A-750 1100 Series

A-750-1100

Index No. 1722-3

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

June 20, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Distance – Traveling Requirement

Appeal Board Case Number 30,215-52

VOLUNTARY LEAVING – ONE HOUR AND FIFTY MINUTES TRAVELING TIME CAUSED BY SUBURGAN RESIDENCE

Where a claimant voluntarily left his employment because a change in his work schedule for the period of Daylight Savings Time resulted in increasing his travel time to one hour and fifty minutes (including a wait for bus connections), it was held that the leaving was without good cause, since the temporary inconvenience of travel was primarily due to the fact that claimant resides in a suburb.

Referee’s Decision: The initial determination of the local office disqualifying claimant, a teletype operator, from receiving benefits for 42 days, effective July 30, 1951, on the ground that he left his employment voluntarily without good cause is overruled. (November 28, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: There being no dispute with respect to the findings of fact as found by the referee, the Board, therefore, adopts such findings of fact as the findings of fact of the Board:

* * *

Claimant, a teletype operator, filed an original claim in Rockville Center on July 30, 1951. By initial determination, the claimant was disqualified for 42 days from July 30, for voluntary leaving of employment without good cause.

Claimant, a resident of Valley Stream was employed by a steamship company in New York from September 19, 1949, up to July 20,1951, at a final wage of $225 a month. He left his employment because the employer had failed to increase his wages and because his hours of employment were changed and this increased his travel time. The claimant had received his last raise in December 1950, at which time his wages were increased by $15 a month. In March 1951, the claimant spoke to the employer about another increase. He was told that the matter would have to be presented to the Wage Stabilization Board and that the employer would attempt to increase his wage up to $25 a month. His superior then recommended an additional $15 increase. That a could not take effect until the entire wage plan of the employer had been approved by the Stabilization Board which was not done until after the claimant had left his job.

Prior to June 1951, the claimant was employed from 9:30 a.m. to 5:30 p.m. In June, his hours were changed from 10 a.m. to 6 p.m. Because of this change the claimant did not arrived at his home until ten minutes to eight. The employer is located in downtown Manhattan. The claimant was compelled to take a 6:30 train at the Pennsylvania Station, which did not arrive at Valley Stream until 7:07 p.m. Because the bus he was then required to take runs every half hour, the claimant was compelled to take the 7:30 p.m. bus, and this extended his travel time to more than one and one-half hours one way."

Appeal Board Opinion: The referee in overruling the initial determination of the local office, concluded that because of the change in the claimant’s hours of work, his travel time consumed one hour and fifty minutes to reach his home, and he therefore left his employment with good cause. We do not agree with the conclusion reached by the referee. The temporary inconvenience caused claimant by the change in working schedule was due primarily to the fact that claimant resided in a suburb.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 days, effective July 30, 1951, is sustained. The decision of the referee is reversed. (April 4, 1952)

COMMENT

This case shows another instance where traveling time in excess of one and a half hours one way was not good cause for voluntary leaving of employment. In release A-750-1058 it was held –

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. (A.B. #27,734-51)

 

A-750-1101

Index No. 1205F-4

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

July 9, 1952

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

Court of Appeals

Matter of Crowe, 305NY 699

REFUSAL OF EMPLOYMENT – SAME JOB THAT CLAIMANT VOLUNTARILY LEFT WITHOUT GOOD CAUSE

Disqualification for refusal of employment without good cause may be imposed even though claimant had previously been disqualified for voluntarily leaving the same employment.

Referee’s Decision: The initial determination of the local office holding that claimant was entitled to unemployment insurance benefits and overruling the objections of the employer that claimant voluntarily left her employment without good cause is sustained. (June 1, 1951)

Appealed By: Employer

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 a claim for benefits, effective January 29,1951. By initial determination, she was disqualified for 42 days, beginning with January 29, 1951, on the ground that she voluntarily left her employment without good cause. Claimant requested a hearing on this determination. At a later date, the claimant withdrew her request for a hearing. The disqualification period terminated on March 11, 1951.

Prior to filing for benefits, the claimant was employed by a laundry from September 1946 to January 31, 1951, as a flat work operator. She voluntarily left her employment because she was dissatisfied with her wage.

On March 6, 1951, the claimant secured employment with another employer and was employed through March 17, 1951, at which time her employment was terminated through no fault of her own. She filed an additional claim for benefits on March 21, 1951.

On March 28,1 951, the claimant was referred to her original position at the laundry. The claimant contacted her former employer and refused the job because the employer was unwilling to rehire her at her former wage rate and to grant her her former seniority rights.

On April 2, 1951, an initial determination was issued that since claimant was disqualified for voluntary leaving of the same job, she could not be disqualified for refusing to return to the same employment. The employer objected thereto and requested a hearing."

The employer’s representative takes the position that claimant should not be paid benefits as long as work is available for her.

Appeal Board Opinion and Decision: The issue in this case is not a new one. It is whether or not a claimant who has suffered the penalty prescribed in the Law for voluntarily leaving employment without good cause may subsequently be subjected to another penalty or disqualification for refusal to accept a former employer’s offer of the same employment. We do not deem as applicable herein the line of cases cited by the employer to the effect that a single disqualification or penalty may be imposed against a claimant who refuses to accept an offer of employment made by a former employer. In those situations the usual tests of the suitability of the job offer are the sole criteria and we have so held. Here we are concerned with the penalty intended to be imposed by the Legislature against claimants who for reasons not adjudged to be good cause voluntarily quit their jobs. That question was first presented to this Board in 1941 when a claimant who had voluntarily left her job without good cause was referred back to her last employer and, upon her refusal to return, was disqualified from benefits for refusal of employment without good cause. In that case (Appeal Board, 6631-41) we said in part:

"The proximate cause of claimant’s unemployment was her leaving the job, rather than her refusal to return to it. While claimant’s conduct constitutes an offense which calls for some penalty, it cannot be regarded as more than a single offense. Having in mind that the statute provides a specific penalty for the act of voluntarily leaving employment without good cause, the question arises in this case as to whether the proper penalty was invoked against claimant."

