training and
experience. (1/10/45)
Appeal By: Claimant
Findings of Fact: Claimant has resided in Hamburg since 1939.
Prior thereto she resided in Buffalo where she worked as a coat and dress
saleslady in a department store. For eight months prior to April 1, 1944 claimant
worked at a war plant in Buffalo located ten miles from her home. At the date
of her separation she earned $56.68 a week. She left this employment because
her husband became ill and required her attention. On September 26, 1944, after
her husband had recovered and returned to work, claimant filed application for
employment and unemployment insurance benefits. She was given the occupational
classification of a sales person by the United States Employment Service. On
November 3, 1944 claimant was referred to a job as a saleslady in a department
store in Buffalo, where she had formerly worked. She reported for an interview
at the prospective employer’s establishment. She was informed that the job in
question was for part-time sales work during the Christmas holiday season and
that there would be openings about November 23, 1944. The rate of pay was $20
for a forty-four hour week. The round trip fare from Hamburg to Buffalo is
thirty-two cents a day. Claimant refused to consider this offer on the ground that
she was seeking steady work and that the rate of pay was inadequate. On
November 22, 1944 an initial determination was issued that claimant refused,
without good cause, to accept an offer of employment. Claimant requested a
hearing on the ground that the job offer was for part-time work only. Claimant
has continued to report weekly at the insurance office and at the United States
Employment service as required. She is willing to work in Buffalo and has
applied for work at three different war plants. She will accept work in a
department store if she is offered a steady position. No other offers of
employment have been made to claimant by the United States Employment service
other than the one mentioned.
Appeal Board Opinion: The only issue on appeal is whether or not
claimant had good cause to refuse the offer of employment on November 3, 1944.
In the first place this offer called for part-time work to commence about three
weeks later and was contingent upon her hiring at such time. We are not
prepared to say that such an offer, projected in the future and uncertain in
its terms, can be made the basis for a disqualification under the Unemployment
Insurance Law. Even if a firm offer of employment were involved, the low rate
of pay was grossly out of proportion to claimant’s latest earnings and the
transportation expense was excessive in view of the salary offered.
Furthermore, it is doubtful whether the type of work offered was commensurate
with claimant’s past experience as a saleslady of high grade coats and dresses.
It must be held that claimant had good cause to refuse the referral. Some
question has been raised as to claimant’s availability. We believe that the
evidence establishes beyond a doubt that claimant was ready and willing to
work. She has no domestic circumstances which would interfere with her working.
She has expressed a willingness to work in Buffalo; she has made independent
efforts to obtain work in war plants.
Decision: Claimant did not, without good cause, refuse
to accept an offer of employment. The initial determination is overruled. The
decision of the referee is reversed. (3/26/45)
Index
No. 725.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 27, 1945
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Mental ability
Appeal Board Case No. 11,1759-45
CAPABILITY - MENTAL
ABILITY - EMPLOYMENT RESTRICTION
Claimant, afflicted with a mental illness, whose
only work experience was with the aid and help of his brother during the
canning season and who refused to accept other canning jobs, was held to be
incapable of performing work which there was a reasonable possibility of
obtaining.
Findings of Fact: A hearing was held herein at which the
claimant, his representative and a representative of the Industrial
Commissioner appeared, and testimony was taken. Claimant, 32 years of age, was
employed for three seasons as a cannery laborer at a cannery located in Mt.
Morris, New York. Prior to this employment the claimant had never worked
because of a mental illness. While thus employed he worked with his brother who
operated a filling and capping machine. Claimant’s duties consisted of removing
the filled and capped cans from a table into a steel basket. Claimant’s brother
watched over him and saw that he properly performed the work. At the end of the
season, when the filling and capping machines were no longer used, claimant was
transferred to other work, but was unable to perform the duties required of the
job and was laid off. Claimant filed an application for benefits on December
20, 1944, and has reported to date. On January 8, 1945, he was offered referral
by the United States Employment Service to employment as a cannery laborer at a
cannery located at Rochester, New York. The prospective employer furnished bus
transportation to its plant. Claimant refused to accept the referral stating to
the effect that he was unable to accept any employment unless he could work in
a job where his brother could assist him and watch over him. The local office
issued an initial determination holding claimant ineligible for benefits effective
January 8, 1945, on the ground that claimant was unavailable for and incapable
of employment. Claimant requested a hearing. The claimant’s brother with whom
he worked appeared at the hearing. He stated that due to his brother’s
condition he was not able to perform any work without his guidance and
supervision.
Referee’s Opinion and
Decision: Cclaimant’s
only work experience has been with the aid and help of his brother. Without
this assistance the claimant is unable to perform any work. It is clear from
the record that claimant, except during the canning season when he is able to
work with his brother, is incapable of performing work such as there may be a
reasonable probability of obtaining. I hold, therefore, that the claimant was
not available for and capable of employment within the meaning of the statute.
The initial determination herein is sustained. (2/27/45)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issues involved in
this case.
Appeal Board Decision: The decision of the referee is affirmed.
(4/3O/45)
Index
No. 1215C-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
27, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Delay in Acceptance
Appeal Board Case No. 11,835-45
ACCEPTANCE OF REFERRAL – DELAY IN KEEPING APPOINTMENT WITH
EMPLOYER
Claimant, who accepted
referral but failed to keep an appointment to see the employer the following
morning, but telephoned the employer in the afternoon at which time the
position was filled, was properly disqualified for refusal of employment
without good cause.
Findings of Fact: a hearing was held herein at which the
claimant and representatives of the Industrial Commissioner and of the United
states Employment service appeared and testified. Claimant has been working as
a stenographer since May 1942 when she returned to the labor market. She earned
$25 a week until she went to work for a hotel in October 1943. At this ob she
earned $28 a week. Claimant worked there until December 16, 1944, when she
became ill. Prior to her marriage nine years ago, claimant earned $35 a week,
plus an annual bonus of $200. Claimant filed for benefits on January 10, 1945,
and certified to unemployment through February 11, 1945. On January 24, 1945,
an initial determination was issued disqualifying claimant from receiving
benefits, effective January 11 because she refused employment without good
cause. On February 7, 1945, a further initial determination was issued
disqualifying claimant, effective February 1, because she refused employment
without good cause. Claimant objected and requested a hearing. On January 11,
1945, the Employment Service offered claimant two jobs as stenographer, one
paying $35 to $37.50 a week and the other paying $32 a week. Claimant went out
on the first referral on that day, but did not report to the employer when she
found that his office was located on the 46th floor. Claimant
did not want a job above the 15th or 16th floor
because she has found that greater heights cause a pressure in her ears. With
reference to the second referral, the Employment Service interviewer had made
an appointment for the employer to interview claimant the following morning at
11:30 a.m. Claimant failed to keep this appointment. Claimant explained that
she went out that morning for three interviews in answer to newspaper
advertisements, and did not get through with the interviews until the
afternoon. She then called the employer to whom she had been referred by the
Employment service, and was told that the job had been filled. She was advised
to call back again in a few weeks. On February 1, 1945, the Employment Service
offered claimant another job as stenographer paying $140 a month. Claimant
refused this referral because the employer’s office was located on the 45th floor.
Claimant has never been under a doctor’s care in connection with her complaint
that she cannot work above the 16th floor. She has not
submitted a medical certificate to substantiate her contention. About February
14, 1945, claimant telephoned the second employer to whom she had been referred
by the Employment Service on January 11. Claimant obtained the position and has
been working for this employer since February 19th.
Referee’s Opinion and
Decision: Claimant’s failure to
keep the appointment made by her by the Employment service interview on January
11 shows that she failed to make reasonably diligent efforts to obtain the job
to which she was referred. By her failure to keep that appointment or to
contact the employer on time, claimant in effect failed to accept employment
within the meaning of the Law. I cannot credit claimant’s contention that she
was occupied in looking for a job through newspaper advertisements. The
appointment had been made specifically for claimant at a fixed time. Her
failure to keep this appointment, under the circumstances in this case, was a
proper basis for disqualification for failure to accept employment. In view of
this decision, it is not necessary to inquire into the reasons given by the
claimant for refusing the other jobs offered to her. The initial determination
disqualifying claimant, effective January 11 is sustained. (3/13/45)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issues involved in
this case. Claimant was referred to the job in question on January 11, 1945. An
appointment had been made by her to be interviewed by the prospective employer
on January 12. She chose to look other places for employment. She was
unsuccessful. On February 19, 1945, she was employed by the same employer. It
appears, therefore, that she was out of work from January 12, 1945 to February
19, 1945 by reason of her failure to keep the appointment on January 12, 1945.
Appeal Board Decision: The decision of the referee is affirmed.
(4/30/45)
Index
No. 1215C-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
July
27, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other Reason for Refusal
Appeal Board Case No. 11,085-44
FAILURE TO REPORT TO EMPLOYER- CONTENTION OF PREVIOUS CONTACT – WOULD
BE CALLED IF AND WHEN NEEDED.
When claimant failed to
personally report to prospective employer for interview after the acceptance of
referral card, contending that she had previously visited the employer and was
informed that she would be called if and when needed, it was held that the
failure to report was refusal of referral without good cause.
Findings of Fact: A hearing was held herein at which the
claimant and a representative of the Industrial Commissioner appeared and
testified. Claimant, a cannery worker, filed an original application for
benefits on June 7, 1943. On September 8, 1943, the local office issued an
initial determination holding claimant to be ineligible for benefits on the
ground that she was unavailable for employment. Claimant did not contest this
determination. Claimant reinstated her claim for benefits on March 21, 1944.
