A-750 1000 Series

A-750-1000

Index No. 780B.1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

April 16, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Suspension Period
Saturday and Sunday

Appeal Board Case Number 22,628-50

INCAPABILITY ON SUNDAY – QUESTION OF "EFFECTIVE DAY"

Sunday was held to be a day of "total unemployment" although claimant became ill and was incapable of work commencing with such day.

(See Comment after Decision)

Referee’s Decision: The initial determination of the local office is modified to hold that claimant is entitled to be credited with Sunday, November 6, 1949 as a day of total unemployment. (January 30, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: For two and one-half years ending August 1948 claimant was employed as an employment interviewer by the New York State Employment Service. Thereafter, claimant temporarily withdrew from the labor market. On October 4, 1949 claimant returned to the labor market. She filed a claim for benefits and registered for employment. She was classified by the employment service as an employment interviewer. The normal work week for an employment interviewer both in public and private industry does not include Sundays. On November 2, 1949 claimant was hired by the Division of Placement and Unemployment Insurance as an employment interviewer. Her employment was to commence on November 7, 1949. On Saturday evening, November 5, claimant suddenly became ill and failed to commence her employment. Thereafter, based upon an interview with the claimant, the local office issued an initial determination disqualifying claimant from benefits from the date of the filing of her claim on the ground that she was unavailable for employment. Claimant contested the initial determination and requested a hearing. The referee modified the initial determination of the local office by holding that claimant was available for employment from the date of her filing to and including Sunday, November 6, 1949. He held that she was unavailable for employment thereafter. The industrial Commissioner thereupon appealed to this Board.

Appeal Board Opinion: In a brief filed with the Board, the Industrial Commissioner limits his appeal solely to the issue as to whether or not claimant should be credited with Sunday, November 6, as a day of total unemployment, in view of her admission that she was incapable of employment on that day. In determining the question raised on this appeal, we must consider the Unemployment Insurance Law and its application. The following sections of the Law are pertinent to this issue. Section 524 of the Unemployment Insurance Law defines week as follows:

WEEK. A "week" means seven consecutive days beginning with Monday.

Section 522 defines total unemployment as follows:

TOTAL UNEMPLOYMENT. "Total Unemployment" means the total lack of any employment on any day, caused by the inability of a claimant who is capable of and available for work to engage in his usual employment or in any other for which he is reasonably fitted by training and experience. The term "employment" as used in this section means any employment including that not defined in this title.

It is the contention of the Industrial Commissioner that the provisions contained in Section 522 and 524 of the Unemployment Insurance Law impliedly hold that a claimant must be available for employment on Sunday. By Section 501 of the Unemployment Insurance Law, the Legislature directs that as a guide to the interpretation and application of the Unemployment Insurance Law, the public policy of this State is to pay unemployment insurance benefits to persons unemployed through no fault of their own. The Superior Court of Pennsylvania is interpreting the provisions of the Unemployment Insurance Compensation Law of Pennsylvania, which is similar to the Unemployment Insurance Law of the State of New York stated as follows:

Unemployment compensation cannot be administered upon vague theories imported from other and unrelated realms of the law. The Unemployment Compensation Law represents "the exercise of the police powers of the Commonwealth" to abolish: "Economic insecurity due to unemployment [which] is a serious menace to the health, morals, and welfare of the people of the Commonwealth." Id. §3, 43 PS §752. Although it brings advantages to the Commonwealth and its political subdivisions by relieving them of the burden of increased poor relief assistance, it is designed primarily for the benefit of the worker upon whom unemployment "falls with crushing force." Id. These benefits must not be denied by fanciful, strained, unnatural, distorted or mere technical construction. It is a remedial statute, and excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objective may be completely achieved. We cannot approve an administrative construction, which denies compensation to an unemployed worker unless the plain language of the statute clearly excludes him from its benefits. (William H. MacFarland, v. Unemployment Compensation Board of Review, 158 Pa. Super, 418) (Underscoring supplied)

In Appeal Board, 15,763-47, the Board holding that claimant leaving for vacation on Sunday is to be deemed available for employment on that day, the claimant’s usual day of rest, stated as follows:

We believe that these provisions of the Unemployment Insurance Law must be interpreted in a reasonable and socially desirable manner. Under the Commissioner’s interpretation of the Law, a claimant who spends his Sunday in church, in prayer and meditation, is technically unavailable for employment. Likewise a claimant who takes his family to a seashore resort on a Sunday would be deemed unavailable for employment and forfeit his benefit rights for that day, even though acceptance of employment by him on that day might be a violation of the Penal Law, as is the case of a barber.

It is true that the statutory week is defined as "seven consecutive days beginning with Monday." But the limitation of claimant’s benefit rights to four effective days within each week is based in part upon the recognition that the major part of industry in the State of New York operates on a five-day week basis (Appeal Board, 10,925-44). It was never intended by these provisions of the Unemployment Insurance Law that claimants’ work week be extended to seven days, nor was it expected that they must hold themselves available for employment entailing seven days of work during each week.

We believe that the claimant herein had a right to leave for a vacation on Sunday, the last day of the statutory week and her usual day of rest, without forfeiting her full benefit check for that week. She already had fulfilled the statutory provisions contained in the Unemployment Insurance Law.

We can see no distinction between the case in issue and Appeal Board, 15,763-47. The Court of Appeals in the case of People vs. Sam Friedman decided December 1, 1950 in discussing the question of Sunday work states as follows:

Although the so-called Sunday Laws may be said to have had a religious origin, our statute since 1881 (Penal Code, §259, now Penal Law, §2140) has also recognized that the first day of the week by general consent is set apart "for rest", in accord with the general experience of mankind that it is wise and necessary to set apart such day at stated intervals for both the physical and moral welfare of the individual of a State or community. The power of the Legislature to regulate the observance of Sunday as a civil and political institution is well settled.

Thus it is well settled that Sunday is recognized generally as a day of rest and therefore claimant need not be capable of an available for employment on Sunday. This would not necessarily follow in trades, which normally operate on Sundays. Under the circumstances, claimant should be credited with Sunday, November 6, 1949 as a day of total unemployment.

Appeal Board Decision: The initial determination insofar as it holds claimant incapable of employment not totally unemployed on Sunday, November 6, 1949, is overruled. The decision of the referee is affirmed. (January 26, 1951)

COMMENT

1. The above decisions is in conformity with Appeal Board decision 15,763-47 wherein claimant left the jurisdiction of the insurance office on Sunday for a vacation and was nevertheless held entitled to be credited with the Sunday as a day of total unemployment but unavailable during such vacation time thereafter.

However, Appeal Board decision 13,309-46 appears to be in conflict with the principle in the above case and the case here reported. In that case, the Board held that claimant who became ill on Saturday and Sunday and, therefore, his estate was not entitled to a benefit check. The factual difference, that is the fact that in A.B. 13,309-49 the claimant died immediately after the days in question does not appear to be any basis for a sound differentiation. Therefore, since the instant decision reflects the current thoughts of the Appeal Board and is also in conformity with the principle stated in Appeal Board 15,763-49 (which was resolved subsequent to A.B. 13,309-46) Appeal Board decision 13,309-46 has been deleted from the Service.

2. The current decision is not in conflict with present practices in similar situations. For example, a claimant who obtains employment on a Thursday is allowed Saturday and Sunday as effective days. Likewise, a claimant who was last employed on a pattern of a five-day week and who was unwilling to work more than five days per week was held to be entitled to four effective days in each statutory week (A.B. 12,143-45). However, attention is directed to the fact that a claimant who is unwilling to work more than three days a week is ineligible for benefits (A.B. 9358-43; Index 755-D2; Serial No. A-750-462). Also, a claimant who is willing to work only four days per week should be credited with only one effective day per week. (A.B. 11,548-45)
3. These principles are responsive to the need for reaching equitable and practical solutions under the system established by the Day Base Plan. A narrow and strictly logical application of the letter of the law must yield to a broad and common sense application in the interest of fair conclusions, in line with the spirit of the law.

The Day Base Plan, leaving three days of unemployment in a week uncompensated, takes into account that usually one or two of them are customary days of rest. It does not presuppose that a claimant would or should work seven days each week. Benefit rights should therefore not be affected by the circumstance that a claimant is, technically, incapable or unavailable on the customary days of rest, or that such days are included in a period of "employment" which began in the week for which the claim is made, provided the claimant does not work on those days.

The thoughts here expressed have, of course, no bearing on the principle that a claimant, generally speaking, must be available for employment on all days of the week, and that the days of rest need not necessarily fall on Saturday and Sunday. They apply only if the question is involved whether the customary day or days of rest should be counted towards "effective" days.

 

A-750-1001

Index No. 760A.3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

April 16, 1951

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Students, Training Courses – General

Appeal Board Case No. 25,156-50

AVAILABILITY – RESTRICTION OF HOURS BY STUDENT TO FULL-TIME SHIFT EMPLOYMENT

Where claimant moved to another state to pursue graduate work in a university, he was held available for employment although he restricted his employment to hours after 3:00 p.m. since a number of industrial plants in the area had full-time afternoon and evening shifts and claimant diligently sought and eventually obtained such employment.

Referee’s Decision: The initial determination of the Out-of-State Unit that claimant was unavailable for employment and overpaid $52 in benefits is sustained. (September 7, 1950)

Appealed By: Claimant

Findings of Fact: Claimant is 23 years of age and graduated from college with a Bachelor of Arts degree. In 1947 and 1948, he worked as an adjuster in a camera plant in Binghamton, New York. Thereafter from March to July 1949, he worked as a nurseryman in Johnson City, New York. Claimant filed an additional claim for benefits on August 25, 1949 in South Bend, Indiana against New York as the liable State. He had moved to South Bend, where he now resides with his wife and child with the intention of pursuing a graduate course at the University of Notre Dame. He matriculated at the University on September 16, 1949. In registering for employment, he informed the Indiana office that he was available for work on any shift after 3:00 p.m. Claimant filed application for employment at various industrial plants in the immediate vicinity. He sought work at an automobile manufacturing plant, a rubber manufacturing plant, a large machine works, and a sewing machine factory and also through the University. He was available for full-time work on either the afternoon or evening shifts. Information was received from an official of the Indiana State Employment Service that it was the policy of local employers not to hire college students. Subsequent to the referee’s hearing, information was received that such policy was not adhered to and that it was not uncommon for local employers to give employment to college students. Claimant furnished a statement signed by six fellow students who were so employed at an automobile works and at a rubber factory. Claimant continued his search for employment and in April 1950 succeeded in finding work at an automobile factory on the second shift from 4 p. m. to 12:30 a.m. At the same time, he continued pursuing a full-time course in graduate work at the University. Claimant reported for unemployment insurance purposes only to December 10, 1949. He stated that he wanted a salary of at least $45 per week. By initial determination he was ruled unavailable for employment and overpaid in benefits for the weeks ending September 18 and September 25, 1949.

Appeal Board Opinion: The referee held claimant to be unavailable for employment because he removed himself to a new locality where his prospects of obtaining work were limited by the fact that he could only work on the second or third shift and further by the reluctance of employers to hire students. He stated that claimant also restricted his employability by imposing salary restrictions. We cannot agree with the referee’s conclusions. Claimant, a married man with a family to support, did remove to an industrial area so that he might pursue graduate work in a University there. Prior thereto, he had worked for about two years and there can be no question that he intended to continue working while pursuing hi studies. Claimant was available for either of two full-time shifts and there were a number of nearby plants which had such shifts. He did eventually obtain full-time work on the afternoon shift in one of such plants. There is no evidence that claimant at any time imposed any unreasonable salary or other restrictions. It cannot be said that his expression of a wage of $45 per week limited in any way his chances of finding employment.

On the basis of the evidence and all the circumstances herein and claimant’s entire course of conduct, it must be held that he was available for employment during the period in question.

Appeal Board Decision: The initial determination of the Out-of-State Resident Unit disqualifying claimant for unavailability for employment that he was overpaid $52 in benefits is hereby overruled. The decision of the referee is reversed. (February 9,1951)

 

A-750-1003

Index No. 1660B-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 16, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Hours of Work – Excess

Appeal Board Case Number 25,752-50

VOLUNTARY LEAVING – OBJECTION TO CHANGE OF WORKING SCHEDULE TO INCLUDE SATURDAY NIGHT

When claimant’s working schedule was increased from five to six nights a week which then included Saturday night for which he received time and a half, voluntary leaving of employment because of interference with social life did not constitute good cause since the objection was a matter of convenience rather than a hardship.

Referee’s Decision: The initial determination of the local office holding that claimant left his last employment voluntarily without good cause is overruled. (November 9, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, an apprentice wire weaver, was employed for about four years to August 1, 1950. There were about 40 other wire weavers employed in the department in which claimant worked. Prior to August 1, 1950, the personnel, including claimant, worked on a five-day night shift. The establishment was unionized and claimant was a member of the union. The employer, because of commitments, increased the working schedule to six nights a week, which included Saturday. For the additional working hours the employer paid time and a half. The personnel accepted this change, but the claimant did not. Claimant left his job because he objected to working Saturday nights since it would have interfered with his outside social activities. Claimant is single and in good physical health. Claimant conceded that he complained to his union but without any result. Claimant filed a claim for benefits on August 7, 1950. The local office issued an initial determination disqualifying him from receiving benefits for 42 days, effective August 7, 1950, on the ground that he voluntarily left his employment without good cause. Claimant requested a hearing. The referee overruled the initial determination and the Industrial Commissioner now appeals from said decision to this Board.

Appeal Board Opinion: The question to be decided is whether or not the claimant voluntarily left his employment without good cause. Considering the case in its entirety and in the light most favorable to the claimant, we believe that claimant’s objection to working on Saturday nights, on the ground that it would have interfered with his social life, does not constitute good cause within the meaning of the Unemployment Insurance Law. His objection thereto was merely a matter of convenience rather than a hardship. It therefore follows that he was properly disqualified for voluntarily leaving his employment without good cause.

Appeal Board Decision: The initial determination of the local office holding that claimant voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (February 16,1951)

 

A-750-1004

Index No. 715.4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 24, 1951

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Domestic Circumstances

Appeal Board Case. Number 24,691-50

QUESTI0N OF AVAILABILITY AFTER BIRTH OF CHILD

Claimant's contention that she would take her two-month old child in a taxicab each working morning to the home of her sister-in-law who had three infants of her own was not believed and claimant was held to be unavailable for employment since she had made no practical arrangement for the care of her child.

(See Comment after Decision)

Referee’s Decision: The initial determination of the local office that claimant refused employment without good cause on May 3, 1950 or, in the alternative, that she was unavailable for employment effective the same date is overruled. (August 9, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant had over ten years experience as a bilingual stenographer. In connection with her duties, she took dictation in, typed and translated English and Spanish, the latter being her native language. She last worked far about six months ending October 26, 1949 for an export firm in New York City as a Spanish-English stenographer earning $55 a week. She left this employment due to pregnancy. Her child was born March 12, 1950. Claimant filed an additional claim for benefits and registered for employment on April 26, 1950. She was classified as a stenographer. On May 3, 1950, claimant was referred to a job as an English stenographer for an importing concern paying $45 for a five-day week with a $5 increase after three months. Claimant refused the referral because the job did not require Spanish translation in which she specialized and the wages offered were inadequate. The local office issued an initial determination that claimant refused employment on May 3, 1950. It also issued an alternate determination that claimant was unavailable for employment effective the same date. Claimant protested am requested a hearing before the referee. At conferences at the employment office and the insurance office claimant restricted herself to a minimum salary of $55 a week. At the hearing before the referee she testified that in view of her expenses she would not accept less than $50 a week. The wages paid to stenographers generally in the locality range from $40 to $45 a week. Bi-lingual stenographers earn $50 a week. Claimant consulted the advertisements in the newspaper in her efforts to obtain work. She did not contact any private employment agencies specializing in placing bi-lingual stenographers because the fees were too high, although she secured her last job through such an agency. Most of the advertisements in newspapers for bi-lingual stenographers were inserted by fee paying agencies. Claimant stated that in the event she obtained employment, her sister-in-law would attend to her child, for which she would have to pay $10 a week. The sister-in-law has three children, aged three, two and five months. Her taxi fare for transporting claimant and her child from her home to her sister-in-law’s residence each morning would be $1 per trip.

Appeal Board Opinion: The referee ruled that claimant had good cause to refuse the employment of May 3, 1950 since the work did not utilize her command of the Spanish language and the remuneration offered was substantially less than that generally prevailing for Spanish-English stenographers. He also held that claimant had made suitable arrangements for the care of her child and that she was available for employment. We are unable to agree fully with the referee’s disposition of this case. We believe he properly held that claimant’s refusal of the job offered was with good cause, within the meaning of the Unemployment Insurance Law. The facts, however, support the contention of the Industrial Commissioner that claimant was unavailable for employment. Her child was not yet two months old at the date claimant filed a claim for benefits. She had made no practical arrangements for the care of her baby. It is difficult to believe that she would take her child in a taxicab each working morning to the home of her sister-in-law, especially since the latter had three infants of her own to care for. Under the circumstances we hold claimant is unavailable for employment.

Decision: That part of the initial determination holding claimant unavailable for employment effective May 3, 1950 is sustained. The decision of referee is modified accordingly. (March 9, 1951)

COMMENT

This decision should be reviewed with the "Comments" appearing in Release A-750-943, Index 715.3 and Special Bulletin, A-710-l2, "Benefit Claims before and after Childbirth", revised April 10, 1978.

 

A-750-1005

Index No. 775.8

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

April 24, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Self-Employment

Appeal Board Case Number 25,554-50

ELIGIBILITY, QUESTION OF – AVAILABLE FOR UNION MUSICAL ENGAGEMENTS WHILE EMPLOYED AS PROPRIETOR OF MUSIC STORE

Where claimant’s wage credits were earned by accepting a limited number of musical engagements as a union musician while operating a music store which he owned, claimant was held unavailable for employment since he devoted full time to the operation of his business which was at all times his primary interest and main source of livelihood.

(See Comment at Decision)

Referee’s Decision: The initial determination of the local office holding that claimant was unavailable for employment from April 26, 1949 and was overpaid the sum of $676 in benefits is overruled. (October 19, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant has been a musician for over 21 years. He is a member of the musician’s union. Prior to 1939 claimant earned a livelihood from employment as a union musician. In 1939 claimant opened a music shop for the sale of new and used musical instruments. Claimant’s gross business commencing with 1946 was as follows:

Claimant’s net profits from this business venture during the above periods were as follows:

Claimant’s place of business was open six days a week, from 9:30 a.m. to 5:00 or 5:30 p.m. During the last two years, claimant had no employees, and he was in sole charge of his establishment. While engaged in this business venture claimant, from time to time, accepted a limited number of musical engagements as a union musician with orchestras performing in the City of New York. Claimant’s earnings from musical engagements as a union musician during 1949 amounted to $1,342.75. In between such engagements claimant filed application for unemployment insurance benefits. The original claim in issue was filed on April 26, 1949 and by a number of refilings, claimant collected the sum of $676 through the period ending March 19, 1950. On April 27, 1950, the local office issued an initial determination holding that claimant was not totally unemployed during the period in issue and that he was unavailable for employment and all the benefits he received constituted an overpayment. Claimant contested the initial determination and requested a hearing. The referee overruled the initial determination and the Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The referee overruled the initial determination of the local office on the theory that during the period of his filings he would have accepted union engagements if such were offered to him. We do not accept this conclusion. A review of the facts leads to the conclusion that claimant’s employment as a musician was merely a sideline in which he engaged after his usual business hours. During the periods he was a claimant for benefits, he devoted full time to the operation of his business, which was at all times his primary interest and his main source of livelihood. Under these circumstances, it must be held that claimant was not available for employment within the intent and meaning of the Unemployment Insurance Law.

Appeal Board Decision: Claimant was not totally unemployed and was unavailable for employment during the periods in issue. He was overpaid the sum of $676 in benefits. The initial determination of the local office is sustained. The decision of the referee is reversed. (March 2, 1951)

COMMENT

This decision should be reviewed together with the "Comments" appearing in release No. A-750-959 dated December 19, 1950 (Index No. 775.7)

 

A-750-1007

Index No. 1730.4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 24, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Illness in Family
Personal Affairs

Referee’s Case Number 512-661-50R

VOLUNTARY LEAVING TO VISIT CRITICALLY ILL MOTHER IN FOREIGN COUNTRY

Claimant’s action in voluntarily leaving employment to visit his critically ill aged mother in a foreign country constituted a pressing and compelling reason and was with good cause.

Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a baker, filed for benefits on November 13, 1950. By initial determination effective that date, he was disqualified for 42 days for leaving employment voluntarily. Prior to filing for benefits, claimant last worked in July 1949. He left the job to go to Italy to visit his aged mother who was critically ill and who desired to see him. Claimant had not seen his mother for many years. His mother was most anxious to have him come to visit her because she feared she would not survive long enough for her to see him again if she did not see him then. Claimant submitted a statement from the doctor who attended his mother, indicating the severity of her ailment and the fact that it was necessary for claimant to remain at her side until her health was sufficiently improved for him to leave. When this was so, claimant returned to the United States. The insurance representative urged that Appeal Board, 21,840-49 was applicable to the facts herein.

Referee’s Opinion and Decision: The case before me is distinguishable from Appeal Board, 21,840-49. The claimant in the cited case went to Sweden to visit relatives whom he had not seen for may years. There was no pressing reason for claimant’s gong there, except his long absence away from his family. To claimant’s mother it was a vital matter that he see her. The filial relationship in the case before me was a greater bond and of more compelling circumstance than the fraternal relationship in the case cited. It is held that claimant had good compelling reason to leave his job under the circumstances, and that he did not leave his employment voluntarily without good cause. The initial determination is overruled. (March 20, 1951)

COMMENT

1. One of the tests in determining whether a claimant’s leaving of employment is with good cause under the above circumstances is to determine whether leave of absence would have been granted and whether claimant requested such leave. Requesting a leave of absence rather than arbitrarily quitting is generally the action of a reasonably prudent person. The absence of such request when it would have been granted, together with the absence of any credible reason for failure to do so, could be considered a voluntary leaving of employment without good cause. It should be noted that the case here reported does not contain any facts relative to the above reasoning. Whether or not a different conclusion would have been reached by the Referee if such information had been obtained would be dependent upon the specific facts elicited.
2. Appeal Board Case 21,840-49 cited by the Referee which should be reviewed with this release was reported under A-750-922.

 

A-750-1011

Index No. 755A.4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

April 24, 1951

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restriction; Work, Nature of

Appellate Division Decision

Matter of Gilbert

Appeal Board Case No. 22,084-50

AVAILABILITY – RESTRICTION TO SPECIFIC TYPE OF WORK

Where claimant a writer and vaudeville performer prior to and during Army Service was subsequently employed for approximately three years as a stock supervisor until laid off, and thereafter only desired and sought employment as a professional writer, held that he "…rendered himself unavailable for employment for which he was reasonably fitted by training and experience and not entitled to unemployment benefits within the spirit and purpose of the Unemployment Insurance Law

(See Comment after Decision)

Referee’s Decision: The initial determination of the local office ruling claimant ineligible for benefits effective September 26, 1949, on the ground that he was unavailable for employment was overruled. (December 2, 1949)

Appealed By: Industrial Commissioner

Findings of Fact: A hearing was held at which the claimant and representatives of the Industrial Commissioner appeared and testified. Claimant filed for benefits on August 1,1949. By an initial determination effective September 26, 1949, he was ruled ineligible as unavailable for employment because he was self-employed. Claimant, in 1938, obtained a degree of Bachelor of Science in education. He was thereafter employed as an adult education teacher. With the exception of the period when he was in the armed forces, he obtained employment practically every summer in entertainment work at summer resorts. He wrote and produced shows and also acted in the same. He was employed professionally, in radio. He wrote a vaudeville act in which he and two other persons participated. He went on tour with this act for several seasons. While in the armed forces, claimant was assigned to special services where he wrote, directed and produced stage and road shows, and was otherwise active with respect to recreation work. Following his discharge from the armed forces, in February 1946, claimant obtained employment with a textile converting firm. He was an inside man supervising stock in the shipping and receiving department. His salary was $60 a week plus bonuses. This employment continued until May 1949, when claimant was laid off, because of a general falling off in activities by his employer. Claimant had accepted this employment as a means of supporting himself and his family during his readjustment to civilian life. Claimant was able to perform his duties with the textile company to the satisfaction of his employer. He soon recognized that he had no particular aptitude for this work, and decided to return to that field of work for which he had been trained, namely, the field of writing. He filed a claim for readjustment allowances as an unemployed veteran and received allowances on this filing until the end of July 1949. Thereafter, he filed the instant claim as an unemployed civilian. Claimant realized that he was unable to immediately obtain employment as a writer in the radio, television or theatrical fields. He made arrangements to collaborate with another writer who had successfully sold stories. Claimant, thereafter, occupied himself by writing and canvassing agents. Claimant is not interested in making a sale of any given material which he has written. He is primarily interested in making arrangements to work as a writer in connection with a continuing radio or television program. Whatever compensation he expects to receive would come to him from the sponsor of the program which he, alone, or with his collaborator, would write. With respect to both activities, claimant regularly called upon the agents, to whom radio and television shows, which he had written, had been submitted. Through the general manager of one of the principal operators of legitimate theaters in New York City, he sought employment as an assistant stage manager.

Through a personal friend who was employed by advertising agency, he sought employment as a copy writer. Claimant was willing to accept employment in any of the above types of work, or, even as a supervisor in shipping and receiving provided he received what he considered a living wage of, at least, $50 per week. There is evidence that customary wages being paid to supervising shipping clerks in the textile field range from $45 to $50 per week. Claimant did not make any independent efforts to obtain work as a supervising shipping clerk, because he considered that this would be a diversion from that field for which he was best qualified. Had he been offered such employment, he would have accepted the same and used his remaining time to try to obtain employment in the writing field. He reported to the employment office on September 27, October 4 and 10. No job offers were made to him on any occasions. Claimant’s writing activities did not interfere with his seeking employment.

Referee’s Opinion and Decision: The theory underlying the issuance of the initial determination, herein, is that with respect to his activities as a writer, claimant is self-employed, and, is unavailable for employment. The credible evidence does not substantiate this theory. Even if it were to be held that claimant is self-employed, it does not necessarily follow that his activities with respect thereto are such as to prevent his accepting employment. His desire to obtain employment in the field for which he was educated and trained in both understandable and reasonable. This also explains his reluctance to accept employment in the commercial work. Considering the evidence as a while, it cannot be said that claimant established such unreasonable or undue restrictions with respect to his employability as to render him unavailable for employment within the meaning of the Unemployment Insurance Law. It is to be noted that claimant had paid employment history which involved the type of work he was seeking. The initial determination is overruled.

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been thereon, and having found that the referee’s findings of fact and conclusions of law are fully supported by the evidence in this case, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the conclusions of law made by the referee as the findings of fact and conclusions of law of this Board. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed.

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from the decision of the Unemployment Insurance Appeal Board overruling an initial determination made by the Industrial Commissioner that claimant was ineligible to receive benefits on the ground that he was unavailable for employment. Claimant had participated as a writer and performer in vaudeville and television shows at college, at various summer resorts and in the armed services. Following his discharge from the army claimant obtained work at $60 per week with a textile firm, and continued in this employment for approximately three years until he was laid off because of a seasonal lull. Claimant did not return to work for the former employer in the textile industry and admitted upon the hearing that he had not looked for work at all in the textile field. Claimant testified: "I don’t wish to return to industry again. I wish to be a professional writer and I am seeking that type of work." Under these circumstances claimant withdrew from the labor market and rendered himself unavailable for employment for which he was reasonably fitted by training and experience, and is not entitled to unemployment benefits within the spirit and purpose of the Unemployment Insurance Law. Decision of the Unemployment Insurance Appeal Board reversed, on the law, and the initial determination of the Industrial Commissioner reinstated, without costs. (March 14,1951)

COMMENT

1. This decision should be reviewed with release A-750-948 (Rev.) (Index Nos. 1640C-5 and 1640E-3), Appellate Division Decision (Matter of Pillersdorf) wherein the Court stated that a haberdashery salesman who acquired a law degree upon attending night school while working did not have good cause to leave his employment in order to seek employment with law firms. In that case, the Court stated that claimant voluntarily left his employment without good cause and further added that "had the employment service offered him another job in that industry, he would have to take it or suffer the loss of his benefits".
   
   That decision and the instant case, although entirely identical issues are not presented, point to a definite principle which has not generally been applied in the past. Since an analysis of these two decisions shows that no mention was made as to the chances of securing the desired employment, or as to existing employment opportunities in such field, it can be concluded that no significance attaches to that factor. It appears, therefore, that a claimant who restricts himself to occupations in which he has no or no recent work experience, generally, does not meet the statutory tests without regard to other surrounding circumstances, including the possession of other skills, licenses or training.
2. However, the term "reasonably fitted by training and experience" should not be indiscriminately applied. The two cases here discussed and those listed below will serve as a guide in interpreting that phrase under similar conditions. In recording the reason for the disqualifying determination, it is suggested that the above mentioned court decisions be cited in appropriate cases to substantiate the conclusions. In fact, this is always advisable when utilizing a new precedent principle.

 

A-750-1012

Index No. 775.9

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

June 15, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of: Self-Employment

Appeal Board Case Number 25,373-50

AVAILABILITY, QUESTION OF – ACTIVE PARTICIPATION IN SELF-EMPLOYMENT

Claimant who operated a gasoline station and sundry store with his wife’s assistance and who, because of poor business, desired, sought and eventually found other full-time employment, was nevertheless held to be unavailable because of his active participation in self-employment even though it was contended that his wife could have operated the business until liquidation.

(See Comment after Decision)

Referee’s Decision: The initial determination of the Out-of-State Resident Unit that claimant was unavailable for employment from February 14, 1950 to March 26, 1950 is overruled. (September 29, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant had worked for several years as a merchandiser and as an assistant to the head of the department in a chain retail store. He last worked in New York City from February 1949 to march 31, 1949 as merchandise distribution manager. He left this employment to go into business in Florida. On April 15, 1949 claimant opened a combination gasoline station and sundry store in Jacksonville, Florida. His wife assisted him in connection with the operation of the business. From September 1949 the business was operated at a loss. In February 1950 claimant was desirous of obtaining private employment. Claimant filed a claim for benefits in Florida against New York as the liable State on February 14, 1950 and reported to March 29, 1950. During this period claimant certified each week at the Florida employment office that he was self-employed. The Out-of-State Resident Unit issued an initial determination effective February 14, 1950 that claimant was unavailable for employment. The basis of the determination was that claimant was self-employed. Claimant protested and requested a hearing before a referee. Claimant exerted efforts to obtain full-time employment by registering with private employment agencies, by applying at several department stores and by answering advertisements in the newspaper. He wanted a job paying from $50 to $60 a week. He stated that in the event he obtained employment his wife would operate the business until it was liquidated. During his reporting period claimant devoted most of his time to the management of his business. On March 27, 1950 claimant obtained employment as a census enumerator. He closed out his business on April 1, 1950. He worked to May 12, 1950 after which he refiled for benefits.

Appeal Board Decision: The only issue to be decided is whether or not claimant was available for employment from February 14, 1950 to march 26, 1950. The referee overruled the initial determination on the premise that claimant made efforts to secure work and obtained employment on his own initiative and that his self-employment was no deterrent to his accepting employment. The Commissioner urges that claimant was, nevertheless, unavailable for employment because of his active participation in his business during the period in question. We believe that the Commissioner’s position is well taken. The Board was confronted with an analogous situation in Appeal Board, 23,493-50 in which we said:

Although the referee was justified in this conclusion that claimant would have accepted full-time employment had it been offered to him, nevertheless it clearly appears that claimant devoted his entire time to the business of the partnership. Claimant’s situation does not differ from that of any other person who has full-time employment but is willing to abandon such employment for more remunerative pursuits. Under the circumstances herein, it cannot be said that claimant, while devoting his full time to the business of the partnership was in fact available for employment.

The reasoning in the above case is applicable herein and is determinative of the issue in the instant case.

Appeal Board Decision: The initial determination of the Out-of-State Resident Unit that claimant was unavailable for employment from February 14, 1950 to March 26, 1950 is sustained. The decision of the referee is reversed. (April 13, 1951)

COMMENT

This decision is here reported for reemphasis and should be reviewed with releases A-750-959 and 1005 and the "Comments" therein which involved similar circumstances (Indices 775.7 and 775.8)

 

A-750-1013

Index 755 B.3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 15, 1951

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restrictions of Employment
Wages

AVAILABILITY - INCAPABLE OF USUAL WORK - DESIRE FOR SALARY ABOVE PREVAILING FOR WORK WILLING AND ABLE TO PERFORM

A claimant who is no longer able to work in his usual occupation because of physical conditions but whose inflexible wage demand is substantially in excess of the entrance wage for the type of work he is willing and able to perform, is unavailable for employment.