Effective April 24,1941 the Legislature enacted the following amendment to Section 506 of the Law:

2. In the case of any employee who leaves his employment voluntarily,

(c) if such leaving was without good cause, no benefits shall be payable to such employee, nor shall he be credited with serving any part of the waiting period provided by subdivision one of section five hundred and four until six weeks have elapsed after registration for benefits subsequent to such voluntary leaving where there was no withdrawal from the labor market, or until six weeks have elapsed after the certification of his bona fide return to the labor market and his renewed availability for employment where there had been a withdrawal from the labor market.

Thus there was added to the Law a new conception, not unknown in the field of unemployment insurance, but hitherto not found in the New York Law. Prior thereto, no penalty was prescribed in connection with a voluntary leaving. However, an applicant for benefits under such circumstances incurred the risk of a disqualification of his benefit rights in the event of his refusal to return to his old job, if it was still open. We question seriously the right of the local office, under the circumstances now under consideration, to invoke the more drastic penalty of disqualification for refusal, rather than the lesser penalty of a six weeks’ disqualification period provided for a voluntary quit.

The Board is of the opinion that the Legislature, in providing a separate penalty for a voluntary quit, expressed its will that thereafter such penalty should attached in a situation where it is disclosed that an applicant for benefits has voluntarily left his job without good cause. By the same token, it was not intended that some other penalty, especially a more severe penalty, should be substituted in its place.

A consideration of the social reasons behind the amendment gives added support to our conclusion. We believe that the Legislature recognized that employees may choose to leave their employment for reasons personal to themselves, although such reasons are not such as would warrant the immediate payment of unemployment insurance benefits. While the Legislature, it seems to us, did not desire to subsidize such self-made unemployment, it seems equally clear that it did not intend to shackle employees to distasteful jobs. As to the penalty, which is to flow, it has spoken. It could not have intended to countenance a result whereby, through the medium of a futile job offer and the reiteration by the employee of his reasons for not returning to work at the job he has quit, a different and more drastic penalty is arrived at.

The precise question involved in the instant case was presented to the Board at about the same time. In Appeal Board 6360-41 we disposed of the issue as follows:

* * *

"This case poses directly the question of whether a claimant who has suffered a disqualification for voluntarily leaving a job can also be disqualified for refusal to return to the same job. Here the claimant advances the same reasons for her refusal to return to her job as she advanced for leaving it. To all intents and purposes, her leaving and her refusal to return are part and parcel of the same act. This leads us to a consideration of whether this is not a case of imposing a double penalty for a single offense.

The Legislature has distinguished between a voluntary leaving and a refusal to accept employment by providing separate penalties therefore. In this connection, the following language of the Missouri appeal Tribunal, U.C.I.S., Benefit Series, 5104, (Affirmed by the Unemployment Compensation Commission of Missouri, Case No. 358) is singularly appropriate:

When a claimant quits work voluntarily and without good cause, the voluntary quit is the proximate cause of his subsequent unemployment. Because that unemployment may be, partly at least, through his own fault, the Law requires the assessment of a penalty. Can the employer then, by requesting that claimant return to work, effect the assessment of an additional penalty by forcing claimant to return to a job he has already quit and for which he is already punished? Would not such a procedure in effect be equivalent to saying that a voluntary quit is the same as a refusal of suitable work, when the Legislature clearly declares that it is not? Would it not in effect be assessing a double penalty for actually one offense? Would it not eventually lead to an ignoring of the penalty prescribed under the voluntary quit section and to substituting the more severe penalty under the refusal of work subsection? The referee finds, in the instant case, that the employer seeks to have claimant punished for refusing to return to a job which he found objectionable when he quit that job. The claims deputy found that claimant, did, in fact, leave work without good cause and assessed a proper penalty. It would be inequitable under the circumstances to penalize the claimant again when already one penalty was assessed for what amounts to the same act.

For the proper administration of what seemed to be conflicting subsections, the referee finds that a reasonable interpretation of those sections would be that two penalties may not be administered for the same offense, and that in selecting the proper subsection, the claims deputy should determine that disqualifying act was the proximate cause of claimant’s present unemployment.

We are in accord with the reasoning of the Missouri Appeal Tribunal. We believe that the local office was without authority, under the circumstances of this case, to impose upon claimant a disqualification for refusal to accept employment on September 3, 1941. At that time claimant had already suffered the penalty prescribed by the Law for her act. To penalize her further would be to impose a double penalty."

This result has since been uniformly followed and applied by the administrative and adjudicating agencies in this State. We are not persuaded by any of the authorities cited on this appeal that such a result is contrary to the spirit or the letter of the New York State Unemployment Insurance Law. The penalty for refusal of employment is one of the most drastic provided in the Law. No decision has been called to our attention in any jurisdiction where a claimant who has suffered the prescribed penalty for voluntary leaving of employment has been subjected again to an indefinite disqualification period for what amounts to the same act. We are not impressed with the relevancy of the employer’s argument in this case that the Legislature never intended to pay unemployment insurance benefits to persons who are voluntarily unemployed and who could have been working at a job for which they are reasonably fitted by training and experience but for their refusal. Although involuntary unemployment is the factor that prompted the Legislature to enact the Unemployment Insurance Law (see Section 501 of the Labor Law), nevertheless, when it comes to the denial of benefits, we must be governed by the specific provisions of the Unemployment Insurance Law. These provisions clearly indicate many situations were claimants, although they might have been employed but for their refusal, nevertheless are entitled to benefits under the Law. There are four specific instances where claimants may refuse employment and still be entitled to benefits under Section 593 of the Unemployment Insurance Law. Likewise, a claimant who voluntarily leaves his employment is entitled to benefits after a disqualification period of six weeks. In the last mentioned case, claimant’s unemployment is clearly voluntary, nevertheless, the Legislature required the payment of benefits to such persons after a period of 42 days. (Cf. McFarland vs. Unemployment Compensation Board of Review, 158 Pa. Super. 418; 45a (2d) 423; Benefit Series Vol. 9 #8, page 97). The initial determination of the local office ruling claimant eligible for benefits is hereby sustained. The decision of the referee is affirmed. (November 30, 1951)