During the 1943-1944 benefit year, claimant has received 12 benefit checks in
the amount of $12 each. Claimant resides at Naples, New York. She was last employed
in July 1, 1943 as a cannery worker at Rushville, New York. On April 10, 1944,
the local office referred claimant to the Widmer Wine Company, Naples, New York
for factory or vineyard employment. Claimant accepted the referral and visited
the prospective employer's establishment. She was not hired at that time
because there were no jobs available. During the week prior to May 8, 1944, a
representative of the Widmer Wine Company contacted the local office and
requested that workers be referred for employment in the company’s vineyards in
tying grapes. On May 8, 1944, the local office instructed claimant to report to
the prospective employer for employment. Claimant failed to report to the
employer. Her reason for failing to report was that when she had visited the
prospective employer in April 1944, the employer’s representative informed her
that she would be called if and when needed. Claimant has had no employment
since July 1943. She left her employment at the cannery in Rushville, New York
in July 1943 because the person with whom she rode to work quit her employment,
and she had no means of transportation. She allegedly could not use the family
automobile to transport her to and from her employment because of the poor
condition of the tires. Despite the fact that new tires were secured by the
claimant for the family automobile on December 1, 1943, she did not reapply to
her former employer for employment, although the cannery was in operation until
about February 7, 1944.
Referee’s Opinion and
Decision: Claimant’s entire
course of conduct throughout her period of unemployment leads me to conclude
that her efforts to obtain employment were not sincere. Her acceptance of the
referral from the local office representative without protest and her
subsequent failure to report to the prospective employer regarding the job
opening, indicates that claimant was not anxious to secure employment. Prior to
the referral in question, she claimed to have had no means of transportation to
the cannery where she was formerly employed. When given referral to employment
in the vicinity in which she resides, she failed to contact the employer.
Testimony of the local office representative was to the effect that the
prospective employer, on May 8, 1944, was urgently in need of workers and that
there was a job available for the claimant had she reported to the employer as
instructed. The reason advanced by claimant for her failure to report to the
prospective employer for an interview cannot be accepted. The initial
determination issued by the local office disqualifying claimant from receiving
benefits effective May 8, 1944, on the ground that she without good cause
refused referral to employment, is sustained. (6/27/44)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issues involved in
this case.
Appeal Board Decision: The decision of the referee is affirmed.
(9/11/44)
Index
795.7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
AUGUST
1945
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Effort and Willingness to Work
UNWILLINGNESS TO WORK PENDING PROCESSING OF CIVIL SERVICE
APPLICATION
Claimant who did not
desire employment during the pending of an appointment to a civil service
position was held unavailable.
A.B. 11,868-45
Referee's Decision: The local office determination that claimant
was unavailable for employment is sustained. (3/14/45)
Appealed By: Claimant.
Findings of Fact: Hearings were held at which representatives of
the Industrial Commissioner and the United States Employment Service appeared
and testimony was taken. Claimant's testimony was taken through interrogatories
at a hearing in Washington, D.C. Claimant, a stenographer, filed a claim for
benefits at Bayshore, New York, effective October 2, 1944, and certified to
unemployment through the week ending October 29, 1944. The local insurance
office issued an initial determination disqualifying the claimant from
receiving benefits as of October 2, 1944, on the ground that claimant was not
available for or capable of employment. Claimant contested this determination
and requested a hearing. In September 1944, the claimant was employed as a
stenographer by the Vanadium Corporation of America in New York City. Sometime
during 1942, the claimant passed a civil service examination for the position
of stenographer with the federal government. On or about September 7, 1944, the
claimant received an inquiry and an offer of employment as a stenographer with
the Department of State at Washington, D.C. She made application to the War
Manpower Commission in New York City on September 11, 1944, for a statement of
availability to obtain the government job, which was granted to her on
September 14, 1944. Her employer, thereupon terminated her employment. She last
worked on September 22, 1944, but her employer paid her wages to the end of the
month. On October 4, 1944, the State Department advised the claimant that the
release or statement of availability had been received and that it would take
two to three weeks to process the appointment. Claimant commenced working for
the State Department on November 2, 1944. On October 3, 1944, the claimant was
interviewed at the local insurance office and signed a statement, part of which
stated:
"I
do not want employment now. I will look for a job only if my
application with the Civil Service Com. falls through. I desire
to wait a reasonable length of time until I have a reply from the
State Department before I accept a position here."
On October 17, 1944, the
claimant was again interviewed at the local insurance office and stated in part
as follows:
"I
have been in touch with the State Dept. and I have a letter
dated October 14, 1944 which indicates that the Dept. is waiting
for the Civil Service Commission to approve the appointment. I
do not seek work now because am waiting for this appointment and
my 'release' is not good in this area. The 'release' is confined
to that position in Washington only. *** I would not accept a job
today other than the above cited job."
At that interview, the
local insurance office directed the following question to the claimant:
"Do
you wish to apply for a new release today so that the area in which you
may work will include this area or New York City and so
that you may be able to accept other jobs with other employers?"
The claimant answered as
follows:
"No,
I believe the need for stenographic help is greater in
Washington where there is a shortage of labor, as stated by
the W.M.C. to me when I obtained my statement of availability."
Claimant now contends
that she was not told about the possibility of temporary work and would have
accepted temporary work if offered to her before she left for Washington, D.C.
The report of the United States Employment Service interviewer in Bayshore
states:
"Claimant states
that she has a civil service job pending and does not wish to apply for
work in this area."
Referee's Opinion and
Decision: Upon evidence
submitted, I am of the opinion that the claimant was not available for
employment. The Unemployment Insurance Law provides for the payment of benefits
to unemployed workers who are capable of and available for work. Although the
claimant now contends that during the period she certified for unemployment at
the local insurance office she would have accepted temporary work pending her
appointment to the State Department in Washington, D.C., her statements given
to the local office personnel is to the contrary. On October 3, 1944, when she
was first interviewed, the claimant stated that she did not want employment and
would look for a job if her application for the federal job fell through or
after she had had a reply from the State Department. On October 4, 1944, the
claimant was advised by the State Department that it would take several weeks
to process the appointment. When interviewed again on October 17, 1944, the
claimant again stated that she would not accept any other employment in the
local area because she intended to go to the job in Washington, D.C. While the
claimant's desire to work in Washington, D.C. is commendable because of the
noteworthy shortage of clerical and stenographic workers in that locality,
nevertheless, in view of the fact that she indicated that no employment would
be acceptable to her, she is deemed unavailable for employment and, therefore,
ineligible for benefits. The initial determination is sustained.
Appeal Board Opinion: The Board is of the opinion that the
referee made proper findings of fact and correctly determined the issues
involved in this case.
Appeal Board Decision: The decision of the referee is affirmed.
(6/25/45)
Index
No. 725.6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
12, 1945
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Health
Appeal Board Case No. 11, 963-45
AVAILABILITY -CLAIMANT
WHO ENTERED VETERANS FACILITY FOR DOMICILIARY CARE
Entering a veterans’
domiciliary home for a rest and on the basis of proving inability to work
establishes unavailability.
Referee’s Decision: The initial determination of the local
office holding that claimant was unavailable for employment is overruled.
Appeal By: Industrial Commissioner
Findings of Fact: Claimant is sixty-five years of age and a
veteran of World War I. He is a carpenter by trade. He entered the Veterans’
Facility at Bath, New York, for medical treatment in November 1943. He was
confined to the hospital there for five weeks and subsequently resided at the
domicile of the facility until July 1944 when he returned to work. He became
separated from his employment on November 10, 1944, and re-entered the Facility
on November 14, 1944. The regulations of. the Veterans' Administration with
respect to the requirements which must be met by the veterans to entitle them
to hospital treatment and domiciliary care as follows:
"Veterans who
served during a period of war who were ( 1) not dishonorably discharged from
their last period of war service; (2) who swear that they are unable to defray
the expense of hospitalization or domiciliary care, including the expense of
transportation to and from a Veterans’ Administration facility; and (3) who are
suffering from a disability, disease or defect which, being susceptible of cure
or decided improvement, indicates need for hospital cure, or which, being essentially
chronic in type and not susceptible of cure, or decided improvement by hospital
care, is producing disablement of such degree and of such probable persistency
as will incapacitate from earning a living for a prospective period, and
thereby indicates need for domiciliary care."
Claimant filed a claim
for benefits and registered for employment on December 11, 1944. On or about
February 16, 1945 the local office received a statement from the Chief Medical
Officer attached to the Facility to the effect that claimant’s ailment was
diagnosed as "psychosis, post-traumatic, in remission; senility," and
that claimant is "unable to carry on a gainful occupation." On March
1, 1945 the local office issued an initial determination holding that claimant
was unavailable for employment effective January 18, 1945. Claimant was charged
with an overpayment of’ $54.00 for the three weeks of certified unemployment
ending January 11, 1945. Claimant protested end requested a hearing. He contend
that he entered the Facility for the purpose of a residence during a period of
unemployment and that he was available for work. Claimant's testimony at the
hearing before the referee indicates otherwise. It follows:
"Q. During the time
when it's slack in your trade would you be willing to take employment in other
occupations?
A. Yes.
Q. Why didn't you go up
to Rochester then during the winter time to see if you could find anything up
there?
A. I don't know. Well, I
worked pretty hard last fall is one reason on that job, and I lost about 20
pounds and I thought I would go down to Bath and rest up.
Q. So when you went to
Bath you went to rest up. Is that right?
A. Yes, get my weight
back. I done pretty hard work there that summer and the snow came so deep, and
there was another man in Canandaigua he had some house work and his lumber was all
buried in the snow so we thought we would let it go until spring."
Appeal Board Opinion: We must assume that the claimant, upon making
application to enter the Facility, was required to prove to those in charge
there, that he was unable to work, in accordance with the above regulation,
since he was admitted four days after he became unemployed. While it may be
that the rule was in some degree relaxed in his case, his testimony is clear as
to his reason for making application for admission. He is sixty-five years old.
He worked hard last fall. He lost twenty-pounds. He needed a rest, and he
wanted to regain his lost weight. Because of these and other circumstances, he
and another person who had some house work to do "thought we would let it
(the work) go until spring." We believe the referee erred in his
conclusion. Under the circumstances herein it must be held that claimant was
not available for employment during the period in question.
Decision: The initial determination of the local office
holding that claimant was unavailable for employment is sustained. The decision
of the referee is reversed.
Index
No. 1210A-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
September
12, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Offer, What Constitutes
Appeal Board Case No. 11,957-45
REFUSAL OF REFERRAL FOR INTERVIEW TO DETERMINE EXACT WAGE RATE
A firm offer of a wage with
an assurance of more if experience warranted it necessitated inquiry by the
claimant of the employer to ascertain the exact wage that would be paid him.