A.B. 24,989-50

Referee's Decision: The initial determination of the local office disqualifying claimant from benefits, effective January 30, 1950, on the ground that she was unavailable for employment is overruled. (September 12, 1950)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant is 19 years old. She left her last employment on January 10, 1950, because the work affected her eyes. She had been employed as a stone setter on costume jewelry for three years. She had no other work experience. Claimant filed a claim for benefits and registered for employment on January 17, 1950. On January 30, 1950, she was referred to employment involving the same kind of work that she had left because of the condition of her eyes. Medical evidence substantiates claimant's contention that she can no longer work in her regular line because of its effect on her eyes. At local office interviews on February 7, 1950, April 10, 1950 and at the hearing before the referee, claimant stated that she will not work for less than $35 a week; that she will not accept $33 a week. She is willing to learn the work of a packer or a finisher on women's clothes. Entrance wages for packers are 75 cents an hour and for finishers $28.70 for a 35 hour week. An initial determination was issued disqualifying her from benefits effective January 30, 1950, on the ground that claimant's salary demand was unreasonable and rendered her unavailable for employment. At an interview at the local office on April 25, 1950, claimant reiterated that she cannot do work in her regular line as a stone setter, and that she sought work as a packer or finisher on dresses and has been unable to obtain it because of the lack of her experience in such work.

Appeal Board Opinion: The referee held that claimant was available for employment and that her wage demand of $35 a week was not an unreasonable desire in view of her former earnings. On the basis of the record herein, we cannot accept his conclusion. Claimant demanded a wage of $35 per week as a packer or finisher which she was willing to learn but as to which the entrance rate of pay was 75 cents an hour and $28.70 per 35 hour week respectively. She was not willing to accept $33 a week. It appears, from the evidence, that this wage demand was inflexible. Claimant has no work history or experience other than that of a stone setter, which work she can no longer perform because of her eyes. Therefore she would be required to enter a new labor market without experience. Her wage demand is substantially greater than the entrance wage for the new type of work she is willing and able to perform. We hold that claimant, in effect, precluded herself from possible employment and was properly disqualified from receiving benefits. Inasmuch as claimant is held unavailable by virtue of her statements at local office interviews, we fix the effective date thereof to be February 7, 1950.

Appeal Board Decision: The initial determination of the local office that claimant was unavailable for employment is modified so as to make the effective date February 7, 1950, instead of January 30, 1950, and as so modified, is sustained. The decision of the referee is reversed. (March 16, 1950)

COMMENT

This case should be reviewed with Interpretation Service release A-750-383 Index 725.8) dated January 16, 1943. Since some offices may not have a complete file of releases for that year, the following opinion of the Appeal Board in the 1943 case will be of interest:

"Claimant was under directions from his physician to refrain from heavy work during the period of recovery from his operation. Such precautions were essential to assure restoration to good health and to prevent the opening of the incision. We do not believe that claimant would have disregarded his physician's instructions. Claimant is a building construction laborer and has no other work experience. This is a field of hard labor. There is no such thing as an "easy job" for a building laborer. In order to secure light work claimant would be required to go into another employment field. We doubt that he could find employment in another field at a rate of pay that would be satisfactory to him. While we have previously held that physical handicaps do not, under all circumstances, render claimant unavailable for employment, in the instant case, however, claimant's unwillingness to consider a job as a watchman at $18 a week and his statement that he would like a job at $30 to $35 a week erected barriers that rendered him unavailable for employment during the period in question. There is no reasonable opportunity of securing employment for him under these circumstances."

The reasoning of the Board in both cases deserves close attention. The Board held in effect that a claimant who seeks employment in a field in which he has no experience must accept the entrance conditions in such field, irrespective of his previous wage, and that a claimant who fails to do so is unavailable because he precludes himself from possible employment.

 

A-750-1014

Index No. 790.2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

June 15, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Union Considerations

Appeal Board Case Number 25,253-50

AVAILABILITY, QUESTION OF; DESIRE FOR NON-UNION EMPLOYMENT

Where the industry in which claimant worked was 90 percent unionized, unwillingness to work where union membership was required indicated a withdrawal from the labor market.

(See Comment after Decision)

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for voluntary leaving employment without good cause and withdrawal from the labor market is sustained. (October 3, 1950)

Appealed By: Claimant

Findings of Fact: A hearing was had at which claimant, and the employer, by its co-partner, and representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, a finisher on blouses, filed an original claim for benefits effective June 19, 1950. By initial determination effective June 19, 1950, she was disqualified for 42 days for voluntary leaving of employment and withdrawal from the labor market commencing with the Date she certified to a bona fide return to the labor market and as to her availability for employment. Prior to June 19, 1950, claimant was employed for about nine and a half months to June 15, 1950. She was employed in a union shop. The employer is a member of a contractor’s association and has a union agreement with Local 25, of the International Ladies Garment Workers Union. About one week prior to June 15 the employer informed the claimant that she would have to join the union in order to retain her job. Claimant refused to join the union and left the employment. She could have remained in the employment had she joined the union. This employment was the first job claimant had had for ten years. The job was in the neighborhood of her residence. For the past ten years the claimant has been keeping house for her nephew and her niece. She states that she does not want work outside her neighborhood and will not join the union. The industry in which claimant is employed is about 90 percent unionized. Claimant was employed on a piece work basis and averaged $28 to $40 a week. The union dues were $3 a month. Claimant contended that she was discharged because she refused to join the union.

Referee’s Opinion and Decision: The fact that claimant did not want to join the union was not good cause for her quitting her employment. Claimant therefore voluntarily left her employment without good cause. Since the industry in which claimant works is 90 percent unionized, claimant’s refusing to work where union membership is required is tantamount to withdrawal from the labor market. The initial determination is sustained.

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (March 2, 1951)

 

A-750-1015

Index No. 1275A-11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 15, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Change in Occupation
Preference for Other Work

Appellate Division Decision

Matter of Delgado

278 App. Div. 237

REFUSAL OF EMPLOYMENT – DESIRE FOR EMPLOYMENT COMMENSURATE WITH NEWLY ACQUIRED TRAINING

A sewing machine operator who completed a training course and was licensed as a hairdresser refused without good cause employment in her usual occupation since "where a person is reasonably fitted for more than one kind of employment, he does not bring himself within the benefits provided by the statute if he refuses one kind merely because he prefers the other."

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective December 6, 1949,upon the ground that, without good cause, she refused an offer of employment for which she was reasonably fitted by training and experience is overruled. (March 10, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: A hearing was had at which claimant and representatives of the Industrial Commissioner appeared and testimony was taken. Claimant, a sewing machine operator, and a licensed hairdresser, filed a claim for benefits effective November 9, 1949. She received two benefits on that filing through December 4. She was disqualified for refusal of employment by initial determination effective December 6, 1949. On December 6, 1949, claimant was offered employment as a sewing machine operator on women’s shirts in a union shop. The pay was at piecework rates at union scale for a five-day week of 35 hours. Claimant refused the referral because she wants a job as a hairdresser. Claimant was employed as a sewing machine operator for four years. She was laid off because business was slow in November 1948. Claimant does not want to work in the needle trades any more because she claims it affects her eyes. Claimant has completed a course in which she had 1000 hours of training as a hairdresser and beauty culturist. She paid $350 for the course. After the completion of the course she took an examination offered by the State of New York for a license. She was subsequently licensed by the State of New York as a hairdresser in August 1949. She has not been able to find employment as a hairdresser. Claimant was formerly a member of the union in the needle trades but allowed her membership to lapse. For some time after her last employment, claimant was self-employed operating a vegetable store.

Referee’s Opinion and Decision: The job offered claimant was one for which she was fitted by reason of her training and experience since she had four years’ experience in the job. The wages offered were union scale and therefore not substantially less than those prevailing for such work in the locality. However, since the claimant had paid $350 for a training course and had spent 1000 hours in training, passed an examination given by the State, and received a license as a hairdresser, she is entitled to a reasonable time to seek such employment. Claimant’s seeking a new occupation is a legitimate aspiration and there is no reason why she should be confined forever to the needle trade. Claimant has shown her sincerity in seeking a new line of work by efforts to prepare herself to be a hairdresser. Claimant’s refusal of the employment because she wanted to continue to seek employment as a hairdresser was god cause for refusing the employment offered. The initial determination is overruled.

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (November 3, 1950)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: For about four years the claimant was employed as a sewing machine operator working on women’s skirts. In November 1948 she left this employment and some time later entered the vegetable business on her own account. This business did not succeed and was sold by claimant. During the time she was working as a machine operator and thereafter, claimant took a course in hairdressing and she received a license to do this work in August 1949. She testified she did not obtain work as a hairdresser because the hairdressing shops wanted experienced technicians, and although claimant had training and a license, she had no experience. Unable to find an opening in this field, she filed a claim for unemployment insurance benefits November 9, 1949 and received two benefit payments. On December 6, 1949 she was offered employment as a sewing machine operator in a union shop under standard conditions in that trade which she refused on the ground she wanted to acquire experience in hairdressing. The record of the placement office shows there was then no available employment for inexperienced hairdressers, and the Industrial Commissioner thereupon disallowed benefits on the ground claimant had refused to accept an offer of employment for which she was reasonably fitted by training and experience. The unemployment insurance referee overruled this determination for the reason that claimant "is entitled to a reasonable time to seek such employment" (as a hairdresser. He concluded that her refusal of the employment offered was for good cause. The appeal board affirmed this determination. The statute does not allow so selective a refusal of employment. It prohibits the payment of benefits where, without good cause, there is a refusal of an offer of employment for which a claimant "is reasonably fitted by training and experience" with exceptions not germane here (Unemployment Insurance Law, Section 593, subd. 2). Where a person is reasonably fitted for more than one kind of employment he does not bring himself within the benefits provided by the statute if he refuses one kind merely because he prefers the other. And where one kind is shown to be available, and to have been offered, and the other is not at the time available because of a lack of personal experience, it is not unreasonable to require, as an alternative to unemployment benefits, that at such a time, at least, the kind of employment that is offered be taken until the kind that claimant prefers be available. The refusal here was not good cause as a matter of law. The decision should be reversed and the initial determination of the Commissioner reinstated without costs. (May 9, 1951)

COMMENT

1. This decision should be reviewed with Release A-750-948 (Rev.), Appellate Division decision, Matter of Pillersdorf, 278 AD 59, holding that a salesman upon having acquired a law degree did not have good cause to leave his employment in order to seek employment with law firms. The Court added that "had the employment service offered him another job in that industry (as a salesman), he would have to take it or suffer the loss of his benefits."
2. No mention was made in the Pillersdorf decision as to the chances of securing the desired employment. In the case here reported the court indicated that when one kind of work is shown to be obtainable and the other is not, it is not unreasonable to require the claimant to accept the kind obtainable at least until the type that claimant prefers is obtainable. This consideration appears to reflect the Court’s rationalization, rather than to require a weighing of the job prospects in the respective fields.

 

A-750-1016

Index No. 1280-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 15, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Distance – Transportation Cost

Appeal Board Case Number 22,445-50

REFUSAL OF EMPLOYMENT – EXCESSIVE TRANSPORTATION COST NECESSITAED BY REMOVAL OF RESIDENCE

Refusal of employment was without good cause where transportation expense, although considerably in excess of the fare required in claimant’s previous employment, was necessitated by the fact that claimant had in the meantime removed her residence to a more distant community, since "it was not the legislative intent to make Section 593.2(c) of the Unemployment Insurance Law applicable to a situation such as the one presented herein."

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits upon the ground that she refused employment without good cause and that she was overpaid $51 in benefits was overruled. (January 4, 1950)

Appealed By: Industrial Commissioner

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, a salesperson, filed for benefits on September 22, 1949. By initial determination effective October 10, 1949, she was disqualified for refusal of employment without good cause.

Claimant was employed by a department store in Brooklyn for six and a half years to January 1949. Her terminal pay was $1.12 per hour. She worked a five-day week, hours 11 a.m. to 4 p.m. and on alternate Thursdays from 12 noon until 9 p.m. She left this employment because she got married and moved to New Jersey. In the beginning she had decided to stay home and did not seek work. Due to home conditions she found that she had to return to work and began to seek employment in New Jersey when she filed for benefits.

On October 10 claimant was offered employment with a department store on West 34 Street to sell accessories. The rate of pay was $29.50 with one-half of one percent commission, with a guarantee of a minimum of $2 per week. The work week consisted of five days for a 40-hour week. She could also have accepted this job on a part-time basis, hours 11 a.m. to 4 p.m. for five days at 80¢ an hour. Claimant refused the employment stating that "salary is much less than I have earned on my last job."

The offer of employment was with a department store that was in contractual relations with a union and the wage scale was in accordance with the union contract. According to the Prevailing Wage Unit of the Bureau of Research and Statistics, the prevailing wage for sales persons of accessories ranged from $31.50 to $35.50, with or without commission.

* * * * *

We make the following additional findings of fact: In a communication dated March 15, 1951, addressed to the Board, claimant stated that she had been continuously unemployed as of that date following the termination of her previous employment on January 15, 1949.

Appeal Board Opinion: The referee concluded that the employment offered to claimant involved work for which she was reasonably fitted by training and experience. The referee further determined that the wage rate was not substantially less favorable to the claimant than that prevailing for similar work in the locality. We are in accord with this view. However, the referee held that claimant was justified in refusing the proffered employment since the fare for transportation, including bus and subway, amounted to 64¢ a day. The referee reasoned that the travel expense was substantially greater than that required in claimant’s former employment and that the additional expenditure was not provided for. Concededly, the expense of transportation in connection with the employment in question would have been considerably in excess of the fare required in claimant’s previous employment. However, such additional expenditure was necessitated by reason of claimant’s removal from New York City to her present residence in North Bergen, New Jersey. In our opinion, it was not the legislative intent to make Section 593.2 (c) of the Unemployment Insurance Law applicable to a situation such as the one presented herein. Furthermore, the record shows that claimant made little or no effort to obtain employment in the neighborhood of her residence. Upon all the facts and circumstances herein, we believe claimant refused employment without good cause.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits upon the ground that she refused employment without good cause, is sustained. Claimant was overpaid $51 in benefits. The decision of the referee is reversed. (March 30, 1951)

COMMENT

The pertinent provision in paragraph (c) of Section 593, subdivision 2 of the Law, contains an alternate clause stating that refusal is with good cause if the offered employment

Is at an unreasonable distance

   or

Involves travel expenses substantially greater than required in the former employment which are not "provided for."

It is practically impossible to set forth any general criteria regarding wage levels or other conditions that must be met in order that the travel expense may be considered as "provided for." It is also practically impossible to generalize on criteria in determining when travel expenses are "substantially" greater than those required in the claimant’s former employment. All the surrounding circumstances in any given case must be evaluated.

The instant case points to the definite conclusion that excessive transportation cost necessitated by a claimant’s voluntary removal to another locality should, generally, not be considered good cause for refusal or for voluntary quits. However, in resolving such cases, consideration must be given to the labor market conditions in claimant’s place of residence, claimant’s due diligence in a search for employment in that area and, in general, whether claimant’s actions as a whole are those of a reasonably prudent persons.

 

A-750-1018

Index No. 1315-4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 15, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL
CONTROVERSY
In the Establishment", Question of

Appeal Board Case Number 25,852-50

INDUSTRIAL CONTROVERSY – "IN THE ESTABLISHMENT", QUESTION OF

Assemblers who lost their employment in Utica solely because of lack of radio chassis as a result of a strike in another plant of the employer situated in Syracuse were held not to have lost their employment "because of a strike * * * in the establishment" in which they were employed.

Referee’s Decision: The initial determinations of the local office that claimants lost their employment because of a strike in the establishment in which they were employed were sustained. (November 10, 1950)

Appealed By: Claimants

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:

Claimants assemblers, filed for benefits on September 11, 1950. By initial determination their rights to benefits were suspended for seven consecutive weeks, effective September 12, because each lost his employment as a result of a strike, lockout or other industrial controversy in the establishment in which he was employed, pursuant to Section 592.1 of the Unemployment Insurance Law.

Claimants are three of approximately 700 workers laid off their employment by the U.R.W., in September 1950. A stipulation was entered into between the parties, pursuant to which all other workers similarly situated and who have filed for benefits will be bound by the decision herein.

The employer is one of the largest manufacturers of electrical equipment in the nation and has various plants in New York. The largest plant for the manufacturer of electronic parts and equipment is situated at S. The R.W. is one of its assembly plants operated exclusively for the assembly of radios.

Many of the component part of the radio used by the R.W. are manufactured at S. It is the policy of the R.W. to have more than one source of supply for each of the hundreds of parts which go into a radio. It purchases these parts in the open market from 500 to 1,000 manufacturers. However, since the establishment of the U. plant, it has been unable to obtain the chassis of the radio from an outside source and, consequently, depends exclusively upon the S. plant for the furnishing of the chassis.

The bargaining agent for the employees of the S. plant was the EU-CIO Union. It is conceded that an industrial controversy existed at the S. plant from on and after August 31, 1950. The employees of the U. plant are represented by the National Association of Machinists, a non affiliated union. It has its own contract with the U. plant, which, at the time of the layoff, was still in effect. The employees of the U. plant did not stand to gain or lose as a result of the S. strike.

The U. plant continued to operate until its supply of chassis was exhausted, and laid off various groups of its employees as soon as the chassis used on specific models, on which they were working, were used up. The layoff continued until the S. strike was settled.

It is likewise conceded that there was no strike at the U. plant and that no picket line was thrown around it. The R.W. employees were called back to work on September 25.

Appeal Board Opinion: The referee sustained the initial determinations herein on the ground that the unemployment of the claimants was due to a stoppage of work which existed as a result of a labor dispute at the establishment where they were last employed. The question on appeal is whether or not there was a strike or industrial controversy in the "establishment" in which the claimants were employed within the meaning of Section 592.1 of the Unemployment Insurance Law. This question was the subject of a recent Court decision which we believe to be determinative of the present case. In Matter of Machcinski, et al vs. Ford Motor Company, 277 App. Div. 634, affirming Appeal Board, 20,456-49, the Court sustained a ruling of this Board that workers laid off at the B. and G. I. Plants of the F.M.D. due to lack of work arising out of a strike at the R.R. plant of that company, were not subject to the suspension provision under Section 592.1 of the Law The Court stated in part:

Unemployment compensation statutes were enacted in various states during a period of distress and were designed to relieve the hardship caused by unemployment due to no fault of the employee. The legislative purpose behind the enactment of our act is to be found in the legislative declaration of public policy in Section 501. There, the legislature stated that in its considered judgment the public good and the well being of the wage earner of this state, require the enactment of this measure for the compulsory setting aside of financial reserves for the benefit of persons unemployed through no fault of their own. This is a remedial statute, a humanitarian statute, and should be construed accordingly. It is the general rule that a liberal construction is accorded statutes which are regarded by courts as humanitarian, or which are grounded on a humane public policy. In the two cases that we are considering the unemployment was involuntary. These employees had nothing to do with the stoppage of work in the D. plant. They were not consulted about the work stoppage or with the prosecution of the strike and clearly they had nothing to do with the settlement. They are the innocent victims of a situation wholly beyond their control. The question which we have to decide is whether these claimants lost their employment because of a strike in the establishment in which they were employed within the meaning of section 592, subdivision 1 of the Unemployment Insurance Law.

* * * * *

In our opinion we believe the word "establishment" as used in the statute means the place where the employee was last employed. Obviously, the legislature never intended by the use of the word "establishment" to include all the plants of the F.M. Co., situated as they are in so many states of the union and in foreign countries. To adopt the appellant’s contention would require us to hold that a few employees in any of the employer’s plants, in any part of this country, can prevent the workers in the B. and G.I. plants from earning a livelihood or, in lieu thereof, from getting the insignificant amount of unemployment insurance that is available to them under the statute.

We are convinced that the solution of the problem before us is to be found in determining from all the facts available whether the B. and G. I. Plants under consideration are separate establishments from the standpoint of employment and not whether they are to be regarded as separate enterprises from the standpoint of management or for the more efficient production of manufactured products. In construing the statute before us we approach the subject from the standpoint of employment rather than management and in so doing we have no hesitancy in concluding that the findings of the Unemployment Board are amply sustained by the evidence.

On the authority of the above Court decision, we hold that the instant claimants did not lose their employment because of an industrial controversy in the establishment in which they were employed within the contemplation of Section 592.1 of the Law.

Appeal Board Decision: The initial determination of the local office that claimants lost their employment as a result of a strike, lockout or other industrial controversy in the establishment in which they were employed are hereby overruled. The decision of the referee is reversed. (April 13,1 951)

COMMENT

1. The reasoning of the Board in this case is based on the Appellate Division decision, Matter of Machcinski (Ford Strike Case) reported under (Serial No. A-750-915-Rev.). The facts in that decision are practically identical with those of the instant case with the exception that the Court decision involved automobile parts and the striking "establishment" was located in Michigan, whereas both plants in the present case are located within New York State.
2. It should be noted that in the case here reported the employees who were laid off in Utica belonged to a union not affiliated with that of the Syracuse striking employees, an employer-union agreement was in effect and such employees did not stand to gain or lose as a result of the Syracuse strike. A different conclusion could possibly have resulted if such factors did not exist.
3. The "Comment" appearing on Release A-750-915 (Rev.) should be reviewed at this time. Of particular importance is Item "3" dealing with local office handling of similar situations.

 

A-750-1019

Index No. 1480E-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 22, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous

Appeal Board Case Number 25,335-50

CONTINUOUS EMPLOYMENT, QUESTION OF; PART-TIME HOMEWORKER (CLERICAL) RECEIVING ANNUAL SALARY

Where claimant received $750 annually at the rate of $62.50 each month from a theater society for handling mail ticket applications, publicity, etc., for stage plays which came to her community each year, such work being performed at her convenience at her home, held not totally unemployed only with respect to those days when she actually performed services.

Referee’s Decision: The amended initial determination of the local office ruling claimant ineligible for benefits effective June 30, 1949 on the ground that she was not totally unemployed and charging her with an overpayment in benefits is overruled. (October 6, 1950)

Appealed By: Industrial Commissioner

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 June 30, 1949. By initial determination dated April 11, 1950, claimant was ruled ineligible effective March 20 on the ground that she was not totally unemployed. At the hearing, the Commissioner’s representative moved to amend the initial determination to make the effective date of ineligibility June 30, 1949,and to charge claimant with an overpayment of the benefits received by her up to May 1, 1950. Such motion was granted.

When the claimant filed her original claim on June 30, 1949, she informed a clerk at the insurance office that she was employed on a part-time basis by a theater society to promote the sale of tickets for a series of stage plays which came to Buffalo each year.

Claimant’s duties consisted of handling mail applications for tickets, allotting seats to subscribers, collecting money for tickets, handling complaints and performing some publicity work. For such services, claimant received $750 annually at the rate of $62.50 each month. Claimant performed the work involved at her own convenience. She indicated that she devoted approximately eight hours per week to the work during the theatrical season and otherwise spent approximately one hour per week in the work.

Upon revealing this information to the insurance office, claimant was informed that she might not always receive a benefit check for each week and was informed further that she notify the insurance office of the exact dates on which she performed services for the society, and that she should break down her earnings in weekly amounts.

From June 30, 1949 to May 1, 1950 the claimant received nine benefit checks at $26 each. The claimant, when reporting during the period in question, notified the insurance office of the days on which she performed services for the society and in the weeks in which she performed services computed her earnings at $15 per week.

Claimant indicated that the performance of the services for the society would have in no way interfered with her acceptance of other employment because the work could be performed on evenings or week ends.

From December 1949 to March 7, 1950, claimant was employed on a full time basis by a hotel corporation, in sales promotion work. She was also employed full time by a printing firm, performing advertising work from September 28 to about December 1949. During such period the claimant also performed the duties required of her by the society.

On May 1, 1950, the claimant severed her connection with the society.

Appeal Board Opinion: The sole question before the Board on this appeal is whether or not claimant was totally unemployed during the entire periods of her filing and whether or not she was overpaid in benefits. The Commissioner contends that since claimant was paid on a monthly basis she must be regarded as having been in continuous employment and that she was not totally unemployed at any time during which she worked under that arrangement. The referee ruled that claimant was totally unemployed except on the days when she actually performed services for the society and that she was entitled to retain the benefits which she received. We agree with the result reached by the referee. We believe that the referee correctly ruled that the Appeal Board decisions #20,783-48 and #21,515-59 upon which the Commissioner relies, are not controlling. Those cases involved duly elected public officials whose duties were of a continuous nature, not allocable to specific days and whose obligation to hold themselves in readiness for calls for their services were continuous. This cannot be said to be true of the claimant since her work could be performed at her home and at such times as were convenient to her. Nor do we believe that Appeal Board #17,625-48 is applicable herein. That case involved a building superintendent where the very nature of his employment called for the performance of services daily. No question has been raised on this appeal as to the accuracy or truthfulness of claimant’s reports to the local office respecting the days on which she performed services for the society. We believe that the local office properly ruled that claimant was unavailable for employment and not totally unemployed only with respect to those days when she actually performed such duties and that it correctly authorized the payment of checks to her for the remaining periods.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from benefits effective June 30, 1949 on the ground that she was not totally unemployed and that claimant was overpaid in benefits is hereby overruled. The decision of the referee is affirmed. (April 2, 1951)

COMMENT

1. Cases 20,783-48 and 21,51549 cited by the Appeal Board involved elected public officials are not in conflict with the conclusion reached herein.

2. In come cases the facts may indicate that the remuneration received is in payment for duties performed only on particular days or at specific times. Therefore, in those cases where the salary received does not represent payment to the claimant for holding himself in readiness for further services, he would not be in continued employment but would only be employed on the actual days worked.Since claimant could perform the required services at her convenience in her home, it can reasonably be assumed that the remuneration received did not represent payment for holding herself in readiness for immediate services.

 

A-750-1020

Index No. 1480B-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 22, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Miscellaneous Employments – Other

Appeal Board Case Number 25,230-50

TOTAL UNEMPLOYMENT, QUESTION OF – ELECTED MEMBER OF MARITIME UNION GRIEVANCE COMMITTEE

An elected member of a grievance committee of a maritime union, whose duties involved traveling to various piers and the holding of hearings for which he received as reimbursement for expenses, such as transportation cost and meals, an amount of $6 per day which corresponded to that paid by employers in the industry to union members on travel status, was held to be totally unemployed since the services rendered were solely in the furtherance of membership interest and no remuneration was paid. (Claimant’s availability for employment had been conceded under the circumstances of the case.)

Referee’s Decision: The initial determination of the local office holding claimant ineligible for benefits upon the ground that he was not totally unemployed during the period August 8, 1949 through February 15, 1950 is overruled. (September 26, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: A combined hearing was held at which claimant’s attorney, his witness and representatives of the Industrial Commissioner appeared. Testimony was taken. Claimant Kasbohm, a marine engineer, filed for benefits on June 22, 1949. By initial determination, he was ruled ineligible effective August 18 through August 28, because he was not totally unemployed, and was ruled overpaid $52 for the effective days August 18 through August 28. Claimant was a member of a marine union. Sometime at the beginning of August, at a meeting of the membership, a special grievance committee membership of seven members was elected. Included among the grievance committee membership was claimant. At the time, the union had changed its shipping rules and the special committee was elected to enforce such new rules. It was their duty to check any violations and grievances, and to prepare cases for presentation to the membership at large. They would draw charges to impeach various members of the union. It was necessary in the furtherance of the committee business to investigate various complaints. This would require the members of the committee to travel to the various piers in the port of New York; specifically to Brooklyn, Staten Island, Hoboken or Jersey City. A quorum of four was necessary for the transaction of committee business. For the periods in issue, claimant attended at the union hiring hall, where the committee met five or six days per week, and Sundays and Holidays when necessary. It specifically was provided that service on the committee would not be a bar to employment of its various members, and any member who became employed could immediately resign. The cards of the committee members were automatically placed up for bid for jobs coming into the union hiring hall, and if a committee member’s turn was reached, he would receive employment. One member of the committee became so employed during the course of his service on the committee. It was conceded by the Commissioner's representative that the claimant could assume employment and that claimant was actually in the labor market for work in his occupation. On September 7, 1949, at a general meeting of the membership of the local, a payment of $6 per day, retroactive to August 18 the first day on which the committee commenced to function, was voted by the membership. Such payment was for expenses which might be incurred by the committee members, and was so indicated on the union books. The amount was established by the usual six-day allowance which contract employers gave to union members on travel status. Claimant received the payment of $6 per day throughout the entire period in issue. As part of the duties of the committee members, it was necessary to travel to various ships located at various piers. In such travel, subways, ferries, buses, and taxis, when necessary, were used. When on such assignment, the committee members would charge the union with meals. Such meals came out of the $6 per day allowed for expenses. In addition, when the committee members were required to remain late in order to hear grievances against union members, they would eat their evening meals and pay for the same out of the expenses they received. Rather than require the submission of bills through the business agent of the union, the allowance of $6 per day was voted. The general range of pay for marine engineers was from $350 per month, for the lowest classification, to $850 per month for the highest classification for a 48-hour work week. In addition, such individuals received board and lodging aboard ship. Claimant concededly attended at the union hiring hall at least five days per week, and from there was dispatched on various committee matters. He was not subject to the supervision of any individual, but was told what had to be done by the committee chairman. What was required to be done was decided by the union membership when the rules were passed.

Referee’s Opinion and Decision: The sole issue to be decided is whether the services rendered by the committee members to the union and to its membership, and the sums of money received by the committee membership pursuant to union vote, rendered them totally unemployed. Section 522 of the Unemployment Insurance Law defines total unemployment as:

". . . the total lack of any employment on any day, . . ."

Employment is defined in Section 511 of the Law as:

". . . any service under any contract of employment for hire, express or implied, written or oral."

The testimony was barren to show that the services rendered by the committee members were under any contract of employment for hire. As union members, and in order to further their interests, the committee members were designated by the union at large to enforce certain shipping rules. There was no intent to pay any remuneration for such services; nor were these individuals subject to supervision, direction and control. The assumption by a committee members of his duties in no way interfered with his availability for employment, and, in fact, it was so conceded by the Commissioner’s representative. The daily allowance voted to each committee member in no manner approximated his usual salary, and was selected because of the contract provisions in the collective bargaining agreements of the union with contract employer, providing for $6 a day for subsistence. It was true that expenses incurred did not approximate the amount allowed. However, it was clear that such sums received were expenses, and were so designated by the union. Accordingly, I find that the committee members were not employees of the union or elected officials of the union, but rendered services to the membership at large in the furtherance of the union interests without the thought of receipt of remuneration for such services. I find claimant totally unemployed. The initial determination is overruled. Claimant was not overpaid. (September 26, 1950)

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact and conclusions of law are fully supported by the evidence in this case, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the conclusions of law made by the referee as the findings of fact and conclusions of law of this Board. We make the following additional findings of fact: Claimant’s primary duty as a member of the committee was to investigate infractions of the union rule requiring that hiring be done according to a rotary system in order to assure equal opportunity of employment for all members, including the claimant himself. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. (See Mutual Benevolent Society of 1865, Inc., Appeal Board 10,085-43, 293 N.Y., 901) The decision of the referee is affirmed. (April 6, 1951)

 

A-750-1023

Index No. 1665-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 22, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Part-time Employment

Appeal Board Case Number 25,669-50

VOLUNTARY LEAVING; DESIRE FOR FULL-TIME EMPLOYMENT

Where claimant’s job called for two or three days’ employment per week (approximately 20 hours at about $1.00 per hour), voluntary leaving because of a desire for full-time work was without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days, effective July 28, 1950, on the ground she voluntarily left her employment without good cause is sustained. (October 31, 1950)

Appealed By: Claimant

Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared. Testimony was taken. Claimant, a saleslady, filed for benefits on July 28, 1950. By an initial determination she was disqualified for 42 days effective July 28 for voluntary leaving of employment without good cause. Claimant was last employed on a full-time basis on October 1949. She remained unemployed until May 1950, when she was placed in employment with a ladies’ apparel store as a saleslady. The job called for two or three days’ work a week. Claimant left this job voluntarily on July 22, 1950, because it was not a full-time job. Claimant admits that her earnings on an hourly basis were above the usual hourly rate in her area for her type of work. However, she claims that her total weekly earnings were too low. Claimant usually worked about 20 hours a week, and, with commissions, earned approximately $1 an hour. At the time claimant left, she had no other job. At the time of the hearing she was still unemployed.

Referee’s Opinion and Decision: Claimant did not have good cause for her voluntary resignation. It was not good cause under the Unemployment Insurance Law for her to leave her job because it was not a full-time one. At the time, claimant did not have any other job to go to, and rather than become unemployed she should have kept her part-time job until she secured a full-time one. She could have used her days off for that purpose. In the meantime she could have filed a claim for unemployment insurance benefits, so that she could be assisted financially. In abandoning her job, however, and thus becoming totally unemployed, claimant acted unreasonably within the meaning of the Unemployment Insurance Law. It follows that claimant was correctly disqualified The initial determination is sustained. (October 31,1950)

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (April 13,1951)

 

A-750-1024

Index No. 1535-6

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 22, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION OR MISSTATEMENT
Reason for leaving employment

Appeal Board Case Number 25,862-50

BELIEF THAT "LAYOFF" WAS SYNONYMOUS WITH "DISCHARGED" OR "FIRED"

Claimant did not make wilful false statements when, upon provoked discharge tantamount to a voluntary leaving, he gave "lay-off" as the reason for his unemployment, since he believed that the term "lay-off" was synonymous with "discharged" or "fired."