Appealed By: Employer

Appellate Division Opinion and Decision: The claimant is a laundry worker. In January 1951 she voluntarily left her job with the Dates Laundry Service where she had been employed since 1946. She filed a claim for unemployment insurance benefits effective January 29, 1951 but the same was disallowed on the ground she had voluntarily left her employment without good cause. She was ruled disqualified from benefits for a period of 42 days from the time she had voluntarily left the employment. On March 21 the period of disqualification having ended, she filed a new claim for benefits. The Division of Placement and Unemployment Insurance referred the claimant back to her former employer, the Dates Laundry Service. Claimant interviewed the employer and refused to accept the new employment which was tendered. The new employment was substantially the same as the previous work. The wage rate could have been found to have been slightly lower and full seniority rights were not to be allowed, which differences the employer claimed to have been due to the obligations of the contract it had with the labor union. On the question of claimant’s further disqualification for benefits after thus refusing the further offer of employment, the initial determination of the Industrial Commissioner was that the claimant was not disqualified by this refusal of employment because she had already and previously been disqualified by leaving the employ of the same employer without good cause and had undergone the penalty of the statutory period of disqualification. The employer objected to this ruling and requested a hearing. The referee sustained the determination and the Appeal Board adopted his findings. From that determination employer appeals. No question is raised here that the employment offered was not one for which claimant was reasonably qualified by training and experience. The question is narrowed down by both parties to the problem of law whether a claimant who has once been disqualified for benefits because he leaves employment without "good cause" and who refuses a new offer of employment by the same employer for which he is reasonably fitted by training and experience undergoes a further disqualification. The answer to this question is, we think, to be sought by reading the words of the statute. The Unemployment Insurance Law (Labor Law, Article 18) §593, provides that if a voluntary separation from employment is not for good cause benefits shall not be payable for 42 days. Thus, and some other subjects are treated in subdivision 1 of the section under the classification of "voluntary separation." Under quite a distinct statutory treatment the subject of "refusal of employment" is dealt with in subdivision 2 of the same section. Benefits are not to be payable to a claimant "who without good cause refuses to accept an offer of employment for which he is reasonably fitted by training and experience." There is nothing in all this to suggest a legislative intention to provide that where a claimant has been disqualified by a voluntary separation from employment he cannot be further disqualified by refusing without just cause to take the same employment offered by the same employer. The arrangement to offer the employment here was made through the Division of Placement and Unemployment Insurance to the claimant. The procedure under official regulation and control followed the general statutory scheme. In every respect the employment was one for which the claimant was reasonably qualified. It literally came within the conditions described in the statute dealing with "refusal of employment". It is not found as a fact that claimant was not qualified with the statute for the employment offered, or that it was not the kind of employment to which the statute refers. Nor is it found that the differential between the status of the employment claimant left and that offered was itself a basis of refusal for good cause. The controlling, and to us it seems the only, ground for the determination of the referee and appeal Board was that the separation from the employment in the first place and the refusal to accept the new offer were so related as to be part of the same act. The penalty for the separation was deemed to cover the refusal. The referee’s language describes the theory of decision. "To all intents and purposes," he said "her leaving and her refusal to return appear to be a part and parcel of the same act." Both were "a single offense." The statute, however, carefully separates voluntary separation from refusal of employment. If they are separate events, as they certainly are in this record, they may not be given unitary treatment. The Division of Placement and Unemployment Insurance itself set in motion the "offer of employment" which was distinct in time and circumstance from the original separation. This offer of employment, even though from the former employer, fulfilled the statutory definition of an offer of employment and the effect of the separately provided penalty for "refusal of employment" cannot be avoided by the fact that the State agency selected the same employer to make an offer of renewed instead of entirely new employment. We do not hold that an employee who separates himself from employment without just cause would never have just cause for not taking an offer of re-employment in the same place. The statute sets forth a list of reasons for "refusal to accept employment" which are not to be regarded as a result not for good cause. But the list is not exclusive by its very terms but merely fixes certain negative criteria. The appellant argues for the exclusiveness of the enumeration but the statute does not read that way. There may be other reasons for refusal recognizable as well-grounded and for good cause by the Commissioner or the Board. But that is not the theory of this decision. The theory is, rather, that there is double penalty for the same act. The acts are, however, not only separable in the statutory scheme, but Section 593 specifically separates them and their consequences. The decision of the Unemployment Insurance Appeal Board should be reversed with costs to the appellant against the Industrial Commissioner and the proceeding remitted to the Industrial Commissioner to proceed in accordance with this decision. (June 13, 1952)

COMMENT

1. A refusal to return to the same employment will not necessarily result in a disqualification for refusing employment. There may be independent circumstances, whether or not related to those surrounding the previous quit, which spell out "good cause." The Court expressed this thought by stating that "There may be other reasons for refusal recognizable as well-grounded and for good cause by the Commissioner or the Board." The offer of re-employment by the same employer must, therefore, be evaluated in the regular manner. The usual tests should be applied before the additional refusal disqualification is imposed.

 

A-750-1104

Index No. 1315-5

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

July 9, 1952

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

Appellate Division Decision

Matter of Lasher, 279 App. Div. 505, et al

"IN THE ESTABLISHMENT," QUESTION OF – CONSTRUCTION DIVISION OF STEEL MILL

The Construction Division of a steel manufacturing plant was held not to be a separate "establishment" when all employees were employed in the same premises at a time when a strike of the production workers in the steel manufacturing plan occurred.