Refusal to accept referral and make such inquiry was without good cause.
Referee’s Decision: The initial determination of the local office
holding that claimant, without good cause, refused an offer of employment for
which she is reasonably fitted by training and experience is overruled.
(4/28/45)
Appeal By: Industrial Commission
Findings of Fact: Claimant is married and resides with her
husband and two children, nineteen and twenty years of age, respectively. One
of the two children is gainfully employed. For twenty years claimant had been a
housewife and out of the labor market. About June 1943 claimant re-entered the
labor market. For eighteen months prior to January 3, 1945 claimant had been
employed as a drill press operator by a single employer. She commenced this
employment at the rate of sixty cents per hour and at the time of the
termination thereof she was paid eighty-five cents per hour. Prior to her
marriage claimant had been employed in the garment industry. On January 22,
1945 claimant filed an application for benefits and reported continuously to
the date of the hearing before the referee which was on April 20, 1945. The
United states Employment Service made special efforts to obtain a job for
claimant at a rate of pay which would approximate her final earnings with her
last employer. On March 16, 1945 the placement interviewer of the United States
Employment service, in claimant's presence, solicited a job offer as drill
press operator by telephone. The prospective employer started operator-trainees
at seventy-five cents per hour. When apprised of claimant’s experience, he
stated that he might pay more to an experienced drill press operator. Claimant
was directed to report to the prospective employer for an interview. She
refused. A Report of Possible Disqualifying Conditions was made to the local
office. Based on the said report and an interview at the local office, a
disqualification was imposed against the claimant for refusal of the job.
Claimant contested the determination and demanded a hearing. At the hearing
claimant contended that she was not apprised that the employer might pay more than
seventy-five cents per hour to an experienced drill press operator. The referee
overruled the initial determination and the Industrial Commissioner appealed.
Appeal Board Opinion: The referee based his decision on the fact
that the United States Employment Service failed to obtain from the prospective
employer the exact rate of pay he would be willing to pay to an experienced
drill press operator. The referee reasoned that by virtue thereof claimant was
not apprised of the precise terms of the job offer. We believe that the referee
labored under a misconception. There was a firm offer from the prospective
employer of at least seventy-five cents per hour. He was willing to pay more to
an experienced drill operator. The additional amount that the employer would be
willing to pay would depend upon the experience of the claimant, which the
employer could determine only at an interview. The refusal of the claimant to
appear for an interview to ascertain the amount that the employer was willing
to pay was unreasonable and amounted to a refusal of the job offer. Claimant’s
contention that she was not apprised that the employer was willing to pay more
to an experienced drill operator is incredible. A job order was prepared at the
time the solicitation was made and such order indicates that the employer
"might pay more for experience." The telephone conversation took lace
while she was with the placement interviewer.
Decision: Claimant, without good cause, refused an offer
of employment for which she is reasonably fitted by training and experience.
The initial determination of the local office is sustained. The decision of the
referee is reversed. (7/20/45)
Index
No. 1280-10
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
September
12, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Distance – Traveling Time
Appeal Board Case No. 12,045-45
REFUSAL – TWO HOURS TRAVELING TIME – MISDIRECTION BY U.S.E.S.
Refusal of employment
because it took two hours to reach the employer’s establishment as directed by
the placement interviewer, although the distance could have been covered in one
hour by a different route, was with good cause as claimant knew of no shorter
route and relied upon directions.
Referee’s Decision: the initial determination of the local office
holding that claimant without good cause refused an offer of employment is
overruled. (5/22/45)
Appeal By: Industrial Commissioner
Findings of Fact: Claimant was employed for over one year as an
inspector at a war plant near her home in Buffalo at $1.04 an hour. She filed
application for employment and unemployment insurance benefits on October 5,
1944. On February 9, 1945 claimant was referred to a radio plant as an
inspector at the rate of sixty cents per hour and piece work. Claimant accepted
the referral and followed the directions given her at the placement office. The
trip to the plant took her about one hour and fifty minutes and she refused the
job on the ground that it was too far from her home. An initial determination
was issued holding that claimant, without good cause, refused an offer of
employment. Claimant resides in the easterly section of Buffalo in the vicinity
of a cross town bus line. She did not know of any means of getting to the plant
of the prospective employer other than the directions given her. Testimony was
given at the Board hearing to the effect that claimant could have reached the
prospective place of employment within an hour by using three different bus
lines. The route over which she was instructed to travel took her in the wrong
direction and called for a transfer at a point in the northeasterly section of
Buffalo where the bus service was poor.
Appeal Board Opinion: Relying upon the directions given her by the
placement officials claimant in good faith called at the plant of the prospective
employer. She refused the offer of employment after she found that this route
consumed almost two hours of her time in reaching the employer’s plant. Under
these circumstances we hold that claimant had god cause to refuse the offer of
employment.
Decision: Claimant had good cause to refuse the offer of
employment. The local office determination is overruled. The decision of the
referee is affirmed. (7/20/45)
Index
No. 755A-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
SEPTEMBER
17, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restriction of Employment work, Nature of
Appeal Board Case No. 11,975-45
AVAILABILITY –
RESTRICTION OF EMPLOYMENT – Work, Nature of
A long experienced sheetmetal worker and layout
man was held to be unavailable because he restricted his employment to work as
a layout man only when employment as a sheetmetal worker was available and
there was a dearth of jobs as layout men.
Findings of Fact: Hearings were held at which the claimant, his
union representative, and representatives of the Industrial Commissioner and of
the United States Employment Service appeared and testified. Claimant, a sheet
metal worker and layout man, filed an additional claim for benefits on December
4, 1944. He reported continuously thereafter for a sufficient number of weeks
to exhaust his benefit account. On February 19, 1945, initial determinations
were made (a) that effective February 2, claimant was ineligible for benefits
because he was unavailable for employment, and (b) that effective February 9,
claimant was disqualified from receiving benefits because he had refused employment
without good cause. The claimant objected and requested a hearing. As of
February 2 claimant had received 17 benefit payments at $18 each. Claimant has
been a sheet metal worker all his working life. He has been a member of Local
28 of the Sheet Metal Workers' Union since 1906. Most of his work in later
years has been as layout man. When required he will do the work required of a
sheet metal worker. With one exception, he has always worked at the established
union rate of pay, which since January 1,1942, has been $2 an hour. On February
2, 1945 when he indicated to an interviewer in the Employment Service office
that he was unwilling to work at less than $2 hourly, a report of that fact was
made to the local insurance office, which thereupon issued the initial
determination that the claimant as not available for employment. On February
9,1945, employment was a layout man with some of the tasks usually done by a
sheet metal worker, was offered claimant by the Employment Service. The wage
rate was up to $1.50 hourly and was in an open shop. Claimant's fitness for the
work is not questioned. Claimant refused to accept the employment because he
would not work in a non-union shop or at less than the union rate of pay,
because in doing so he would .jeopardize his union status. He would in fact
have been subjected to disciplinary action by his union, if he had accepted the
employment. Except on exceedingly rare occasions, the Employment Service cannot
provide claimant with work In union shops at the union rate of pay. He can
obtain such work only through the efforts of his own union. As of February 2,
1945, there was considerable work for sheet metal workers available in the
union. Only a negligible percentage of union members was then unemployed,
either because they were too old or incapable of employment. Claimant could
have participated in such work but he restricted the work he was willing to do
to that of layout man only. This was his own personal preference and was not
made at the request or order of his union, which would have been willing to
provide him with work as a sheet metal worker had he been willing to accept it.
There was a scarcity of jobs requiring the services of a layout man only.
Referee’s Opinion and
Decision: The offer of
employment made to claimant on February 9 was refused by him with good cause.
Claimant has been a union member of long standing. If he had accepted the
employment, he would have risked disciplinary action by his union, and his
union status. Claimant’s unavailability is not established by his adherence to
his union rate of pay since the evidence is clear that practically all sheet
metal workers, members of the same union as claimant, are working at that rate
of pay, and that there was and is considerable work available at this rate of
pay. The credible evidence, however, establishes that claimant had made himself
unavailable for employment by restricting work acceptable to him as layout man
only. Claimant preferred to wait until work of a particular kind was available
to him. While this is his privilege, in doing so he made himself unavailable
for employment. The initial determination disqualifying claimant for refusing
employment is overruled. The initial determination holding claimant ineligible
because of his unavailability is sustained. (4/26/45)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issue involved in
this case, except as modified herein.
Index
No. 720.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
24, 1945
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Governmental Requirements
Appeal Board Case No. 12,251-45
INABILITY TO SECURE
FEDERAL HOME WORK PERMIT; RESTRICTION -WORK, NATURE OF
Claimant, a homeworker
in the crochet beading industry, having failed to qualify for a federal homework
permit in that industry and who nevertheless was unwilling to accept homework
employment in other obtainable lines was held to be unavailable for employment.
Referees Decision: The initial determination of the local
office disqualifying claimant from receiving benefits on the ground that she
was not available for employment is overruled. (8/3/45)
Appeal by: Industrial Commissioner
Findings of fact: Claimant is thirty years of age and the
mother of two children. She was a crochet beader homeworker for about twenty
years. The season in this industry begins in June and ends in December of each
year. She was last employed in such capacity for an embroidery company in New
York City in December 1944. As a crochet beader claimant earned as high as $90
a week. She was unemployed from December 1944 to May 1945. For a short period
in 1944 claimant worked as a clerk in the post office and for about six weeks
ending June 1945 she worked as a clerk for a book publisher. She was compelled
to give up these employments due to illness. Claimant filed an application for
benefits on June 22, 1945. On the same day claimant signed a statement in the
local office which reads as follows:
"I have been a
crochet beader since I was 9 years old."
"I was denied a
Federal permit recently and tried other homework but am not able to do anything
else. I am only able to do crochet beading and will not do any other
homework."