Referee’s Decision: The initial determinations of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective July 6, 1949 for voluntary leaving of employment without good cause and imposing a forfeiture of benefits for 24 effective days on the ground that claimant made a wilful misrepresentation in order to obtain benefits are sustained. (November 15, 1950)

Appealed By: Claimant

Findings of Fact: Claimant, a furnace fireman, was employed for two years and eight months until July 2, 1949 by the M. Hotel located in New York City. Claimant’s duties consisted of firing the hotel furnace, carrying out the ashes and general labor. On July 2, 1949 at about 8:00 a.m. claimant had finished putting the cans out on the sidewalk when the chief engineer of the hotel inquired as to why claimant had not swept the sidewalk. Claimant replied that it was not part of his duties to sweep the sidewalk, as he had never performed that task before. He was thereupon directed by the chief engineer to sweep the sidewalk and claimant refused to do so. The chief engineer then pulled claimant’s time card out of the rack and instructed the hotel auditor to pay him off as of 10:00 a.m. the same day. Claimant was paid off as of July 2, 1949 and in addition was paid for one week’s accrued vacation. Claimant filed for benefits at the local office on July 6, 1949 and stated that he had lost his job because of a layoff. An initial determination was issued by the local office on August 7, 1940 disqualifying claimant for 42 consecutive days, effective July 6, 1949 on the ground that he voluntarily left his employment without good cause and charging claimant with an overpayment of $156. He was also held to have made a wilful misrepresentation in order to obtain benefits and his benefit rights were suspended for 24 effective days. The wilful misrepresentation was based on information received from the employer to the effect that claimant had asked to be paid off. Claimant protested the initial determinations and requested a hearing. The referee sustained the initial determinations and the claimant appeals to this Board.

Appeal Board Opinion: We are in accord with the referee’s conclusion that claimant provoked his discharge which was tantamount to a voluntary leaving of employment without good cause. We are not in accord with the referee’s conclusion to the effect that claimant was guilty of a wilful misrepresentation in order to obtain benefits. We are aware of the opinion that claimant was discharged by the employer after he refused to sweep the sidewalk. The fact that the employer paid off the claimant on the day of separation from employment and gave him one week’s vacation money is strong evidence to the Board that the claimant did not quit his job. The record shows that claimant had been admonished by his superior on numerous occasions for being lax in his duties. The request of the employer was reasonable and was not out of line with his normal duties. We find, however, that claimant provoked his discharge by his refusal to follow his supervisor’s instructions. The claimant’s conduct is tantamount to a voluntary leaving of employment without good cause within the meaning of the Unemployment Insurance Law. Claimant was discharged and was sincere in his statement to the local office that he became unemployed because of a lay-off. He believed "laid off" and "discharged" or "fired" were synonymous terms, and it is logical to assume that any lay person under similar circumstances would use the term laid off instead of fired or discharged. We find no basis, therefore, to substantiate the holding that claimant made a wilful misrepresentation in order to obtain benefits.

Appeal Board Decision: The initial determination of the local office disqualifying claimant for 42 consecutive days for voluntary leaving of employment without good cause, effective July 6, 1949, is sustained. Claimant was overpaid $156 in benefits. The initial determination of the local office holding that claimant wilfully made false statements to obtain benefits and imposing a penalty of 24 effective days is overruled. The decision of the referee is modified accordingly. (April 27, 1951)

COMMENT

This case is here reported solely to show that words and expressions used by a claimant cannot always be taken on their face value. Claimants may not be aware of the technical meaning which attaches to the term in question. It is always safer to ascertain the facts than to draw conclusions from the words and expressions which the claimant uses.

 

A-750-1026

Index No. 815-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION
Filing Requirements

Appeal Board Case Number 26,302-51

QUESTION OF REGISTRATION REQUIREMENTS – UNWILLINGNESS TO SUBMIT TO CLASSIFICATION TEST

Claimant’s unwillingness to submit to a classification test by the employment office (stenography and typing) resulted in disqualification for failure to comply with registration requirement.

Referee’s Decision: The amended initial determination of the local office ruling claimant ineligible for benefits for failure to comply with registration requirements is sustained. (January 5, 1951)

Appealed By: Claimant

Findings of Fact: Hearings were held at which the claimant, her attorney, and representatives of the Industrial Commissioner appeared and testimony was taken. Claimant, an executive secretary, refiled a claim for benefits on January 16, 1950. By an amended initial determination she was declared ineligible effective April 28, 1950, because of her failure to comply with registration requirements. For about 18 years claimant had worked for a magazine publisher in the City of New York. Her employment was terminated in May 1949, at which time she was receiving a weekly salary of $107 plus a bonus. She has been without employment since May 1949. During the period here at issue claimant resided at Stanfordville, and indicated that she was no longer interest in employment in New York City but was interested in employment at Poughkeepsie only. At the time of her registration for work claimant indicated that her occupation was that of a secretary and she specified that she was seeking work as a secretary. She indicated that she had a knowledge of typing and shorthand but set forth the fact that she had not done stenographic work for about ten years. Most secretaries employed in Poughkeepsie area are required to do stenography and typing work. In order to determine claimant’s skills as a typist or as a stenographer, an employment interviewer on April 28, 1950, requested that claimant submit to a test. Claimant suggested that she be tested with respect to her stenographic ability at the rate of 120 words per minute. The employment interviewer commenced to dictate to claimant at that rate of speed, but claimant refused to proceed with the test, indicating that she felt that she was not qualified to compete for a stenographer’s job with recent high school graduates and that she could not pass the test. The interviewer then suggested to the claimant that the rate of speed be reduced and that claimant attempt to take shorthand at the rate of 96 words per minute or at the rate of 80 words per minute, but, the claimant refused to continue with the test under any circumstances. The interviewer then suggested to the claimant that irrespective of her willingness to proceed with the stenography test she should submit to the typing test, but the claimant refused to submit to that test. Claimant did not thereafter submit to the test or reconsider her position and she failed to submit to the tests during the balance of the time for which she made claim for benefits through at least May 24, 1950. On the last mentioned date an attempt was made to refer claimant to employment, but she refused to accept referral, indicating that she was then withdrawing from the labor market. She made no claim for benefits thereafter. Claimant maintained that she was justified in refusing to submit to the tests because her stenographic or typing abilities were not factors in her search for work. She maintained that the type of work for which she was reasonably fitted by training and experience did not require her to do any typing or stenographic work and that consequently, she was justified in refusing to submit to tests.

Referee’s Opinion and Decision: There is no dispute that claimant refused to continue with the stenography test that was required by the employment office. It has been shown by credible evidence that in order that claimant be exposed to suitable employment, it was necessary for the Commissioner’s representatives to be in a position to properly appraise claimant’s skills with regard to her ability to write shorthand. Claimant had indicated when she filed her claim for benefits that she had that she was seeking work as a secretary, an occupation in which shorthand ability was a factor. Consequently, it may not be said that the employment office was unreasonable in requiring claimant to submit to the test. By her failure to submit to the tests claimant failed to properly register her claim as required by Law. In an analagous case, the Court said,

"The question is directed to the good faith of the claim for unemployment insurance. The Commissioner is entitled to have answers to such questions which are reasonably within the scope of the authority delegated to him. a Fair reading of the statute indicates that if the information is refused ‘effective days’ which are the statutory bases of benefits, need not be calculated during the period of such refusal, and that there is, therefore, no availability for employment during such a period." (Matter of Sorrentino, app. Div., Third Judicial Dept., Nov. 15, 1950, rev. appeal Board 20,361-49).

The principle so enunciated applies herein. On the basis thereof, I conclude that claimant’s failure to submit to the tests constitute a failure to comply with registration requirements and thereby rendered her ineligible for benefits. The initial determination is sustained. (January 5, 1951)

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. Under the circumstances herein the referee properly upheld the initial determination. Claimant had removed herself to an area where there was little likelihood of her being placed in employment at the skills which she had acquired in her most recent employment. The employment office was charged with the duty of classifying claimant in an occupation category in which opportunities for employment existed in the area. Claimant’s refusal to submit to the tests under these circumstances was a proper basis for her disqualification.

COMMENT

Another case in which import attaches to a failure to comply with reporting requirements was released under A-750-964. This decision should be reviewed at this time. The decision involves a claimant who refused to answer questions relative to prospective employers contacted in seeking employment.

 

A-750-1027

Index No. 1215B-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Evidence of – Attitude and Conduct

Appeal Board Case Number 25,754-50

TANTAMOUNT TO REFUSAL; UNTRUTHFUL STATEMENT RESULTING IN NOT BEING HIRED

Disqualification for refusal was proper when claimant advised a prospective employer that his former employer promised to recall him shortly at which time he would leave if hired, since such statement was designed to cause the employer not to hire him, claimant not having received any such promise.

Referee’s Decision: The initial determination of the local office disqualifying claimant as of June 19,1950 on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience is overruled. (November 9, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant filed a claim for benefits on June 5, 1950. Thereafter, on June 19, 1950 claimant was referred to employment with a cannery located at Clyde, New York as a laborer, in his customary occupation, at the rate of 75¢ per hour. Claimant visited the prospective employer and advised him that his last employer promised to recall him very shortly and that if he were recalled, he would give up the new job, if hired. Because of this statement made by claimant which he knew to be untrue, as no such promise had been made to him by his last employer, the prospective employer did not hire claimant. The local office issued an initial determination disqualifying claimant on the ground that he refused employment without good cause. Claimant contested the initial determination which resulted in the decision of the referee overruling the same. From this decision, the Industrial Commissioner now appeals to this Board.

Appeal Board Opinion: After an analysis of the testimony adduced before the referee and before this Board, we are satisfied that claimant’s statement that his previous employer contemplated rehiring him during the period in question was designed to cause the prospective employer not to hire him. The local office, therefore, properly issued the initial determination holding that claimant refused employment without good cause.

Appeal Board Decision: The initial determination of the local office disqualifying claimant as of June 19, 1950 on the ground that, without good cause, he refused an offer of employment for which he was reasonably fitted by training and experience is sustained. The decision of the referee is reversed. (May 11, 1951)

COMMENT

1. This decision is released to emphasize the importance of not accepting at face value all statements given by claimants. In particular, when a claimant informs a prospective employer that he expects to be recalled shortly by his former employer, and for that reason is not hired, the veracity of such statement should be investigated to determine whether it was made solely to prevent being hired.
2. Expectation of being recalled to former position is not good cause for refusing other employment for which fitted by training and experience. A claimant expecting to return to former employment may disclose such fact to the prospective employer, leaving him to decide whether or not the offer remains open. However, in such case, there must be a showing of a reasonable expectancy of a return to employment with the former employer (See A.B. 1425-34 and 7573-43).

 

A-750-1029

Index No. 1655-7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Health or Safety

Appeal Board Case Number 26,205-51

IMPRACTICAL FOR SEAMAN TO REQUEST TRIP OFF WHEN ILL – TRIPS WERE FROM TWO TO SEVEN MONTHS

A seaman who did not request a "trip off" upon leaving his employment because of illness, left with good cause when his vessel was operating on trips from two to seven months duration and by registering for new work after becoming well, he had prospects of obtaining a job within a month.

Referee’s Decision: The initial determination of the Out-of-State Resident Unit that claimant voluntarily left his employment without god cause is sustained. (December 7,1950)

Appealed By: Claimant

Findings of Fact: Claimant was employed from February 4, 1949 to May 22, 1950 as a seaman on a merchant tanker which made trips to the Middle and Far East. During his last trip, claimant spent $47 for dental and medical treatment in Germany and Arabia. He also received medication from the purser on the ship for a sprained shoulder. When the ship completed its voyage, he took time off to receive medical and dental treatment. He did not request a relief trip and a replacement was made by the employer. Thereafter, claimant received dental treatment at Longview, Texas. On June 6, 1950, claimant filed a claim for benefits in Port Arthur, Texas against New York as the liable State. From June 8, 1950 to June 19, 1950, claimant received medical treatment as an outpatient in Port Arthur, Texas. The employer reported that claimant "left vessel because of illness." The Out-of-State Resident Unit issued an initial determination that claimant voluntarily left his employment without good cause. The basis for the determination was that claimant did not request a leave for medical attention. Claimant did not request a relief trip because he was attached to a naval tanker operating out of the Persian Gulf on trips from two to seven months’ duration. He stated that it would have been impractical for him to do so since he would have had to wait two and one-half to seven months for the next trip and by registering for work at once he had prospects of obtaining a job within a month.

Appeal Board Opinion: The record in this case establishes that claimant left his job in order to obtain needed medical and dental care and that he subsequently received treatments for a period of almost a month. The referee sustained the initial determination of voluntary leaving without good cause on the ground that claimant failed to request a relief trip. However, there is nothing before us to show that by doing so claimant would have protected himself in employment and we cannot accept the conclusion of the referee. The initial determination is apparently based on the assumption that by requesting a relief trip claimant would have placed himself in a position to become immediately re-employed upon the completion of his medical treatments. Claimant did not request a relief trip because the voyage would have lasted from two to seven months and he expected to be able to return to work in about a month. He believed that he had good prospects of obtaining work through the union and it appears that his chances might have been jeopardized had he asked for the relief trip. It does not follow that the mere failure to request a relief trip constitutes a voluntary leaving of employment without good cause. Under the circumstances herein and in the absence of any evidence that claimant would have protected his employment by doing so, it must be held that claimant left his job to received medical treatment and we do not believe that the initial determination can stand. However, since claimant held himself available for employment in the shipping industry, he was unavailable for employment during the period he received out-patient care.

Appeal Board Decision: Claimant voluntarily left his employment with good cause. He was unavailable for employment from June 8, 1950 to June 19, 1950. The initial determination of the Out-of-State Resident Unit is modified accordingly. The decision of the referee is modified accordingly. (May 4, 1951)

COMMENT

A seaman’s failure to request a trip off when ill, when it is shown that he is aware of his rights and obligations and would have received a trip off if requested, generally constitutes a voluntary leaving of employment without good cause (See Releases A-750-933).

This decision, however, points to an exception to the general rule. As stated, under the circumstances therein, claimant acted as a reasonably prudent person since he believed he had good prospects of obtaining work immediately upon becoming well and it appeared that his chances might have been jeopardized had he accepted a trip off. The facts are, therefore, that the claimant in this case had, in all probability, a greater likelihood of early re-employment by not requesting a trip off.

This case illustrates the point that there is nothing stereotype about "good cause"; that slight differences of fact may convert a quit or refusal, which otherwise would be without good cause, into one that is with good cause; and that the existence or absence of "good cause" is determined by establishing whether the claimant acted in the manner in which a reasonably prudent person would have acted under the circumstances.

 

A-750-1030

Index No. 1505E-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 2, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & REPORTING
Wilful Misrepresentation
Reason for Leaving Employment

Appellate Division Decision

Matter of Trepper

278 App. Div. 993

WILFUL MISREPRESENTATION; CONCEALMENT OF REASON FOR LEAVING EMPLOYMENT NOT EXCUSED

A misrepresentation cannot be excused on the theory that claimant was not sufficiently apprised of the consequences of the false statement.

Referee’s Findings of Fact: A hearing was had at which claimant, her witness, and a representative of the Industrial Commissioner appeared and testified. Claimant, a laundry worker, filed for benefits on June 28 and December 27, 1949. By an initial determination claimant was disqualified for 42 days, effective June 28, because she voluntarily left her employment without good cause and, further, it was ruled that the claimant wilfully made false statements to obtain benefits on June 21, and 24 effective days were declared forfeited. By a subsequent determination claimant was disqualified for 42 days, effective December 27, because she voluntarily left her employment without good cause. Claimant was employed to June 21, at which time she left. It had been claimant’s custom not to work during July and August. She could have continued in her employment as work was available. Upon her application for benefits on June 28, she stated that she last worked on June 21 and that she left or lost her employment because of "not work." The original claims form contains the following printed matter thereon:

"Your last employer will be notified that you have filed this statement. The Law provides severe penalties for false statement to obtain benefits."

At the hearing claimant was requested to read the printed portion of the application form. However, she could not read English to the extent that she could properly read the printed matter. The claimant completed the fifth grade in primary school. Claimant returned to work for the employer after Labor Day on a part-time basis. She discontinued her employment on December 19. Claimant asserted that she left this employment because she was ill. On said date, when claimant’s husband returned from his work he found her ill in bed. A doctor was summoned and the doctor reported to claimant’s husband that claimant was in a run-down condition. Furthermore, claimant asserted that she asked her "boss" for a raise and that the "boss" made a vulgar retort accompanied by a vulgar gesture and the conduct of her "boss" extremely upset her and caused her to become ill. Claimant’s husband was apprised of this situation and visited the employer’s establishment to investigate the remarks allegedly made to the claimant. At that time one of the owners of the business told claimant’s husband that the person making the remarks to claimant had been warned on a number of occasions against similar unwarranted conduct.

Referee’s Opinion and Decision: Upon the evidence adduced I find that claimant voluntarily left her employment on June 21 without good cause. By claimant’s admission, work was available for her at that time, but she voluntarily left because of her desire not to work in the months of July and August. I further find that claimant did not wilfully make false statements to obtain benefits on June 21. While it is true that claimant did state on the application form that the loss of her employment was due to lack of work, it is my opinion that the statement was made by her without any intent on her part to wilfully misrepresent the facts. There is no contention that claimant was interrogated at that time as to the reason for the termination of her employment. It is obvious that claimant did not possess a sufficient knowledge of the English language to read and comprehend the printed portion of the claim form. Accordingly, the charge of wilful misrepresentation is overruled and the forfeiture of 24 effective days is cancelled. I further find that claimant voluntarily left her employment on December 19 with good cause. The remark made to claimant by her supervisor, with the accompanying gesture, would in my opinion justify her refusal to continue to work under such conditions. Accordingly, the initial determination effective December 27 is overruled. The initial determination of voluntary leaving effective June 28 is sustained and all other determinations are overruled.

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (October 27,1950)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: This is an appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, which affirmed a decision of an unemployment insurance referee, overruling an initial determination by the Industrial Commissioner. Claimant had been employed as a laundry worker for about twelve years prior to June 1949. On June 21 of that year she left her employment of her own volition. Work was available for her but it was her custom not to work during the months of July and August. She filed a claim for benefits on June 28, 1949, and in that application she stated that she lost her employment because of "no work". The Industrial Commissioner disqualified her for benefits for forty-two days effective June 28, 1949, because she voluntarily left her employment without good cause and because of the false statement in her application, that her employment was terminated because of "no work". The issue presented in this case is whether the forfeiture of benefit rights imposed by the Industrial Commissioner under Section 594 of the Unemployment Insurance Law is justified because of the false statement made by claimant as to the reason for her separation from employment. The referee and the Appeal Board excused the misrepresentation on the theory that claimant was not sufficiently apprised of the consequences of the false statement which she made. The referee and the Appeal Board sustained the determination of the Commissioner that claimant voluntarily left her employment without good cause and overruled the determination imposing the forfeiture. The referee and the Board erred as a matter of law in holding the claimant was not subject to the forfeiture. Decision appealed from is reversed on the law, without costs, and the initial determination of the Industrial Commissioner reinstated. (June 29,1951)

COMMENT

In Court of Appeals Decision, Matter of Bernstein 303 NY 755, afg. 278 AD 625, (A-750-986), the Court established that Section 594 of the Law does not require "a criminal intent or proof sufficient to support larceny but that the statute authorizes the penalty forfeiture when a claimant certifies to a false fact, knowing that it is false, regardless of claimant’s interpretation of the ultimate effect of his false statement." Therefore, as stated in the "Comments" of that release, the imposition of the forfeit penalty under Section 594 of the Law only requires that the following three elements be present:

1. Claimant makes a false statement.
2. Claimant knows that the statement is false.
3. The false statement is made in relation to his claim for unemployment insurance benefits.

The Court in the instant case held, in effect, that claimant knowingly made a false statement and, in line with the above reasoning, sustained the initial determination. The case here reported was decided by the Appeal Board prior to the Court decision in Matter of Bernstein. It is, nevertheless, released for reemphasis.

 

A-750-1032

Index No. 1320C-7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 2, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL
CONTROVERSY
Lack of Work or Industrial Controversy, Question of

Appeal Board Case Number 24,349-50

CLOSING OF PLANT FOLLOWING USUAL VACATION PERIOD BECAUSE OF UNION-EMPLOYER CONTRACT DISAGREEMENT

Where a group of members of an employers’ association ceased operations immediately following the termination of the usual two-week vacation period because a strike was called at the commencement of the vacation period against one of the employer members as a result of disagreement concerning a new employer-union contract affecting all employer members, held the employees of all such employers lost their employment because of an industrial controversy since the vacation lay-off did not interrupt the employer-employee relationship and the subsequent unemployment was directly due to an industrial controversy.

Referee’s Decision: The initial determination of the local office holding that claimants lost their employment as a result of an industrial controversy in the establishment in which they were employed is overruled. (July 11, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimants were employed in various capacities by employers in the Gloversville area who operated plants in connection with the processing of skins used in the manufacture of gloves and leather goods. In 1945, several of the tannery firms in that locality organized an employers’ association which was incorporated under the Membership Corporation Law. The employers for whom claimants worked were members of this association. For some time prior to June 30, 1949, each of the employers, through the association, was in contractual relations with the local of the furriers’ union of which most of the claimants were members. A collective bargaining agreement between the association representing the employers and the union were executed on June 19,1947. Under the terms of the agreement, it was to continue in effect until June 30, 1949 except as to wages, hours and other financial matters. With respect to the aforementioned matters, the agreement provided that it was to terminate on December 31, 1948, that the parties were to notify each other on or before October 1,1948 concerning the nature of any proposal relating to financial matters desired to become effective on and after January 1, 1949 and that the parties were to strive to come to an agreement thereon before December 31, 1948. The union made new demands on the employers concerning higher wages and working conditions shortly prior to October 1, 1948. The employers resisted these demands. A proposed contract concerning such matters was discussed between the parties at various times commencing October 1948 but no agreement was reached. In the meantime the employees continued to work under the wage terms of the 1947 contract. The situation became very tense with the approach of the expiration date of the contract on June 30, 1949 and the annual vacation period for the workers in the industry which was usually fixed the first two weeks in July. During the latter part of June 1949, notices were posted on the bulletin boards of the various plants, of which the following were typical:

Vacation Notice

Regarding vacation period – this plant will be closed after work on July 1^st and expects to reopen on July 18 as per our usual custom.

The only exception to the above may be caused by unfavorable developments in the negotiations with the union on the new contract.

We hope for the best and we wish you a most enjoyable vacation.

A different form of notice was posted on July 8, 1949, by R.T. Inc.:

This plan will operate for the period July 11 to July 15 inclusive.

The terms of employment are as follows:

1. There is no union contract in force.
2. Wages and hours are as in the past

On June 30, 1949, the union called a strike against the I.L. Corporation. On July 1, 1949, the association, over the names of its members, published an advertisement in the local newspapers which read as follows:

TO ALL OUR EMPLOYEES:

July 16, 1949

We wrote to you on June 30, 1949, as follows:

We take this opportunity to write you because we feel that there are some facts concerning our relationship which you should know. Also we have worked favorably together too long to permit an unreasonable misunderstanding to come between us.

The wage portion of the contract with the Union expired December 31, 1948.

The Legal and working condition portion of the contract expired June 30, 1949.

Formal negotiations started last October 11, 1948. The Union presented the highest demands in its history. We rejected these demands because we were financially unable to meet them on account of the then bad business and a worse looking future.

This June the Union reopened negotiations and presented the same high demands plus a few extras. In addition, the Union endorsed the striking of the M. Mills on the basis of "No raise, No contract, No contract, No Work!" This involves you and us in that unreasonable misunderstanding referred to above.

We are completely fed up with these unbusinesslike, prolonged and delayed settlements. They have cost us and you much in money year after year. You lost 6 to 9 months wage advantage on every delayed contract.

We feel that our policy is the fairest that any business could extend under these trying circumstances. This is the security which we offer you.

1. No wage rate cuts.
2. Continuation of present wages and all financial benefits of present contract until December 31, 1950.

The Industry which employs you is in a perilous position. Present conditions as a whole are worse than any time in 30 years and we know that you know this to be so. Therefore, you and we must start from here to rebuild a sick business.

SHALL WE PERMIT THIS UNREASONABLE MISUNDERSTANDING TO LEAD TO FURTHER LOSS OF WAGES AND BUSINESS?

In spite of our sincere efforts to convince the Union that a strike against one plant is a strike against all, the Union struck several plants. Those and all strikes must be settled through negotiations with the Tanners Association of F.C. Inc., our designated representative for such matters.

We regret that due to the present strike action taken by the Union against several member companies, and because we have no contractual assurance that the same action will not be taken against others of us at any moment, we are unable to continue production on July 18, 1949.

The Company offices will be open to you weekdays from 8:00 a.m. to 12:00 noon, and 1:00 p.m. to 4:00 p.m., in order that you may collect any money owed you, transact insurance and compensation business, and for you to receive any other services which your may require.

Claimants became unemployed after the termination of their annual vacation period because their prospective employers had discontinued production in their plants on and after July 18, 1949. In the normal course of operations claimants would resume work on the day following the termination of their annual vacation or several days later depending on the nature of their services in connection with the various phases of the tannery processes. Claimants filed claims for benefits in July 1949. The local office issued initial determinations effective July 18, 1949, that claimants lost their employment as a result of an industrial controversy in the establishments in which they were employed. Claimants contested the determinations and requested hearings thereon.

Appeal Board Opinion: No appeal was taken from that portion of the referee’s decision holding that the employees who worked for the employer, I.L. Corporation, became unemployed as a result of an industrial controversy in the establishment in which they were employed. This appeal is taken from the latter part of the referee’s decision. The referee reasoned that these claimants, having been laid off on July 1, 1949 with no definite date of return to work, were not in an employment relationship with the employer and were totally unemployed on July 16, 1949 when the industrial controversy came into being; and that therefore their unemployment was not attributable to the labor controversy. He added further that, even if the evidence justified the conclusion that the claimants would have been re-employed within a few weeks after the vacation period but for the industrial controversy, the same result would follow because of the absence of the employment relationship. The Industrial Commissioner contends that the vacation lay-offs did not interrupt the employer-employee relationship of the workers involved and that their subsequent unemployment was directly due to the industrial controversy. We believe that the Commissioner must prevail. There is no substantial disagreement that except for the intervening dispute the claimants would have all returned to work in normal course with their respective employers at the end of the vacation period. On the facts set forth herein we find no basis for the holding that the claimants had no definite date of return to work or that the vacation lay-offs interrupted the employer-employee relationship between them and the employers. Under these circumstances the consequent unemployment of the claimants was directly due to the industrial controversy. (Matter of Sadowski, 257 app. Div. 529, affirming Appeal Board, 229-38). Claimants were properly disqualified pursuant to Section 592.1 of the Unemployment Insurance Law.

Appeal Board Decision: The initial determinations of the local office disqualifying claimants from benefits for 49 days because they lost their employment due to an industrial controversy in the establishment in which they were employed are hereby sustained. The decision of the referee is modified accordingly. (June 1, 1951)

COMMENT

1. This decision should be reviewed with Release A-750-272 pertaining to claimants who were on sick leave on the date stoppage of work occurred because of a strike or who became ill at varying times during the strike suspension period: All these claimants were deemed to have lost their employment on the date the strike began. The Appeal Board has also held that claimant was properly suspended because of an industrial controversy although the strike occurred during a "penalty" lay-off period.
2. It is of interest to note that the Referee in the instant case found that some of the employees were only entitled to a one week vacation and some contended that they were laid off because of lack of work. Regardless of such factors, the local office determination was sustained. The Board in other cases has held that claimants, not entitled to vacation pay, who were laid off due to plant shutdown for vacation schedules and were not given a definite date to return. They were held to have lost their employment because of an intervening strike since they would have been recalled shortly after the plant reopening had not the strike intervened.

 

A-750-1035

Index No. 1740A-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 2, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Trial Period, Adequacy of

Appeal Board Case Number 36,380-51

VOLUNTARY LEAVING; INSUFFICIENT WAGES – INADEQUATE TRIAL PERIOD

A piece worker in the garment industry, who during the slack season obtains employment in her occupation with another employer but left after five hours work because of dissatisfaction with her earnings during such time, voluntarily left employment without good cause since she did not give the job a fair trial, other operators in the employer’s establishment averaged substantially higher earnings, and it appeared that claimant would earn as much after a few days experience.

Referee’s Decision: The initial determination of the local office holding that claimant left her employment voluntarily without good cause is overruled. (January 5, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a sewing machine operator with about 25 years’ experience, refiled for benefits on October 2, 1950. In her prior employment with a skirt contractor, she earned between $1.50 and $2 an hour on a piecework basis. On October 4, 1950, during a slack season, as a result of her own effort, she obtained employment on a piecework basis, pursuant to the union scale of wage, with another skirt contractor. She worked from 11:00 a.m. to 5:00 p.m. on that day and earned about $4.25. Claimant failed to report to work thereafter as she believed that she would not earn as much as she had in her previous employment. The said employer had in its employ, in addition to claimant, 11 other operators who averaged between $40 and $60 per week. The employer stated that within a few days claimant would have earned as much as the other operators. On October 11, claimant refiled for benefits. The local office thereafter issued an initial determination holding that claimant left her employment without good cause. Claimant contested the initial determination, which resulted in the decision of the referee overruling the same. From this decision the Industrial Commissioner appealed to this Board.

Appeal Board Opinion: An examination of the testimony adduced before the referee discloses that claimant’s contention that she might have earned substantially less than she had earned in her previous employment is based on pure surmise. Moreover, she did not give the job a fair trial. It therefore follows that the local office properly disqualified claimant for 42 days for voluntarily leaving employment without good cause.

Appeal Board Decision: The initial determination of the local office holding that claimant left her employment voluntarily without good cause is sustained. The decision of the referee is reversed. (May 18,1951

 

A-750-1038

Index No. 1285-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 2, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations

Appeal Board Case Number 26,009-50

REFUSAL; UNWILLINGNESS TO JOIN UNION

Refusal of employment because it would have required claimant to join a union was held to be without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 15, 1950, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is sustained. (November 27, 1950)

Appealed By: Claimant

Finding of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant filed for benefits on June 5, 1950. She received seven benefit checks until August 16, 1950, when she was disqualified for refusal of employment without good cause by an initial determination. In the prior benefit year, claimant had received 23 benefit checks, having become unemployed in December 1949. Another initial determination was issued that claimant was unavailable for employment from August 18 to August 27, 1950, during which time she was visiting in Liberty, New York. Claimant failed to report to the insurance office as required on August 21 because she was out of town. Prior to 1950, claimant was a housewife. Since that time she has been working in a union dress establishment. For the first two or three years of her employment she was a sewing machine operator and a member of the union. Thereafter, she was promoted to forelady and was not required to continue her membership in the union. In December 1949, claimant was laid off because the employer decided he would be his own foreman. Claimant has been totally unemployed since last December. On August 15, 1950, she was offered employment with a union shop as an operator. She accepted the referral but failed to report to the employer. Claimant did not wish to accept the job because it was a union shop. She claims that her first preference is for a forelady’s job, but that she would accept employment as an operator providing she did not have to join a union. According to the employment office, there are many opportunities for sewing machine operators but very few opportunities for positions as forelady. According to the Commissioner’s representatives, foreladies are usually promoted from operators. Most of the dressmaking establishments in claimant’s area are unionized. The initial determination of refusal and unavailability was issued August 26, 1950. The Commissioner’s representative makes a preliminary objection that claimant is not entitled to a hearing on the merits because the request for a hearing was not timely. Claimant states that she continued to report during this entire period every Monday and that the week after she was disqualified she orally requested a hearing. She claims she was not asked to sign a written request for a hearing until September 18.

Referee’s Opinion and Decision: On the question of the timeliness in requesting a hearing, I am inclined to give claimant the benefit of the doubt. The fact that she reported every week after she was disqualified is an indication of her disagreement with the initial determination and it may very well be that claimant asked for a hearing promptly but was not requested to sign a written request until 23 days after the initial determination was issued. On the merits of the case, however, I am convinced that the insurance office made the correct ruling in this case. Claimant appears to have acted unreasonably in failing to report to the employer in question. She has been totally unemployed for almost a year. It should be evident to her that it is extremely difficult to obtain a forelady's job. Claimant seems to have recognized this difficulty by her willingness to accept a sewing machine operator's job, in which occupation she has considerable experience. Her reason for limiting herself however to non-union establishments seems strange. Since most factories in claimant’s area are unionized, this restriction interfered substantially with her possibilities of securing work. She was formerly a member of the union. In a union shop her earnings would normally be higher than in a non-union one. It is therefore concluded that claimant lacked good cause for her refusal. In view of this decision it becomes unnecessary to decide the availability issue. The initial determination of refusal is sustained. (November 27, 1950)

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (May 4, 1951)

 

A-750-1039

Index No. 740.2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

August 16, 1951

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Pension – Retirement

Appeal Board Case No. 26,540-51

AVAILABILITY, QUESTION OF; VOLUNTARY ELECTION TO RETIRE

Claimant who retired from employment, obtaining a pension, must establish his bona fide return to the labor market by convincing proof in order to be eligible for benefits. A contention of a return to the labor market and application to former employer without other independent efforts to secure employment was insufficient.