Referee’s Decision: The initial determination of the local office disqualifying claimants from benefits for seven weeks effective October 1, 1949, on the ground that they lost their employment due to a strike in the establishment in which they were employed were overruled. (December 13, 1949 and January 9,1950)

Appealed By: Industrial Commissioner

Findings of Fact: These cases involved 24 claimants, all of whom are structural steel workers and members of the Buffalo Local of the Bridge, Structural and Ornamental Ironworkers Union. They obtain work through their union and at the time in question were employed in erection work on the premises of the steel plant of B. Steel Company located in Lackawanna, New York. The employer has a verbal agreement with the union. At 12:01 a.m. on October 1, 1949 the steel workers in that plant, all members of a steel workers’ union went out on strike. On their next working day, which was October 3, 1949, the ironworkers were not allowed to pass the strikers’ picket line. However, an agreement was reached between the company and the steel workers’ union permitting the ironworkers to resume work on October 4, 1949. Some ironworkers continued to work thereafter throughout the entire strike period on the employer’s projects in the premises of the steel mill. Claimants were notified that there was no work for them on these projects due to shortage of steel and they did not resume work there during the strike. Claimants filed claims for unemployment insurance benefits. Initial determinations were issued suspending their benefit rights for seven weeks effective October 1, 1949 because they lost their employment due to the strike. Claimants protested and requested hearings. The B. Steel Company, a Pennsylvania corporation, is one of the largest manufacturers of steel in the United States. It is the subsidiary of the B. Steel Corporation, a holding company incorporated in Delaware. The B. Steel Company (Inc.) is authorized to do business in the State of New York. It has ten vice presidents of whom one, whose office is in Bethlehem, Pennsylvania, is in charge of steel production and manufacturing activities. The steel mill at Lackawanna, New York is in charge of a General Manager who is responsible to that vice president. In addition to the fabrication of steel, the B. Steel Company engages in the construction business performing construction work throughout New York State and the United States for anyone who may wish to contract with it. This branch of the employer’s enterprise is known as the Fabricated Steel Construction Division, Erection Department. All of the instant claimants worked for this Division. Construction jobs are supervised by a job foreman who has a temporary office at the location of the work and who reports to a District Manager of Erection who has offices in Pittsburgh, Pennsylvania. This District Manager reports to the General Manager of Erection, who in turn reports to the General Manager, Fabricated Steel Construction, who reports to the vice president. The last three named have offices in Bethlehem, Pennsylvania. Claimant, R.E.L. has worked for the Erection Division for 28 years. On many occasions he reported for assignment to work at the Pittsburgh office of the Erection Division from which office he has been sent to jobs throughout the territory east of the Mississippi River. On a previous occasion when the ironworkers were on strike, the steel workers continued to work throughout the continuation of such strike. The instant claimants contribute their loss of employment to the lack of steel and not to the industrial controversy between the company and the steel workers.

Appeal Board Opinion and Decision: The issue to be decided in this appeal is whether or not claimants lost their employment due to a strike or industrial controversy in the establishment in which they were employed within the meaning of Section 592.1 of the Unemployment Insurance Law. Extended hearings were held in this case before the Board to determine whether claimants were in the employ of the same corporation which operated the steel mill at Lackawanna, New York and which was involved in an industrial controversy with the steel workers’ union. The present record establishes that the steel workers and the ironworkers, including claimants, were employed by B. Steel Company, a Pennsylvania corporation. One question remains, however, to be determined, and that is whether there was a strike or industrial controversy in the "establishment" in which 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 the Matter of Machcinski, et al v. 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 Ford Motor Company 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 earners 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. Those employees had nothing to do with the stoppage of work in the Detroit 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 Ford Motor Company, situate 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 Buffalo and Green Island 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 Buffalo and Green Island 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."

Here the record is clear that the claimants were employed by a separate branch or division of the employer’s enterprise than that in, which the industrial controversy occurred. Claimants had nothing to do with the stoppage of the work in the steel mill or with the prosecution of the strike and likewise were innocent victims of a situation wholly beyond their control. Accepting the reasoning of the court and construing the statute from the standpoint of claimants’ employment, we conclude that the steel mill and the Erection Division of the employer’s enterprise are separate establishments for the purpose of the issue before us. We accordingly 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. The initial determinations 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 affirmed. Separate orders are to be entered in each case. (May 4, 1951)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: The Bethlehem Steel Co., Inc., is one of the largest manufacturers of steel in the United States. It is one of several corporations involved in an intricate corporate setup, and operates through several plants and offices. We are concerned primarily with its plant located at Lackawanna, New York, and operated for the manufacture of steel. The regular workers at that plant, engaged in the actual manufacture of steel, are members of the steel workers union, and will hereinafter be referred to as "steel workers." The Bethlehem Steel Co., Inc., also engages in construction work and the erection of the finished steel product in New York State and elsewhere in the United States, for anyone who may wish to contract with it for such work. The branch performing this work is known as the Fabricated Steel Construction Division, Erection Department. It is not a separate legal entity, but might be characterized as one branch or one department of the company. The employees of this department, including these claimants, are members of the Bridge, Structural and Ornamental Iron Workers Union, and will hereafter be designated as "iron workers." At the time involved here these claimants were employed in erection work on the premises of the Bethlehem Steel Co., Inc., at Lackawanna, N.Y. They were actually constructing approaches to the open hearths used in the manufacture of steel. At 12:01 a.m., on October 1, 1949, the "steel workers" at the Lackawanna plant went on strike. On their next working day, October 3, 1949, the "ironworkers" were not allowed to cross the picket line. By agreement, however the ironworkers were permitted to resume work on October 4, 1949. Some ironworkers continued to work throughout the strike on projects at the employer’s plant at Lackawanna. These claimants were notified that there was no work for them due to a shortage of steel, and they did not resume work during the strike. When claimants filed claims for unemployment insurance benefits, initial determinations were issued suspending their benefit rights for seven weeks on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed, pursuant to Section 592, subd. 1 of the Unemployment Insurance Law (Labor Law, Art. 18). An unemployment insurance referee overruled the initial determinations, and the Unemployment Insurance Appeal Board affirmed the decision of the referee. The Industrial Commissioner has appealed to this court from the decision of the Unemployment Insurance Appeal Board. The appeal board based its decision solely on the ground that the strike or industrial controversy was not in the "establishment" in which claimants were employed, and relied for its authority upon Matter of Machcinski (Ford Motor Co. – Corsi), 277 App. Div. 634. Strangely enough, both parties cite the Machcinski case as authority for their respective positions on this appeal. Under the unemployment insurance law adopted in this State, it is of no consequence whatever that claimants were not on strike; that they were employed in a separate branch of work, or that they lost their employment through no fault of their own. Such elements were significantly omitted by the Legislature when our statute was enacted. The Machcinski case traces the origin, history and judicial development of unemployment insurance laws with such completeness that it is unnecessary to repeat it here. It is to be noted that the opinion of Mr. Justice Heffernan in that case expressly states, at page 639: "Under our law there is no requirement of participation, financial aid or interest, nor is there any provision which deems separate branches of work as separate factories, workshops or premises." These claimants were employed by the same employer as the striking steel workers, and were employed at the same plant and upon the identical premises. The work which they were performing was as essential to the production of steel at the plant as the work of the steel workers. The fact that at other times they might be employed elsewhere is of no importance. We must deal with the circumstances existing at the particular time when the unemployment arose. At that time they were clearly employed in the "establishment" where the industrial controversy arose. To hold otherwise would be tantamount to a holding that employees regularly working at the same plant but in a different department, or doing a different kind of work, or belonging to a different union than striking employees, would not be employed in the same "establishment." Clearly this was not the intent of the statute. Clearly the Machcinski case does not so hold, but on the contrary expressly says: "In our opinion we believe the word ‘establishment’ as used in the statute means the place where the employee was last employed." The undisputed evidence establishes that the industrial controversy occurred "in the establishment" where claimants were employed. Another element is essential, however, before claimants’ benefit rights may be suspended, i.e., claimants must have lost their employment "because of a strike, lockout or other industrial controversy." The Board has found, in accordance with the evidence, that claimants’ unemployment was due to a shortage of steel. No finding is made as to whether such shortage was due to the strike at the Lackawanna plant or due to other causes. The decision of the Appeal Board should be reversed on the law, and the cases remitted to the Appeal Board for a determination and finding on that question, without costs. (March 12, 1952)