The local office
thereupon issued an initial determination holding that claimant was unavailable
for employment. The basis of the determination was that homework in claimant's
line was barred by virtue of a Federal order issued by the Wage and Hour Public
Contracts Division and that claimant was unwilling to accept employment in
other fields of homework. Claimant contested the determination and requested a
hearing. At the hearing claimant submitted a homework permit issued by the
Department of Labor to an employer engaged in the embroidery business, dated
November 18, 1944, and expiring September 21, 1945. Claimant's application for
a homeworker’s certificate was denied by the Federal government because she did
not meet the requirements set forth in the regulations governing the employment
of homeworkers. Due to her domestic circumstances, claimant cannot accept employment
outside of her home. She testified that she objected to going into other fields
of homework because the rate of. pay offered was substantially less than that,
prevailing in her customary line and that she would not sacrifice the interests
of her family for small earnings.
Appeal Board
Opinion: The issue to be decided
is whether or not claimant was available for employment. The referee resolved
the issue adversely to the Industrial Commissioner and rested his decision on
the authority of Matter of Smith, 267 App. Div. 468, affirming
Appeal Board, 8745-43. We are unable to agree with the referee's
conclusion. The case cited by the referee is distinguishable from the instant
case. In the Smith case (supra) the claimant was willing to accept any other
suitable homework. In the instant case, homework in the crochet beading
industry was barred to claimant as a result of an order issued by the Federal
authorities, but claimant is not willing to accept other homework. Having been
barred from work as a crochet beader and having elected not to accept homework
in other lines which there appear to be possibilities of obtaining, it must be
held that claimant rendered herself unavailable for employment.
Decision: The initial determination holding the claimant
was unavailable for employment is sustained. The decision of the referee is
reversed. (10/15/45)
Index
No. 1580C-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
December
8, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING &
CERTIFICATION
Misrepresentation or Misstatement
Penalty Period –
Forfeit Effective Days Imposed
Appeal Board Case No. 12,152-45
MISREPRESENTATION – SINGLE OFFENSE, FORFEIT EFFECTIVE DAYS IMPOSED
FOR
The maximum penalty of
80 effective days for a single and first offense of wilful misrepresentation
was held to be unreasonable and harsh, in the absence of unusual circumstances,
and was reduced by the Appeal Board to the minimum penalty, 20 effective days.
Referee’s Decision: The initial determination of the local office
reducing the rights to future benefits by imposing a forfeiture of eighty
effective days on the ground that claimant wilfully made a false statement in
order to obtain benefits, pursuant to Section 594 of the Labor Law, is
sustained. (6/12/45)
Appealed By: Claimant
Findings of Fact: Claimant, a bricklayer, was laid off from a
construction job on January 8, 1945 because of adverse weather conditions. He
was informed that he would be rehired for regular employment within a few
weeks. On January 1, 1945 he filed an original claim for benefits and was
directed to next report at the local office on January 23, 1945. On the latter
date claimant reported at the local office and certified to total unemployment
for the statutory weeks ending January 14 and January 21, 1945. On January 30,
1945 claimant was referred to a job as a laborer. He refused to accept the
offer of employment on the ground that the offered employment was at a lower
skill than that of a bricklayer and on the further ground that he expected to
be recalled to this former employer at his usual occupation within two or three
weeks. On February 6, 1945, in interviewing the claimant with respect to his
refusal of the laborer’s job, claimant disclosed to the local office
representative that he had been employed on January 12, 15 and 16, 1945 by his
regular employer and had earned the total sum of $39.38 for said three days. As
a result of said interview, an initial determination was made by the local
office holding that claimant’s refusal was with good cause because of the
policy adopted by the Industrial Commissioner not to disqualify construction
workers who refuse to accept job offers in a different occupation within thirty
days after they file a claim for benefits. At the same time another initial
determination was made by the local office reducing claimant’s rights to future
benefits by imposing a forfeiture of eighty effective days on the ground that
he wilfully made a false statement in order to obtain benefits. Claimant
objected thereto and requested a hearing. He contended that he did not
originally disclose his earnings because: (1) he worked less than full time on
the three days in question; (2) the work was not steady employment; and (3) the
two weeks in question were waiting weeks during which he was not receiving any
benefits. Claimant felt that under these circumstances there was no requirement
in the Law to disclose his earnings to the local office.
Appeal Board Opinion: The initial determination in question herein
was made by the local office pursuant to Section 594 of the Labor Law which
reads in part as follows:
"REDUCTION
OF BENEFITS FOR FALSE STATEMENT: A claimant who has wilfully made a false
statement or representation to obtain any benefit under the provisions of this
article shall forfeit benefits for at least the first twenty but not more than
the first eighty effective days following discovery of such offense for which
he otherwise would have been entitled to receive benefits. Such penalty shall
apply only once with respect to each such offense."
The Industrial
Commissioner has never promulgated any Rule, Regulation or administrative
Interpretation under this section of the Law. However, the Industrial Commissioner,
through the Claims Bureau of the Division of Placement and Unemployment
Insurance, has from time to time set forth various staff instructions entitled
"Local Office Procedures." The pertinent instructions in effect
during the period in question are entitled "Suspensions, Disqualifications
and Penalties (Item 1350.1, dated January 20, 1945)" and read as follows:
Penalties for Wilful
Misrepresentation
The penalty for wilful
misrepresentation is the forfeiture of at least the first twenty but not more
than the first eighty effective days following discovery of such offense,
according to the gravity of the offense. Such penalty shall apply only once
with respect to each such offense. (A reiteration of one false statement is not
usually a new or separate offense). An essential factor in determining the
gravity of an offense is the number of offenses committed. Offense numbers
occur in numerical sequence regardless of the turn of benefit years. For
repeated offense, penalties may be imposed according to the following table.
|
Number of Wilful |
Forfeit Effective Days |
Total Forfeit |
|
|
1st offense |
20 |
20 |
|
|
2nd offense |
24 |
44 |
|
|
3rd offense |
28 |
72 |
|
|
4th offense |
32 |
104 |
|
|
5th offense |
36 |
140 |
|
|
6th offense |
40 |
180* |
|
|
7th offense |
44 |
* Theoretically this column could
be further accumulated but as the law restricts the unserved penalty to the
benefit year in which the offense occurred and the following benefit year,
the maximum cumulative penalty is 160 effective days (20 weeks x 4 effective
days x 2 years). |
|
|
8th offense |
48 |
||
|
9th offense |
52 |
||
|
10th offense |
56 |
||
|
11th offense |
60 |
||
|
12th offense |
64 |
||
|
13th offense |
68 |
||
|
14th offense |
72 |
||
|
15th offense |
76 |
||
|
16th offense |
80 |
||
|
Each succeeding offense |
80 |
||
The first issue
presented herein is whether or not claimant "wilfully made a false
statement to obtain any benefit" under the provisions of the Unemployment
Insurance Law. On this issue we concur with the conclusion of the referee. The
reasons advanced by the claimant are insufficient to excuse his failure to
divulge his earnings on the three days in question. We hold that claimant
wilfully made a false statement in order to obtain benefits. The second issue
presented is whether or not the penalty imposed against the claimant for his
offense was proper. Section 594 provides for a penalty of "at least the
first twenty but not more than the first eighty effective days." It is
clear from a reading of the section that the precise number of effective days
to be imposed as a penalty in a particular case is to be determined, in the
first instance, by the Industrial Commissioner, in the exercise of his sound
discretion. It is axiomatic that such discretion must be reasonably exercised.
In the numerous cases under this section of the Law which have been appealed to
the Board, the penalties imposed by the various local offices throughout the
state have been in conformity with the schedule set forth in the aforesaid
"Local Office Procedures," that is, twenty effective days for the
first offense, forty-four effective days for the second offense, seventy-two
effective days for the third offense, etc. We know of no case where the maximum
penalty of eighty effective days was imposed against a claimant for one
offense. It is significant that said "Local Office Procedures"
provide that "An essential factor in determining the gravity of an offense
is the number of offenses committed." In the instant case, the maximum
penalty permitted by the statute was imposed. This was done despite the fact
that the offense in question was claimant’s first and only offense. The record
is barren of any explanation of why the maximum penalty was imposed in this
case. Claimant’s offense was no more flagrant than usual. There are no unusual
circumstances present to warrant a deviation from the usual procedure. We find
that the imposition of a penalty of eighty effective days against this claimant
was arbitrary, unreasonable and harsh. There appears to be an abuse of
discretion by the local office representative, a subordinate of the Industrial
Commissioner. (See our opinion in Appeal Board, 10,076-43 which is hereby
incorporated by reference, as if fully set forth herein). The proper penalty
under the facts herein is twenty effective days.
Decision: Claimant wilfully made a false statement in
order to obtain benefits. Claimant’s future benefit rights are hereby reduced
by twenty effective days. The initial determination made by the local office
and the decision of the referee are modified accordingly. (9/19/45)
Index
No. 1290B-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
December
8, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages – Prevailing
Appeal Board Case No. 11,354-44
PREVAILING WAGE, DEFINITION OF
Wages offered being less
than the wages being paid to the majority of employees actually engaged in work
of a like nature in the locality constituted good cause for refusing employment
even the offered wages were equal to those being offered to new employees.
Referee’s Decision: The initial determination of the local office
disqualifying claimant from receiving any benefits on the ground that on
September 7, 1944 claimant, without good cause, refused to accept an offer of
employment for which she is reasonably fitted by training and experience is
sustained. (10/11/44)
Appeal By: Claimant
Findings of Fact: Claimant filed an original claim for
unemployment insurance benefits and registered for employment at the United
States Employment Service on August 16, 1944. She was given the occupation code
of "assembler" by the United States Employment service. On September
12, 1944 the local office issued an initial determination, effective August 16,
1944, disqualifying claimant from receiving benefits for six weeks on the
ground that she voluntarily left her employment without good cause. On the same
date the local office issued another initial determination disqualifying
claimant from receiving benefits on the ground that, without good cause, she
refused to accept referrals to employment on August 30, 1944 and on September
7, 1944. Claimant objected to the initial determinations and requested a
hearing. The referee overruled the initial determinations holding that, without
good cause claimant voluntarily left her last employment, and that, without
good cause, she refused a referral to employment on August 30, 1944. He
sustained the initial determination holding that, without good cause, claimant
refused to accept a referral to employment on September 7, 1944. The claimant
appealed from the latter part of the referee’s decision. There is no appeal
from that part of the decision overruling the first and second initial
determinations. Claimant lives in Brooklyn. She had been employed for about one
year as a drill press operator and as a main assembler by the X Company in
Brooklyn, manufacturer of intricate electrical devices used by the armed
forces. In May 1944 the department in which she worked was transferred to
Nassau County, Long Island. Claimant accepted employment in the new location.