(See Comment after Decision)

Referee's Decision: The initial determination of the local office holding claimant ineligible for benefits, effective October 23, 1950, upon the ground that claimant was unavailable for employment is overruled. (January 29, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a presser 79 years of age, was employed for over I7 years by a single firm. On October 23, 1950 he voluntarily left his employment in order to retire. He received a retirement pension from his union.

Under the rules of the pension fund claimant may not work in his industry without forfeiting his pension. Six days after he retired claimant asked to be reinstated in his job. His request was refused. Claimant's union did not intercede for him. During the period of his filing and reporting, claimant made no effort to find employment except an alleged application to his former employer. On October 17, 1950, claimant refiled for benefits. After an interview, the local office issued an initial determination ruling him ineligible because of unavailability. Claimant requested a hearing. The referee overruled the initial determination and the Industrial Commissioner appealed to this Board.

Appeal Board Opinion: Claimant voluntarily left his employment in order to retire and obtain a pension. Concededly, he withdrew from the labor market. In order to certify to a bona fide return to the labor market after withdrawing from it claimant must establish it by convincing proof. Claimant made no independent effort to secure employment except his alleged application to his former employer. The proof offered by claimant is insufficient to establish claimant’s bona fide return to the labor market.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible for benefits, effective October 23, 1950 because of unavailability for employment is modified to withdrawal from the labor market. The decision of the referee is reversed. (June 22, 1951)

COMMENT

1. This decision is released to emphasize again the importance of thorough interrogation of claimants who have previously voluntarily or involuntarily retired from employment to determine whether they are genuinely in the labor market. Other decision relative to this issue are reported under Index 740; in particular, release A-750-926 (Index 740-1) with the "Comments" should be reviewed at this time.
2. Such claimant must establish their bona fide return to the labor market by "convincing proof" in order to be eligible for benefits. A statement by a claimant to this effect is hardly, if ever, acceptable unless he supports it by demonstrating an independent search for employment in fields where there are reasonable opportunities for securing the type of employment sought.

 

A-750-1040

Index No. 1250C-6

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 16, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Personal Inconvenience

Appeal Board Case Number 26,784-51

REFUSAL; EMPLOYMENT ON SPLIT SHIFT BASIS REQUIRING "SLEEPING IN" OR BE SUBJECTED TO UNREASONABLE AMOUNT OF TRAVELLING

Refusal of employment on a daily split shift basis which would require claimant either to sleep in and relinquish her home life; or to make six trips daily, each trip requiring one hour to and from work; or to remain at the place of employment all day from 8:00 a.m. to 9:00 p.m., was with good cause since acceptance would have caused undue hardship for claimant who previously had always worked on a one shift basis and lived at home, and since employment opportunities under such conditions currently existed.

Referee’s Decision: The initial determination of the local office which disqualified claimant from receiving any benefits on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is sustained. (February 26, 1951)

Appealed By: Claimant

Findings of Fact: Claimant was employed as a waitress in a hotel bar and restaurant in Saratoga Springs, New York, from November 1948 to September 23, 1950, receiving $24 per week, plus tips, when the business place was closed. She filed an original claim for benefits and registered for employment on September 28, 1950. She was referred to employment as a waitress on October 3, 1950 in a hotel dining room on the State Reservation Park, a wooded area, situated several miles from the village limits. The employment was on a split shift basis, from 8:00 a.m. to 10:00 a.m., 12 noon to 2:00 p.m., 6:00 p.m. to 8:00 p.m., six days per week, and paid $15 per week, plus tips and room and board. Claimant refused the referral because she had never worked the split shift and because she did not want to leave her home to live at the hotel. The local office issued an initial determination disqualifying her from benefits for refusal of employment, without good cause, effective October 3, 1950. Claimant protested and requested a hearing. Claimant has lived for forty-four years in a house several miles from Saratoga Springs in the opposite direction from the location of the offered employment. She lives with her brother and sister and owns her home jointly with the brother. Travel time from claimant’s home to the hotel is approximately one hour and would necessitate riding a bus to the center of the village and then transferring to another bus going to the hotel. Claimant has worked steadily as a waitress in Saratoga Springs and vicinity for more than 25 years, during all of which time she has had employment at only five or six different jobs. With only one exception which was early in her work history, claimant always worked one shift of seven to eight hours in night clubs, restaurants and in ordinary eating places. Her last employment was from 5:00 p.m. to 1:00 a.m. She obtained work on October 14, 1950, in a restaurant outside of the village and was given one and two nights work per week. Commencing November 11, 1950, she was employed at a nightclub for three nights a week, which later was reduced to one night a week. In February 1951, and again on April 20, 1951, she obtained full-time employment as a waitress in restaurants in Saratoga Springs. It is the customary practice in waitress service at the establishment to which claimant was referred to give complete service to guests who come in a few minutes before closing. Therefore, the employment would frequently require claimant to work as late as 9:00 p.m.

Appeal Board Opinion: The referee sustained the initial determination on the premise that the wages and working conditions of the employment were not substantially less favorable to the claimant than those prevailing for similar work in the area and that it was suitable employment. We do not agree with this conclusion. Claimant has been a permanent resident of the Saratoga Springs area and for 25 years has enjoyed steady employment, winter and summer, on a one shift basis of seven or eight hours. She had always lived with relatives in her own home. Within two months after her last employment she secured steady employment of three nights a week working one shift each night and she has worked more or less regularly since. We are of the opinion that the employment offered claimant on October 3, 1950, would have caused her undue hardship in that it required either that she live at the hotel and relinquish her home life, or that she be subjected to an unreasonable amount of travel and expense. The only way claimant could avoid the six trips daily to and from work would be for her to remain at the hotel all day which would require that she leave her home at 7:00 a.m. for this employment and not return therefrom until about 10:00 p.m. Claimant was justified in her objections to the conditions of the job. Accordingly we hold that claimant, with good cause, refused the offer of employment on October 3,1950.

Appeal Board Decision: The initial determination of the local office that claimant, without good cause, refused employment for which she is reasonably fitted by training and experience is overruled. The decision of the referee is reversed. (May 18, 1951)

 

A-750-1041

Index No. 770.2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATIONSERVICE OFFICE

September 12, 1951

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Seasonal Employment

Appeal Board Case Nos. 27,213-51 and 27,440-51

AVAILABILITY OF PERMANENT RESIDENTS OF RESORT AREA WITH SEASONAL WORK HISTORY

Claimants who reside in rural areas and who are genuinely attached to the labor markets as exist in those areas are not unavailable for employment solely because during certain seasons of the year opportunities of security employment do not exist. (A.B. No. 27,213-51) However, where it is shown by the credible evidence that a claimant has no real desire to obtain employment during off-seasons, the unemployment not being entirely attributable to conditions in the area, generally evidenced by a consistent pattern of work only during certain seasons and a failure to seek employment independently in establishments where a likelihood of securing employment exists, ineligibility because of unavailability is proper. (A.B. No. 27,440-51)

(See Comment after Decision)

A.B. No. 27,213-51

Referee’s Decision: The initial determination of the local office disqualifying claimant, a laborer, from benefits because of unavailability for employment is overruled. (April 5, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: We have reviewed the evidence as adduced at the hearing before the referee and we find that such evidence supports the following findings of fact made by the referee

* * *

Claimant refiled a claim for benefits effective January 1, 1951. By an initial determination he was declared ineligible effective January 1 because of unavailability.

Claimant is a lifelong resident of Keene Valley. He is 64 years of age. Except for a short time during which claimant worked at Hartford, Connecticut, and in the State of Vermont, all of his employment has been in the Keene Valley area.

Keene Valley is a rural isolated community located about 18 miles from Lake Placid and about 20 miles from Saranac Lake. It has a population of approximately five hundred. There is no industry at Keene Valley, but the majority of the male resident of the area who are attached to the labor market in the community, work for the contracting firms in the area. There are two contractors which operate in the area. During the period from about April to November annually, each of the contracting firms employs approximately 35 persons in the capacity of skilled mechanics and helpers and laborers. Due to weather conditions, no outdoor work can be performed in the area between November and April, with the result that except for those workers who perform work in the interior of buildings which have been closed, all other employees of the contracting firms are regularly laid off during the winter months.

The nature of claimant’s work is such that he performs his duties outdoors. Consequently, he is regularly laid off in the latter part of November and usually is rehired during the month of April. Some years ago considerable lumbering operations had been carried on in the area, but in recent years little of that work has occurred.

There are no transportation facilities which would enable a resident of Keene Valley to commute to any other area in time to conform with the normal work shifts. In previous winters, claimant occasionally had some work in connection with various construction projects in the area, and at times he worked in the woods in connection with the lumbering projects. He had also worked on a farm on an all year round basis some years ago.

There are no personal circumstances which would prevent the claimant from working throughout the year and he has been ready and willing to accept any work for which he is fitted throughout the period here in issue. He had made some inquiry about procuring work as a laborer in connection with a highway project and he had inquired about work with the two contractors in the area and he had also inquired for work with two individuals who are engaged in log cutting and lumbering operations on a small scale, but because of the generally slack conditions and inactivity, there has been no job opportunity. When claimant is employed he is paid at the rate of 80 cents an hour. He is self-supporting and has no income other than his wages. At no time was the claimant offered employment by the employment office.

The Board makes the following additional findings of fact:

Claimant’s employer provided him with work in 1950 from April to December 15. During the six years since claimant started working for this employer, claimant has obtained work with other employers during the winter season. In this period, he was employed on one occasion with another contractor from September to the following February and on another occasion as a helper on a truck with an employer who has since gone out of business. In the winter of 1947 or 1948 he worked in the woods. Claimant'’ employer employs one general laborer throughout the winter. During the Winter months of 1951 there was some outdoor construction work and some lumbering work in progress in the immediate vicinity of claimant'’ home which utilized the services of laborers such as claimant.

Appeal Board Opinion: Inasmuch as the referee has already issued a well-reasoned opinion in this matter, we adopt the referee’s decision as the opinion of this Board.

This is one of a series of cases involving the availability of residents of rural areas who normally undergo recurrent periods of unemployment caused primarily by the fact that the area in which they reside offers no reasonable opportunity for employment on a steady, all year round basis. The notice of initial determination issued to the claimant herein advised him that the determination is based on the fact that:

You show no attachment to the labor market during the off season. You have no transportation to where there is a possibility of your obtaining employment.

In previous years, when the circumstances were substantially similar to those now existing, benefits were paid to the claimant as well as to other residents of claimant’s community during the so-called "off season." However, in pursuance of a new policy recently effectuated by the Claims Bureau (File Number A-710-16 February 8, 1951) claimants were deemed unavailable primarily because the community offers limited, if any, employment opportunities during the certain periods of the year. The present policy of the Division, it is contended, finds support in the recent decision of the appeal Board in Case 24,518-50. That case, however, turned solely on a factual question and stands for the proposition only that since it was there clearly established that such claimant was prepared to accept work only seasonally, she was not available at other times. In comparing Appeal Board, 24,518-50 with the instant case, it is well to bear in mind what the Appeal Board said in 11,600-45, as follows:

It might be well to point out that every opinion is to be read with regard to the facts and the question actually decided.

What was expressed by former Chief Judge Crane in Dougherty v. Equity Life Assurance Society, 266 N.Y. 71, is pertinent:

* * * the language of any opinion must be confined to the facts before the court. No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law, separate from its association.

If the contentions advanced by the Commissioner’s representatives were to have validity, the Law would in effect be re written so as to exclude from the benefits provided thereby all of those residents of the various communities in the State in which industry suffers a seasonal slackening. The Law, as it now reads, contains no language which would authorize the denial of benefits to those people who reside in a rural area and who are genuinely attached to such labor market as exists in those areas, merely because circumstances over which those persons have no control takes from them the opportunity of employment during certain seasons of the year. The unemployment suffered by such persons, even though it may recur in particular seasons of the year, brings about that economic insecurity which the Legislature found to be a serious menace to the health, welfare and morals of the people of this State and which, in accord with the public policy of the State, motivated the enactment of the Unemployment Insurance Law. (Section 501). The unemployment of the claimant is entirely involuntary and stems from the unavailability of work for him rather than his unavailability for work.

I find no warrant in the Law authorizing an interpretation of the statute in such manner as to bring about the exclusion of seasonal workers from the provisions thereof. In this connection, it is significant when the Unemployment Insurance Law was originally enacted, the Legislature gave consideration to the fact that in certain industries, occupations and in certain localities of the State there would be recurrent seasonal layoffs and it was calculated in the original enactment of the Law, that as a result of hearings to be conducted by the Industrial Commissioner and findings made by him, seasonal workers would receive benefits only during periods of unemployment which occurred during the course of the normal season of employment. (Section 596 formerly Section 508). However, subsequently, the Legislature repealed the section of the Law dealing with seasonal employees. (Chapter 663, Laws of 1946.) Surely, it cannot be argued that by the repeal of the statute the Legislature intended to delegate to the Industrial Commission the authority to interpret the Law in a manner which would legislature (sic) seasonal workers out of benefits. A further indication of the legislative policy in the premises is to be found in the enactment by the Legislature in 1944 of a section of the law declaring that:

One of the purposes of the (sic) article is to promote the regularization of employment in enterprises, industries, localities and the state. The Commissioner shall take such steps as are within his means for the reduction and prevention of unemployment. To this end the Commissioner may employ experts and may carry on and publish the results of any investigations and research which he deems relevant, whether or not directly related to the other purposes and specific provisions of this article. (Section 531.)

The enactment of such legislation should reasonably indicate that the Legislature was cognizant of the recurrent periods of unemployment in various localities of the State brought about by weather conditions and other facts and that realizing that the plight of the workers in such areas is no different from that of workers in industrial areas of the State, did not except the workers of the rural areas from the benefit provisions of the statute.

The rule to be applied on the facts herein has been enunciated by the Appeal Board in 9,155-43 as follows:

In cases where it appears that a seasonal worker has had no employment during the off season over a long series of years, it may be an indication that the person has no desire to work after the season. However, the fact that the person has had no work is not sufficient of itself to support a determination of unavailability. Each individual case must be carefully scrutinized with a view to determining whether all the circumstances as well as the claimant’s entire course of conduct warrant the conclusion that there was no desire to work. (Underscoring supplied)

Here, it affirmatively appears that the claimant’s unemployment during the winter months has not resulted from any desire by the claimant to avoid work during those seasons of the year when he is without employment due to the seasonal conditions in the area in which he resides. His status is no different from the homeworker who could obtain no homework due to the lack of a homeworker’s permit, (Matter of Maude Smith, 267 App. Div. 468, affirming Appeal Board 8,745-43; Appeal Board 7,153-43); or the person who during the recent war lacked a statement of availability, (Appeal Board 10,479-44) or the cannery worker during off seasons, (Appeal Board 9,155-43).

Likewise the conditions which currently prevail in claimant’s community create a condition which is substantially similar to that of the crochet beader, who because of the nature of her work, underwent prolonged period of unemployment periodically. In ruling that such claimant was not unavailable for work, the Appeal Board very recently said:

Prolonged layoffs were customary in claimant’s occupation. Her entire history of employment reveals a pattern of seasonal unemployment.

. . . prolonged period of unemployment was occasioned by the seasonal layoff in her customary occupation, through no fault of her own. (Appeal Board 24,028-50.)

Claimant’s inability to commute to any area offering better employment opportunities during the winter months does not necessarily ender him unavailable for work. His normal labor market is in the area in which he resides. His wage credits upon which his benefit rights are based resulted from services performed by claimant in that community. He has indicated a willingness to work in that community in every period of the year. Since the credible evidence indicates that he is in fact so prepared to accept suitable work and there is no evidence to indicate that he voluntarily imposed unreasonable restrictions on his employability so as to create barriers to employment in that area, I conclude that claimant has established his availability for work. (See Case 12-107-50R.)

No adverse inference may be drawn against the claimant from the manner in which he conducted himself in attempting to procure "off season" work. His actions must be judged in the light of the conditions prevailing in the community in which he resides and in accordance with the custom and habits of the workers of such community. The Law does not demand that an applicant for benefits indulge in futile gestures to indicate and alleged search for work where it affirmatively appears that the conditions of the labor market are well known to the residents of the community. The rule enunciated in Appeal Board 24,512-50, is applicable:

It cannot be said that solely because of the nature of the efforts he exerted in search of such work he failed to satisfy the availability requirements of the statute. Claimant sought work in the most effective manner available to him and in the usual and customary method of securing employment prevailing in his branch of the industry.

The Legislature approached the problem presented herein at the 1951 session by enacting a provision in the Law which requires a claimant to have had 20 weeks of employment in a 52-week base year period, and average earnings of at least $15 per week, in order to qualify for benefits (Labor Law, Section 527). Employers who furnish steady employment to their employees, under the provisions of the enactment, are rewarded by a lower tax rate (Section581). No other change was made in the eligibility provisions of the Law. There is nothing either in the new or old provisions of the Unemployment Insurance Law to indicate a legislative intent to single out seasonal workers as a class in order to otherwise limit their eligibility for benefits.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from benefits for unavailability for employment is hereby overruled. The decision of the referee is affirmed. (August 3, 1951)

A.B. No. 27,440-51

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective November 6, 1950, on the ground that she was unavailable for employment is sustained. (April 25, 1951)

Appealed By: Claimant

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant a soda clerk, filed for benefits on November 6, 1950. By an initial determination she was declared ineligible because of unavailability effective November 6, 1950. For many years claimant has resided in Ticonderoga. Ticonderoga has a population of approximately 3400. The paper mill engaged in business in that area operates on a year round basis, ordinarily employing about 700 persons, but due to a recent reduction in staff, about 140 persons were laid off. All other industries at Ticonderoga are of a seasonal nature, serving directly or indirectly the resort industries. The historical museum at Fort Ticonderoga employs about 60 persons during the summer months and retains a staff of about three maintenance employees on a year round basis. A bank operates on a year round basis, and there are eight restaurants and eating places, two drug store, and about 20 retail establishments, all of which operate throughout the year. However, due to slackening of conditions at the close of the summer period, all the aforesaid establishments operate on a reduced scale during the balance of the year, and employ a substantially lesser number of persons during all months of the year except those between about May and October. In addition to the foregoing, a textile mill, which had previously abandoned its plant at Ticonderoga, re-established the plant in the latter part of 1950, and articles which appeared in the newspaper indicated that the operators of the plant expected to hire many women for work in the plant. For two years during the war period claimant worked as a paper handler in the paper mills. However, that employment terminated at the conclusion of the war. Except for such work at the paper mill, claimant has worked for 14 seasons at the historical museum. Her employment there extends annually during the period when the museum is open to the public, from about May until November. She receives a weekly salary of $30. In the winter of 1938 and 1939 claimant, together with her husband, worked at a school in Albany at which they lived during the period of their employment. Aside from the foregoing, claimant has had no other employment. At no time has claimant had any off-season employment at Ticonderoga. Although she professes a willingness to accept work away from Ticonderoga on a live-in basis, claimant at no time made any effort whatever to inquire about such work opportunities, and at the hearing she modified her statement with respect to her willingness to work away from home, by indicating that she would accept live-in work only if it were within a radius of 20 miles from her home. Claimant made no effort at any time since the war to obtain work at the paper mill, for the reason that she believed that she is too old to be hired there. She made no effort to obtain work at the textile mill when it reopened in the latter part of 1950, because she claims that her eyesight is not good enough for work in that establishment. Claimant maintains that annually, during the off season, she sought work by speaking with the proprietors of the various retail establishments employing sales clerks. At no time has claimant sought any work in the various eating establishments in Ticonderoga, despite her alleged willingness to accept work as a waitress or kitchen helper. Likewise, claimant failed to inquire about work opportunities at the one establishment in Ticonderoga which has the most active soda bar in that community during the off season. Claimant maintains that she prefers to work on an all year round basis rather than on a seasonal basis. She indicated that she realized that if she applied prior to the commencement of the summer season for work at the various establishments which operate on a year round basis at Ticonderoga, her chances of getting such work would be better. Yet even though claimant alleges willingness to relinquish her seasonal employment for all year round work, she could offer no reason for her failure to, at any time, make application for work during the spring months at the establishments which operate on a year round basis.

Referee’s Opinion and Decision: While claimant’s more or less consistent pattern of work during only a seasonal period does not conclusively indicate her unavailability for work during other periods of the year, nevertheless it is a factor which must be given consideration, together with all the other facts and circumstances which shed light on claimant’s genuine readiness and willingness to work during the period for which she had made claim for benefits. That which tends to shed most light on claimant’s status is her conduct with respect to the attempt to procure off-season work. An analysis of the credible evidence herein points inescapably to the conclusion that claimant had no real desire to obtain any employment during the off seasons and that her unemployment during off seasons is not attributable entirely to the conditions existing in the area in which she resides, but stems to a degree at least from the fact that claimant refers to work on only the seasonal basis. This conclusion is evident from the fact that claimant failed to make application for work in those particular establishments where the likelihood is that opportunities for work would better than in those establishments to which she allegedly applied for work. Since claimant’s most recent work was at a soda fountain, it surely should have occurred to her that the place to which she should apply for work is that soda bar which is most active during the winter months. Her failure to apply for work permits of no inference other than that the claimant made merely token efforts in an attempt to fortify her claim for benefits, rather than to procure work. Similarly, if claimant’s assertion that she preferred work on an all year round basis were credible, then there would be no reason by claimant should have avoided seeking all year round work during the spring months or during the times when, because of activities in the various establishments which operate on an all year round basis, claimant’s opportunities for procuring work in such establishments would be better. I therefore hold that claimant has failed to establish her availability for work as contemplated by the provisions of the Law. The initial determination is sustained. (April 25, 1951)

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (August 10, 1951)

COMMENT

1. The decisions and comments here reported will tend to clarify Special Bulletin A-710-16 entitled "Benefit Claims in Resort Areas." In Part II of that release, "Availability of Permanent Residents of Resort Areas with Seasonal Work Histories", it was stated in effect that unless such claimants demonstrate a sincere effort in searching for work in an accessible labor market, unavailability should result. In addition, it was stated that a work pattern showing no employment during the off-season is strong evidence that a claimant is not seeking work during such periods.

 

2. The Appeal Board in decision 27,213-50, here reported, has rejected the theory that seasonal workers are unavailable because there are no job opportunities of any kind during the off-seasons even though such conditions have existed for many years and will continue to exist, and even if the claimant’s have been unemployed and are drawing benefits year after year. Determinations must, therefore, be made in view of the circumstances of each individual case. Efforts will be required to establish whether there are any facts demonstrating that the individual claimant confines his willingness to work to the seasonal period, whether the claimant makes job efforts during off-seasons which are reasonable under the circumstances, taking into account the accessibility of labor markets in nearby communities, the existence of transportation facilities, etc.

In Appeal Board No. 27,440-51, here reported, it was concluded that claimant with a consistent pattern of only seasonal employment was unavailable primarily because she failed to seek work in the particular establishments in her community where the likelihood of finding employment existed and was greatest. This does not necessarily mean, however, that unavailability will result in all cases under similar circumstances. For instance, there may be cases where a seasonal worker’s failure to make independent efforts to seek work is due to the fact that an individual lives in a small compact community where no suitable job opportunities exist and when claimant, because of familiarities with conditions, knows that there are no such opportunities. (See release A-750-1044 for general discussion on Search for Work Where No Opportunities Exist Because of Slack Business Conditions in a Small Compact Community.)

3. The two decisions here reported point to a definite conclusion that unavailability determinations involving seasonal workers are proper only where the credible evidence shows that such claimants have no desire to work during off-seasons. Unwillingness to work during such periods is generally evidenced by a consistent pattern of only seasonal employment, and by the claimant’s conduct such as failure to seek work in establishments accessible to the claimant where a reasonable likelihood exists for securing employment. Non-existence of work opportunities or claimant’s inability to commute to a nearby labor market are not factors which necessarily support an unavailability determination.

 

A-750-1044

Index No. 765.4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

September 14, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Willingness and Efforts to Find Work

Referee’s Case No. 10-65-51R

FAILURE TO SEARCH FOR WORK WHEN NO OPPORTUNITIES EXIST BECAUSE OF SLACK BUSINESS CONDITIONS IN SMALL COMPACT COMMUNITY

Failure to make an independent search for work does not establish unavailability when the claimant lives in a small compact community where no suitable job opportunities exist and when claimant, because of familiarity with conditions, knows that there are no such opportunities due to slack business conditions. (See "Comment" for general discussion on SEARCH FOR WORK REQUIREMENT.)

(See Comment after Decision)

Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant, a floor girl in the dress industry, filed a claim for benefits effective February 26, 1951. By an initial determination she was declared ineligible because of unavailability effective April 30, 1951. Until about three years ago, claimant resided in the City of New York. She worked in a clerical capacity for various firms in that city. Claimant is a typist, but she has no other clerical skills. When she moved her residence from New York City to Cairo about three years ago, claimant entered the labor market at Cairo and accepted employment as a floor girl in the dress factory in that village. She commenced to work in that establishment at a salary of $22 weekly and ultimately received increases so that her terminal wage rate was 75 centers an hour. Claimant continued to the employ of the dress firm in Cairo until the latter part of February 1951, when she was temporarily laid off due to slack conditions. She was advised by her employer that she would be recalled when work would again become available. Throughout the period between the latter part of February and about July 23, the plant at which claimant had been employed was operated on a reduced scale. When the plan was operated at normal production, the employer was able to employ floor girls, but during the period when the plant was operated on a reduced scale, there was no need for service of a floor girl, except during rare intermittent periods. In the period during which claimant claimed benefits, other persons residing in Cairo, who are regularly employed in the dress factory, underwent periods of unemployment and were unable to procure other work. Cairo is a small community in Greene County offering limited employment opportunities. Until July 23, there were no establishments other than that at which the claimant had been employed which utilized the services of floor girls. There are no other factories at Cairo. Altogether, approximately six persons are employed in the Village of Cairo in a clerical capacity. In most instances, clerical employees employed at Cairo are required to have clerical skills in addition to ability as a typist. The usual wage paid to clerical employees at Cairo are $25 for a 37½ hour work week. There are no public transportation facilities which would enable a resident of Cairo to commute to any other community for employment. Claimant has no private means of transportation. She has no knowledge of any resident of Cairo with whom she might ride to any community away from Cairo. In view of the period of her resident in Cairo, claimant has become familiar with the various enterprises engaged in business in that community and she was aware of the fact that there were virtually no job opportunities during the period here in issue. She believed that it would be futile for her to make any active search for work in the Village of Cairo because she knew that the few establishments which employed clerical employees were sufficiently staffed and that there were no other factories which could utilize her skills. She advised the employment office that she was prepared to accept clerical work or work as a floor girl. She indicated that she expected a minimum wage of 75 cents an hour. However, the statement with respect to her wage demands was made by the claimant with regard to her return to work as a floor girl. She was actually prepared to accept work in a clerical capacity at Greenville at a salary of $25 weekly. Due to the fact that the operator of the dress factory continued to operate on a reduced scale. Claimant received no call to return to work. She was interviewed at the insurance office, and when she indicated that she was not actively engaged in a job search, she was advised that that would be construed as an indication of her unavailability for employment. When claimant received such advice, she went to the various establishments engaged in business at Cairo and inquired about the prospect of procuring work in either a clerical or sales capacity, but she was advised that there were no job opportunities. Finally, on June 6, 1951, the operator of the dress factory recalled claimant to work. She reported immediately and continued to work in the establishment until June 18 when she was again laid off due to slack conditions. Upon the refiling of her claim on June 18, her claim was reinstated. Thereafter, and on July 17, claimant commenced to work in a clerical capacity at the office of a real estate broker at Cairo. The operator of the agency knew claimant over a period of time and her offered to train claimant to perform the clerical duties necessary to be performed in his office. Claimant accepted the employment at a weekly wage of $25 and until the day of the hearing she has been so employed. Another dress factory was established in Cairo and commenced to operate on July 23. About two weeks prior to the opening of that establishment, claimant learned of the fact that it would be established and she immediately filed an application for employment in that establishment.

Referee’s Opinion and Decision: It is undisputed that ever since claimant has been a resident of Cairo she has had firm attachment to the labor market in that community and that despite her lack of transportation facilities to enable her to commute to any village away from Cairo, she, nevertheless, had been able to remain in the labor market. Her unemployment during the period here in issue was entirely involuntary and came about due to circumstances over which she had no control, due principally, to the slack business conditions which caused a lay off. Claimant’s availability for employment must be determined in the light of those circumstances as well as in the light of all of the conditions prevailing in the community in which claimant resides. In support of the initial determination the Commissioner’s representative stressed the fact that claimant did not make a diligent search for work and that she indicated a demand for a minimum wage of 75 cents an hour, which was deemed to be in excess of the wages which she would expect to receive in Cairo. I am unable to attach the significance to those statements that the Commissioner’s representatives contends should be attached thereto. It would indeed be a harsh rule which would deny to a claimant benefits solely because a statement made by the claimant taken apart from actual physical conditions tend to create the impression that claimant is creating barriers to possible employment. In the instant case, the record indicates conclusively that the area in which claimant resided and to which she was restricted to employment, normally offered some employment opportunities, but because of the temporary cessation of activities in the dress factory, claimant was deprived of al reasonable opportunities for employment for the period for which she claimed benefits. Her demand for a wage of 75 cents an hour was certainly not unreasonable in view of the fact that those were the wages which she received and the minimum wage which would be paid to her if she were engaged in any interstate work. Likewise, I am satisfied that despite any ambiguity which may have been created by the language contained in the written statements signed by the claimant, she was, in fact, prepared to accept work at $25 per week in a clerical capacity at Cairo. The signed statements of the claimant in no ways tended to lessen her prospects for employment. Clearly, irrespective of any wage demands of the claimant, her prospects for obtaining clerical work at Cairo were remote. That condition was caused not by any act on the part of the claimant or any restrictions imposed by her, but solely because of the nature of conditions which existed at Cairo. Since there were only six jobs in a clerical capacity altogether at Cairo and there were no job vacancies, it was unlikely that the claimant could have obtained such work, irrespective of any statements by her with respect to her salary demands. That claimant as actually prepared to accept work at all times is evidence by the fact that she accepted employment as soon as she was recalled by her former employer, and that when the first opportunity for employment in a clerical capacity arose, claimant accepted it despite the fact that the wages offered were only $25 weekly. Claimant’s failure to make a job search, at least until the time that the insurance office indicated that her failure to make such search, might evince her unavailability for work, is of no consequence, under the conditions which existed (Appeal Board, 16,530-47). The independent efforts made by a claimant to seek employment are factors which shed light on claimant’s availability for work only in instances where it is reasonable to expect that a job search might prove fruitful. However, when the claimant lives in a compact community, such as the one here in issue, and by force of circumstances is familiar with the fact that a job search would be of no avail because there are no suitable job opportunities in the area, the Law does not expect that she will do a futile act and engage in a search for work merely as a gesture to satisfy an alleged requirement of the Law. (Appeal Board, 21,383-49; Nelson v. Review Board of Indiana Security Division, et al. 82 NE (2d) 523.) I am satisfied that claimant’s unemployment was not protracted one iota because of her failure to make any personal canvass for work prior to the time that she was advised to do so by the Commissioner’s representatives. Based upon my observation of the claimant and my analysis of the evidence that has here been presented, I am satisfied that claimant has met the availability requirements of the Law throughout the period for which she claimed benefits. The initial determination is overruled. (August 14, 1951)

COMMENT

This case is here reported for a discussion of the statement in the decision setting forth that

"* * when the claimant lives in a compact community * * * and by force of circumstances is familiar with the fact that a job search would be of no avail because there are no suitable job opportunities in the area, the Law does not expect that she will do a futile act and engage in a search for work merely as a gesture * * *"

This statement presupposes that there are no suitable job opportunities and that the claimant definitely knows that opportunities do not exist.

Such facts may be ascertainable and such knowledge may exist in a small "compact community". It will rarely, if ever, apply to a large community or to a community with a variety of industries. The existence of job opportunities in such other communities is, at best, a matter of speculation.

Ascertaining availability in the form of willingness to work is a very difficult task. It means a probing into claimant’s state of mind. There is often doubt regarding claimant’s true intentions which makes it improper to rely solely on his self-serving declarations. This includes, but is not confined to, cases of female claimants before and after childbirth; older workers, especially those voluntarily or compulsorily retired from a former job; claimants who had withdrawn from the labor market; claimants who had quit a job, particularly when the quit was without good cause.

It seems proper to require such claimants as a rule to make an independent search for work. That is the course of action which a reasonably prudent person desirous of employment would take. It is almost axiomatic that in many instances, and particularly when the claimant has a handicap, be it because of age or for any other reason, the independent search and the resulting personal contacts represent the most promising manner for finding employment. When a claimant fails to pursue such course of action, such failure creates serious doubts regarding his true intention and often justifies the conclusion that he does not comply with the requirement of availability.