 

A-750-1105

Index No. 1580C-3

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

July 9, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION OR MISSTATEMENT
Penalty Period
Forfeit Effective Days Imposed

Referee Case Number 545-92-52R

MISREPRESENTATION; FLAGRANT OFFENSE CALLING FOR MAXIMUM PENALTY

Falsely alleging employment and endeavoring to have entries made in the payroll books of an employer for whom claimant did not work so that such records might be used to establish entitlement to benefits, was such a flagrant offense as to warrant the imposition of the maximum forfeiture penalty (80 effective days) prescribed by law.

Referee’s Findings of Fact: Hearings were held at which the claimant, the base period employer, and a representative of the Industrial Commissioner appeared and testimony was taken. Claimant, a file clerk and receptionist, refiled a claim effective December 17, 1951. By an initial determination she was declared ineligible effective December 17 because of unavailability, and she was charged with having wilfully made a false statement to receive benefits, thereby reducing her rights to future benefits by 80 effective days to be forfeited. At the hearing an additional initial determination was interposed declaring claimant ineligible on the ground that she could not establish a valid original claim for benefits since she had not at least 20 weeks of covered employment in the base period. Claimant originally filed a claim on October 8. In the period beginning with October 9, 1950, and continuing through October 7, 1951, claimant had worked only 17 weeks. Such employment had occurred at a resort hotel owned and operated by claimant’s husband. In the 52-week period immediately prior to October 8, 1951, she was declared ineligible on the ground that she could not then establish a valid original claim for benefits. Claimant did not contest that initial determination. Subsequently on December 17 claimant refiled her claim and indicated that her last employment was at a decorating firm by which she was allegedly employed on a part-time basis working two days of each week from the week beginning October 5 through December 7. On January 14 claimant was interviewed at length with respect to the employment in which she allegedly engaged subsequent to October 1951. She reiterated that she had been employed by the firm of decorators and stated that she had performed services as a receptionist and had earned an aggregate of $160.50 and that no members of the decorating firm were related to her and that she had procured the employment as a result of recommendation by a friend. All of the statements with respect to claimant’s alleged employment by the firm of decorators were false. Claimant was in fact not employed by that firm at any time. The firm is operated by the husband of claimant’s sister. When claimant ascertained in October 1941, that she lacked the number of weeks of employment necessary to qualify for benefits she requested her sister to enter on the payroll books of the decorating firm, indications of claimant’s employment so that those records might be used to establish claimant’s eligibility for benefits. Claimant received no wages from such firm nor did she perform any services for the said firm. She had no employment whatever following the close of the summer season of 1951 when operations were suspended at the resort hotel operated by claimant’s husband.

Referee’s Opinion and Decision: It has been conclusively established by competent proof that claimant did not actually engage in any employment subsequent to October 1951. It was initially determined that claimant did not have at least 20 weeks of covered employment in the 52-week period prior to October 8, 1951, and such initial determination became final and conclusive as a result of claimant’s failure to contest said initial determination. Accordingly, since claimant had no actual employment subsequent to October 8, 1951, it necessarily follows that on December 17 when she refiled her claim she still lacked the required 20 weeks of covered employment to qualify for benefits. I, therefore, hold that claimant could not establish a valid original claim for benefits on the date of the refiling of her claim. Claimant's statements on December 17, 1951, and January 14, 1952, with respect to her alleged employment by the firm of decorators were patently false and were known by the claimant to be false. The false statements were made by the claimant in an attempt to further her scheme to meet the requirements of the Law, despite the fact that she had not engaged in employment for the length of time required by Law. Claimant’s actions were so flagrant that the imposition of the maximum penalty provided by Law was warranted. The Commissioner’s representatives acted within the authority conferred upon them by Section 594 of the Law in having imposed a penalty of 80 effective days to be forfeited because of claimant’s offense. The initial determination declaring claimant ineligible due to the fact that she could not establish a valid original claim for benefits because she lacked at least 20 weeks of covered employment and charging the claimant with having wilfully made false statements to receive benefits, thereby reducing her right to future benefits by 80 effective days to be forfeited is in all respects sustained. It is unnecessary to pass upon the initial determination declaring claimant ineligible because of unavailability. (May 12,1952)

COMMENT

A-710-21, setting forth Standard for the Imposition of Forfeit Days, specifies that "deviations from the standards by increasing or decreasing the number of forfeit days * * * within the discretion of Local Offices if aggravating or extenuating circumstances exist." The case here reported is an example of the type of case which calls for a deviation from the standards.