After one week, and on May 16, 1944, she left her job because of the excessive
travel, which consumed four and a half hours daily. At the date of her leaving
she was being paid at the rate of eighty cents an hour. She worked fifty-three
hours a week. Her earnings were $47.60 per week. Before she was employed in the
plant she had taken a training course of three weeks at a Brooklyn high school.
Her employer paid her at the rate of sixty cents an hour while she was taking
such training. On October 18, 1943 her rate was raised to seventy cents an
hour; on October 23, 1943, to seventy-three cents; on October 28, 1943, to
seventy-five cents and on January 1, 1944, to eighty cents. Claimant worked for
one week ending June 6, 1944 as an assembler for another firm. She had been
hired at the rate of sixty cents an hour, with time and a half over forty hours
for a fifty-three-hour week. After working a few days she was notified that the
hours of work were to be reduced by three hours a week, which would reduce her
weekly earnings from $36.60 to $33.90. She objected to the reduction and spoke
to the employer. She was told that her rate of pay would not be reviewed until
after three months work, and that she might then receive an increase, depending
upon the quality of her work. She thereupon left this employment. About two
months later she filed a claim for benefits and registered for employment. On
August 30, 1944 the United States Employment Service offered claimant a
referral to employment as an assembler at sixty cents an hour for a
forty-five-hour week with overtime at time and a half after forty hours. The weekly
earnings would have been $28.50. She refused the offer because of insufficient
wages. On September 7, 1944 the United States Employment Service offered
claimant the same job, except that this latter referral was for a
fifty-four-hour week, which would have made her weekly earnings $36.60.
Claimant refused the offer and stated that she would not work for less than
eighty cents an hour. The local office initial determination disqualifying
claimant for refusing this latter referral is the only issue before the Board.
Claimant continued to report at the United States Employment Service after the
date of her disqualification. She accepted two referrals to employment on
September 12, 1944, but was not hired. On September 17 she was referred by the
United States Employment Service to the H.A. Corp., Brooklyn, as an assembler
at seventy-five cents an hour. Claimant accepted the referral and was hired.
Because of material shortage after one week of employment, claimant was
transferred to another department in the same plant and her salary was reduced
to seventy cents an hour. She continued to work there until she suffered an
attack of pneumonia in November 1944. She has been unable to work since. The
representatives of the United States Employment Service testified that with few
exceptions all employers of assembler pay new workers, starting with them, the
beginner’s rate of sixty cents an hour, regardless of the experience of the
person as an assembler. The only exceptions to this rule are workers who have
highly specialized experience, and whose work in the offered job is identical
with their former employment. The referee accepted this testimony as
establishing the prevailing rate for assemblers and sustained the initial
determination. At the hearing before the Board, an official of a labor union
which has contracts with upwards of four hundred employers engaged in the
manufacture of electrical equipment of all kinds, testified that this industry
is seventy percent to seventy-five percent unionized in the metropolitan area;
that the rate for assemblers ranges from seventy cents to $1.17½ per hour; that
after two months’ training a person would be classified as an assembler; that a
person who has been employed as an assembler for a few months would acquire
skill that would be useable by any employer employing assemblers; that all
trained assemblers regardless of skill, usually need two or three additional
days of training in new shops and that a person with one year's experience as
an assembler would be paid an hourly rate of ninety cents in union shops.
Replies to inquiries addressed by the Industrial Commissioner to employers of
assemblers, introduced in evidence at a Board hearing, contain information with
respect to rates paid to such workers. One of these replies, most pertinent
here, and coming from a well-known manufacturer of intricate machinery,
contains the following:
"As
a general rule, a person having experience on assembly work similar to our own,
would start at a rate equal to or slightly below the rate being paid such
employee by the company formerly employing such applicant. Thereafter, during
the first weeks of such person’s employment here, a real effort would be made
to evaluate such employee’s services on an objective basis."
We find as a fact that the
prevailing rate of wages in the metropolitan area for assemblers of claimant’s
qualifications is substantially in excess of sixty cents an hour, and at least
seventy cents an hour,
Appeal Board Opinion: The sole issue in this case is whether or not,
without good cause, claimant refused to accept an offer of employment on
September 7, 1944 within the meaning of Section 593.2 of the Labor Law, the
pertinent portion of which reads as follows:
"No
refusal to accept employment shall be deemed without good cause nor shall it
disqualify any claimant otherwise eligible to receive benefits if
* * *
"(d)
the wages or compensation or hours or conditions offered are substantially less
favorable to the claimant than those prevailing for similar work in the
locality, or are such as tend to depress wages or working conditions;"
In order to reach a
conclusion as to whether or not the job offered claimant was one which she was
justified in refusing without disqualification from benefits under the above
section of the Law, we must determine whether or not the wages offered were
substantially less favorable to her than those prevailing for similar
work in the locality. What definition must be given the clause "wages
. . . are substantially less favorable . . . than those prevailing for similar
work in the locality . . ."? Is the proper definitional the one urged by
the Industrial Commissioner: that the clause means the rate the employer is
willing to pay? We think not. We may look to the Labor Law itself for some
guidance. The Unemployment Insurance Law, as such, contains no definition of
"wages prevailing in the locality." However, the Labor Law (in which
the Unemployment Insurance Law is included as Article 18 thereof), at Article
8, Section 220, subdivision 5, defines "prevailing rate of wage," and
"locality" as follows, in part:
"a.
The ‘prevailing rate of wage,’ for the intents and purposes of this article,
shall be the rate of wage paid in the locality as hereinafter defined to the
majority of workmen, laborers or mechanics in the same trade or occupation. In
the event that it be determined that there is not a majority in the same trade
or occupation paid at the same rate, then the rate paid to the greater number
in such trade or occupation shall be the prevailing rate, provided such greater
number constitutes at least forty per centum of the laborers, workmen or
mechanics engaged in such trade or occupation; in the event there is less than
forty per centum of the laborers, workmen or mechanics engaged in the same
trade or occupation in the same locality paid at the same rate, then the
average paid to such laborers, workmen or mechanics in the same trade or
occupation shall be the prevailing rate. Laborers, workmen or mechanics for
whom a prevailing rate of wages is to be determined shall not be considered in
determining such prevailing wage.
"b.
The ‘locality’ for the purposes of this article, shall be the town, city,
village or other civil division of the state wherein the physical work is being
performed."
Comparison of Section
593.2 and Section 220 shows a similarity of language used. Section 593.2 uses
the clause "the wages or compensation or hours or conditions offered are
substantially less favorable to the claimant than those prevailing for
similar work in the locality." Section 220 declares "The
prevailing rate of wages . . . shall be the rate of wages paid
in the locality." (Underscoring ours.) Although Section 220 deals
specifically with the definition of prevailing rate of wages to be paid on
public works, it illustrates the complexity of the factors which must be
considered, and it does shed some light on the legislative intent with respect
to the meaning of the term" prevailing for similar work in the
locality" as used in Section 593.2. We are of the opinion that, for the
purpose of unemployment insurance, "wages . . . prevailing for similar
work in the locality" are determined by the rate being paid to employees
of comparable skill actually engaged in similar work. In other words,
"wages prevailing for similar work in the locality" are not the wages
employers may be willing to pay to new employees, but are the wages being paid
to employees actually engaged in work of a like nature in the locality. Webster
defines "prevailing" as "prevalent; most frequent; widespread;
generally current; applies especially to that which is predominant or which
generally or commonly obtains." In the case at hand we have a claimant who
refused to accept an offer of employment as an assembler at the rate of sixty
cents an hour. She had worked as an assembler for an employer who manufactures
complicated electrical instruments. The skill she acquired on this job is
useable by other employers. Her wage rate was predicated on such skill and was
raised at intervals as she progressed. The testimony shows that there are a
large number of employers in the metropolitan area who employ assemblers, and
that their wages are predicated on the skills they possess and are increased
periodically from the sixty cent minimum beginner rate to the highly skilled
rate of $1.17½ per hour. Furthermore, the United States Employment Service
itself referred claimant to a job as an assembler at the rate of seventy-five
cents an hour. The testimony shows that assemblers with skill comparable to
claimant are and were paid more than sixty cents an hour in the metropolitan
area at the time the offer was made, and that such sixty-cent rate was
substantially less favorable to claimant than the rate prevailing in the
locality. We reach the conclusion that claimant did not, without good cause,
refuse the offer of employment on September 7, 1944.
Decision: the initial determination made by the local
office disqualifying claimant from receiving benefits by reason of said refusal
is overruled. The decision of the referee is reversed. (4/9/45)
Index
No. 1275A-9
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
December
22, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Experience and Training –
Qualifications
APPELLATE DIVISION DECISION
Matter of Louis Mednick
270 App. Div. 124
REFUSAL OF EMPLOYMENT; PHYSICAL LIMITATIONS, EXPERIENCE AND
TRAINING CONSIDERING
A claimant, unable to
perform work utilizing highest skills because of physical impairments, is
expected to accept referral to employment at a lesser skill and wage consonant with
his physical limitations. Thus, where the evidence indicated that claimant was
unable to secure work, at his previously acquired highest skill as machinist,
because of his physical limitations (diabetes, asthma, and high blood
pressure), refusal of employment as stock clerk and inspector of machine parts
at reduced wages which would have utilized the claimant’s presently highest
attainable skill was without good cause.
Initial Determination: Claimant was disqualified effective January
22, 1945 and February 1, 1945 for refusing employment without good cause.