There are not many objective criteria to test an entirely subjective element, such as claimant’s state of mind. Full resort to all available ascertainable and tangible criteria is needed in order that proper determinations be made. It would not be satisfactory if the way of lease resistance were taken and if claimant’s statements were accepted as the ultimate truth because of the difficulties inherent in the fact finding process otherwise. It would also not be satisfactory to forego the application of the objective tests, such as search for work, because the opportunities and the chances of finding employment in this manner are limited. Even though it is obvious, for instance, that not all older and retired workers in a given community will find employment by independent efforts, it is by no means certain that a given individual claimant may not be successful. Besides the question of actual success and its probabilities in an individual case, the search for work requirement is in many instances the only test which will tend to support or engage claimant’s allegation regarding his desire to work.

 

A-750-1045

Index No 865A-7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 24, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REGISTRATION AND REPORTING
Misinformation
Not Attributable to Division

Appeal Board Case Number 26,751-51

FAILURE TO REPORT – INCORRECT INFORMATION RECEIVED BY CLAIMANT NOT ATTRIBUTABLE TO DIVISION

Where claimant was informed not to continue to report when apparently he had exhausted benefits and, thereafter, he received a back-pay award invalidating his eligibility for the period covered by the award, thereby shifting his true period of eligibility, his failure to continue to report was not excused; a reasonable standard of conduct required him to inform the office of the pending award, especially since he knew of the award at that time and also knew that it provided for the return of unemployment insurance benefits.

Findings of Fact: Hearings were held at which claimant, his attorneys, a witness for claimant’s former employer and a representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, a machinist, filed for benefits on June 28, 1949. He received 11 payments of $26 each through September 22; he refiled on November 28, and received 14 payments through March 5, 1950; he refiled on April 17, and received one payment through April 23. An initial determination was issued declaring claimant ineligible by reason of lack of total unemployment resulting from a back pay award for the period June 28, 1949, to September 22, 1949, inclusive, and declaring him overpaid $312 in benefits in consequence. A further initial determination was issued declaring claimant ineligible from April 24, 1950, to May 21, 1950, inclusive, for failure to comply with reporting requirements. Claimant was discharged by the machine company for which he was working on June 24, 1949, for refusing to operate a certain buffing machine. He was a member of a union which was in contractual relations with the employer. Upon his dismissal, he protested his discharge, claiming it was unjustified, and invoked the grievance procedure established under the union contract for the amicable disposition of such issues. The union’s attorneys represented the claimant in the arbitration proceeding. A hearing was held before the arbitrators late in August or early in September 1949 and an award was rendered under date of October 18, 1949 finding both the employer and the claimant to be somewhat at fault, and ordering claimant to be reinstated with back pay equal to one-half of the amount he would have received from the time of his discharge to the subsequent date of offer of reinstatement, loss one-half of his actual earnings during the period from any employment he might have had. The employer moved to set aside the award and it was set aside on the ground that it did not comply with the terms of the submission. The arbitration proceeding then commenced anew, and a hearing was again held on February 16, 1950. An award was rendered under date of February 28, 1950, in favor of the claimant. It stated, in substance, that claimant had been discharged without just cause; that he was entitled to be compensated for all time lost by reason for such unjustifiable discharge; that the wages lost by him and resulting from the discharge amounted to $708.16, which was awarded to him; and that

"4) the $260.00 received by Mickenberg as unemployment insurance both in law and equity should be returned to the Unemployment Insurance Department of the state of New York by Mickenberg, upon receipt by him of the money awarded to him herein. However, no order is made by the Board to this effect because this is beyond its jurisdiction."

Said award was not transmitted to claimant’s attorneys until March 17, 1950, and by letter dated March 21, 1950, the business agent of claimant’s union local was sent a copy of the award. A motion to set aside the award was made by the employer, returnable April 13, was adjourned to April 19, but was denied, and the award was confirmed on May 18, 1950. Under date of May 22, claimant’s union attorneys wrote to the Division of Placement and Unemployment Insurance advising the Division of the back pay award and of the other facts in connection with claimant’s receipt of unemployment insurance benefits which created the issues herein. Those facts, other than as stated above, were that claimant had signed for his twenty-sixth benefit payment in the 1949-1950 benefit year for the week ending April 23, 1950, thereby apparently exhausting his benefits in that benefit year. When he signed for that check, the insurance office told him not to report during the remainder of the benefit year since he would not be entitled to receive any more payments. The effect of the back pay award was to render claimant ineligible during the period covered by the award, and for which he received unemployment insurance benefits, making it incumbent upon him to return these benefits; and the consequence of that was that claimant did not exhaust his benefits on April 23,1950, but was eligible for benefits during the remainder of the 1949-1950 benefit year while totally unemployed. Claimant contended, therefore, that under the circumstances he should have been excused for not reporting after April 23, 1950, and should be declared eligible for benefits from April 24 to May 21, 1950, inclusive, having first obtained employment after April 23 on May 22. When claimant was told not to report to the insurance office after April 23, he did not inform the insurance office of the arbitrator’s award which had been rendered in his favor. On February 16, 1950 when he was due to report to the insurance office he telephoned the office stating that he had been subpoenaed to appear at an arbitration hearing that morning and would therefore be delayed. The records of the insurance office did not indicate that claimant at that time told the insurance office his appearance was in connection wit his pending proceeding for a back pay award. Claimant testified that when he went to the insurance office after the telephone call he presented the subpoena. The title of the arbitration proceeding was not in the name of the claimant, but in the name of his union against the employer.

Referee’s Opinion and Decision: I do not believe that the insurance office, when it informed claimant at the time he signed for his twenty-sixth benefit payment that he need not report thereafter in the 1949-1950 benefit year because he had exhausted his current benefit rights, had any information concerning claimant’s arbitration proceeding for back pay, which made it incumbent under the insurance office to amplify or qualify that statement to any degree. Under the circumstances, its instructions that claimant was not to continue to report were correctly given. I believe that during the last week in April claimant knew of the award in his favor. A reasonable standard of conduct required him to inform the insurance office of what had occurred, particularly since the award expressly provided for the return of unemployment insurance benefits. The fact that claimant may not have been certain he would receive the money under that award, as was suggested at the final hearing herein, because the previous award had been set aside at the behest of the employer, did not justify claimant in neglecting or refraining from telling the insurance office of the facts as he knew them, together with any misgivings he may have had as to eventual receipt of the money. Had he done so, it is quite likely that he would have been advised to continue to report while unemployed in order to protect his rights. Certainly, on this record it may not be held that the insurance office was remiss in its instructions to claimant or misled him to his detriment in the light of the facts then known to it. Under the circumstances, the insurance office was not required to excuse claimant’s failure to report from April 24 to May 21, 1950, inclusive, or to rule him eligible for benefits during that period. The initial determinations are sustained. (February 27, 1951)

Appealed By: Claimant

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (June 22, 1951)

 

A-750-1046

Index No. 1205F-7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 24, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Evidence of, Refusal of Employment
REFUSAL OF EMPLOYMENT
At Time of Unavailability

Appeal Board Case number 25,970-50

REFUSAL OF EMPLOYMENT BECAUSE OF UNAVAILABILITY; QUESTION OF CORRECT DETERMINATION

Claimant, although refusing a job, is not subject to the refusal disqualification but ineligible because of unavailability, if the refusal is for compelling personal reasons, indicating at the time restrictions which show that the claimant does not satisfy the availability requirements.

Referee’s Decision: The initial determinations of the local office holding first, that claimant withdrew from the labor market and was unavailable for employment as of August 28, 1950, and second, that on September 5, 1950, claimant, without good cause, refused employment for which she is reasonably fitted by training and experience are sustained. (November 20, 1950)

Appealed By: Claimant

Findings of Fact: Claimant is married and resides in the Bellerose section of Queens County. For five years ending January 1950, claimant was employed by a department store, located near the Pennsylvania Terminal in the Borough of Manhattan, as a billing machine operator. At the time of the termination of her employment she was being paid $46 per week. Claimant voluntarily left her employment in order to be a housewife and to have a baby. At the time claimant left her employment, she had no intention of returning to work after the birth of her child. Claimant’s child was born in June 1950. On August 28, 1950 claimant filed an application for benefits alleging a return to the labor market. She restricted her employment to the immediate vicinity of her residence where no employment opportunities existed. Although she professed a willingness to accept employment in the Jamaica area, she made no attempts to look for employment in that locality prior to September 26,1 950. She insisted on a minimum salary of $46 per week, the amount she earned in her last employment. Claimant made little effort during this period to look for work. On September 19, 1950, based on an interview with the claimant, the local office issued an initial determination disqualifying claimant from benefits on the ground that she withdrew from the labor market and was unavailable for employment effective the date of her filing on August 28,1950. Claimant contested the initial determination and requested a hearing. On September 5, 1950 claimant was referred by the employment service to employment as a billing machine operator with an employer located in the Borough of Manhattan, City of New York. The remuneration offered was $45 per week for a five-day week. Claimant refused the employment solely on the ground that the employment was located in Manhattan. Based upon a report from the Employment Service and an interview with the claimant, the local office issued an additional initial determination on September 20, 1950, disqualifying claimant from benefits on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. Claimant contested this additional initial determination and requested a hearing. Both issues were heard by the same referee who sustained both initial determinations. Claimant thereupon appealed to this Board.

Appeal Board Opinion: Concededly claimant voluntarily left her employment and withdrew from the labor market prior to the filing of her application for benefits. Although she alleges a return to the labor market, her restriction limiting her employment to her immediate neighborhood and the lack of efforts to find employment indicate that the contention as to her return to the labor market is without any basis. The referee was clearly justified in sustaining the initial determination of the local office disqualifying claimant from benefits for withdrawal from the labor market. The referee also sustained the initial determination of the local office disqualifying claimant from benefits for refusing a job offer during the period of the disqualification for withdrawal from the labor market. The referee based his decision on Section 593 of the Labor Law which reads in part as follows:

2. Refusal of employment. 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. No refusal to accept employment shall be deemed without good cause nor shall it disqualify any claimant otherwise eligible to receive benefits if

1. acceptance of such employment would either require the claimant to join a company union or wold interfere with his joining or retaining membership in any labor organization; or
2. there is a strike, lockout, or other industrial controversy in the establishment in which the employment is offered; or
3. the employment is at an unreasonable distance from his residence, or travel to and from the place of employment involves expense substantially greater than that required in his former employment unless the expense be provided for; or
4. 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; provided, however that no benefits shall be payable to a claimant who refuses to accept an offer of employment for which he is reasonably fitted by training and experience, whatever be the cause, if the circumstances show that such claimant has withdrawn temporarily or permanently from the labor market. (Underscoring supplied)

We do not believe that the language of the above provision which we underscored authorizes the imposition of a disqualification for job refusal in addition to a disqualification for withdrawal from the labor market. Subdivisions (a), (b), (c) and (d) of Section 593.2 of the Law provide that claimants who refuse employment under the conditions therein specified may not be denied benefits. The last portion of the provision 593.2 (d) was inserted for the purpose of insuring that claimants who are disqualified for withdrawal may not use the right to refuse employment under the conditions therein specified to lift the disqualification for withdrawal from the labor market. There was no intention on the part of the Legislature to transform a continuing disqualification for withdrawal from the labor market to a disqualification for job refusal, or to authorize an additional disqualification based on job refusal on top of the disqualification for withdrawal from the labor market. There is therefore no basis in the Law for the imposition of an additional disqualification from benefits for refusing employment during a period when a claimant is disqualified for withdrawal from the labor market.

Appeal Board Decision: Claimant withdrew from the labor market and was unavailable for employment effective August 28, 1950. The initial determination of the local office to that effect is sustained. The initial determination of the local office disqualifying claimant for job refusal effective September 5, 1950 is overruled. The decision of Mortimer H. Michaels dated April 20, 1951 is rescinded. The decision of the referee is modified accordingly. (July 20, 1951)

COMMENT

The case here reported is mentioned in Appeal Board Case No. 25,287-50. It appears, therefore, appropriate to discuss these two cases in conjunction.

The similarity between these cases is the fact that in both instances a job was refused under circumstances indicating that at the time the claimant was not available within the meaning of the law.

It is a well accepted general principle that a claimant who is genuinely unavailable may not be disqualified for a "refusal" which occurs during the period of his unavailability. However, there are, from time to time, instances in which Referee and Appeal Board decisions uphold refusal disqualification even though there appears to be concurrent unavailability. Against that, there have been other cases where a refusal disqualification has been overruled under such circumstances.

A reconciliation of such apparently conflicting decisions is not always easy. However, a comparison of the cases here discussed, even if not allowing for a complete analysis, will give at least one area where an exception is made from the general principle.

The dissimilarity between the two cases is the fact that in case #25,970-50, the claimant’s unavailability was due to a restriction prompted by compelling reasons, that is, the needs for the care of claimant’s child, whereas in case #25,287-50 there were only self-imposed reasons of convenience and preference. In the latter case, no compelling need existed for the claimant to abstain from work while her daughter had come for a visit. The circumstances which rendered claimant "unavailable" were temporary and arbitrary, were entirely within claimant’s control, and could be lifted at any time at will.

It, therefore, appears that under such circumstances a technical "unavailability" of a claimant, while in active claim status, should be disregarded when a refusal occurs.

The significance of this conclusion has broad aspects which, at the same time, show its importance and reasonableness. If an "unavailability" of this nature were to preclude the imposition of a refusal disqualification, the door would be open for any claimant to forestall such disqualification. All the claimant would have to do, is to render himself "unavailable" for a short time when the offer of an undesired job has been made or is impending, by deciding to take a vacation, to attend to personal business, etc. The consequences of a refusal could, in this manner, be avoided. However, the Appeal Board has demonstrated that such evasion of a statutory penalty will not be allowed.

 

A-750-1050

Index 755E.3
770.4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

OCTOBER 23, 1951

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Seasonal Employment

AVAILABILITY OF SEASONAL RESORT EMPLOYEE DURING OFF-SEASONS

A seasonal resort hotel worker who failed to seek employment in other nearby town where employment opportunities existed in the off-season, and to which areas she could travel in approximately three-quarters of an hour in her personally owned automobile, was held to be unavailable because she restricted her employment to her home community where no work opportunities existed.

A.B. 26,660-51

Referee's Decision: The initial determination of the local office, holding claimant ineligible for benefits, effective April 17, 1950, on the ground that she was unavailable for employment is overruled. (12/14/45)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant resides about nine miles outside the village of Narrowsburg. Claimant, for approximately 20 years, was employed as a waitress and chambermaid, usually from April until October at various resort hotels which operate in and around Narrowsburg. During the last seven years, claimant was employed by one resort hotel between April and October of each year, except for the past two years when she had additional employment for a period of two weeks during the hunting season. Claimant was employed with the resort hotel until October 1949. She filed a claim for benefits on October 17, 1949 and continued reporting thereafter. The claimant was a duly licensed driver and had a car at her disposal for the past several years. During these years, claimant has nevertheless restricted herself to employment in Narrowsburg. There is no possibility of employment between October and April in Narrowsburg. Persons residing in Narrowsburg are generally employed in Honesdale. There is a possibility of employment in Liberty and Monticello. It would take claimant approximately one-half to three-quarters of an hour by car to travel from her home to either Liberty or Monticello. Claimant made no effort to obtain employment in Honesdale, Liberty or Monticello. Based on interviews with the claimant, the local office issued an initial determination ruling claimant ineligible for benefits, effective April 17, 1950, on the ground that she was unavailable for employment. The claimant contested the initial determination and requested a hearing. The referee overruled the initial determination and the Industrial Commissioner appeals to this Board.

Appeal Board Opinion: The record is clear and convincing that claimant restricted her employment during the winter months to Narrowsburg where there was no possibility of her securing gainful employment. Claimant had available for her use, a car in which she could get to either Honesdale, Liberty or Monticello where there were possibilities of her securing employment. Nevertheless, claimant restricted her employment to Narrowsburg and made no effort to obtain any employment elsewhere. In 24,518-50, the Appeal Board said:

. . . where claimant has consistent history of employment which is limited to the summer seasons and has training, experience, skills and competence which can be utilized by employers in the area, even though to a limited degree, it is incumbent upon such claimant to manifest a continued attachment to the labor market. This must be demonstrated by bona fide, diligent and sincere efforts after the summer season to obtain employment in keeping with the claimant's employment history, his training and experience and the labor market in which he resides. By these tests, claimant fails to meet the standards of availability under the Unemployment Insurance Law.

In the matter in issue, claimant failed to meet the standards discussed in the above case. Under the circumstances, we are of the opinion that claimant, by restricting herself to employment in Narrowsburg, rendered herself unavailable for employment.

Appeal Board Decision: The initial determination of the local office ruling claimant ineligible for benefits, effective April 17, 1950, on the ground that she was unavailable for employment is sustained. The decision of the referee is reversed. (7/12/51)

COMMENT

This decision should be reviewed with Release A-750-1041 (A.B. 27,213-51 and A.B. 27-440-51) involving the availability of permanent residents of resort areas with seasonal work histories. As stated in the "Comment" of that release, a seasonal employee's unwillingness to work is generally evidenced by a consistent pattern of only seasonal employment and by claimant's conduct, such as failure to seek work in establishments accessible to the claimant where a likelihood exists for securing employment. The claimant in the case here reported was held ineligible for benefits solely because of such factors.

 

A-750-1051

Index No. 1505D-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 22, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION OR MISSTATEMENT
Forfeiture Penalty, Liquidation of

Appellate Division Decision

Matter of King

278 App. Div. 1036

LIQUIDATION OF FORFEITURE PENALTY PERIOD IN FOLLOWING BENEFIT YEAR BECAUSE OF INELIGIBILITY (INSUFFICIENT EARNINGS) WHEN IMPOSED

A wilful misrepresentation, although made at a time when claimant was not entitled to benefits because of insufficient earnings, justifies the imposition of a forfeiture penalty, to be applied in a benefit year established subsequently by filing a valid claim at a later date in the next benefit year.

Referee’s Decision: The initial determination of the local office that claimant made a wilful false statement to obtain benefits is overruled. (August 23, 1950)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant filed an original claim for benefits on January 11, 1950. In connection therewith he was ruled ineligible for benefits because of insufficient earnings in the base year 1948 to qualify for benefits. Claimant had worked for about 15 months to January 7, 1950 as a salesman for a coal and lumber company. In filing his claim on January 11, he stated that he left or lost his job because of "no business." Actually he was asked to resign because of misuse of company funds. On January 30, 1950, the local office issued an initial determination disqualifying claimant from January 8 to February 25, 1950 for loss of employment through misconduct in connection therewith. Another initial determination was issued that claimant made a wilful false statement to obtain benefits and imposing a forfeiture of 24 effective days. Claimant filed an original claim for benefits in the new benefit year commencing June 2, 1950. He was ruled eligible for benefits at the rate of $26 per week on the basis of his 1949 base year earnings. Claimant was advised that the forfeiture of 24 effective days imposed in January 1950 would be applied against his benefit rights in that benefit year. He protested and requested a hearing.

Appeal Board Opinion: The sole issue on this appeal is whether claimant, in connection with his claim for benefits of June 2, 1950, was subject to a forfeiture of 24 effective days pursuant to the initial determination of the local office issued on January 30,1950. The referee pointed out that claimant was ineligible for benefits when he filed his claim in January 1950, that he had no benefit rights which could be made the subject of a wilful misrepresentation and that consequently the forfeiture penalty did not carryover to the new benefit year. We agree with the result reached by the referee. The initial determination containing the forfeiture of benefits was issued in connection with a claim for benefits which proved to be of no effect. In Appeal Board, 130-38, the Board ruled that a claimant was entitled to accumulate waiting period during a period in which he was ineligible for benefits and prior to the benefit year in which he had benefit rights. The Appellate Division in reversing the Board in Matter of Munterfering, 256 App.Div. 151 stated.

§503, subd. 3(a)(b) and (c) of the Labor Law are set forth in the conjunctive as follows:

No employee shall be entitled to any benefits unless he (a) is suffering total unemployment as defined in this article; an (b) has, as provided in this article, registered as totally unemployed and reported for work or otherwise given notice of the continuance of his employment; and (c) unless wages have been paid to him within his base year equal to not less than eighteen times his benefit for a week of total unemployment.

It is clear from this foregoing statutory provision that the conditions enumerated in (a) (b) and (c), supra, must be satisfied together. Therefore, it follows that, if an employee has failed to earn eighteen times his benefit rate in his base year, he cannot register for benefits any more than he could register for benefits unless he were totally unemployed.

Section 590.1 of the present Unemployment Insurance Law contains similar provisions and we believe that the Court decision is applicable to the instant case. We hold that the initial determination of January 30, 1950 was without effect since it pertained to a benefit claim which was null and void from the beginning. There has been no determination relating to the subsequent valid claim of June 2, 1950 with which we are now concerned. We hold merely that the initial determination of January 30, 1950 does not affect claimant’s rights under such valid claim.

Appeal Board Decision: The initial determination of the local office imposing a forfeiture of 24 effective days against claimant in connection with his benefit claim of June 2, 1950 is hereby overruled. The decision of the referee, as modified, is affirmed. (April 6, 1951)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal from a decision of the Unemployment Insurance Appeal Board which modified and as modified affirmed a referee’s decision overruling an initial determination of the appellant which had imposed a forfeiture of benefits against claimant for 24 effective days because he wilfully made a false statement to obtain a benefit. The false statement was made in January 1950, to obtain a benefit to which it was found claimant was then ineligible because of insufficient earnings in his base year of 1948. The forfeiture aforesaid was then imposed and applied against him later when in the next benefit year and in June 1950, he again filed for benefits. This in our view the statute expressly permits. Decision reversed, on the law, and the initial determination of the Commissioner reinstated, without costs. (September 19, 1951)

COMMENT

This decision is of great importance. It establishes that the application of special provisions of the law do not necessarily require that a claimant who has filed a claim must be otherwise "entitled" to benefits at the time of the occurrence of the action or event in question.

The Court has settled this point in the case here discussed regarding wilful false statements. It is, however, logical to conclude that the principle is not confined to that issue. This means that a claimant is subject to all such provisions, at least beginning with the moment when he asserts benefit rights, regardless of whether he is otherwise entitled to or eligible for benefits at such time.

 

A-750-1052

Index No. 1275A-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 22, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Experience and Training – Qualifications

Appellate Division Decision

Matter of Strazza

278 App. Div. 1036

ITALIAN AND FRENCH BAKER REFERRED TO EMPLOYMENT AS A BAKER OF AMERICAN STYLE BREAD AND ROLLS

Claimant, who refuses employment for which he is reasonably fitted by training and experience, although not fitted with complete exactness, such as the baking of Italian and French bread and cakes against that of American style bread and rolls, does so without good cause since the statute does not contemplate such a precise selection of employment.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving unemployment insurance benefits for refusal of employment without good cause is sustained. (December 1, 1950)

Appealed By: Claimant

Findings of Fact: Claimant is a French-Italian bread and cake baker with 16 years’ experience. He has had no experience in any other line of baking. Claimant filed an original claim for unemployment insurance benefits on July 31, 1950. On September 25, 1950 the employment office referred claimant to a position as a baker of white and rye bread and rolls, American style, with a retail bakery at $65 a week. Claimant refused the referral on the ground that it was not in his line of work. The difference between American style baking and French-Italian baking is substantial, in that the mixing of the dough, oven temperature requirements and cutting the bread all differ. The local office issued an initial determination disqualifying claimant from receiving benefits on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience. Claimant protested the initial determination and requested a hearing. The referee sustained the initial determination of the local office. Claimant now appeals to this Board.

Appeal Board Opinion: The Board is unable to agree with the referee’s reasoning that this claimant is reasonably fitted by training and experience for the job offered him. The proffered employment was in a line of baking entirely foreign to the skills acquired by the claimant after 16 years of baking French and Italian bread.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving unemployment insurance benefits for refusal of employment without good cause is hereby overruled. The decision of the referee is reversed. (May 4, 1951)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, which reversed a decision of an unemployment insurance referee, and overruled an initial determination of the Industrial Commissioner which disqualified claimant for benefits because he refused an offer of employment for which he was reasonably fitted by training and experience without good cause. Claimant is a baker. Prior to filing for unemployment insurance benefits he had been employed as such at a wage of $50 per week. His experience had been limited to baking Italian and French bread and cakes. He was referred to a job offer at a wage of $65 per week where his duties would be to mix and bake American style bread and rolls. There are some differences in the baking process of the different types, but the prospective employer indicated a willingness to employ claimant, with knowledge of his previous limited experience, and to teach him the American method of baking. Claimant refused to even try the proffered employment solely on the ground that the work did not consist of Italian or French style baking. Such refusal was unreasonable. The state does not contemplate such a precise selection of employment by a claimant. He may not enjoy benefits while waiting for a job which fits his training and experience with complete exactness. If he is reasonably fitted by training and experience for the offered employment, as was the case here, his refusal is without good cause as a matter of law. Decision of the Unemployment Insurance Appeal Board, reversed, on the law, and the initial determination of the Industrial Commissioner reinstated, without costs (September 19, 1951)

COMMENT

This decision should be reviewed in conjunction with previous Court decisions. All of these decisions make it clear that a job, in order to be suitable, need not meet exactly the experiences and occupation of a claimant, and need not in detail correspond to claimant’s last employment. It suffices if there is a reasonable similarity. In cases of this nature, it will be advisable to obtain adequate job descriptions which allow a comparison of the offered employment with the jobs held by the claimant in the past.

 

A-750-1055

Index No. 1275B-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 16, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Experience and Training
Employment Opportunities
Non-Existent
During Seasonal or Slack

Appellate Division Decision

Matter of DeBruyne

278 AD 1036

REFUSAL OF EMPLOYMENT; FUR FINISHER TO HAND SEWER DURING SLACK PERIOD

Refusal of a job below claimant’s highest skill, while there are no reasonable employment opportunities in such highest skill because of seasonal conditions, is without good cause if the claimant is fitted by training and experience for the job and the wages, although appreciably below those paid for the higher skill, are prevailing for the offered work.

Referee’s Findings of Fact: A hearing was held at which the claimant and representatives of the Industrial Commissioner appeared and testified. Claimant, a fur finisher, filed a claim for benefits on June 8, 1950. By an initial determination, issued on June 27, 1950, claimant was declared ineligible because of unavailability, effective June 8, 1950, and she was disqualified, effective June 23, 1950, because of refusal of employment without good cause. Claimant resides at Oceanside. She had been employed as a fur finisher in New York City earning a weekly salary of $50. She was laid off in the latter part of December 1949, due to slack conditions in the fur industry. Subsequent to the filing of the claim for benefits, claimant communicated with her former New York City employer, in an attempt to ascertain whether work was available for her. She learned that conditions in the fur industry were still slack and that there was little likelihood that work would be available for her until about July. Claimant indicated to a representative of the insurance office that she would prefer to avoid work in Manhattan in the event it were possible for her to obtain a job closer to home. She made no independent inquiries for work in establishments in Queens and Nassau counties prior to July, because she was aware of the fact that slow conditions in the fur industry made it rather unlikely that she would expect employment during June. Opportunities for work in claimant’s occupation are not plentiful in Nassau and Queens counties but there are, nevertheless, some firms which utilize the skills of fur finishers. Persons employed in claimant’s occupation in Queens and Nassau counties are usually paid approximately $50 weekly. On June 22, 1950, claimant was referred to an employer who had placed a job order for a finisher to perform a hand-sewing operation on ladies’ coats, at a starting salary of $36 for the first week and $40 for the second week, those being the wages usually paid to persons similarly employed in the area. The duties of the job involved a lesser skill than that possessed by the claimant. Claimant reported to the prospective employer who suggested that she submit to a test in order to enable the employer to determine the salary that would be offered. Accordingly, claimant worked for the employer on June 23, without having been advised of the salary which would be paid to her. At the end of the day, she inquired with respect to the wages she would receive, and the employer indicated that she would receive $35 weekly at the start of her employment. He told her that she would receive an increase to $40 weekly at a subsequent time. Claimant refused to continue in the employment because of her objection to the wage rate offered and for the reason that she objected to the work required of her, since it was different from that she had performed as a fur finisher. Claimant was unwilling to accept the work for a temporary period, until conditions in the fur industry became more active, for the reason that she expected that work there would commence soon after the date of the offer and that, if she accepted the employment, she would be precluded from making a search for work in her own occupation. Commencing with the beginning of July, claimant conducted an active independent search for work in Nassau and Queens counties. She filed applications for employment in many establishments which utilized her skills. As a result of her independent efforts, she obtained employment for a period of about one week early in August at an establishment in Jamaica, and she again obtained employment beginning August 7 at an establishment in Merrick. She receives a salary of $50 weekly in her present employment. Between the date of the filing of her original claim and the date of the referral mentioned above, claimant had reported to the employment office at Rockville Centre on four occasions, but no offers of employment were made prior to June 22, because there were no suitable job openings available.

Referee’s Opinion and Decision: The evidence does not indicate that claimant rendered herself unavailable for work at any time during the period here at issue. The only possible basis for the determination is claimant’s statement to the effect that she had not made an independent search for work and that she preferred to avoid working in Manhattan. Neither of those statements, under the circumstances here disclosed, may be accepted as conclusive indication of her unavailability for work. Claimant, in fact, communicated with her former New York City employer for the purpose of ascertaining whether work was available for her so that it is evident that her statement with regard to employment in Manhattan was not an absolute restriction against work there, but merely an indication of preference. In view of the fact that it was apparent to claimant that activity in the fur industry had not yet commenced during June, it is understandable that claimant should not have made solicitations in stores in Queens and Nassau counties in her occupation. The fact that the employment office in Rockville Centre made no offers of employment to claimant despite four reports during June, it is understandable that claimant should not have made solicitations in stores in Queens and Nassau counties in her occupation. The fact that the employment office is Rockville Centre made no offers of employment to claimant despite four reports during June is further cogent evidence of the fact that claimant’s unemployment during that period is not attributable to any lack of independent efforts on her part. I also conclude that claimant had good cause to refuse the employment offered on June 22, irrespective of the fact that the wages offered to the claimant may have compared favorably with the rate usually paid to persons performing similar types of work. It affirmatively appears that the job would not have utilized all of the skills which claimant had acquired. The job involved a downgrading which is abhorrent to all good labor practices. Claimant had acquired skills usable in the labor market which are sufficient to produce a weekly wage of approximately $50. Under these circumstances, it may not be said that her refusal of a job which could produce wages of only $35 weekly was without good cause. The initial determinations are in all respects overruled. (September 8, 1950)

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact and conclusions of law are fully supported by the evidence in this case, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the conclusions of law made by the referee as the findings of fact and conclusions of law of this Board. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (March 16, 1951)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Claimant is a fur finisher. Her last employment before filing her claim for unemployment insurance benefits was at the rate of $50.00 a week. She was referred for work as a finisher and sewer on ladies’ coats at a rate which would be $40.00 beginning with the second week. This was refused by claimant because of the wage and because the work differed from her work as a fur finisher. The Commissioner held her disqualified because of her refusal of employment without good cause; but the Appeal Board has decided that since the offered employment would not have utilized all the skills which claimant had acquired she was justified in refusing it. The statutory test of disqualification is the refusal of employment for which claimant is reasonably fitted by training and experience. The full utilization of skills is desirable, but it is not the test fixed by the law. There may be times during which, as here, there is temporarily no work which will fully utilize all of claimant’s skills. While that period lasts, at least, the statute is met if employment for which claimant is fitted "by training and experience" is offered. When other employment which will use the higher skills becomes available, it should then be offered. (Cf. Matter of Delgado, 278 App. Div. 237). There is no finding here that claimant was not reasonably fitted by training and experience for work offered, or that the wage offered was not the prevailing wage for that work. Decision of the Appeal Board reversed on the law and the determination of the Industrial Commissioner reinstated, without costs. (September 19, 1951)

COMMENTS

The principle enunciated in this decision while not new stresses again that where employment opportunities in a claimant’s exact occupation do not exist because of a seasonal slack period, refusal of other employment which does not fully utilize all the claimant’s skills is generally without good cause. The Court expressed this thought by stating that "The full utilization of skills is desirable, but it is not the test fixed by the law. There may be times during which * * * there is temporarily no work, which will fully utilize all of claimant’s skills. While that period lasts, at least, the statute is met if employment for which claimant is fitted ‘by training and experience’ is offered." A problem may arise in such cases as to whether claimant is "reasonably fitted" for the proffered work by training and experience. As a guide in correctly determining that issue, the Interpretation Service will be found to be of value.

In Release A-750-518, a fur finisher for 29 years refused during the slack period employment as a hand sewer on jackets. The Board found that work as a fur finisher required the use of a needle and thread and after some preliminary training she could have adjusted herself to the work. The Board sustained the refusal disqualification stating, in part, that the offer met the minimum tests of the statute. Similarly, an operator on "party" dresses refused during the seasonal lull without good cause employment as an operator on "evening" gowns. (a soft drink operator ($1.10 per hour) refused during the off season without good cause employment as a perfume packer (85 cents per hour).

The Appellate Division decision, Matter of Delgado, cited by the Court in the case here reported was released in the Interpretation Service under Serial No. A-750-1015.