 

A-750-1107

Index No. 1310-2

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

July 9, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Definition of Industrial Controversy

Appellate Division Decision

Matter of Crealey, 280 AD 844

INDUSTRIAL CONTROVERSY, QUESTION OF – JURISDICTIONAL DISPUTE

"Industrial Controversy" within the meaning of the Unemployment Insurance Law is not limited by definitions set forth in other laws, such as the definition of "labor dispute" in Section 876-a of the Civil Practice Act.

Referee’s Findings of Fact: Hearings were held at which the claimant, an attorney for the employer and representatives of the Industrial Commissioner appeared and testimony was taken. Claimant, a billing clerk, filed a claim for benefits on July 27, 1950. By an initial determination, her benefit rights were suspended from July 26 through September 12 for having lost her employment as a result of the existence of an industrial controversy. Claimant worked for a candy manufacturer which had entered into a collective bargaining agreement with a certain union with respect to the terms and conditions of employment affecting its production workers. In February 1940, an election was conducted by the National Labor Relations Board and as a result the Independent Confectionery Workers Union was certified as the sole collective bargaining representative of all employees of the employer. From 1940 and up to the present time, the employer has had a valid and existing contract with the said Independent Confectionery Workers Union. The collective bargaining agreement contained "no strike" and "arbitration" provisions. A new agreement in effect renewing the terms of the existing agreement was executed on June 19, 1950, and because the independent union referred to above had affiliated with Local 452 of the American Federation of Labor, the latter assumed the obligations of the collective bargaining agreement and was substituted as the bargaining agent. On or about the same day when the renewal agreement was executed, another union presently affiliated with the C.I.O., without having made any prior demands upon the employer and without any prior notice, called a "strike" and picketing was commenced at the employer’s plant. Due to such picketing, all production in the employer’s plant ceased. The office of the employer continued to function and persons employed in the office continued to work, notwithstanding the cessation of production and the picketing which was in progress. Claimant continued to work until about the day of her claim for benefits, but because there was insufficient office work to be performed, the various employees worked on a skip-day basis, and between the date of the filing of the claim and September 1, claimant worked approximately two days of each week. The employer commenced an action in the Supreme Court of the State of New York, Kings County, to enjoin the picketing of its establishment and it moved in such action for an injunction pendente lite, alleging among other things that no labor dispute as defined by Section 876-a of the Civil Practice Act existed at the employer’s establishment. The motion came on to be heard before Mr. Justice Nova of the Supreme Court, Kings County, and after reviewing the facts, the Court decided that there was no labor dispute at the establishment of the employer and that the plaintiff in such action was entitled to the injunctive relief which it sought. Accordingly, on September 11, 1950, an order was made and entered in the Supreme Court, Kings County, granting the employer the injunction, which it sought.

Referee’s Opinion and Decision: The Appeal Board had occasion to pass upon the issue with respect to whether a former employee of the instant employer lost his employment as a result of an industrial controversy in 1940, when it appeared that the worker’s employment terminated because picketing had continued by members of the union which had lost the election conducted by the National Labor Relation Board, after the collective bargaining agreement had been executed. Prior to the ruling by the Appeal Board, an action was instituted by the employer in the Supreme court, Kings County, in the same manner as the action referred to above was instituted by it currently. There, as here, the Court granted the employer’s motion for a temporary injunction and held that no labor dispute existed. The Appeal Board Arrived at the same result as that arrived at by the Supreme Court and accordingly ruled that no industrial controversy existed within the contemplation of the provisions of the Unemployment Insurance Law. (Appeal Board 3,103-40) The record herein fails to reveal the existence of any facts that would tend to distinguish the situation currently existing from that which existed at the time of the aforesaid ruling by the Appeal Board. It is contended on behalf of the Industrial Commissioner that the Appeal Board, by implication, overruled the principle enunciated by it in Appeal Board 3,103-40, when it ruled in 12,521-45 that under the circumstances which there existed there was in fact an industrial controversy which required the suspension of the claimant’s benefit rights. Nowhere in the decision of the appeal Board in 12,521-45 is any reference made to its holding in the earlier case involving the instant employer, (Appeal Board 3,103-40), nor is there any specific statement by the Board to the effect it intended to overrule its earlier decision. The facts in Appeal Board 12,521-45 are sufficiently different from those that were presented to the Board in 3,103-40 to warrant the conclusion that the two cases are not inconsistent and that the Board had no intention of reversing itself. In view of the foregoing, I am constrained to follow the ruling of the Board in appeal Board 3,103-40, since it involved the identical employer and circumstances identical with those here shown to exist. The initial determination is overruled. (March 30, 1951)

Appealed By: Industrial Commissioner

Appeal Board 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 question herein is whether or not the claimant lost her employment as a result of an industrial controversy in the establishment in which she was employed. The question posed must be determined in light of 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.

Considering the evidence adduced before the referee in its entirety, we hold that the controversy involved herein was not such as contemplated by the above statute. The Board is therefore of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case (Compare Appeal Board, 24,418-50). The decision of the referee is affirmed. (August 10, 1951)

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board which decision affirmed a referee’s decision overruling an initial determination of appellant which suspended claimant’s benefit rights under Labor Law section 592, subd. 1. Claimant’s loss of employment in question was occasioned by a strike or industrial controversy in the establishment in which she was employed within the reach and intent of the aforesaid statute. Decision of the Unemployment Insurance Appeal Board reversed, on the law, and the initial determination reinstated, without costs. (June 13, 1952)

COMMENT

1. The importance of this Court decision reaches beyond the specific conclusion that an industrial controversy within the meaning of the Unemployment Insurance Law may exist although the occurrence is not a "labor dispute" as defined in the Civil Practice Act. The decision means in the last analysis generally that special definitions in special laws do not limit the meaning of "industrial controversy" under the Unemployment Insurance Law.