Appeal By: Claimant
Referee’s Findings of
Fact: A hearing was held
herein at which claimant and representatives of the Industrial Commissioner and
of the United States Employment Service appeared and testified. Claimant has
been a machinist for about ten years and has worked on lathes, milling
machines, diesel engines and other types of machinery. From 1939 to 1942, he
worked in Bridgeport, Connecticut, where he earned $1.10 per hour. Besides
operating machines, he read blueprints and used measuring gauges. Claimant was
in the army from August 14, 1942, to March 27, 1943. While in the army he was
assigned to inspecting airplane parts. Claimant was discharged from the army
because of his physical condition. He is suffering from diabetes mellitus,
which requires the constant use of insulin and subjects him to the possibility
of going into a coma any time. He also has asthma and high blood pressure.
Claimant worked for about three weeks in June 1943, as a machinist on bench and
engine lathes, at 90 cents an hour. He then worked for about nine months until
May or June 1944, on a shipyard job where he started as a machinist at $1.20
per hour. Due to the fact that he could not work the long hours required, he was
reclassified as a second class machinist at $1.03 per hour. He was then again
reclassified as a helper at 91 cents per hour. Claimant lost this job when he
became ill. He tried to find work as a machinist in shipyards but was not hired
because he could not pass the physical examination. He then found a civil
service job as an inventory checker of parts on board ships. This job paid
$2400 per year for a six-day week. Claimant left this job about January 11,
1945, after working about two and one-half weeks, because he did not want to
work on ships away from shore in view of his diabetic condition. Besides he was
not familiar with some of the machinery on foreign ships. He was offered
another civil service job paying $1.12 an hour, but could not accept it because
it required night work. Claimant filed for benefits on January 12, 1945 and
reported until February 8, 1945. On January 25, an initial determination was
issued disqualifying claimant, effective January 22, because he refused
employment without good cause. On February 8, a further initial determination
was issued disqualifying claimant, effective February 1 because he refused
employment without good cause. Claimant objected to both determinations and
requested a hearing. Claimant registered at the shipyard office of the
Employment Service. In accordance with the policy of the Employment service,
machine work was deemed unsuitable for claimant in view of his diabetic
condition, since he had to avoid working at a height and he could not work on
machines or tools, with the attendant danger of cuts. He was, therefore,
transferred to the selective placement section of the Industrial Office of the
Employment Service, where he was classified as an unskilled worker. Claimant
was referred to a job as inspector. This job was filled when claimant arrived
at the employer’s place of business. However, the employer interviewed him and
stated that he would call claimant when he had an opening. This employer
offered a salary of $1.00 an hour. On January 22, 1945, the Employment Service
referred claimant to a job as trainee stock clerk, paying 70¢ an hour, time and
a half for overtime. The only requirements for this job were the ability to
read and write. There was no physical examination. Claimant was referred to
this job because he would only have to handle electric light bulbs, and would
not be exposed to machinery or tools. Claimant refused the job because the rate
of pay was too low and because it did not use his highest skills. The usual
rate of pay for inexperienced stock clerks is 60¢ an hour. Experienced stock
clerks earn about 80¢ an hour or higher. On February 1, 1945, the Employment
service offered claimant a job as inspector of small parts paying 80¢ an hour
with time and a half for overtime. This job involved the inspection of finished
parts such as ball bearings and small aircraft parts. A knowledge of measuring
instruments was required. Claimant refused this job because he would have to
work longer hours and yet earn less money than he had previously earned. He
also objected to the job because it would not use his highest skills since it
was work on a production line with a micrometer. Claimant contended that as an
experienced machinist, he was amply qualified as a first class inspector, since
he could handle all types of gauges and measuring instruments. He wanted a job
as an inspector of finished parts, on which he could use his prior training and
experience. The Employment service representative testified that there is a
limited supply of inspection jobs and that specific experience in that
particular line is required in order to obtain an inspection job. Trainee
inspectors usually start at 60¢ an hour. The rate for experienced inspectors
ranges from 80¢ to a dollar an hour.
Referee’s Opinion and
Decision: When the two jobs in
question were offered to claimant, he had been unemployed and claiming benefits
for only a few weeks. Taking into consideration the fact that these jobs would
have reduced claimant’s earning capacity, and would not have made use of claimant’s
highest skills and experience he had good cause to refuse to accept them. While
claimant was unable to continue his regular line as a machinist, he did have
valuable training and experience which could be used in other fields of work.
He was therefore entitled to a reasonable opportunity to see whether he could
find employment more in line with his prior work history, which would still be
in keeping with the state of his health. (Appeal Board Cases 9576-43;
10227-43). As the Appeal Board stated in Case 9955-43;
"The
fact that the employment offered does not require any training or experience
does not fit claimant for the work within the meaning of the Unemployment
Insurance Law. The downgrading of claimant as a worker, which is inherent in
this offer, is abhorrent to all principles of good labor practices.
Furthermore, the Law contains no language out of which can be spelled a
requirement that an unemployed highly skilled worker must accept an offer of
employment in no way related to his skill and his earning capacity, or suffer
disqualification for benefits."
The fact that claimant’s
ability to return to his regular line of work was limited by his health does
not remove the statutory requirement that claimant be reasonably fitted for the
proffered employment. Neither does claimant’s right to benefits depend on the
requirement of employers that he pass a physical examination before being
hired, nor on the availability of jobs. To base the right to benefits on the
existence of job openings would defeat the very purposes of the Unemployment
Insurance Law. The initial determinations are overruled. (2/28/45)
Appeal By: Industrial Commissioner
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issue involved in
this case.
Appeal Board Decision: The decision of the referee is affirmed.
(5/21/45)
Appeal By: Industrial Commissioner
Appellate Division
Opinion: The Industrial
Commissioner found that claimant was disqualified from receiving unemployment
insurance benefits because, without good cause, he had refused employment for
which he was reasonably fitted by training and experience. The Referee
overruled the determination of the Commissioner and found that the claimant had
good cause to refuse to accept the two jobs which were offered to him. The
appeal Board affirmed the Referee. Claimant had some physical disabilities. He
was not physically capable of utilizing his highest skill and experience. He
had been refused employment in one instance because of his physical condition.
He was discharged from the Army because of his physical condition. He had
worked at different jobs at compensation ranging from 90¢ an hour to $1.20 an
hour. While on the job for which he was paid $1.20 an hour as a machinist, he
was reclassified as a machinist helper at $1.08 and hour because he was not
able to work long hours. Later he was again reclassified as a helper at 91¢ an
hour. On January 22, 1945, he was offered a job as stock clerk at 70¢ an hour.
This he refused saying: "I will collect all these benefits plus all the
veterans’ benefits." These veterans’ benefits were paid to him in the
amount of $46 a month. On February 1, 1945, he was offered a job as inspector
of machine parts at 80¢ an hour. This he refused, giving as a reason that it
did not utilize his highest skill and experience and did not provide adequate
salary. He desired a job as first class inspector of finished products for
which he said he was qualified. Evidence discloses that trainee inspectors
usually start employment at 60¢ an hour. The rate for experienced inspectors
ranges from 80¢ an hour to one dollar an hour. The test applied by the Referee
and adopted by the Appeal Board in justification of claimant’s refusal to
accept the employment offered was that such employment would reduce claimant’s
earning capacity and would not make use of his highest skill and experience.
This was not the correct test. The Industrial Commissioner found that the two
offers made to claimant were for jobs for which he was fitted by learning and
experience when his physical limitations were considered, and that they were
offers which would utilize his highest skill. The Commissioner therefore found
that claimant had refused suitable employment. It would seem that the test used
by the Appeal Board is not that contemplated by the statute.
Appellate Division
Decision: The order and decision
of the Appeal Board should be reversed and the finding of the Industrial
Commissioner should be reinstated without costs. (11/20/45)
Index
No. 875-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
December
27, 1945
INTERPRETATION
SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING &
CERTIFICATION
Seeking Other Employment
Appeal Board Case No. 12,275-45
FAILURE TO REPORT TO PLACEMENT OFFICE – SEEKING OTHER EMPLOYMENT –
INSUFFICIENT CARFARE
On his due dates at the
employment service office a claimant sought employment elsewhere, and although
allegedly lacking carfare, was not excused for his failure to report where it
was found that it was possible for him to report, but that he made no effort to
do so.
Findings of Fact: A hearing was held at which claimant and a
representative of the Industrial Commissioner appeared and testified. Claimant,
a milling machine operator, filed a claim for benefits on June 19, 1945, and
reported regularly thereafter to August 3, 1945. The claimant was instructed to
report to the United States Employment service on June 25, 1945. He failed to
do so, reporting instead on June 26, 1945. On the latter date he was instructed
by the Employment service to again report on June 28, 1945. He did not report
to the employment Service again until July 3, 1945. Claimant has given as his
excuse for failing to report as directed that he was seeking employment. On
July 24, 1945, the local office rejected the claimant’s excuse and issued an
initial determination, ruling claimant ineligible for benefits for the days
June 25, 1945, and June 26, 1945, to and including July 2, 1945, on the ground
that he failed to comply with reporting requirements. Claimant objected thereto
and requested a hearing. During the days herein under consideration, the
claimant was seeking employment at the Bethlehem Steel Company and the Brooklyn
Navy Yard. During those days he could have reported to the Employment service
but made no effort to do so. At the hearing the claimant raised the additional
contention that during the days in question, while seeking employment, he did
not have sufficient carfare with him to enable him to stop at the Employment
service office before returning home. Claimant knew that he was required to
report to the Employment Service on the days herein under consideration.
Referee’s Opinion and
Decision: Although claimant was
sincerely desirous of employment and making efforts to become re-employed, he
knew that he was required to report to the Employment service when instructed.
Section 590 of the Unemployment Insurance Law provides, in part, that a
claimant is entitled to accumulate effective days for the purpose of benefit
rights only if he has complied with the reporting requirements in the Law. The
Industrial Commissioner’s Regulation 42 provides that a claimant shall report
in the Employment service as required. It further provides as follows:
"c.
The day on which a claimant fails to report in accordance with this regulation
and any subsequent day prior to the date of a report to the placement office
shall not be registered as days of total unemployment."
Claimant failed to
comply with the Law and the Industrial Commissioner’s regulation regarding
reporting to the Employment service. He has presented no facts warranting
excusing these failures to report. The initial determination is sustained.