 

A-750-1056

Index No. 735B.8
770.10

NEW YORK STATE - DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 16, 1951

INTERPRETATION SERVICE- BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Claims Filed from without the State
Seasonal Employment
Efforts to Find work

Appeal Board Case Number 28,078-51

AVAILABILITY OF RACE TRACK EMPLOYEE WHILE IN FLORIDA

A race track mutuel clerk who soon after he went to Florida during the off season for racing in New York was made aware that he would not obtain employment in his occupation because of the Florida law requiring 85% of all race track employees to be permanent residents, and where he did not make any efforts to find work in any other field, was held to be unavailable for employment.

(See Comment after Decision)

Referee's Decision: The initial determination of the local office holding that claimant was unavailable for employment effective January 8, 1951, was overruled. ( June 1, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant has been employed at race tracks for approximately 20 years. For the last ten years, he has been employed in the capacity of a messenger or mutuel clerk. The usual racing season in New York State operates from April 1 to November 15. During the 20 years of claimant's employment at race tracks, he concededly did not work between November 15 and April 1. The racing season in Miami, Florida, commences in the middle of January and the personnel are employed prior thereto. Under the Florida law, 85 per cent of all race track employees must be permanent residents of Miami, Florida. Claimant left New York City on January 8, 1951 en route to Miami, Florida, allegedly to seek employment at the race tracks there. Shortly after his arrival he was made aware that there was no employment for him at the race tracks. Claimant nevertheless continued to remain in Florida for some time during which period he made no effort to seek employment in any other occupation. Upon claimant's return to New York, he became reemployed on April 2, 1951 at the race track. The local office issued an initial determination holding claimant unavailable for employment during his sojourn in Miami, Florida. Claimant contested the said initial determination and requested a hearing before a referee. The referee thereafter overruled the initial determination. From such decision the Industrial Commissioner now appeals to this Board.

Appeal Board Opinion: After an analysis of the record and testimony in this case, we believe that the credible evidence establishes that claimant was unavailable for employment effective January 8, 1951. Claimant must have known that he could not get employment in Florida in his usual occupation because of the Florida law, yet he made no effort to find work in any other field. He did not meet the test of availability laid down by the Appeal Board in Appeal Board 17,064-48. It therefore follows that the local office properly issued the initial determination holding that claimant was unavailable for employment during such period.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible for benefits effective January 8, 1951, on the ground that he was unavailable for employment is sustained. The decision of the referee is reversed. (September 21,1951)

COMMENT

Decision 17,064-48 cited by the Board appears in the Service at Index 735A.3, Serial No. A-750-839. Availability of a race track mutuel clerk was also before the Board in Case 8929-43 reported in release A-750-434.

 

A-750-1058

Index 1685B-2
1722.2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

NOVEMBER 16, 1951

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Distance or Traveling Expense
Housing

Appeal Board Case Number 27,734-51

VOLUNTARY LEAVING; EXCESSIVE TRANSPORTATION COST AND TRAVELING TIME CAUSED BY MOVING TO SUBURBAN AREA

Moving to a purchased home in a suburban area, resulting in approximately two hours traveling time each way and in a substantial increase in transportation cost, was not good cause for voluntary leaving of employment since, although claimant was compelled to vacate his former residence, it was not demonstrated that it was impossible to obtain other living quarters more accessible to claimant's place of employment.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days from February 19, 1951, for voluntarily leaving his employment without good cause is overruled. (May 11, 1951)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant was employed for six years as a driver and loader of trucks for a concern located at 234 Street in the Bronx. He resided in the Bronx and traveled to work daily either by bus or in his own automobile. His transportation expense was 20 cents a day by bus and about $3 a week when he used his car. Claimant's terminal salary was $60 a week for a 54 hour week. Claimant was required to vacate his Bronx residence when the property was taken by condemnation proceedings instituted by the City of New York. Claimant sought other housing accommodations in the same neighborhood or the immediate vicinity for over a year. In December 1950 he purchased a home in Westwood, New Jersey, and he and his family moved from the Bronx in January 1951. On February 16, 1951 claimant left his job because he claimed the traveling expense and time consumed in traveling were too great. He contended that the fare from Westwood, New Jersey to the place of his employment amounted to $1.10 a day by bus, and about $10 a week when he used his car. The travel time by bus to his new residence was close to two hours. Claimant filed a claim for benefits and registered for employment at a New York City local office on February 19, 1951. Based on the above facts, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days from February 19, 1951 for voluntarily leaving his last employment without good cause. Claimant protested this ruling and requested a hearing. This resulted in a referee's decision overruling the initial determination. The Industrial Commissioner appeals from such decision.

Appeal Board Opinion: The referee held that claimant had good cause to leave his employment because he was compelled to change his residence and the traveling expense from his new home to the place of his employment was excessive. We are not in accord with this reasoning. Claimant increased his traveling expenses when he changed his residence from the Bronx to Westwood, new Jersey. Even though he may have been compelled to vacate his former residence in the Bronx by reason of the condemnation proceedings, nevertheless, the record fails to convince us that it was impossible for claimant to obtain other living quarters in the City of New York which would be more accessible to claimant's place of employment. We find that the increase in traveling expense was caused by the action of claimant in moving to Westwood, New Jersey. Consequently, when he left his employment for the above reason, claimant left without good cause within the meaning of the Law (see Appeal Board, 22,445-50; 23,687-50; 26,213-51)

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days from February 19, 1951 for voluntarily leaving his employment without good cause, is sustained. The decision of the referee is reversed. (September 21, 1951)

COMMENT

This decision is of special importance to local offices in the suburban Metropolitan area. Generally, a daily increase of 90 cents in transportation cost, necessitating approximately four hours traveling time, would be good cause for voluntarily leaving employment. However, since such condition in the instant case was caused by claimant's own discretionary action, which apparently was not of a compelling nature, claimant's leaving was without good cause. The Bard's conclusion lends itself to the adoption of guiding principles in at least two sets of circumstances frequently presented for adjudication:

1. Claimants who voluntarily leave employment as a result of moving to another area, including suburban and out of state, for reasons that are not compelling, do so without good cause (see A-750-424, A-750-811, A-750-879, A-750-922)
2. Increased transportation cost or excessive traveling time caused by claimant's volitional moving to a new residence does not constitute good cause for voluntary leaving employment when no compelling reasons for selection of the distant residence are shown.

 

A-750-1059

Index 1250F-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

NOVEMBER 16, 1951

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Part-time Work Week

Appellate Division Decision

Matter of Gadd, 178 App. Div. 1035

REFUSAL OF PART-TIME WORK - DESIRE FOR FULL-TIME EMPLOYMENT

Where claimant's former employer for whom he had worked full time in the past offered to re-employ him for two days a week at his regular rate of pay, claimant's refusal of that offer, because he wanted full-time and not part-time work, is without good cause.

Referee's Findings of Fact: Hearings were held at which claimant and a representative of the Industrial Commissioner and of the employer appeared and testified. Claimant a chauffeur on a news route, filed for benefits on August 29, 1949. By initial determination, effective September 10, he was disqualified for refusal of employment. Claimant was employed by the employer for four and one half years to August 11. He worked five nights per week and was paid $82.75 for five-day, forty-hour week. His hours of work were from 12 midnight to 8 a.m. About two weeks prior to August 16, claimant was placed on a four-day week, whereas one employee, junior in service to him, worked five days per week. Claimant's employment was terminated on August 16. On August 17, he became engaged in a business venture, which he left on that day, on the advice of this attorney. The employer advised the insurance office that on September 9, he called claimant and offered him work on Thursday and Saturday nights, at his regular rate of pay. Claimant stated that the offer of employment was made on September 3. Claimant refused to accept the job because he wanted full-time work, and not part-time work. The rate of pay for Saturday work was $17.11 for eight hours and for weekday work $16.41 for eight hours. Overtime was paid after eight hours. The claimant, at present is suing his employer for back pay allegedly due him for unrecompensed overtime work. Claimant became employed on September 26, as a promotion worker with a news company and as of the date of the hearing was still so employed.

Referee's Opinion and Decision: It is immaterial to determine whether the claimant was offered employment on September 3, as he alleged or on September 9, as the employer alleged. At any rate, claimant was offered part-time work. He has a full-time work history. He refused the job offered to him because it involved only part-time work. Under the circumstances, I find that his refusal was with good cause. The initial determination is overruled. (March 30, 1950)

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee's findings of fact and conclusions of law are fully supported by the evidence in this case, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the conclusions of law made by the referee as the findings of fact and conclusions of law of this Board. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (November 3, 1950)

Appellate Division Opinion and Decision: The Industrial Commissioner has appealed from a decision of the Unemployment Insurance Appeal Board which affirmed the decision of an unemployment insurance referee overruling an initial determination of the Industrial Commissioner disqualifying claimant for unemployment insurance benefits because of his refusal of an offer of employment for which he was reasonably fitted by training and experience, without good cause. Claimant is a chauffeur on a news route. He was employed by the Brownsville News Company for four and one-half years prior to August 1949. He worked five nights a week and was paid $82.72 for a five day, forty-hour week. His hours of employment were from twelve midnight to 8: a.m. About two weeks prior to August 16, 1949, claimant was placed on a four-day week. He resigned his employment on that day to engage in business for himself. On the advice of his attorney, he left this business which lasted but a single day. He thereupon became unemployed and filed for benefits on August 29, 1949. His former employer offered claimant work on Thursday and Saturday nights at his regular rate of pay. The offer was refused by the claimant because he wanted full-time work and not part-time. The rate of pay for weekday work was $16.41 for eight hours and for Saturday, $17.11 for a like period. Overtime was paid after eight hours. We have concluded that claimant's refusal of the offer of part-time employment without good cause is a matter of law. Decision appealed from reversed, on the law, and the initial determination of the Industrial Commissioner reinstated, without cost. (September 19, 1951)

COMMENT

This case stands for the simple principle that, as a matter of law, a full-time worker who refuses suitable part-time work offered to him by his former regular employer, such as work on two days per week, does so without good cause and is subject to the disqualification.

There have previously been Appeal Board decisions in which weight was given to the total weekly wages, as distinguished from the wage rate, and other conditions of the offered part-time work. This case deals with a claimant who refused a recall by a former employer for whom he had originally worked on a full-time basis. However, it is very well possible that the Court would have reached the same conclusion even if the claimant had never worked for the employer who offered the part-time job at otherwise prevailing conditions.

 

A-750-1061

Index 1250F-3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

DECEMBER 10, 1951

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Part Time, Offer of

Appellate Division Decision

Matter of Krieger, 279 App. Div. 681

REFUSAL OF PART-TIME WORK - DESIRE FOR FULL TIME EMPLOYMENT

Refusal of otherwise suitable part-time work at less than customary hours per day and less than usual working days per week is without good cause even though claimant has a work history of full-time employment.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for refusal of employment without good cause is sustained. (August 5, 1950)

Appealed By: Claimant

Findings of Fact: Claimant worked for three years as a wrapper in a department store in Rochester, New York. She worked during the winter and "rush" seasons only but withdrew from the labor market in the summers in order to devote her time to her two children. In previous years, she had worked in a cannery as a laborer during the canning season and she had done work as a domestic. During the war she worked for one year in an optical manufacturing plant as a solderer, which job she left due to illness. Claimant always worked full time hours on these various jobs. Claimant was recalled to work at the department store in September 1949. Her hours of work were from 9:30 a.m. to 5:30 p.m. or 6 p.m. and she received $30 for a 40-hour week. Claimant was laid off by the employer because of lack of work and she filed a claim for benefits on January 23, 1950. On March 28, 1950, the employment office offered claimant work at a bottle company as an inspector at $.80 per hour with hours 9 a.m. to 3 or 4 p.m., three or four days a week. Her weekly earnings on that job would vary from $12 to a maximum of $19.20, depending on the amount of work the employer would have for her. Claimant refused the offer stating that she wanted a full-time job. An initial determination was issued disqualifying her from benefits for refusal of employment without good cause or in the alternative, that she was unavailable for employment. In May 1950, the department store called claimant back and she worked there for three weeks. She had a standing application for work on file at the store. Claimant sought work elsewhere by applying at a laundry and at an electrical appliance store. She also sought work through newspaper advertisements. No other offer of employment was made to the claimant.

Appeal Board Opinion: There being no appeal on the issue of availability for employment which was decided in claimant's favor, the only issue before us is whether claimant was justified in refusing the offer of employment or part-time work. Although claimant's work history shows a number of interruptions due to illnesses and her obligation to her children, the fact remains that over a period of many years she never worked less than full-time. It does not appear that she was an applicant for unemployment insurance benefits during the temporary periods when she was compelled to leave the labor market. The only restriction claimant ever placed on her availability was that she wanted a full week's work. When recalled to the department store in May 1950, she again received full-time work. The job offered claimant would provide her only with three or four partial days work a week and a wage of from $12 to $19.20. It was not contended that full-time work was unobtainable in the City of Rochester at the time. Although the record does not specifically cover the subject, the prevailing hours in claimant's usual lines of work is normally about $40 per week. Under section 593.2(d) of the Unemployment Insurance law no refusal to accept employment shall be deemed without good cause if the "hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality." This provision of law appears to be applicable to the instant case.

Appeal Board Decision: The initial determination of the local office that claimant refused employment without god cause, or in the alternative, that she was unavailable for employment is hereby overruled. The decision of the referee is reversed. (January 26, 1951)

Appeal By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board which had reversed the decision of the referee sustaining that portion of the initial determination of the Industrial Commissioner disqualifying claimant for unemployment insurance on the ground she refused a referral of employment without good cause. Claimant is married and resides with her husband. They have two children. Her employment history is one of seasonal and intermittent employment. She did not work during the summer months because she had to take care of her children during their summer vacations. Her last employment was in a department store, as a wrapper in the delivery department, where her wages were at the rate of $.75 an hour for a forty hour week. After becoming unemployed she was offered work with a manufacturer of soft drinks, as an inspector and packer, with wages at $.80 an hour, and with hours from 9 a.m. to 3 p.m., for three or four days a week. She refused this offer of employment on the basis that it was not for a full week, and that she preferred working from 10 a.m. to 6 p.m., and did not want to work on Saturdays. No claim is made that she was not fitted by training and experience for the proffered employment, that the wages per hour were unsatisfactory, or that the place of employment was not conveniently accessible. We think the decision of the Board was erroneous as a matter of law. An affirmance thereof would establish the principle that an unemployed claimant may refuse any work offer in which he or she is not to be employed for a full week. There is no such requirement in the statute, and indeed it is inconsistent with the provisions of the statute for compensating partial unemployment (Section 523 and 590, subd. 3).

Moreover the broad general purpose of the statute is to prevent and reduce unemployment and to that end it is to be construed reasonably as an emergency measure. It was never intended to guarantee a claimant employment entailed with each and every condition that a claimant might impose. Decision of the Appeal Board reversed on the law and the initial determination of the Industrial Commissioner reinstated, without costs. (November 14, 1951)

COMMENT

The decision of the Court speaks for itself. Because of its sweeping nature it seems appropriate to review the pertinent language of the opinion: The Court stated that granting benefits in the case here reported would mean "that an unemployed claimant may refuse any work offer in which he or she is not to be employed for a full week", and disposed of this point as follows:

"There is no such requirement in the statute, and indeed it is inconsistent with the provisions of the statute for compensating partial unemployment (Sections 523 and 590, subd. 3)."

By this language, the Court indicated its agreement with the argument presented on behalf of the Industrial Commissioner to the effect that awarding benefits in cases such as these would contravene the legislative purpose in establishing the Day Base Plan under which benefits are paid for partial unemployment.

It is also significant, and worthwhile to keep in mind, that the Court considered it appropriate to add this general statement, which has broad implication, not confined to the case and not even to the specific issue decided:

"Moreover the broad general purpose of the statute is to prevent and reduce unemployment, and to that end it is to be construed as an emergency measure. It was never intended to guarantee a claimant employment entailed with each and every condition that a claimant might impose."

This statement, and particularly its last sentence, is in line with the views the Court has intimated or expressed in other recent decisions. (See A-750-1059; A-750-1055; A-750-1015; A-750-1011). It is suggested that the releases on these decisions and their Comments be reviewed. They will be helpful in formulating an attitude towards the "good cause" clause of the Unemployment Insurance Law.

The decision also confirms the thought expressed in the last sentence of the "Comments" of A-750-1059. In that case, the claimant had refused part-time work offered by his former employer. However, as the case here reported shows, it is immaterial whether it is a former employer who offers the part-time work, or an employer for whom the claimant did not work previously.

 

A-750-1063

Index No. 790.3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

January 4, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Union Considerations

Appeal Board Case Number 28,382-51

AVAILABILITY OF MUSICIAN UNABLE TO ACCEPT STEADY EMPLOYMENT UNTIL EXPIRATION OF 90 DAY UNION RESIDENT REQUIREMENT

If there is a Union requirement which prevents, for a period such as 90 days, acceptance of full-time work by a claimant upon his removal to the area over which the Union has jurisdiction, but which allows acceptance of work for single days, such limitation of itself does not render the claimant unavailable for employment.

(See Comment after Decision)

Referee’s Decision: The initial determination of the Out-of-State Resident Unit, disqualifying claimant from receiving benefits, effective October 9, 1950, on the ground that he was unavailable for employment is sustained. (May 28, 1951)

Appealed By: Claimant

Findings of Fact: Claimant was a member of Local 802 of the Musicians’ Union in New York City. He worked from July 1, 1950 to September 4, 1950 at an engagement in New Jersey. After the completion of the engagement, he moved to Miami Beach, Florida, because members of his family who are musicians reside in that locality and he expected to be married to a Florida resident. Upon claimant’s arrival in Miami on September 8, 1950 he applied for a transfer of his membership to his Miami local union. Claimant filed a claim for benefits in Miami, Florida, against New York as the liable State on October 9, 1950. Under the union regulations, a transient union member for a 90-day period cannot accept full-time engagements but can only work club dates or be hired for single engagements, but may perform such work seven days a week. Members of the Miami local work only six days a week. On December 20, 1950, claimant obtained steady full-time employment as a musician at a social club in the Miami area. The Out-of-State Resident Unit issued an initial determination effective October 9, 1950 holding that claimant was unavailable for employment. The basis for the determination was that claimant was not permitted by his union to accept full-time employment for 90 days.

Appeal Board Opinion: The referee sustained the determination on the theory that claimant moved to a primarily resort area where work in his regular occupation was extremely limited and his possibilities of obtaining full-time employment due to his union status were highly remote. We are unable to agree with his conclusion. There is no question that claimant removed to Florida with the intention of working there and of remaining there permanently. The evidence shows that claimant exerted diligent efforts to obtain employment during the period in question, and that he secured a permanent job as the result of such efforts. Claimant, under the union regulations, was not precluded from obtaining employment during the 90-day period. He was permitted to accept club dates or single engagements seven days a week while union members in the area having full status worked only six days a week. It cannot be said that this limitation of itself rendered him unavailable for employment during the 90-day period (Appeal Board, 27,689-51). The record herein shows that claimant has met the test heretofore laid down by the Board with respect to persons moving to a resort area.

Appeal Board Decision: The initial determination of the Out-of-State Resident Unit holding that claimant was unavailable for employment, effective October 9, 1950, is overruled. The decision of the referee is reversed. (October 19, 1951)

COMMENT

1. The Appeal Board stated that the union 90 day employment limitation did not of itself render claimant unavailable. This implies that local offices are not precluded from considering other factors in arriving at a determination. Presumably, however, no other evidence of a disqualifying nature was presented in the case here reported.
2. In similar cases, claimants should be expected to conform with the usual accepted availability requirements. To that end, each individual case will suggest its own specific line of inquiry. Among those factors which should be considered in determining availability are the following:

1. Is claimant willing to accept other employment? This will necessitate inquiry as to secondary occupations or other skills which may be usable in the current labor market.
2. Is claimant exposed to appropriate offers of employment by the employment office? Is claimant unreasonable in not making diligent independent efforts in securing employment? Is claimant unreasonable in restricting the fields of jobs he is willing to accept during the 90 days period?
3. Is claimant’s past pattern of employment such that there was no lack of employment opportunities in his primary occupation in the area of his previous residence? This factor is especially important where a claimant contends that he moved to the area to seek employment, or if no good cause is shown for removal from an area of good employment opportunities to one of limited opportunities.
4. The principles expressed in Release A-750-841 (Index 700), Availability and Capability of Claimants Filing from a Distant Resort Community, should be followed where applicable.

 

A-750-1064

Index 1275A-3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 4, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Qualifications - Skills
Wages - Less than Customary

Appellate Division Decision

Matter of Greaser, 279 App. Div. 702

REFUSAL; "CHEMICAL" STENOGRAPHER AT $58 A WEEK TO GENERAL STENOGRAPHER AT $41

Possession of specialized skill, such as that of "chemical" stenographer, does not constitute good cause for refusal of employment as a general stenographer since "the full utilization of all skills is not the effective test to be applied under the statute, but rather the availability of work for which the claimant is fitted by training and experience"; an appreciable difference in salaries, $58 as against $41 a week, was disregarded.

Referee's Findings of Fact: A hearing was held at which the claimant and representatives of the Industrial Commissioner appeared and testified. Claimant filed a claim for benefits on April 19, 1950. By initial determination she was disqualified for refusal of employment, effective July 6, and also ruled ineligible because she was not available for employment due to restrictions as to rate of pay, effective July 6. Claimant had previously worked as a stenographer in a chemical firm for over five years. She attained a rate of $58 per week. On July 6, she refused employment as a stenographer at $180 per month because of the rate. Claimant accepted employment in another plant of the same employer on January 11, 1951, as a "chemical" stenographer at $260 per month. She was hired for this job after taking typewriting and shorthand tests. According to the employment representative, job orders received in the employment office quoted from $40 to $45 per week for experienced stenographers.

Referee's Opinion and Decision: Claimant acted as a reasonably prudent person in refusing employment at $180 per month because of the type of work and the rate of pay. She had substantial training and experience as a "chemical" stenographer at a substantially higher rate of pay. She was entitled to seek employment at a skill comparable with her previous employment. The reasonableness of her actions is demonstrated by the fact that she found employment at a higher rate of pay utilizing her special skill. Court decisions have held that an individual cannot refuse employment at a slightly lesser degree of skill. (Matter of Heater, 270 App. Div. 311, reversing Appeal Board 11,632-45). The employment which claimant had and the re-employment which she obtained demonstrated a substantially greater skill. In seeking employment at this level, claimant did not unreasonably restrict her availability for employment. The initial determinations are overruled. (February 27, 1951)

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. Claimant had years of specialized experience wherein she had acquired useable skills which entitled her to command a salary commensurate with such skills, which type of work is available in the locality. (Matter of Frances Hirschberg, 273 App. Div. 936, affirming Appeal Board, 14,912-47). The decision of the referee is affirmed. (June 1, 1951)

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board. Claimant was employed for about six years as a stenographer and typist for a chemical company. She regarded herself as a "chemical stenographer." When she left this employment due to pregnancy she was receiving $58 a week. When she returned to the labor market she filed a claim for unemployment insurance benefits, and four months later she was offered employment as a stenographer with an electro-metallurgical company at $180 a month. The "going rate" for experienced stenographers in the area was then $40 to $45 a week. Claimant refused the offer because she was dissatisfied with the salary and objected to traveling half an hour by bus, and was declared ineligible for benefits. This determination has been reversed by the Appeal Board because claimant's training and experience as a "chemical stenographer entitled her to seek employment "at a skill comparable with her previous employment." That the full utilization of all skills is not the effective test to be applied under the statute, but rather the availability of work for which the claimant is fitted by training and experience is being made plain by a series of judicial interpretations of which Matter of DeBruyne (278 App. Div.); Matter of Strazza (278 App. Div. 1036); Matter of DeBruyne (278 App. Div. 1036), are examples. Decision of the Appeal Board reversed on the law, and the determination of the Industrial Commissioner reinstated. (November 30, 1951)

COMMENT

1. The decisions cited by the court are as follows:

a. Matter of Delgado, 278 App. Div. 237, A-750-1015

A sewing machine operator who completed a training course and was licensed as a hairdresser refused without good cause, employment in her usual occupation since "where a person is reasonable fitted for more than one kind of employment, he does not bring himself within the benefits provided by the statute if he refuses one kind merely because he prefers the other ."

b. Matter of Strazza, 278 App. Div. 1036, A-750-1052

Claimant, who refuses employment for which he is reasonably fitted by training and experience, although not fitted with complete exactness, such as he baking of Italian and French bread and cakes against that of American style bread and rolls, does so without god cause since the statute does not contemplate such a precise selection of employment.

c. Matter of DeBruyne, 278 App. Div. 1036, A-750-1055

Refusal of a job below claimant's highest skill, while there are no reasonable employment opportunities in such highest skill because of seasonal conditions, is without good cause if the claimant is fitted by training and experience for the job and the wages, although appreciably below those paid for the higher skill, are prevailing for the offered work.

2. The principle enunciated in Appellate Division decision, Matter of DeBruyne, above, is almost identical with that reflected in the present decision. However, the sewing position in that case was offered to claimant DeBruyne, a fur finisher, because of a seasonal lull in her industry. The decision here reported shows that such factor is not always essential, and especially so if claimant had been unemployed for an appreciable time.

 

A-750-1065

Index 1480A-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 4, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Public Service Officials

Appeal Board Case Number 26,805-51

QUESTION OF CONTINUOUS EMPLOYMENT, APPOINTED SCHOOL BOARD OFFICIAL RECEIVING $400 PER ANNUM FOR EMPLOYMENT ON 13 EVENINGS DURING THE YEAR

Services rendered on the local school board, with duties confined to thirteen evenings during the year, for which an annual stipend is paid, was not employment of a continuous nature and claimant, therefore, was employed only with respect to the actual evenings worked.

Referee's Decision: The initial determination of the local office holding claimant ineligible for benefits, effective October 2, 1950, because he was not totally unemployed was sustained. (February 27, 1951)

Appealed By: Claimant

Findings of Fact: We have reviewed the evidence adduced at the hearing before the referee and find that such evidence supports the following findings of fact made by the referee:

Claimant, a tax researcher, filed an original claim at Glen Cove on October 2, 1950. By initial determination claimant was ruled ineligible, effective October 2, for lack of total unemployment and was ruled ineligible from October 25, through November 5, 1950, for failure to comply with reporting requirements.

The claimant was employed for many years as a tax researcher for a real estate insurance company. Having reached the age of 60, the claimant was retired by the company at a monthly pension at $100.91. He was last employed on July 21, 1950.

Since October, 1944, claimant who resides at Glenwood Landing, New York, has been clerk of the Glenwood Landing School Board. He is the recording secretary and accounting officer of the board. His duties required him to take minutes of the meetings of the board and to keep all tax records of the board. The meetings of the school board are regularly held once a month during the evening, and there is an annual meeting of all the voters of the community and the claimant is required to make a record of the proceedings of these meetings. The financial records of the board are entered by the claimant on the night of the meeting. Once a year the claimant assists the board in establishing the school tax rate.

The school board is required to notify the State Civil Service Commission of the claimant's appointment. His remuneration is $400 a year, which he receives in two installments. No taxes are deducted from that payment.

The claimant failed to report at the insurance office between October 25 and November 5, 1950, because he had neglected to read the instructions in the pamphlet furnished to him. The local insurance office denied the claimant's application to excuse his failure to report.

We make the following additional findings of fact: Claimant was appointed each year by the local school board. As clerk of the board he was not entitled to become a member of the New York State Employees Retirement System and could not build up any retirement benefits. All services rendered by claimant for the school board were performed at the meetings, which were held during the evenings in the school building. All books and records used by claimant in the performance of such duties were kept and remained in the school building.

Appeal Board Opinion: The referee held that claimant was not totally unemployed and based his decision on the authority of Appeal Board, 20,783-49 and Appeal Board, 4051-40. We believe that those cases are distinguishable from the case before us. Here the claimant is not an elected official. He is not subject to call by the board. In Appeal Board, 20,783-49, the claimant was elected supervisor of a ward in the City of Utica. He was obliged to attend meetings twice a month, for which he received a salary of $1000. These meetings were held during the day. He was also required to serve on various committees and perform other services whenever called upon to do so. The claimant was also entitled to become a member of the New York State Employees Retirement System and was able to build up retirement benefits. Upon all of these facts, the Appeal Board held that claimant's duties were of a continuous nature; that they were not allocable to any specific days; that he was a part-time employee and not totally unemployed during the entire period of his contract. In Appeal Board, 4051-40, the claimant was elected a councilman of the City of Glens Falls at a salary of $600 a year, payable $50 a month. He was required to attend four weekly meetings a month during the evening. The Appeal Board held that claimant's monthly salary was compensation for his employment and that claimant was not totally unemployed during the entire term of his office. However, the decision in this case was predicated upon the definition of total unemployment as it existed in the law prior to the enactment of the day base plan. In a more recent case, Appeal Board, 21,597-49, the claimant was the local truant officer and his duties required him to investigate cases of delinquent children. His services were performed during the daytime. The Appeal Board held he was not totally unemployed. In the case now on appeal, however, the claimant was not engaged in employment of a continuous nature. The $400 he received annually was paid to him for services he rendered the school board by attending their meetings on 13 evenings during the year. Outside of the duties he performed at these meetings, there were no other services which claimant was obliged to render to the school board. He was not a member of the State Retirement System and could not accumulate any retirement benefits. At not time did the services rendered by him on the 13 occasions when he attended the meetings interfere with claimant's availability for other employment. We find, therefore, that only on the 13 occasions during the year when claimant attended the meetings of the school board and when he attended the annual meeting of all of the voters of the community, claimant was not totally unemployed. With regard to the issue of claimant's failure to comply with reporting requirements from October 25 through November 5, 1950, we find that claimant has offered no valid excuse for his failure to report to the local office. Therefore, he was properly held to be ineligible for benefits during that period of time.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible for benefits, effective October 2, 1950, because he was not totally unemployed is modified to the extent that, claimant was not totally unemployed only on the 13 specific occasions when he attended the regular meetings of the school board on the second Wednesday of each month and also when he attended the annual meeting of all of the voters in the community. The initial determination of the local office, holding claimant ineligible for benefits from October 25, 1950 through November 5, 1950 for failure to comply with reporting requirements, is sustained. The decision of the referee is reversed. (October 26, 1951)

 

A-750-1072

Index No. 740.9

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

February 21, 1952

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Pensions – Retirement
Efforts to Find Work

Appeal Board Case No. 29,076-51

EVIDENCE OF UNAVAILABILITY; LIMITATION OF JOB EFFORTS ONLY TO PERIOD DURING WHICH BENEFITS ARE RECEIVED

A retired worker, receiving a substantial pension, who failed to seek work independently between benefit years, after exhausting his benefit rights, was unavailable for employment; a person genuinely interested in obtaining employment does not limit his efforts in seeking employment only to periods during which he is obtaining benefits.

Referee’s Decision: The initial determination of the local office holding claimant, a construction superintendent, ineligible for benefits, effective June 18, 1951, upon the ground that he was unavailable for employment is overruled. (August 22, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: We have reviewed the evidence adduced at the hearing before the referee and find that such evidence supports the following findings of fact made by the referee:

* * *

Claimant moved from New York City to his present home in Southampton in January 1951. He was last employed as a construction superintendent with the New York Telephone Company for 42 years to May 31, 1949, when he was retired by the company. He is 67 years of age. The claimant receives a pension of $327 a month from the company and that, together with his old-age insurance, gives him a monthly income of $361. He has had no employment since May 1949.

When the claimant filed his original claim in June 1949, he realized that he could not obtain employment with the telephone company or with any company affiliated with that system and he thereupon wrote numerous letters to various companies throughout the United States inquiring for work similar to his last job. Most of the companies informed the claimant that they retired their employees at 65. He wrote such letters from June 1949, until December 1949, when he exhausted his benefits in that year. He again filed a claim in June 1950, and wrote similar letter to companies throughout the country until December 1950, when he again exhausted his claim. He did not write any letters in any period between December of 1949 and June 1950, or between December 1950 and June 1951. When he again filed his claim in June 1951, he wrote additional letters to various companies for the period covered by this claim. The claim herein is for the additional period of two weeks which was recently added to the benefit year by the Legislature.

The Board makes the following additional findings of fact: Claimant made no effort to obtain employment between January 1950 and June 1950 between January 1951 and June 1951. He did not report to the employment service during these periods. Claimant filed an additional claim for benefits on June 18, 1951. Based on an interview, the local office issued an initial determination holding claimant ineligible for benefits, effective June 18, 1951, upon the ground he was unavailable for employment. The claimant requested a hearing and the referee overruled the initial determination. The Industrial Commissioner thereupon appealed to this Board.