There are special definitions in law, other than the Civil Practice Act. There are also laws, such as labor relations acts, which declare strikes, etc. as being illegal under certain circumstances. The Court decision, here discussed, can be taken to stand for the principle that such special definitions and specific provisions will not control interpretations for the purposes of the Unemployment Insurance Law. This, in turn, indicates that the intent of the Unemployment Insurance requires the imposition of a suspension because of a strike, lockout or other industrial controversy whenever a claimant lost his employment because of an occurrence which constitutes an industrial controversy under a realistic evaluation, not hampered by special-purpose definitions or restrictive provisions of other laws.

2. No specific reasoning is set forth in the Court decision, and no facts are recited. It appears, therefore, appropriate to quote from the Attorney General’s brief in order to give the setting under which the Court reached its decision. This brief includes the following:

"It is undisputed * * * that the production workers * * * went out on strike * * *. It is also undisputed that * * * at least some of these production workers picketed the employer’s plant.

* * *

* * *

"The strike was intended to force the employer to repudiate a valid and existing labor agreement with another Union.

* * *

* * *

"In granting the injunction (enjoining and restraining the Union from continuing the strike and the picketing) the Court held that there was no ‘labor dispute’ within the meaning of §876-a of the Civil Practice Act, and for that reason an injunction could be granted."

The Attorney General argued that the reasoning of the referee and the Appeal Board constituted error as a matter of law when they held that the suspension of Section 592, subd. 1, of the Unemployment Insurance Law could not be imposed since there was no "labor dispute" within the meaning of the Civil Practice Act. The statements made in support of this contention include these:

"While the term ‘labor dispute’ is defined in Civil Practice Act §876-1 * * *, and is also defined in the New York State Labor Relations Act §701, subd. 8, and in the (federal) Labor-Management Relations Act * * * §952(9), the inference is reasonable that Legislature of this State did not intend the term ‘industrial controversy,’ as used in the Unemployment Insurance Law §592, subd. 1, to be confined to conditions in those statutes.

"Such a decision (the Referee’s decision as applied to the production workers) would have created a situation where striking employees would have been granted benefits without the imposition of the suspension period. Certainly the statute does not contemplate any such result."

3. The Court decision may have even wider implications. It may apply to other instances where terms, similar to, or identical with those used in the Unemployment Insurance Law, are defined in other laws. It may be reasoned that such definitions constitute special-purpose definitions and do not necessarily apply to the Unemployment Insurance Law.
4. Appeal Board decision 3103-40 cited by the Referee is reflected under Serial A-750-207; Appeal Board decision 12,521-45 under Serial A-750-721.

 

A-750-1116

Index No. 735B.12

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

July 24, 1952

INTERPRETATION SERVICE- BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Employment Opportunities Removal of Residence

Appeal Board Case Number 31,298-52

AVAILABILITY, QUESTION OF -RETURN TO PERMANENT RESIDENCE DURING SLACK PERIODS

A claimant, who maintains an apartment in the locality of her normal labor market, does not render herself unavailable by regular returns to another community, on weekends and during layoff periods in her industry, to live with her husband and children, although she restricts herself to her usual occupation for which opportunities do not exist in that community, when she continues her attachment to her normal labor market and exerts conscientious and effective efforts to obtain employment in her line of work.

(See Comment after Decision)

Referee's Decision: The initial determination of the Out-of-State Resident Office holding claimant ineligible for benefits, effective September 10, 1951, on the ground that she was unavailable for employment is sustained. (February 29, 1952)

Appealed By: Claimant

Findings of Fact: Claimant was employed in New York City as a pattern maker in the dress industry from April 1946 to September 6, 1951, when she was laid off from her employment due to a seasonal slump in the industry. She had been a pattern maker for 12 years and she had also worked as a general manager in the dress industry. She filed a claim for benefits in Easton, Pa., effective September 10, 1951, against New York State as the liable State and registered with the Pennsylvania Employment Service. On October 31, 1951 claimant refused a referral to employment as assembler of coils offering $1.09 per hour in a local radio factory. On the premise that claimant restricted her employability to work as a pattern maker in an area where such work was non-existent, the Out-of State Resident Office ruled her ineligible for benefits on the ground that she was unavailable for employment. Claimant moved from Woodside, N.Y., to Easton, Pa. in 1948 when her husband obtained a teacher's position in a local college. Her household also consists of her child and of her mother. Claimant's only employment was in New York City, where she maintained an apartment jointly with a sister. Since 1948 she customarily returned to Easton to live with her family on week-ends and during layoff periods. The seasonal layoffs in claimant's line of work usually occurred in August or in September of each year and the date of her return to work depended upon the date of the showing of new spring dresses. She earned $95 for a five-day week, seven hours a day. When she was laid off from her employment, claimant went to Easton to be with her family and within two weeks she returned to New York City for two days for the purpose of securing employment in her line. She contacted her employer, studied market conditions and made inquiries for employment with other employers. Claimant again returned to New York City from October 4 to October 7, 1951 during which time she interviewed her former production manager and others associated in her line of work. In the early part of November 1951 claimant made another trip to New York City to contact her employer and to otherwise seek work. She also maintained constant contact with a private employment agency with whom she registered. On November 27, 1951 claimant obtained employment through her former production manager a t a wage of $95 for a five-day week, seven hours a day. On January 28, 1952 claimant obtained another job through the private employment agency at a wage of $125 a week. At the time of her hearing on February 5, 1952 claimant, was engaged in both of those employments .