(8/15/45)
Appeal By: Claimant
Appeal Board Opinion: The Board is of the opinion that the referee
made proper findings of fact and correctly determined the issue involved in
this case.
Decision: The decision of the referee is affirmed.
(10/30/45)
Index
770.12
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
DECEMBER
1945
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Seasonal Employment
REFUSAL OF DISTANT EMPLOYMENT BY SEASONAL CANNERY WORKERS
AVAILABILITY - OPPORTUNITIES EXISTING IN HOME COMMUNITY
Seasonal cannery workers
residing in a rural community refused with good cause referral to identical
employment ten and twenty miles distant; transportation to be supplied by
employers, as acceptance would necessitate approximately thirteen hours away
from home each day entailing, because of domestic duties, unwarranted hardship
and sacrifice. Unavailability was not attested as some employment, although
limited, existed during all periods of the year within the locality where their
benefit rights were earned.
A.B. 12,072-45
Referee's Decision: The initial determinations of the local office
disqualifying claimants from benefits for refusing, without good cause, to
accept referral to employment and, in the alternative, that they were
unavailable for employment, is overruled. (6/4/45)
Appealed By: Industrial Commissioner.
Findings of Fact: The thirteen claimants here involved have
resided for many years in the rural community of Holley. Most of the claimants
have worked for periods ranging from three to twenty years in a local cannery.
The usual season in the cannery commences about June and ends late December of
each year. On one or two occasions the season was extended to February and
March of the following year. All of the claimants filed applications for
employment and unemployment insurance benefits at the local office in Batavia
in the month of January 1945, with the exception of claimant E.D., who filed on
February 5, 1945. On February 20, 1945, nine of the claimants were interviewed
with respect to a cannery located in Medina which had openings for a large
number of women workers. They were informed that the prospective employer would
furnish bus transportation from Holley to the caning plant in Medina, provided
there were sufficient workers in Holley willing to work at the plant. Medina is
located about twenty miles form Holley. The claimants were informed that a bus
would leave from the center of Holley at about 6:00 A.M. and that it would
return from Medina to Holley at about 7:00 P.M. daily. Claimants refused to
consider such employment on the ground that it was an unreasonable distance
from their homes, that their family duties would not permit them to remain
absent from their homes for thirteen hours a day and, in some cases, because of
particular family responsibilities. On February 27, March 1, March 5 and March
7 others of the claimants were similarly interviewed with respect to
prospective employment at Medina. The bus actually ran from Holley to Medina on
March 5, 1945 but the service was immediately discontinued by the prospective
employer because only a few women were willing to make the trip. Initial determinations
were issued by the local office in each case disqualifying claimants from
benefits for refusing, without good cause, to accept referrals to employment
and, in the alternative, that they were unavailable for employment. On April
10, 1945 several of the claimants were referred to employment at a food
processing concern located in Albion, about ten miles from Holley. They were
advised that the employer would furnish transportation by private car which
would leave Holley at about 6:00 A.M. and return about 6:30 P.M. They refused
these referrals on the same grounds as they had refused the previous referrals.
Similar determinations were made disqualifying these claimants. Claimants range
in age from thirty-nine to sixty-five years. All have household
responsibilities. They all stated that the long hours away from their homes
would unreasonably interfere with their household duties. Claimant G.M.W., who
is a widow, sixty-three years old, resides alone and was unable to leave her
home for such an extended period because there was no person to attend to the
coal stove which provided heat for her home. Likewise, claimant N.G. had an
invalid husband and a sixteen-year old son at home, whom she did not wish to
leave for so long a period. Claimant M.S. had an invalid father and two
children to care for. In their previous employment these claimants had been
able to go home at noon to prepare lunch and to attend to other household
duties. The incorporated village of Holley has a population of about 1,200 persons.
Its industries include the canning plant at which most of the claimants work, a
cider and vinegar plant and a milling organization. The first two plants have
year around forces, consisting largely of men. The canning plant employs some
women throughout the year, doing labeling, bottling, etc. The cider plant
employs a number of women office clerks throughout the year and some women in
bottling operations. Food processing operations usually commence in June of
each year and at the height of the season from two hundred and fifty to two
hundred and seventy-five women are employed in Holley. The village of Brockport
is located about five miles from Holley and has several food processing plants
and a paper box concern, which employs a large number of women workers.
Claimant M.B.S. had worked for two previous seasons in a Brockport cannery and
had commuted there daily. Brockport is serviced for employment purposes by a
different office of the United States Employment Service than the one at which
claimants reported. It does not appear that any attempt was made to place
claimants in employment in Brockport. On March 19, 1945 claimant M.S.C.
obtained employment in the cider plant in Holley as a bottler. There are ten
women working in that department throughout the year and claimant is still
employed there. On March 20, 1945 claimant M.A. was called back to work at the
canning plant in Holley, transplanting tomatoes in a greenhouse, and she
remained at that work until the end of April. On March 27 claimant A.D.L. was
called back to work at the same plant at the same type of work. About ten women
were called back at that time. On April 12 claimant J.C. obtained employment on
a farm transplanting tomatoes plants, at which she worked until the end of the
month. Claimant A.M. also obtained employment in April at the same type of
work. Claimant I.O. obtained employment on April 18 in Albion, at which she
worked until May 15. In this employment she was able to leave Holley at 7:00
A.M. and return by 5:45 P.M., and more recently, she has worked in a cannery
ten miles from her home, at which she spent the same hours away from her home.
Appeal Board
Opinion: The first question to be
decided in all of these cases is whether or not claimants had good cause to
refuse the referrals to employment in Medina and Albion. We are of the opinion
that they were clearly justified in their refusal to consider such employment.
All of these claimants had earned their benefit rights working in Holley or
nearby. Not only were the referrals in questions to locations at greater
distances from their homes, but it was unreasonable to expect them to spend
upwards to thirteen hours each day away from home. All of them had family
responsibilities with which their former employment had not interfered. To compel
them to accept the referrals would have entailed unwarranted hardship and
sacrifice on their parts. Furthermore, it is doubtful whether it can be said,
in the case of the Medina referrals, whether any genuine offer of employment
was ever made. The bus actually ran on only one day and in many cases that was
about two weeks after the so-called referrals and the disqualification of the
claimants. We accordingly hold that in each case the claimant did not, without
good cause, refuse an offer of employment. It is contended further on the part
of the Industrial Commissioner that each of these claimants should be
considered unavailable for employment on the ground that no opportunity for
work existed in their community during their reporting periods. This contention
we are also compelled to reject. The present record establishes that there was
some employment in Holley during all periods of the year. It cannot be said
that there was no possibility of placing these claimants in employment in
Holley or nearby, although it is noted that such opportunities were limited.
The fact is that several of these claimants did obtain employment in March and
April of 1945 and the rest of them eventually returned to their former
employment when the season commenced. No contention is made that these
claimants were unwilling to work if employment could be found for them. Upon
the facts before us it cannot be said that no labor market existed for them in
the place where they were willing to work. We are of the opinion that the referee
correctly resolved the question of availability in each case.
Decision: Claimants did not, without good cause,
refuse to accept offers of employment. Claimants were available for employment.
The initial determinations are overruled. The decisions of the referee are
affirmed. Separate orders are to be entered in each case. (11/7/45)
Index
No. 1280-11
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
January
18, 1946
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Distance –
Transportation Facilities
Appeal Board Case No. 12,132-45
REFUSAL – EIGHTEEN MILES DISTANT – TRANSPORTATION FACILITIES
Refusal of referral to
employment eighteen miles from her home was with good cause where claimant had
previously worked five miles from her home, the currently severe winter weather
made a share-the-ride plan difficult to arrange at the time and there were
reasonable possibilities of employment much nearer.
Referee’s Decision: The initial determination of the local office
holding that, without good cause, claimant refused an offer of employment for
which he was reasonably fitted by training and experience is sustained.
(6/16/45)
Appeal By: Claimant
Findings of Fact: Claimant resides in the Village of Ebenezer,
which is a suburb located southeast of Buffalo. She is single and lives with
her mother. From November 1942 to January 26, 1945 claimant worked in war
plants in Buffalo. Prior to that time she was in business. Her last employment
was at a distance of five miles from her residence and she was transported to
the plant by fellow workers. The trip took about one-half hour. After being
laid off from such employment claimant filed application for employment and
unemployment insurance benefits on January 30, 1945. On February 6, 1945
claimant was interviewed together with a group of women, at the office of the
United States Employment service with respect to employment at a war plant
located in the extreme northwestern section of Buffalo. She was informed that
the employer maintained share-the-ride plans, which were arranged between
workers owning automobiles and those workers residing in the area who had no
cars. Claimant refused to consider the employment because it was located
eighteen miles away from her residence. The schedules of the public
transportation lines operating from the vicinity of claimant’s home are such
that it would be impossible to make connections to reach the plant by the
starting hour. At the time of the referral weather conditions in Buffalo were
severe. During the latter part of January claimant had been laid off for a week
from her previous employment because weather conditions prevented the workers
from reaching the plant. There were several war plants in Buffalo in much
closer proximity to claimant's residence than the plant to which she was
referred. She applied for employment at the railroad and the Railway Express
Company but was unsuccessful in obtaining a job. In July 1945 claimant applied
at an airplane plant for a position as a riveter. However, because of sickness
in the family she was compelled to remove herself from the labor market and she
did not report to the local office after July 11, 1945. Claimant has since
returned to the labor market and through a newspaper advertisement obtained
employment as a saleslady on October 6, 1945.
Appeal Board Opinion: The only question in this case is whether
claimant had good cause to refuse the referral in question. We cannot agree
with the referee that the claimant’s failure to contact the employer with
respect to the share-the-ride plan is the determinative factor in the case.
Firstly, the employer’s plant was located eighteen miles from her residence,
whereas her previous employment was only five miles away. Secondly, it was not
contended nor does the evidence support a finding that claimant was unwilling
to work. Although the evidence is conflicting as to the amount of time that
would be consumed in traveling to the prospective employer’s plant, it does
appear that weather conditions were extremely severe at the time so that travel
time was purely a matter of speculation. However, claimant had good reason to
believe that, because of her recent experience at her former place of
employment, she would encounter great difficulties, not only in obtaining
transportation, but in maintaining such service. Under all the circumstances of
this case, we hold that claimant was justified in refusing the offer of
employment.