Appeal Board Opinion: Claimant’s sole efforts to obtain employment were in the form of letters to prospective employers. He wrote such letters for 26 weeks following his retirement. After he collected his 26 benefit checks, he ceased reporting and cased writing letters. When the new benefit year started, he reported again, wrote letters for 26 weeks until he exhausted his benefits and again stopped writing letters and reporting to the local office. Thereafter, he moved to a cottage in the country from his home in the city. When he ascertained that by virtue of recent legislation it was possible to file for two additional checks, he reported to the local office and again wrote letters for two weeks. He was denied benefits for these additional two weeks. The referee decided that the fact that a claimant’s applications for work coincided with this claim for benefits, only raised a "suspicion" that claimant’s search was not diligent or real. We are not in accord with the reasoning of the referee. Any analysis of the record leads to the inevitable conclusion that claimant’s efforts to obtain employment were more apparent than real. A person genuinely interested in obtaining employment does not restrict or limit his efforts to the period during which he is obtaining benefits.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible for benefits, effective June 18, 1951, upon the ground that he was unavailable for employment is sustained. The decision of the referee is reversed. (December 21, 1951)

 

A-750-1073

Index No. 755A.6

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

February 21, 1952

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restrictions – Work, Nature of

Appeal Board Case No. 29,123-51

REGISTERED NURSE RESTRICTING EMPLOYMENT TO CASE WORK FOR PRIVATE PATIENTS

A claimant who is seeking work only in fields which are held to constitute self-employment (independent contractor), such as registered nurse restricting herself to case work for private patients, is unavailable for employment within the meaning of the Unemployment Insurance Law.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective November 21, 1950, on the ground that she refused employment without good cause, or in the alternative that claimant was unavailable for employment effective the aforesaid date is overruled. (June 8, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was graduated in 1925 from a hospital and is a registered nurse. She had worked in this capacity for several years. She was employed as an industrial nurse at a canning plant in Fulton, New York, from 9:00 a .m. to 6:00 p.m. for three years ending 1950 during the season from May to November. During the other months of the year, she worked as a private nurse either in private homes or in hospitals. Claimant filed a claim for benefits on October 23, 1950. She had heart attack in 1945 and can no longer perform general duty nursing at a hospital since this work requires that the patient be lifted from time to time and involves other arduous duties. She was willing to accept private duty at a hospital or at a home. Her name was listed at hospital for private duty. She worked as a private nurse on October 26, October 27, November 1 to November 3, November 10 to November 13 and on November 15, November 16 and November 20, 1950. She filed an additional claim for benefits on November 21, 1950. On November 21, 1950, claimant was referred to a hospital as a general duty nurse. Claimant refused the referral stating that she was unwilling to accept general duty and she restricted herself to private duty. It was contended that if claimant accepted the offer, a nurse's aide would assist her with the more arduous duties, such as lifting the patient. The local office issued an initial determination disqualifying claimant from receiving benefits, effective November 21, 1950, for refusal of employment without good cause. It also issued an alternate determination, effective the aforesaid date that claimant was unavailable for employment because her restrictions concerning the type of nursing duty she was willing to accept. Claimant worked as a private nurse from December 2 to December 5 and on December 9, 1950. She filed an additional claim for benefits on December 11, 1950 and was credited with one statutory week. She accepted an assignment as private nurse for a patient at a hospital from December 20, 1950 to December 30, 1950. She filed an additional claim on January 1, 1951 and reported to March 27, 1951. She had been working steadily since March 28, 1951 as a private nurse. She intended to resume work as an industrial nurse for her former employer the latter part of May 1951.

Appeal Board Opinion: The referee ruled that because of claimant’s heart condition, she was justified in refusing to do general duty nursing in a hospital. He also overruled the alternate determination on the premise that claimant was available as a private duty nurse and there were opportunities for her to obtain such work. The Industrial Commissioner argued that claimant’s refusal of the employment offered was without good cause on the premise that if claimant were required to lift patients in the course of her duties, the services of a nurse’s aide would be available to her. It is also contended that since claimant was seeking private duty nursing until she was recalled at the cannery, she rendered herself unavailable for employment. The Industrial Commissioner urges that a person who seeks work only as a private duty nurse is not in the labor market because a nurse working under such circumstances is not an employee but an independent contractor. The record supports the conclusion of the referee that because of her heart condition, claimant was justified in refusing the offer of employment as a general duty nurse in a hospital. However, there is merit to the contention that claimant must be deemed unavailable for employment. Claimant, during the period in question, restricted herself to private duty nursing. It is well recognized that registered nurses assigned to private patients are not employees of the patient but are self-employed (Appeal Board, 12,918-46). Under these circumstances we do not believe that it can be said that claimant was in the labor market or available for employment within the contemplation of the Unemployment Insurance Law.

Appeal Board Decision: The alternate initial determination of the local office disqualifying claimant from receiving benefits, effective November 21,1950, on the ground that she was unavailable for employment is here by sustained. The decision of the referee is modified accordingly, and as so modified, is affirmed. (January 4, 1952)

 

A-750-1077

Index 1750-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 6, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Traveling Requirement

Appeal Board Case Number OSR-3662-51R

VOLUNTARY LEAVING; TRAVELING REQUIREMENT - SERIOUS AFFECT ON FAMILY RELATIONSHIP

Voluntarily leaving employment because of required traveling and absence from home over extended periods is with good cause if prompted by compelling reasons, such as to preserve the marital relationship when endangered because of the nature of such employment.

Referee's Findings of Fact: Hearings were held in Illinois and in New York at which claimant and representatives of the Industrial Commissioner and of claimant's former employer, respectively, appeared and testified. Claimant filed for benefits on August 27, 1951, in Chicago, Illinois. By initial determination effective the same date, claimant was disqualified for 42 days for voluntary leaving of employment. Claimant worked from January 1950 up to July 15, 1951, as a salesperson of a waterproofing compound, on a commission basis. His work required him to travel to different states and absent himself from home over extended periods of time. Claimant is married and resides with his wife and daughter. They strongly objected to his long absences from home. There were domestic difficulties that were aggravated by his absences. Claimant's wife threatened to leave him if he continued in his job. He, therefore, left it to prevent domestic discord. He obtained other employment on September 13 and is still so employed.

Referee's Opinion and Decision: I find that claimant left his employment for a compelling reason. His work required him to be absent from home over long periods of time. Had he continued in his employment, his family relationship might have been seriously affected. In view of the public policy encouraging preservation of the family relationship, claimant's leaving of his employment to preserve it, constituted good cause for leaving the job under the Unemployment Insurance Law. The initial determination is overruled. (January 31, 1952)

COMMENT

On the credible evidence, that claimant left his job to prevent a breakup of his married life. This, in view of public policy, was such a compelling reason as to be considered good cause.

 

A-750-1079

Index 1205E-8

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 14, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
During Period of Inactive Status

Appeal Board Case Number 28,721-51

REFUSAL DISQUALIFICATION DURING PERIOD OF REGULAR REPORTING ALTHOUGH ON A DAY OF PARTIAL EMPLOYMENT

A refusal disqualification is properly imposed for a refusal which occurs during a period in which claimant reports regularly on her assigned reporting dates although claimant could not accrue benefit rights on the day of the offer because she had worked part of that day.

Referee's Decision: The initial determination of the local office effective May 24, 1951, disqualifying claimant from receiving benefits on the ground that she refused employment without good cause is overruled. (July 12, 1951)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant, a sewing machine operator on dresses, filed an additional claim for benefits and registered for employment on April 30, 1951. She worked for an employer all day on May 23, 1951 and three hours in the morning of May 24, 1951 (Thursday) when she left this employment. She voluntarily reported to the employment service on the afternoon of May 24, 1951 when she was referred to a job on a piece work basis with a manufacturer of dresses. Claimant refused the referral stating "I cannot make out on a cheaper line." She next reported at the local office on May 29, 1951 (Tuesday) at which time she was credited with an additional claim effective May 28, 1951. On May 25, 1951, the local office issued an initial determination effective May 24, 1951 disqualifying claimant from receiving benefits on the ground that she refused employment without good cause.

Appeal Board Opinion: The referee held that claimant was fitted by training and experience for the employment offered her on May 24, 1951, and that the wages were in accordance with union standards prevailing in the industry. He ruled, however, that inasmuch as claimant could not accrue benefit rights on May 24, 1951, since she had worked part of that day, she could not be disqualified for refusal of employment on the same day because it was during a period within which claimant was not "in benefits." The Industrial Commissioner contends that the disqualification was properly imposed because claimant was "in benefits" during the entire statutory week ending May 27, 1951. In support of his contention, he relies on the amended Regulation 40 of the Industrial Commissioner whereby a claimant is no longer required to re-file for benefits immediately after a spell of employment, but need only report at the local insurance office on his regular reporting day, at which time he is permitted to certify to his days of total unemployment in the preceding statutory week. It is argued that by virtue of claimant's reporting on May 29, 1951 and her certification at that time for the week ending May 27, 1951 she was actually a benefit claimant throughout that week. We believe that the Industrial Commissioner's position is well taken. We cannot agree that the fact that claimant could not receive credit for an "effective day" of total unemployment for May 24, 1951 is decisive of the issue before us. Under the Commissioner's regulations, a benefit claim is deemed continually in effect during the period that a claimant reports regularly on his assigned reporting dates. It therefore follows that claimant herein was eligible for benefits during the statutory week ending May 27, 1951 and that the disqualification for refusal of employment was proper under Section 593.2 of the Law.

Appeal Board Decision: The initial determination of the local office effective May 24, 1951, disqualifying claimant from receiving benefits on the ground that she refused employment without good cause is sustained. The decision of the referee is reversed. (February 1, 1952)

COMMENT

In Appellate Division decision, Matter of King (Serial No. A-750-1051), it was stated that a wilful misrepresentation, although made at a time when claimant was not entitled to benefits because of insufficient earnings, justifies the imposition of a forfeiture penalty, to be applied in a benefit year established subsequently by filing a valid claim at a later date in the next benefit year.

That case establishes for the first time that the application of special provisions of the law do not necessarily require that a claimant who has filed a claim must be otherwise "entitled" to benefits at the time of the occurrence of the action or event in question. In the comment of that release, it was stated that it is logical to conclude that the principle is not confined to the issue there presented, but that a claimant is subject to all such provisions, at least beginning with the moment when he asserts benefit rights, regardless of whether he is otherwise entitled to or eligible for benefits at such time.

The current decision is of importance since it confirms such principle and points to another specific instance where a disqualification is proper during a period of "inactive status." It is hoped that future decisions will further clarify the field in which this principle applies.

 

A-750-1080

Index 1460E-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 14, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR OPARTIAL UNEMPLOYMENT
Compensation without Work - Other

Appeal Board Case Number 25,713-50

GUARANTEED MINIMUM INCOME PLAN DURING PERIODS OF UNEMPLOYMENT

Claimants receiving payments from an employer under a guaranteed work plan which provides that they will be paid for 70 hours for each month in which they perform no work, such 70 hours representing the equivalent of two 35-hour weeks of work, are not totally unemployed during periods covered by the payments but are credited with two statutory weeks of total unemployment during each such month.

Referee's Decision: The initial determinations of the local office disqualifying claimants from receiving benefits, effective May 22, 1950, on the ground tat they were not totally unemployed are sustained. (October 24, 1950)

Appealed By: Claimants

Findings of Fact: The six claimants herein have been employed for a number of years as packers in the Depew, New York plant of a large manufacturer of breakfast cereals. Since 1937, the employer has had in effect in this plant a guaranteed work plan, the pertinent portions of which are as follows:

GUARANTEED WORK PLAN

The Guaranteed Work Plan was inaugurated by the Q Company in 1937. The purpose of the Plan, which is outlined in brief form below, is to guarantee a minimum income to qualified employees during periods of slack business.

1. QUALIFIED EMPLOYEES

All full-time employees, men and women, working on an hourly or piecework basis who have service credit of not less than six months accumulated within a continuous twelve months period, and have been approved as white card employees by the plant management, shall be entitled to the benefits of the plan. For the purposes of this section, a month of service shall be a calendar month in which at least 70 hours have been worked.

2. HOURS GUARANTEED WHILE ON PAYROLL

The Company guarantees qualified employees while they are on payroll 140 hours of work in each month, for which they will be paid their base hourly rate.

3. HOURS GUARANTEED WHILE ON LAYOFF

In case qualified employees are laid off, that is removed from the payroll, they will be paid for 70 hours per month at their base hourly rate for such period of layoff within any continuous twelve months period as specified below:

Length of Cumulative Service		Maximum benfit in any Continuous 12 Month Period
6 months' service and less than 1 year		2 months
1 years' service and less than 2 years		3 months
2 years' service and less than 3 years		4 months
3 years' service and over		6 months

4. TIME OF PAYMENT

Guaranteed time will be calculated once a month and will be included in any pay for the week in which the last day of the month occurs.

5. ABSENCE

If an employee is absent from his or her work for any personal reason, sickness or otherwise, or by reason of accident, the guaranteed time will be reduced by the number of hours of such absence.

6. DISCONTINUANCE OF PAYMENT

No further payments will be made to any employee under this plan if he is not recalled to work within 12 months from the date of his layoff, or if upon demand he fails to re-enter the employ of the Company, or if he does obtain full-time employment elsewhere.

No further payments under this plan will be made to employees who leave the employ of the Company voluntarily, who are discharged for cause, or who are laid off because of destruction of the plant or accident thereto or to its machinery, or because of the permanent closing of a plant or department.

In the event of failure to operate the plant or any department thereof due to a strike, or other conditions beyond the control of the Company, the plan shall be suspended for the duration of such strike or such conditions.

All of the claimants are full-time workers and "qualified employees" eligible to receive benefits under the above plan. During the period in question, the normal hours of work in the plant were 40 hours per week or an average of 173 hours per month. Following previous layoffs in the early months of 1950, claimants were called back to work in April 1950. They were again laid off on May 19, 1950 and filed additional claims for benefits on May 20, 1950. All of the claimants received, under the plan, 20 hours wages for the month of May 1950 representing the difference between 140 hours and the hours they had actually worked in that month. In June and July 1950, claimants again suffered layoff periods for which they filed additional claims for benefits. They received guaranteed wages under the plan for these months where they had received less than the 140 guaranteed hours of work in the month. Upon a further layoff, claimants filed additional claims on September 25, 1950 and reported thereafter for the period of the layoff, which continued through the months of October and November 1950. Claimants received 70 hours layoff pay for each of these months as provided in paragraph 3 of the plan. During layoff periods, employees were permitted to seek and obtain employment elsewhere. If they received part-time work they were paid benefits under the plan on a pro rata basis up to the time they started such work. All laid off employees were retained on the employer's payroll record and were subject to be called back to work when needed. Only those who failed to return to work when recalled were dropped from the payroll. During the winter season of 1950, a number of workers obtained full-time employment elsewhere as a result of which they became ineligible to receive layoff time for the period of such employment. Some returned to work with the employer when recalled and others failed to do so and were dropped from its payroll. The local office issued initial determinations with respect to each of the claimants disqualifying them from receiving benefits, effective May 22, 1950, on the ground that they were not totally unemployed because they were receiving payments from the employer under the guaranteed wage plan. Claimants protested and requested hearings.

Appeal Board Opinion: The referee sustained the initial determinations of the local office on the theory that claimants, during the period in question, were on the employer's payroll, subject to its direction and control and prohibited from accepting other than casual employment. He concluded that these elements established that claimants were no totally unemployed. We are unable to accept the referee's conclusions. The present record shows that although claimants were retained on the employer's payroll during layoff periods and were subject to recall to work, they were not prohibited from accepting full-time employment elsewhere. No question has been raised in this case as to the availability of these claimants or their willingness to accept employment with other employers if the same had been obtainable. The sole question therefore is whether or not the receipt of benefits by these claimants, pursuant to the guaranteed work plan, rendered then not totally unemployed so as to be barred from receiving unemployment insurance benefits. The purpose of the employer's guaranteed work plan is to guarantee a minimum income to qualified employees during periods of slack business and to provide partial compensation to them for holding themselves in readiness for prompt return to work when recalled. The fact that employees are retained on the employer's payroll during layoff periods cannot be determinative of the issues herein. This is true of the average case of a temporary layoff where the right to the temporarily unemployed worker, who is otherwise qualified, to unemployment insurance benefits is unquestioned. The employer's plan which was instituted in 1934, in effect, guarantees to the worker wages equivalent to their average earnings in four 35-hour work weeks in each month. However, when no work is performed during the month by the worker, the plan guarantees the equivalent of only two 35-hour work weeks. Section 522 of the Labor Law reads as follows:

TOTAL UNEMPLOYMENT. "Total unemployment" means the total lack of any employment on any day, caused by the inability of a claimant who is capable of an available for work to engage in his usual employment or in any other for which he is reasonably fitted by training and experience. The term "employment" as used in this section means any employment including that not defined in this title.

Although the plan falls short of guaranteeing to the unemployed worker the amount of his earnings wen fully employed, we are constrained to hold that for the purposes of unemployment insurance the claimants cannot be regarded as totally unemployed in any part of a month in which they received guaranteed time under paragraph 2 of the plan. In our opinion it would not be within the spirit of the Unemployment Insurance Law to award to these claimants unemployment insurance benefits to supplement their earnings in the months during which they had some employment with the employer and were paid by the employer for the minimum hours of work contemplated by the parties, under such circumstances. However, a different result should follow with respect to the months when claimants performed no work for the employer and received from it only 70 hours layoff pay, representing the equivalent of two 35-hour weeks of work. This was the case with respect to claimants for the months of October and November 1950. A reasonable construction of the statute, it seems to us, permits a holding that each claimant is entitled to be credited with two statutory weeks of total unemployment in any month in which she was unemployed and received from the employer 70 hours lay off pay. Accordingly, each claimant herein should be credited with two statutory weeks of total unemployment in the months of October and November 1950.

Appeal Board's Decision: The initial determinations of the local office are modified in accordance with the above opinion. The decision of the referee is modified accordingly, and, as so modified is affirmed. (January 18, 1952)

COMMENT

This case is of considerable interest because it is the first time that conditions under a Guaranteed work Plan have been the subject of an appeal Board decision. Such plans may in the not too distant future become more prevalent than they are today, and local offices may in an increasing number of cases be confronted with them.

It is not possible to foresee what the provisions of other similar plans will be. Differences of the terms may result in different determinations. However, in the case here decided, it was concluded that, in substance, the employer guaranteed two weeks work with corresponding pay for each month in question. Workers who received such payments are considered as employed during such weeks, in a manner similar to that which would prevail if a paid vacation or other paid lay-off period were involved, or if "stand-by" wages were paid without actual work being performed.

The decision also deals with claimants who performed some work in a given month and who are guaranteed "140 hours of work in each (such) month." Such claimants were considered as employed throughout the entire month.

It appears justifiable to draw this general conclusion:

Under a guaranteed work plan, such as that under discussion, claimants are employed, and therefore not eligible for benefits for periods which correspond to those reflected by the guaranteed work or the guaranteed wages.

 

A-750-1081 (Revised)

Index 1725-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 25, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Union Relations

Court of Appeals, Matter of Fiol, 309 NY 661

VOLUNTARY LEAVING BY SEAMAN, A "PERMIT CARD" HOLDER, AT UNION REQUEST IN ACCORDANCE WITH 60-DAY RULE

A seaman, holder of a "permit card," has good cause in leaving employment upon the completion of one round trip or 60 days, whichever is longer, if, in accordance with a rule of his Union, he would have jeopardized his Union membership by retaining that employment, since the Union rule is not arbitrary, but a reasonable one, designed to provide a solution to the labor problems in the industry.

Appeal Board Decision

A decision was rendered by this Board on July 20, 1951, (Appeal Board, 23,453-50) affirming the decision of the referee dated April 18, 1950, sustaining the initial determination made by the local office holding claimant qualified for benefits, in that he did not voluntarily leave his employment or reject an offer of re-employment without good cause, as alleged by his employer, and overruling the employer's objection to the said initial determination of the local office. The employer appealed from the Board's decision to the Appellate Division of the Supreme Court for the third judicial department. On March 20, 1952, the Appellate Division of the Supreme Court for the third judicial department handed down its decision unanimously affirming the decision of the appeal Board. An order of affirmance was entered thereon in the office of the clerk of that Court on March 21, 1952 (279 App. Div. 963). The employer thereafter appealed from the aforesaid order of the Appellate Division of the Supreme Court for the third judicial department to the Court of Appeals of the State of New York, pursuant to leave granted by the latter-named Court. On April 24, 1953, the Court of Appeals rendered its decision and made an order reversing the aforementioned order of the Appellate Division, and the determination of the Appeal Board, and directed that the matter be remanded to the Appeal Board for further proceedings in accord with the opinion of the Court of Appeals (305 N.Y. 264). On May 6, 1953, an order on the remittitur of the Court of Appeals was entered in the office of the clerk of the Appellate Division of the Supreme Court for the third judicial department, making the order of the Court of Appeals the order of the Appellate Division and remanding the matter to the Appeal Board for further proceedings in accordance with the opinion of the Court of Appeals of the State of New York. The opinion of the Court of Appeals, insofar as is herein material, reads as follows:

PER CURIAN:

The referee and the Appeal Board found jurisdiction for the claimant's relinquishment of his job in the union's 60 day rule. But the mere fact of the existence of such a union rule did not warrant the conclusion that claimant was excused from continuing his employment. The referee and the Appeal Board had to go further and determine whether, under all the facts of the case, the claimant was justified in complying with the union regulation. Such an inquiry would involve a decision as to the reasonableness of the regulation in question - whether, in other words, the nature of the industry, the state of the labor market and other relevant considerations, furnished reasonable basis in fact for that regulation. To hold otherwise would be to allow the union to determine arbitrarily what constituted "good cause" for the claimant's leaving his job - a function which the Labor Law entrusted to the referee and the Appeal Board (See Labor Law, section 623).

Pursuant to the provisions of Section 624 of the Law, the Appeal Board on May 28, 1953 entered an order dated May 22, 1953, making the order entered on May 6, 1953 by the Appellate Division of the Supreme Court for the third judicial department, the order of the Appeal Board. In compliance with the provisions of the said order, the Appeal Board, after giving due notice to all parties, placed this matter on its hearing calendar of June 10, 1953 for disposition in accordance with the directions contained in the order of the Court. After several adjournments, a hearing was duly held before the Board on September 21, 1953, at which the attorneys for the employer and its witnesses, the attorney representing the claimant's union and its witnesses, and representatives of the Industrial Commissioner appeared and were accorded a full opportunity to be heard. Briefs submitted on behalf of the employer and the claimant's union were considered by the Board. Based on the entire record and testimony in this case and upon all of the proceedings heretofore had herein, the Board makes the following:

Findings of Fact: The employer is a steamship corporation, wholly owned by a steel company. It operates eight cargo vessels that make inter-coastal voyages, carrying steel on its westbound and lumber on its eastbound voyages. In 1948 the employer entered into contractual relations with a seafarers' union, which it recognized as the exclusive representative of the unlicensed personnel employed on all its vessels for the purpose of collective bargaining in respect to rates of pay, wages, hours of work and other conditions of employment. The agreement contained no closed shop or preferential hiring provision. Although the employer was free to hire crewmen to man its vessels as it pleased, admittedly, in practice it customarily hired substantially all of its unlicensed seamen through the union's hiring hall. We reiterate the following findings of fact, substantially as made by the referee, which findings we previously had adopted as the findings of fact of this Board in Appeal Board 23,454-50 and adopt such findings as findings of the Board in the instant case. From October 7 to December 19, 1949, claimant, a seaman, was employed as a messman aboard on one of the employer's vessels which made a round trip from New York to Seattle, Washington, and returned during that period. All of the replacement to complete the crew of that vessel, including claimant, came from the union's hiring hall. The claimant had previously applied for membership in the union, but was not admitted to full membership (hereinafter called book membership), as the union was then temporarily not accepting additional applications for book membership. Instead, claimant was given a permit card by the union. As a permit man he may bid for a job if no book member has applied for it and may remain in employment for a period of 60 days for the duration of one round trip, whichever is longer. Although he may not vote at membership meetings, a permit man has all the other duties and benefits of full union membership. At the termination of the voyage on December 19, 1949, claimant was instructed by a union representative to leave the vessel since he had been employed for more than 60 days. Failure to obey the instructions of the union representative would have subjected him to disciplinary action by the union, and would have precluded him from becoming a full book member of the union at any time. The hearing held before the Board in compliance with the provisions of the decision of the court of appeals and the order of the Courts, established the following facts: The union, in which claimant held membership as a permit man, is a trade union of unlicensed seamen. It was organized in 1938 as an international union and is affiliated with the American Federation of Labor. The union's Atlantic division has jurisdiction over its members in the Port of New York. The union is in contractual relations with about 95 employers of unlicensed seamen, engaged in the operation of vessels that make both foreign and inter-coastal voyages. Pursuant to the contract entered into with the various employers, including the employer in this case, the union agreed to furnish seamen to the employers, as needed, to man their vessels. In fulfillment of its contractual obligation, the union maintains hiring halls, employing a rotary system of job referrals. It gives job priority to its book members over its permit members. Within each class of membership, preference is given to those members with the earliest chronological registration for employment. It endeavors at all times to maintain an adequate reserve pool of its members available for referral to employers upon request. The union's hiring halls with their respective labor pools operate at key ports, including the Port of New York. The union members constituting the various pools of unemployed seamen are available for referral to employment to other ports whenever a shortage of seamen develops in a particular geographical area. Employment in the maritime industry is not steady, and there are many periods of unemployment to which seamen are subjected. The average seaman, if more or less steadily employed, works about eight months out of the year. The employment of unlicensed seamen in the industry is directly dependent on the number of vessels actively engaged in commerce among our domestic ports and between ports and those in foreign nations. The withdrawal of vessels from active operations results in an increase in unemployment equal to the number of jobs filled by crews previously engaged in the operations of the "laid-up" vessels. In normal times there are seasonal fluctuations both in the number of vessels in operation and the number of seamen employed. These periods of irregularity in employment arise out of the season needs for additional cargo space for the articles of commerce being hauled, such as coal for stock piling or grain and other agricultural products for foreign ports. With the close of a season, employment shrinks as extra cargo space aboard vessels is withdrawn and the seamen employed during the seasonal periods become excess and unemployed. In addition to unemployment due to normal seasonal variations, other factors influence the stability of employment in the maritime industry. Job opportunities fluctuate with periods of international crises, war, post-war readjustment and the fulfillment of governmental aid programs for the benefit of foreign nations. In 1938, vessels of American Registry of 1,000 tons or more provided 49,800 licensed and unlicensed jobs for seamen. Most of these were jobs for unlicensed seamen. With the increase of international tensions in Europe, followed by war, more vessels were continuously put into operation and the employment of men to man these vessels increased, so that at its peak in September 1945, there were 168,070 seamen employed in the maritime industry. Thereafter and during the post-war period, employment in the maritime decreased as vessels were withdrawn from service so that in July 1950 only 58,650 jobs were available. The Korean action brought vessels back from reserve fleets and employment in the industry again rose, so that by December 1951, there were 97,688 jobs filled by seamen. Every seaman has been required since 1950, in furtherance of the national security, to have his seamen's papers validated by the United States Coast Guard. Out of a total of 359,589 validated documents since September 1950, 307,571 were actually issued and are in the possession of men qualified to take employment as seamen. However, at the time of the hearing held before the Board there were only 71,900 job opportunities for seamen in the maritime industry, a ratio of better than four qualified seamen for every available job. When claimant's union was organized in 1938, the seamen then employed aboard vessels operated by the employers who entered into collective bargaining agreements were offered book membership in the union. Thereafter, as employers' fleets were organized, the employed seamen were permitted to join the union as book members. Each book member brought with him his job so that the number of union book members approximated the number of jobs under contract with the union. By 1940, events in Europe caused an increased demand for ships and seamen to man them. The union's hiring halls were open to all who qualified and sought employment as seamen and the union continued to fill the unprecedented number of job orders received form employers for crews. The impact of the sudden influx of men, between 1940 and 1945, most of whom, but for their desire to aid the war effort, did not intend to remain seamen permanently, compelled the national unions in the maritime industry in 1940 to adopt the trip-card system of union affiliation, designed to absorb the temporary workers into the industry. The book members of the union, in order to preserve for themselves their future rights to job priority by virtue of their union seniority, limited the membership status of the new seamen. Under the trip-card system, every seaman who registered for and was referred to employment by the union, except book members, was given a trip-card. This card permitted the non-book member to work aboard a vessel for one complete voyage regardless of its duration. The trip-card expired with the completion of the voyage of the vessel. If the seaman again sought a referral to employment through the union's hiring hall, he was required to re-register for employment. Separate shipping list registers were maintained for book members and trip-card members. The latter were given job referrals and new trip-cards only after no book members were available for referral. In that way book members had first choice of the available jobs. In the latter part of 1945, the union membership abolished the trip-card system and in its stead adopted a permit class of membership and the 60-day rule, designed to take care of job requirements that could not be filled by the regular book members. This new practice was incorporated into and made part of the union's published rules regulating the union membership in registering for employment and shipping. A violation of these rules subjected the union members to disciplinary action by the union, and for a violation of the 60-day rule, a permit member was subject to the loss of his union membership. A seaman applicant for union membership was given a permit membership (as distinguished from a book membership) only if a job opening was available to which he might be referred. But once issued, the member continued to hold the permit as long as he desired to continue his union membership, abided by the rules and regulations of the union and properly performed the duties of his job while employed aboard an employer's vessel. Like book members and the former class of trip-card holders, the permit member registers for employment at the union's hiring hall. Separate shipping lists are maintained for each class of member, with book members having priority in receiving referrals to employment over permit men of the same job classification. If there is no book member available for referral, the earliest registered permit man is given the job. Once on the job, the permit man is entitled to remain in his employment for a minimum period of 60 days, or one round trip of the vessel, whichever is the longer. Having worked for at least 60 days or more, the permit man must then leave the vessel and re-register at the hiring hall so as to afford an unemployed book member an opportunity to obtain employment. A permit man who fails to leave the vessel when directed by a union official is subject to loss of his union membership. The union's policy to keep the number of its book members equal to the number of jobs it serves under its contracts with employers, is calculated to afford the book member, who has established himself as a career seaman, in steady employment. In implementation of this policy, the union membership voted to close its books for new book members in November 1947, except during periods of organizational drives when non-union employers are organized and their employees, upon becoming book members, bring with them their jobs. Up until that time, permit men were able to qualify for book membership upon organizing a non-union crew. A migratory nature of the work in the industry keeps seamen away from their families for long periods of time. Some book members take time off from their employment in accordance with their scheduled vacation periods, while others, after extended voyages, may withdraw from the labor market for short periods to spend time ashore with their families. Frequently men are unable to work for other reasons including illness. Consequently, in order to temporarily fill the jobs held by book members, permit members are referred as relief men and substitutes. This class of membership during normal times constitutes a reserve pool drawn against by the union to fill the jobs of its regular book members. During periods of seasonal fluctuations and emergencies the permit men fill jobs that may be in excess of the union's book members. In its operation the permit system and 60-day rule assures the career seaman of job security by virtue of his seniority in the union and industry, tending to stabilize his employment. Practically all other maritime unions in the industry long have operated under similar permit systems, designed to develop reserves of seamen during periods of increased employment opportunities and to protect the job security and seniority of their career seamen membership during periods of job shortages. The 60-day rule and permit system of membership in claimant's union is not intended to provide a share-the-work-plan. The union established a method designed to regulate fluctuating periods of employment and unemployment in a highly unionized industry so as to provide more steady employment to the hard core of its membership of career seamen. In the light of the problems faced by the union, the universal method it adopted to solve them, by the enactment of the 60-day rule and permit class of membership, cannot be said to have been unreasonable. The union has found from its experience that the permit system and 60-day rule is workable and beneficial to the maritime industry as a whole and to the career seamen serving that industry. We find that the regulation of the union was a reasonable one.

Opinion: After due consideration of all of the credible testimony, we are of the opinion that the nature of the maritime industry as a whole, and the problems the union attempted to solve with respect to the labor market conditions and other relevant factors in the industry, furnished a reasonable basis in fact for the union's enactment of its regulation, which we hold was not arbitrary, but find to be a reasonable one, designed to provide a solution to the labor problems in the industry. In view of our conclusion, and for all the reasons set forth in the opinion of this Board dated July 20, 1951, it follows that claimant's leaving of his employment was with good cause.

Decision: The initial determination of the local office, holding claimant eligible for benefits, is sustained. The decision of the referee is affirmed. (December 11, 1953)

 

A-750-1084

Index 1505A-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 14, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISREPRESENTATION OR MISSTATEMENT
Misunderstanding
Concealment of Earnings

Appeal Board Case Number 28,560-51

FORFEIT PENALTY, QUESTION OF - BELIEF THAT SATEMENT MADE WAS FACTUALLY TRUE

Where claimant furnishes incorrect information but believes the statements he made to be factually true, the forfeit penalty for wilful false statements does not apply.

Referee's Decision: The initial determination of the local office holding that claimant made a wilful misrepresentation in order to obtain benefits and imposing a forfeiture of 24 effective days against his future benefit rights is sustained. (July 2, 1951)

Appealed By: Claimant

Findings of Fact: Claimant, age 75, was employed with one employer for approximately 10 years. He was engaged in the capacity of factory foreman. In January, 1950, claimant was temporarily laid off due to the fact that a faulty memory affected the quality of his work. However, claimant was subsequently rehired by his employer. During the course of his employment the claimant had given evidence of mental lapses on several other occasions. Effective February 26, 1951, claimant refiled for benefits indicating that his last day of employment was February 23, 1951. The cause of his loss of employment was given as lack of work. On March 7, 1951, claimant became re-employed and worked continuously thereafter through April 12, 1951. When refiling for benefits on April 13, 1951, claimant's identification booklet was marked to indicate employment on March 5, 6 and 7, 1951, and total unemployment from March 8, 1951 through March 18, 1951. Actually, claimant was unemployed on March 5 and 6, 1951. When appearing at the local office on April 13, 1951 for the purpose of refiling his claim for benefits, claimant was informed by a member of the local office staff that he was entitled to receive a benefit check for the statutory week ending March 18, 1951. He was thereupon given a certification form and told to certify to a week of total unemployment for the week ending March 18, 1951. Claimant received a benefit check in the sum of $26 for said week. Subsequently, claimant was informed by the local office that he was not totally unemployed during the week in question and had been overpaid $26 in benefits. He consulted his employer's bookkeeper, was informed by her that he had incorrectly marked his identification booklet and that, in fact, he had been employed for the entire week ending March 18, 1951. Immediately thereafter claimant returned the proceeds of the benefit check which he had erroneously received. Thereupon, the local office issued an initial determination holding that claimant made a wilful misrepresentation on April 13, 1951 in order to obtain benefits. Claimant was charged with an overpayment of $26 in benefits and a forfeiture of 24 effective days was imposed against his future benefit right. Claimant requested a hearing and the referee sustained the initial determination of the local office. Claimant, thereupon, appealed to this Board.

Appeal Board Opinion: The referee, in sustaining the initial determination of the local office, concluded that claimant wilfully misrepresented with respect to total unemployment and that such misrepresentation was not due to an incorrect error. We are not in accord with the referee's disposition of this case. The record contains ample evidence to support claimant's contention that he was honestly mistaken when he marked his identification booklet to indicate that he was totally unemployed for the statutory week ending March 18, 1951. It appears that he had previous lapses in memory to a degree sufficient to cause his employer to lay him off for temporary periods. Claimant indicate in his booklet that he was employed on March 5 and 6, 1951, whereas, in fact, he was unemployed on those days, a clear indication of a confused mind. Furthermore, when claimant reported at the local office on April 13, 1951, he did so for the purpose of refiling his claim for current benefits, since he was then again unemployed. He had no intention of claiming benefits for the week ending March 18, 1951 and would not have executed the certification from had not the local office employee advised claimant that he was entitled to receive a benefit check for the statutory week in question. These factors, plus his advance age, compel the conclusion that claimant inadvertently furnished misinformation under the mistaken impression that the same was correct. In arriving at our conclusion, we are not unmindful of the decision in Matter of Bernstein, 303 NY 755, decided by the Court of Appeals on January 10, 1952, affirming 278 App. Div. 625, which reversed Appeal Board, 22,265-50. In that case it was conceded that the claimant knowingly furnished false information to the local office, upon the basis of which he received benefits. The Appellate Division clearly indicated in a memorandum opinion that Section 594 of the Labor Law does not require criminal intent or proof sufficient to support a larceny. It merely stated that administrative officials were entitled to be informed of true facts upon which to make a determination and that if a claimant knowingly certifies to a false fact the statute authorizes a forfeiture of benefit rights. The instant case is distinguishable from the Bernstein case (supra) in that the claimant herein did not knowingly furnish misinformation but instead honestly believed the representations he made were factually true. A further extenuating circumstance is the fact that despite the incorrect information contained in claimant's identification booklet, it was not his intention to claim benefits for the statutory week in issue. He certified to such week only when advised to do so by a member of the local office staff. Immediately upon realizing that an error had been committed, claimant voluntarily returned the proceeds of the benefit check to which he was not entitled. Upon all the facts and circumstances herein, we are persuaded that claimant did not make a wilful misrepresentation in order to obtain benefits.

Appeal Board Decision: The initial determination of the local office holding that claimant made a wilful misrepresentation in order to obtain benefits and imposing a forfeiture of 24 effective day against his future benefit rights, is overruled. Claimant was not overpaid in benefits. The decision of the referee is reversed. (February 8, 1952)

COMMENT

This decision speaks for itself and hardly needs further comment. In Release A-750-986, Matter of Bernstein, it was stated that the imposition of the forfeit penalty under Section 594 of the Law requires that three elements be present:

1. claimant makes a false statement,
2. claimant knows that the statement is false, and
3. the false statement is made in relation to the claim for unemployment insurance benefits.

In the instant case, the Board overruled the local office determination on a finding that the second element was not present.

 

A-750-1085

Index 1685E-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 14, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Personal Affairs

Appeal Board Case Number 29,715-51

WIDOW VOLUNTARILY LEAVING TO MOVE TO ANOTHER AREA TO BE NEAR SON

A widow voluntarily left her employment without good cause when she moved to another area to be near her son and his wife since such action was prompted by personal considerations rather than necessity or hardship.

Referee's Decision: The initial determination of the local office holding that claimant voluntarily left her employment without good cause is overruled. (October 26, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a widow, was employed for about seven years to April 20, 1951 as a tester of electrical products in Franklinville, New York, which is 75 miles from Rochester, New York. Her only child, a son, lived in Rochester with his wife. Claimant sold her home and voluntarily left her employment to move to Rochester in order to be near her son and his wife. Claimant filed a claim for benefits effective April 23, 1951, and was disqualified from receiving benefits for 42 consecutive days by an initial determination of the local office on the ground that she voluntarily left her employment without good cause. Claimant protested, stating that she had lived alone for seven years and that her son did not desire her to live alone.

Appeal Board Opinion: The referee overruled the initial determination on the ground that claimant had compelling family reasons for leaving her employment in Franklinville, New York, and for changing her permanent residence to Rochester, New York. We are unable to agree with his conclusion. No compelling reason was advanced by claimant for voluntarily leaving her employment and for changing her residence. Claimant's actions were prompted by personal considerations rather than necessity or hardship. The case cited by the referee in his opinion is distinguishable. In that case the claimant had arranged for employment in the place of her new residence prior to her leaving of employment. Under all the circumstances herein, it must be held that claimant voluntarily left her employment without good cause, within the meaning of the Unemployment Insurance Law.

Appeal Board Decision: The initial determination of the local office holding that claimant voluntarily left her employment without good cause is hereby sustained. The decision of the referee is reversed. (February 8, 1952)

 

A-750-1086

Index No. 715.5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 18, 1952

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Domestic Circumstances

Appeal Board Case Number 28,762-51

AVAILABILITY AFTER CHILDBIRTH

Claimant was held unavailable for employment after childbirth, in spite of alleged independent efforts to seek work, when alleged arrangements for the care of her infant child appeared incredible, and when it was unreasonable to believe that claimant could not have obtained work during the extended period, of her unemployment in view of the unusual demand for her occupation if she were genuinely interested in obtaining employment.

(See Comment after Decision)

Referee’s Decision: The amended initial determination of the local office disqualifying claimant from receiving benefits, effective May 21, 1951, on the ground that she had withdrawn from the labor market is overruled. (July 12,1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant is 22 years of age and last worked for three years ending January 12, 1951 as a clerk-typist for an export textile firm. She was laid off due to poor business conditions. At the date of her separation, she was pregnant. Claimant filed an original claim for benefits on January l5, 1951 and reported to April 15, 1951. Her child was born on April 19, 1951. She filed an additional claim on May 21, 1951. Claimant’s mother, who is 40 years old, resides in Brooklyn. She prepares her husband’s meals and attends to the household. Claimant’s father arrives home from work about 7:00 p.m. In the event claimant obtained employment, she asserted, her mother would come to her (claimant’s) home in the Elmhurst Section of Queens at 8:00 a.m. each day and stay there until 5:00 or 5:30 p.m. to take care of the child. The travel time from the mother's residence to claimant's home is approximately one hour each way. At the beginning of her unemployment period following the filing of her additional claim, claimant restricted herself to a salary of $50 a week. Export clerks earn from $50 to $60 a week. Because her experience is in the export trade, she expressed a preference for work in this line. She was however, allegedly willing to accept work in any industry. At the hearing on July 5, 1951, she stated she was willing to work for $45 a week. Claimant, in order to obtain work, allegedly answered newspaper advertisements and inquired of friends employed In the export industry. She was interviewed by two prospective employers but was not hired allegedly because she did not qualify for the job openings. She contacted several other employers who informed her, she alleged, that the jobs for which she applied were already filled. By communication dated January 22, 1952, claimant advised the Board that she had been continuously unemployed since the filing of her claim and conceded that as of the last quarter of 1951 she withdrew from the labor market. The local office issued an initial determination disqualifying claimant from receiving benefits, effective May 21, 1951, on the ground that she had withdrawn from the labor market.

Appeal Board Opinion: The Referee overruled the determination on the theory that claimant's salary requirements were not unreasonable, that claimant’s testimony regarding the ability of her mother to care for her child was not impugned and that claimant had made diligent efforts to find work. The Industrial Commissioner contends that in view of the tender age of claimant’s child and the improbability that her mother would travel to claimant’s residence each day to take care of the child, claimant’s genuine attachment to the labor market is highly questionable. A careful evaluation of the entire record in this case leads to the conclusion that the Industrial Commissioner’s position is well taken. At the time claimant refiled her claim on May 21, 1951, her child was one month old. She stated her mother would travel to her home each morning, remain during the day and return at night. This would require the mother to leave her home not later than 7:30 a.m., travel an hour, and return in the evening at 7:00 or 7:30 p.m. Before she would leave home in the morning she would be required to prepare breakfast for her husband, and after she returned home at night, to prepare supper and perform other household duties in tbe meantime. It seems incredible thalt such an arrangement was ever made. Claimant’s attitude toward one job which she alleged was offered to her, and which she did not accept, lends great support to our overall conclusion in this case. She testified she told the prospective employer that she did not believe she qualified for the job that he indicated he was willing to hire her, and told her "it was up to her" whether or not she would take the job. Furthermore, it is not reasonable to believe that claimant would have remained unemployed over the long period herein, in spite of the fact that there has been an unusual demand for clerk-typists, if she were genuinely interested in taking work. Under all the circumstances in this case, we reach the conclusion that claimant had withdrawn from the labor market at the date she filed her claim on May 21, 1951.

Appeal Board Decision: The initial determination made by the local office, disqualifying claimant from receiving any benefits effective May 21, 1951 on the ground that she withdrew from the labor market, is sustained. The decision of the referee is reversed. (February 1, 1952)

 

A-750-1087

Index 1170-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 18, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Neglect of Duty

Appeal Board Case Number 27,431,51

FAILURE TO NOTIFY EMPLOYER OF MERCHANDISE THEFTS BY CO-WORKERS

Claimant's failure to notify his employer of theft of merchandise by co-workers of which he had knowledge showed such a deliberate disregard of the employer's interests and of his duties and obligations as an employee as to constitute misconduct within the meaning of Section 592.2 of the Law.

Referee's Decision: The initial determination of the local office holding that claimant, an order checker, lost his employment through misconduct in connection therewith is overruled. (April 16, 1951)

Appealed By: Industrial Commissioner and employer

Findings of Fact: Claimant was employed for two years as an order checker in the mail order department of a large retail establishment. He was discharged on October 20, 1950, together with two other co-workers for failure to report to the employer the theft of two guns by a co-worker. Claimant filed a claim for benefits and registered for employment on October 23, 1950. The local office issued an initial determination disqualifying claimant from receiving any benefits for 42 days, on the ground that he lost his employment through misconduct in connection therewith. Claimant protested and requested a hearing before a referee. Claimant did not appear at the hearing. At an interview in the local office on November 6, 1950, claimant signed a statement which contains the following language: "I did know about the theft, but had nothing to do with it. I would not squeal on anyone even though I was aware of what he had done." The referee overruled the initial determination. The Industrial Commissioner and the employer appealed to the Board.

Appeal Board Opinion: The referee reasoned that, since the guns which were stolen were not under his charge or supervision, the claimant committed no overt act detrimental to the employer's interests, nor did he fail to perform any duties or obligations in connection with his employment. We do not agree with this reasoning. Claimant knew the guns had been stolen. His statement that he "would not squeal on anyone even though he was aware of what he had done," in our opinion, shows a deliberate disregard of the employer's interests and of his duties and obligations as an employee as to constitute misconduct within the meaning of Section 592.2 of the Unemployment Insurance Law. We so hold.

Appeal Board Decision: The initial determination is sustained. The decision of he referee is reversed. (February 8, 1952)

 

A-750-1088

Index 1205B-1

NEW YORK STATE DEPARTMENT OF LABOR UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 18, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification - Duration

Appeal Board Case Number 29,661-51

REFUSAL OF TEMPORARY EMPLOYMENT - DURATION OF DISQUALIFICATION

The period of disqualification for refusal of employment is not affected by the circumstance that only temporary employment was refused. The disqualification period in such case is the same as a disqualification for refusal of employment for an indefinite length of time.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 13, 1951; upon the ground that he refused employment without good cause is sustained; the disqualification period for refusal terminated on August 26, 1951. (October 1, 1951)

Appealed By: Industrial Commissioner and Claimant

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, a cook, filed for benefits on August 6, 1951. By initial determination effective August 13, he was disqualified for refusal of employment without good cause.

Claimant was employed on a temporary basis in a restaurant for two weeks until June 19, 1950, at a salary of $70 per week. From December to April 1951 he worked on the railroad and received $164 every two weeks.

On August 13, claimant was offered employment as a cook in a restaurant at $61 a week for a five-day week, hours 7 a.m. to 4 p.m. The job was a relief job and was to be from August 13 through August 25. Claimant refused the employment stating that he wanted permanent employment.

According to information obtained from the Prevailing Wage Unit of the Bureau of Research and Statistics, cooks in restaurants earn between $56 to $70 a week for a 40 to 45-hour week.

We make the following additional finding of fact: Claimant became re-employed at his customary occupation on September 6, 1951 at $65 per week for 48 hours work.

Appeal Board Opinion: We are in accord with the referee's conclusion sustaining the initial determination of the local office disqualifying claimant from receiving benefits, effective August 13, 1951, upon the ground that claimant refused employment without good cause. However, we disagree with the referee's determination that the disqualification imposed for such refusal terminated as of August 26, 1951, since the employment to which claimant was referred would have ended on August 25, 1951. Section 593.2 of the Labor Law makes no distinction in the disqualification to be imposed for refusal of temporary employment or refusal of employment for an indefinite duration.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 13, 1951, upon the ground that he refused employment without good cause is sustained. The disqualification period for such refusal did not terminate on August 26, 1951. The decision of the referee is modified accordingly and, as so modified, is affirmed. (February 15, 1952)

 

A-750-1093

Index 755 C.1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restrictions - Hours

AVAILABILITY, QUESTION OF - HOURLY RESTRICTIONS NECESSITATED BY COMPELLING CIRCUMSTANCES

Restrictions to unusual working hours, if necessitated by compelling circumstances, do not render a claimant unavailable, provided there is a market for claimant's services and claimant is not restricting the working hours to unobtainable periods of employment.

A.B. 30,384-52

Referee's Decision: The initial determination of the local office uspending claimant from receiving benefits, effective September 17, 1951, on the ground that she was unavailable for employment is sustained. (12/27/51)

Appealed By: Claimant.

Findings of Fact: Claimant was employed for two years ending June 20, 1951 as an attendant in a launderette located near her residence in Manhattan, where she lived with her husband and seven-year-old daughter. Claimant's duties consisted of supervising the use of 30 automatic washing machines by customers who came to the employer's establishment to do their laundry. Claimant instructed new users in the proper operation of the machine, provided coins in suitable denominations for use therewith and kept the floor of the premises free of soapy water. Although the establishment was open six days a week from 10:00 a.m. to 8:00 p.m. daily, claimant's hours of work were from 2:00 p.m. to 8:00 p.m., with one-half hour for dinner. Her salary was $35 a week. In June 1951, claimant requested a leave of absence and left New York in order to join her husband, who had been ordered into active military service with the armed forces and was then stationed in Tampa, Florida. On September 8, 1951, claimant returned to New York and promptly sought reinstatement with her employer, but was not rehired. Meanwhile, claimant took up her residence at her apartment, where she provides a home and cares for her daughter who attends a neighborhood school. Claimant's mother-in-law is employed but is at home daily shortly after 5:00 p.m. Claimant's young daughter requires attention up until 8:30 a.m. daily, when claimant leaves her at school. Between 3:00 p.m. and 5:30 p.m. claimant must again be available to care for her child. Claimant's mother-in-law is free to look after her granddaughter every evening. Claimant desired employment and was willing to work either on a five or six days a week basis. Because of her obligations to her child, claimant was compelled to seek employment with working hours from 9:00 a.m. to 2:30 p.m. and from 6:00 p.m. to midnight or on a single night at any time after 6:00 p.m. She was willing to work a split shift, provided the hours of employment fell within the periods of her availability for work. Claimant actively searched for work. She was willing to accept any employment for which she was fitted. Based on her prior experience and work history, in addition to being a launderette attendant for two years, claimant had formerly worked as a bookkeeper and is capable of handling accounts receivable and payable. She also had some experience as a part-time sales clerk with a large chain of variety stores and was willing to again accept employment as such. She is capable of working as a cashier and would accept such employment. On her own initiative, claimant unsuccessfully canvassed several retail shops and a department store in her neighborhood seeking employment as a sales clerk. She followed newspaper advertisements for part-time job openings. She sought assistance from her parish priest and friends in her quest for a job. Following their leads, claimant endeavored to obtain employment with a large life insurance company employment (sic) women on a part-time basis from 9:00 a.m. to 2:00 p.m. and with a public utility company employing women on a night shift and a split shift basis. Claimant filed an original claim for benefits and registered for employment on September 17, 1951. The employment office did not maintain her registration on file, but claimant's reporting booklet indicates the nature of her last employment. Claimant regularly reported to the employment service as required, but was never referred to any possible job opening. Although job openings for claimant's requested part-time or split shift hours were limited during the period of her reporting, it is conceded that launderettes in Manhattan did then employ attendants at hours that deviated from the normal hours of a business day. In addition to full-time work from 9:00 a.m. to 5:00 p.m., launderette attendants were employed as split shift workers from 9:00 a.m. to 12 noon and then from 6:00 p.m. to 10:00 p.m. Some establishments employed attendants on a part-time basis, hours from 6:00 p.m. to 10:00 p.m., five evenings a week and all day Saturday. Based on interviews held at the local office, during the course of which claimant fairly stated her work history, and the reason for restricting her employability to the hours she specified, an initial determination was issued holding that because of her family duties, claimant was unavailable for employment, effective as of the day on which she filed her claim for benefits. Claimant's need for employment and willingness to work was not disputed.

Appeal Board Opinion: The sole issue in this case is whether or not claimant was available for employment on and after the date of her original filing for benefits. Claimant's sincerity and her desire for and readiness to work during the hours she specified, because of her domestic circumstances, are not questioned. The referee nevertheless concluded that she was unavailable for employment because she was unable "to accept employment within the usual hours expected by prospective employers." His conclusion disregards claimant's prior work history and the fact, as testified to by the employment service representative, that launderettes employed attendants during the hours requested by the claimant. The limitation on her working hours as set forth by the claimant is neither arbitrary nor capricious on her part. Claimant's parental obligation to her seven-year-old daughter we deem to be of prime importance and constitutes a compelling circumstance justifying her restriction (Appeal Board, 8271-42). The record discloses that launderette attendants were employed on a split shift basis at hours that conformed with the hours of employment sought by the claimant without restriction as to the nature of the work. Other establishments employed persons from 9:00 a.m. t to 2:00 p.m. at skills for which claimant might qualify. We believe that claimant was not restricting her working hours to unobtainable periods of employment and that there was a market for her services, to which she was exposed not only by her own efforts in seeking employment but by her registration at the employment service. Although ready, willing and able to accept employment, claimant nevertheless continued to be unemployed only because of the lack of an appropriate job vacancy. Under such circumstances, we hold claimant to have satisfied the availability requirements of our law. The test is the availability of the claimant for work and not the availability of work for the claimant (Appeal Board 12,626-46;17,200-48).

Appeal Board Decision: Claimant was available for employment when she filed her claim for benefits and registered for employment. The initial determination of the local office is overruled. The decision of the referee is reversed. (April 4, 1952)

COMMENT

This case is here reported because claimant was held available in spite of severe limitations regarding acceptable working hours. This and other cases show that the degree of a limitation which can be allowed without resulting in a finding of unavailability, will often depend on the circumstances of the case. The more compelling the reasons for the restrictions are, the narrower may be the field of jobs which claimant must be ready, willing and able to accept. A different decision might have been reached in the case here reported, under otherwise identical circumstances, if claimant's reasons would have been less strong and less compelling.

"Unavailability" does not necessarily require that a claimant must be prepared to accept all otherwise suitable employment. This test can be met if a claimant limits the fields of jobs he can or is willing to accept, provided there remain fair prospects of employment and provided further that the limitation is "reasonable." What is "reasonable" in this sense is a matter of discretion and judgment and will depend on all the surrounding circumstances of a given case.

 

A-750-1096

Index No. 750B.1

STATE OF NEW YORK DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

June 20, 1952

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Health
Workmen’s Compensation

Appeal Board Case No. 29,469-51

CAPABILITY, QUESTION OF; RECEIPT OF BENEFITS UNDER DISABILITY BENEFITS LAW

Where claimant upon adequate proof of total disability is entitled to benefits under the Disability Benefits Law, he is deemed incapable of employment and ineligible for unemployment insurance benefits.

Referee's Decisions: The initial determination of the local office holding claimant ineligible for benefits from January 5, 1951 through February 11, 1951, on the ground that he was incapable of employment is overruled. (September 13, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a porter, was employed at his customary occupation until December 3, 1950 when he voluntarily left his job because he no longer was physically able to perform the duties required of him. On December 11, 1950, he filed for benefits and registered for employment. Claimant visited a physician on January 15, 1951 at which time he complained of varicose veins. The physician discovered that claimant was suffering from a serious malignant condition in addition to varicosity. The physician recommended immediate hospitalization and surgery. He also indicated that, from a medical viewpoint, claimant was totally disabled and incapable of performing any work at least as of January 5, 1951. On February 13, 1951, claimant was admitted to a hospital for surgical treatment. He was continuously confined thereafter until March 14, 1951. A claim for disability benefits was filed with the Workmen's Compensation Board of the State of New York on April 10, 1951. On the notice and proof of claim for disability benefits, claimant stated that the first full day upon which he was unable to work because of his claimed disability, was January 5, 1951. As a result of filing such claim he received disability benefits for the period January 5, 1951 through February 11, 1951. Claimant had reported at his local unemployment insurance office and certified to total unemployment for the same period. On the basis of such certification, he received $138 in unemployment insurance benefits for the six-week period from January 5, 1951 through February 11, 1951. Subsequently this sum was recouped by the State by way of setoff. Based upon information furnished by the Workmen's Compensation Board, the local office issued an initial determination holding claimant ineligible for benefits for the period January 5, 1951 through February 11, 1951 on the ground that he was incapable of employment. Claimant requested a hearing and the referee overruled the initial determination. The Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The referee concluded that claimant was available for and capable of employment during the period in issue since his capability was substantiated by a medical report. We are not in accord with the conclusion reached by the referee. It appears from the evidence now before us that claimant had not filed for disability benefits before entering a hospital for surgery. Consequently his receipt of unemployment insurance benefits was not open to question by local office personnel at that time. However, upon being discharged from the hospital claimant filed a claim for disability benefits retroactive to the period January 5, 1951 through February 11, 1951. Such benefits were paid only upon adequate proof that claimant was totally disabled within the meaning of the Disability Benefits Law during the period for which claim was made (Disability Benefits Law, Section 201). Since claimant proved his total disability for the period in issue by adequate medical evidence it follows that he must have been incapable of employment. Under such circumstances, he was ineligible for unemployment insurance benefits for same period since he did not meet the capability requirements of the statute (Unemployment Insurance Law, Section 522). A claimant may not be the recipient of unemployment insurance benefits and disability benefits for the same period since such benefits are mutually exclusive (Disability Benefits Law Section 206.1(c)). Where a claimant is totally disabled, thus entitling him to receive disability benefits by reason thereof, he is deemed incapable of employment and ineligible for unemployment insurance benefits within the meaning of the Unemployment Insurance Law. On the other hand, if a claimant should be deemed physically capable of employment, he does not meet the total incapacity requirement entitling him to disability benefits (Disability Benefits Law, Section 207.1). Upon all the facts and circumstances herein, we are convinced that claimant was incapable of employment during the period in issue. Consequently, he was ineligible for unemployment insurance benefits for that period. However, since the amount of the overpayment was subsequently offset, claimant is not deemed to have been overpaid in benefits.

Appeal Board Decision: The initial determination of the local office, holding claimant ineligible for benefits for the period January 5, 1951 through February 11, 1951, upon the ground that he was incapable of employment, is sustained. The decision of the referee is reversed. (May 2, 1952)

 

A-750-1097

Index 1320A-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 20, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Unemployment due to,
question of

Appeal Board Case Number 30,590-52

INABILITY TO COMMENCE WORK AFTER BEING HIRED BECAUSE OF INDUSTRIAL CONTROVERSY IN ESTABLISHMENT

A claimant who, after being interviewed on Friday, is approved and directed to report for work on Monday and upon so reporting finds the establishment closed because of an industrial controversy, is not subject to a suspension for loss of employment due to an industrial controversy since the relationship never ripened into that of employer-employee and claimant, therefore, had no employment to lose.

Referee's Decision: The initial determinations of the local office suspending the claimants' benefit rights, effective October 2, 1951, for seven weeks on the ground that they lost their employment as a result of an industrial controversy in the establishment in which they were employed are overruled. (January 14, 1952)

Appealed By: Industrial Commissioner.

Findings of Fact: The employer is a manufacturer of elevators. On September 28,1951, the three claimants were interviewed and each was hired to perform one of the production operations in the employer's establishment. Each of the claimants underwent a physical examination and was approved. Claimants were thereupon directed to report for work on Monday, October 1, 1951. They were not paid or entitled to pay for the interview and physical examination time. On October 1, when the claimants reported for work, they found the establishment closed for reason of an industrial controversy. None of them did any work for or was entitled to any pay from the employer. Each of the claimants filed an application for benefits, and in each case the local office issued initial determinations suspending claimants' benefits for seven weeks on the ground that they lost their employment as a result of an industrial controversy in the establishment in which they were employed. Claimants contested the initial determinations of the local office. The referee overruled the initial determinations of the local office and the Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The issue on this appeal is whether or not the claimants were subject to a suspension of benefits as provided by Section 592.1 of the Unemployment Insurance Law which reads as follows:

Industrial Controversy. The accumulation of benefit rights by a claimant shall be suspended during a period of seven consecutive weeks beginning with the day after he lost his employment because of a strike, lockout, or other industrial controversy in the establishment in which he was employed, except that benefit rights may be accumulated before the expiration of such seven weeks beginning with the day after such strike, lockout, or other industrial controversy was terminated.

Although the claimants were hired, they never commenced work. The hiring under the facts in this case never ripened into an employer-employee relationship. Since the claimants were not employed they had no employment to lose under the provisions of Section 592.1 of the law.

Appeal Board Decision: Claimants did not lose their employment as a result of an industrial controversy in the establishment in which they were employed. They were not overpaid in benefits. The initial determinations of the local office are overruled. The decision of the referee is affirmed. (May 9, 1952)

 

A-750-1098

Index 1480C-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 20, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLYMENT
Military Service

Referee Case Number 22-16-52R

TOTAL UNEMPLOYMENT, QUESTION OF; DRILLING ONE EVENING A WEEK WITH NATIONAL GUARD

A member of the National Guard who receives $4.16 for drilling one evening a week is totally unemployed within the meaning of the Law on such day.

Referee's Findings of Fact: A hearing was held at which the claimant and a representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, a roofer, filed for benefits on December 31, 1951. An initial determination was made ruling the claimant ineligible one day of each week because he was not totally unemployed on Mondays. Claimant was ready, willing and able to work at all times, day hours or on shift work. If he obtained night work or shift work, he would be exempt from drilling. He had been a member of the National Guard since January, 1950. He worked the regular day hours, on March 17, 1952. He was on drill every Monday evening and received $4.16 therefor.

Referee's Opinion and Decision: Claimant was available for employment and totally unemployed at all times during the period of his reporting. It was not the intent of the Legislature to hold that drilling a few hours one evening a week as a member of the National or State Guard should be ruled to be employment. This case differs from Appeal Board, 2387-40, where the claimant was required to go to a military camp for a period of two weeks for which he was paid a substantial salary. The initial determination is overruled. (May 27, 1952)

COMMENT

The Referee appears to be in error in stating that Appeal Board 2387-40 differs from the case here reported. Apparently he meant to cite Referee Case #51-427-49R, released in the Service under Serial #A-750-941, Index 1460B-2. In that case it was stated:

Claimant, a member of the National Guard, who was called for active duty and ordered to report for training at a camp of the National Guard, being paid at the rate of $95 per month, was held not to be totally unemployed during such training period."

1. The opposite result was reached in Appeal Board Case No. 2387-40. The referee found that "the factual situation in the instant case is different". This difference seems to be the circumstance that the claimant in Appeal Board Case No. 2387-40 received "one dollar a day for incidental expenses". The payments made to the claimant in the instant case were at the rate of $95 per month "which is the rate paid to privates in the regular army".

2. It appears to be the underlying theory of the Referee's decision that the claimant rendered services under a 'contract of employment for hire' during the training period.

The Referee concluded in the instant case that the drilling duties once a week, and the small payment made to the claimant, do not establish a contract of employment.

 

A-750-1099

Index 1480A-3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 20, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Public Service Officials

Appeal Board Case Number 29,690-51

APPOINTED TAX ASSESSOR; EMPOYMENT OF CONTINUOUS NATURE, QUESTION OF

Services rendered as an appointed village tax assessor at a salary of $500 per annum with an understanding that duties are to be performed within a set four months period, is not employment of a continuos nature during the entire year and claimant, therefore, is not "employed" by the village outside the four months period.

Referee's Decision: The initial determination of the local office holding claimant ineligible for benefits, effective October 30, 1950, on the ground that he was not totally unemployed and that he was overpaid $468 in benefits is sustained. (October 25, 1951)

Appealed By: Claimant

Findings of Fact: We have reviewed the evidence as adduced at the hearing before the referee and we find that such evidence supports the following findings of fact made by the referee:

Claimant, a fruit and vegetable clerk, and tax assessor refiled for benefits on October 30, 1950. By initial determination, he was ruled ineligible effective October 30, because he was not totally unemployed and was ruled overpaid $468 for the effective days, November 2, 1950 through March 25, 1951.

Claimant's main employment has been as a clerk. Since 1946, he has worked as a tax assessor for the village of Hudson Falls by appointment, at a salary of $500 per annum. His duties required him to appraise real estate assigned to him for tax purposes commencing with the second week in September. Thereafter, he prepared a tax roll for the village clerk and filed such rolls by the third week in October. He then was required to be present at grievance hearings on grievance days. He usually was paid his salary in a lump sum on grievance day. He could not state whether or not he would be subject to call to discuss any tax problem which might arise because he had never been called in the four years in which he acted as tax assessor. During 1950, claimant received his payments prior to grievance day. During the entire period in issue, claimant sought employment in his regular occupation as fruit and vegetable clerk. His base year earnings were in that capacity.

Appeal Board Opinion: The referee ruled that claimant, although he performed no services beyond grievance day throughout the period of his employment as tax assessor, was not totally unemployed because the salary he received covers an entire year's work and such work may be performed at any time during the year. After a careful examination of the evidence and of the statutes applicable to the duties of claimant's office, we cannot agree with the conclusion reached by the referee. Section 104 of the Village Law provides that the tax rolls are to be filled on or before November 1 or each year. Section 105 fixes grievance day as the third Tuesday in November; but hearings on grievances may be adjourned to no later than December 15. Village assessors are required to be present at the hearing of grievances. Section 106 requires that the village tax roll be competed and verified and filed with the village clerk on or before the first day of January. Section 109-A specifies the instances in which corrections of errors and omissions in the assessment rolls may be made by boards of trustees and fixes the duties of village assessors in such cases. Under this section, the board of trustees may require the assessor to re-assess property for the amended tax roll. As the referee pointed out, claimant's responsibility as a village assessor continued beyond grievance day. It appears, however, that this last official act in any fiscal year must occur on or before the last day of the year since the tax roll must be completed, verified an filed no later than January 1 of the following year. It appears further that thereafter the sole method of review is by certiorari. The record is clear that claimant's duties were customarily performed and completed between the second week of September and grievance day of each year. It is equally clear that in any event claimant could not be called upon to perform the duties of his office after December 31 of any year. We find no legal or factual basis for the referee's holding that claimant's work as an assessor may be performed at any time during the year. We have held that a public official may not be considered totally unemployed where the duties of his office are continuous and he may be required to perform them at any time during the year. This element is not present in the case before us. The record herein shows that it was contemplated that claimant's services as a tax assessor would be performed between September and the end of the current tax year and there is no evidence of the need for or requirement of his services during the remainder of the year. We accordingly hold that claimant was totally unemployed on and after January 1, 1951 and entitled to the benefits received during his reporting period following such date.

Appeal Board Decision: The initial determination of the local office is modified by holding that claimant was totally unemployed and eligible for benefits on and after January 1, 1951. The overpayment should be recomputed accordingly. The decision of the referee is modified accordingly and, as so modified, is affirmed. (May 9, 1952)