Decision: Claimant did not, without good cause, refuse
to accept an offer of employment for which she was reasonably fitted by
training and experience. The initial determination is overruled. The decision
of the referee is reversed. (11/7/45)
Index
No. 1275A-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE
February
11, 1946
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Experience and Training –
Qualifications
APPELLATE DIVISION DECISION
Matter of Heater
270 App. Div. 311
REFUSAL OF REFERRAL TO EMPLOYMENT; QUALIFICATIONS; WAGES – LESS
THAN CUSTOMARY
Previous employment as a
draught beer salesman at 50 per week did not justify refusal of referral to
employment as a bottle beer salesman at the rate of $45 per week. The Court
decided:
- The salary difference of ten percent between the
offered employment and claimant’s last employment was not such a drastic
reduction as to justify a refusal.
- There is nothing in the law which asserts that a
claimant should be allowed at least thirty days of benefits before being
compelled to take a position.
- The wording of the statute precludes the theory that a
claimant may refuse employment simply on the basis that it involves some
smaller degree of skill than his last employment. The employment offered
must be one for which the claimant is reasonably fitted by training and
experience and need not be at precisely the same level of skill at which
he was last employed.
Referee’s Decision: The initial determination made by the local
office disqualifying claimant on the ground that he refused, without good
cause, to accept an offer of employment is sustained. (1/9/45)
Appeal By: Claimant
Findings of Fact: Claimant, fifty-one years of age, resides with
his family in the Riverdale section of the Bronx, a short distance from the
city line separating the City of Yonkers from the City of New York. Claimant is
the father of six sons and four daughters. Five of his sons are in the armed
forces of the United States. For the past several years, claimant has been a
retail salesman of ginger ale and beer. Prior to 1942, when he sold ginger ale,
claimant earned $60 per week, plus commissions, and was furnished with the use
of a firm car. His average weekly earnings ranged from $70 to $90. During the
years 1942, 1943 and 1944, claimant sold draught beer for two employers. In the
first employment up to January 1944, claimant earned $184 per month, plus car
expenses and in the second job, commencing in January 1944, he earned $50 per
week, plus car expenses. In both positions claimant’s territory was in
Westchester County. On October 20, 1944 claimant’s employment terminated.
Claimant immediately made active efforts to obtain other employment. More than
three weeks later and on November 13, 1944, claimant still being unemployed,
filed an original claim for benefits. He reported regularly thereafter to
February 4, 1945. On November 17, 1944, four days after he filed his original
claim for benefits, claimant was referred by the United States Employment
Service to a job as a salesman of bottled beer for a brewery located in
Brooklyn, New York. The position offered a salary of $45 per week, plus car
expenses, for a fifty-eight hour workweek. From conversations had with salesman
of bottled beer, claimant had learned that much larger territories are assigned
for daily coverage to salesman of bottled beer than are assigned to salesman of
draught beer. Claimant testified that the former make about eighty stops a day
whereas the latter salesman make about twenty daily calls. Claimant had also
gained the impression that a salesman of bottled beer must report to his
brewery every morning and at times in the evening upon completion of the day’s
calls. Claimant testified that he would have to travel for about two hours one
way to get from his home to the establishment of the prospective employer.
Claimant felt that work as a salesman of draught beer called for a higher skill
than employment as a salesman of bottled beer. In addition, the cost of
maintaining claimant’s home and family was high. A salary of $45 per week was
insufficient to meet claimant’s living costs. Consequently, by reason of the
foregoing considerations, claimant refused the offer of employment. He informed
the employment interviewer that if the job in question paid $65 per week he
would accept it, but under all of the circumstances, he felt obliged to reject
it. On November 28, 1944 after interviewing the claimant with respect to his
refusal, the local office made an initial determination disqualifying him from
receiving any benefits as of November 17, 1944 on the ground that he refused,
without good cause, to accept an offer of employment. Claimant objected thereto
and requested a hearing. In his employment as a draught beer salesman,
claimant’s customers consisted of bars, grills, taverns and political and
social clubs. A salesman of bottled beer sells only to retail groceries and
delicatessens. A draught beer salesman is required to have a specialized
knowledge of beer, particularly with respect to its brewing and its proper
refrigeration and handling at the premises where sold. At the commencement of
claimant’s employment as a draught beer salesman, he attended training sessions
conducted by his employer, designed to teach him the fundamentals of draught
beer salesmanship. In his three years of work in this capacity, in daily
contact with the trade, claimant acquired a wider experience and a greater
knowledge of the work. A salesman of bottled beer is not required to possess
this specialized knowledge. In his testimony before the referee, the
representative of the United Statement Employment service corroborated
claimant’s testimony, in substance, when he stated that a bottled beer salesman
is a "lower type of sales job and pays less usually, than the ones who go
from bars and grills where they have facilities for drawing beer from the
keg." From all of the credible evidence herein, we find as a fact that a
salesman of draught beer requires a higher degree of knowledge and skill than
does a salesman of bottled beer. Claimant has not received a single benefit
check. In the absence of the disqualification in question, he would be entitled
to receive ten benefit checks each in the sum of $18. Throughout his reporting
period from November 13, 1944 to February 4, 1945 claimant made genuine efforts
to obtain employment. On February 7, 1945 claimant succeeded in obtaining
employment with one of his former employers as a ginger ale salesman. At the
time of the hearing before the Board, held on April 11, 1945, claimant was thus
employed and was earning about $52 per week. He asserted that before the month
is out he expects to earn about $100 per week.
Appeal Board Opinion: The sole issue herein is whether or not
claimant had good cause to refuse the offer of employment. It is significant to
note that for sometime past it has been the policy of the Industrial
Commissioner to permit a claimant for benefits a period of at least thirty days
after his original registration for benefits, to obtain employment in his
customary occupation, before disqualifying him for refusing an offer of
employment in a different type of work. In the instant case, the referral in
question was made only four days after claimant filed his original claim for
benefits. The employment offered to the claimant was not in his customary
occupation. It is clear from the facts herein that a salesman of draught beer
is required to have a greater knowledge and a higher degree of skill than a
salesman of bottled beer is required to possess. Despite the established
practice as aforesaid, the local office disqualified claimant for said refusal
of employment. We believe that claimant should have been afforded a reasonable
opportunity to obtain employment in his usual field before disqualifying him
for the refusal of the employment in question. In addition to the fact that the
work offered was dissimilar in character to claimant’s usual occupation and was
offered to the claimant so soon after he filed his claim for benefits, it is
noteworthy that the job in question offered a salary of $5 per week less than
claimant’s earnings in his last employment. To the head of a family such as the
claimant, with his heavy family and home obligations, a difference of $5 in
each week’s pay check looms up large and important. From our observation of the
claimant, we are convinced that he acted in good faith and that throughout his
reporting period he made honest and genuine efforts to obtain suitable employment.
He remained unemployed only as long as he was unable to find employment through
no fault of his own. We have considered and weighed all of these facts together
with all of the surrounding facts and circumstances pertinent to the issue
herein and we have concluded therefrom that claimant had good cause to refuse
the offer of employment in question.
Appeal Board Decision: The initial determination made by the local
office disqualifying the claimant from receiving any benefits as of November
17, 1944 on the ground that he refused, without good cause, to accept an offer
of employment is hereby overruled. The decision of the referee is reversed.
(4/23/45)
Appeal By: Industrial Commissioner
Appellate Division
Opinion: The Board has found as
a fact that a salesman of draught beer requires a higher degree of knowledge
and skill than does a salesman of bottled beer. We are unable to appreciate
this esoteric distinction, but, since there is some evidence to support it and
we deal only with questions of law on appeals of this character, we may not
disturb it (Labor Law, section 624). There is however nothing in the statute to
justify the decision of the Board based in part on such a distinction. The
Board based its entire decision upon three propositions: the claimant’s
possession of a higher degree of skill justified refusal of a job requiring
some lower skill; that claimant should have been allowed at lest thirty days of
benefits before being compelled to take a job; and that a salary difference of
ten percent between the offered employment and claimant’s last employment also
justified the refusal. We find nothing in the law which authorizes these
conclusions to be drawn from the conceded facts. Section 593, subdivision 2, of
the Unemployment Insurance Law provides: "No benefits shall be payable to
any claimant who without good cause refuses to accept an offer of employment
for which he is reasonably fitted by training and experience, including
employments not subject to this article." The very wording of this opening
sentence precludes the theory that a claimant may refuse employment simply on
the basis that it involves some smaller degree of skill than his last
employment. The Unemployment Insurance Law was never intended as a guarantee
that a claimant might always obtain benefits unless he was offered employment
at precisely the same level of skill at which he was last employed. The only
obligation imposed, insofar as this phase of the statute is concerned, is that
the employment offered must be one for which the claimant is reasonably fitted
by training and experience. Paragraphs (a) and (b) of section 593, subdivision
2, relating to union membership and strikes, have no application. Paragraph (c)
provides in substance that the employment offered must not be at an unreasonable
distance from claimant’s residence. The facts do not indicate, nor was it
found, that the employment offered violated this prohibition. Paragraph (d)
provides that the employment offered must not be for wages, hours or conditions
substantially less favorable to a claimant than those prevailing for similar
work in the locality, or are such as tend to depress wages or working
conditions. There is no proof whatever in the record that these restrictive
conditions were violated. Thus there is nothing in the statute to sustain the
Board’s decision that claimant’s refusal to accept the employment was with good
cause. Nor is there anything in the law to sustain that part of the Board’s
decision which asserts that claimant should have been allowed at least thirty
days of benefits before being compelled to take a position (Matter of Mattoy,
267 App. Div. 845). The last basis for the Board’s decision, that the salary
offered was $5.00 a week less than claimant’s earnings in his last employment,
is equally untenable. It was a cut of only ten percent, and not such a drastic
reduction as to justify a refusal.
Appellate Division
Decision: the decision of the
Board should be reversed, without costs, as a matter of law and the decision of
the referee reinstated. (1/9/46)