Appeal Board Opinion: The referee ruled that inasmuch as claimant had removed herself from her normal labor market she was bound to accept employment outside of her usual occupation and also that her visits to New York City to obtain employment were occasional and insufficient to render her available. We do not agree with these conclusions. This is not a case of a claimant's leaving her normal labor market. In accordance with her pattern since changing her residence in 1948 claimant merely returned to her home in Easton during a slack period in her industry. She continued to maintain the apartment in New York City which she rented jointly with her sister. During the two and one-half months period of her unemployment, claimant continued her attachment to the New York City labor market. She exerted conscientious efforts to obtain employment in her line by three visits to New York City of several days' duration, by maintaining constant contact with her former employer and with a private employment agency and by making numerous inquiries among persons connected with her line of work for work with other employers. That the methods used by the claimant to obtain employment was effective is evidenced by the fact she succeeded in obtaining two jobs through those efforts. Under these circumstances, we find no basis for the referee's decision and we cannot agree that it was incumbent on claimant to seek and accept other work in Easton, where the prevailing rate of wages is stated to be 75 cents an hour, and were opportunities do not exist for the type of work in which she has had many years of training and experience. Accordingly, we hold claimant was available for employment. (Matter of Loeb, 269 App. Div. 917.)

Appeal Board Decision: The initial determination of the Out-of-State Resident Office holding claimant unavailable for unemployment is overruled. The decision of the referee is reversed. (June 13, 1952)

COMMENT

This case is reported since it represents an exception to the principle that a claimant is, generally, unavailable when restricting job efforts to occupations which do not exist in the community to which he removes himself. The controlling feature is the Board's finding that "this is not a case of a claimant's leaving her normal labor market." Another type of exception is reported in A-750-993; Index 735B.13

 

A-750-1117

Index No. 740.5

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

August 1, 1952

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

Appeal Board Case No. 29,444-51

AVAILABILITY OF INVOLUNTARILY PENSIONED CLAIMANT

Receipt of a pension and of federal Old Age insurance benefits is, in and of itself, not a sound basis for a determination of unavailability in cases of involuntary retirement.

(See Comment after Decision)

Referee's Decision: The initial determination of the local office ruling that claimant was ineligible to receive benefits because he was unavailable for employment is sustained. (September 12, 1951)

Appealed By: Claimant

Findings of Fact: Claimant was employed for 27 years as a mixer (the last year of his employment as a cleaner) by a nationally known biscuit baking company. The employer is in contractual relations with a trade union of its employees. The claimant at all times was and still is a member thereof. Claimant’s take-home pay was about $60 a week. In accordance with the employer’s personnel policy and solely because claimant attained the age of 65 on April 12, 1951, his employment was terminated on April 28, 1951, even though claimant was willing and able to continue to work. Under a formal pension plan adopted by the employer in 1946, employees are retired effective the first day of the month following the 65th birthday, but there is no limitation with respect to the right of a retired employee to obtain employment with other employers. The plan takes into consideration the amount of Old Age and Survivors Insurance benefits for which a pensioned worker may qualify. Based on his number of years of continuous service with the employer and his average earnings for the last 10 years of his employment, claimant receives a monthly pension of $29.73. In addition claimant qualified for and receives $63.20 a month as OASI benefits. Following his involuntary retirement claimant paid one year’s union dues in advance and holds a retired status union card which qualifies him to take union employment with any other of the several baking companies in contractual relations with the union. Retired status card holders are referred by the union to job openings with other employers when they occur, without relation to the fact that the member had previously been retired by claimant's employer. Claimant filed an original claim effective June 4, 1951 and registered for employment. He continued to report to the local office and the employment service until the week ending February 10, 1952. Throughout this reporting period the employment service never referred the claimant to any job opening, nor was his attention ever directed to any possible source of employment either by the employment service or the local office. The claimant is in good health and able to work. He is willing to work either on a day or night shift without restriction as to salary, but expects to be paid about $1 an hour. On his own initiative claimant actively sought employment without restriction either as to the kind of work or type of establishment. He personally applied for work at a number of large baking companies, several retail bakery stores, two milk companies, a department store, ice cream companies, a lumber yard, a restaurant and two other establishments offering work, as a helper, porter, cleaner or at any other job requiring no particular skill other than the ability to work as a common laborer. Claimant's efforts to obtain employment were unsuccessful principally because the various employers solicited would not employ applicants of claimant's age. Claimant does not fully comprehend the English language. At the hearing before the Board he required the services of an interpreter. Based on interviews reduced to writing, the local office held claimant to be ineligible for benefits on the ground that he was unavailable for employment. Claimant requested a hearing and this appeal is from the referee's decision sustaining the action taken by the local office.

Appeal Board Opinion: The sole issue in this case is whether or not claimant was available for employment during the period of his reporting for benefits. Whether one is "available for work" engage in his usual employment or in any other for which he is reasonably fitted by training and experience," within the meaning of the Unemployment Insurance Law (Section 522), depends to a large extent upon the facts and circumstances in each case (Appeal Board, 8745-43; affirmed in Matter of Maude May Smith, 267 App. Div. 468). Although not susceptible of a precise definition, we have long held the phrase "available for work" to mean a claimant 's readiness, willingness and ability to continue to perform ,work for which he is reasonably fitted by training and experience (Appeal Board, 2065-40; 2717-40; 5540-41). When a claimant's readiness and willingness to accept work is brought into question by his conduct or other facts indicating possible unavailability, the presence or absence of efforts to obtain employment, other than merely registering with the employment service as required, constitute overt acts indicative of a claimant's state of mind, and is competent evidence to be judged in determining the probability of claimant's assertions in the light of the established and admitted facts and other relative factors and circumstances (Appeal Board, 6759-42). For the foregoing reasons it becomes important in this type of case to ascertain the circumstances under which the employee lost his employment. Clearly, if an employee voluntarily relinquishes a job to accept a pension, such conduct would be persuasive evidence of his withdrawal from the labor market. In such a case it might well be said that the employee, by his own conduct, chooses to make himself unavailable for employment. The claimant in this case however lost his employment merely because of the passage of time. After 27 years with a single employer and upon reaching 65 years of age, claimant's employment was terminated as a result of the employer's unilateral action in fulfillment of its own personal policy. But for this circumstance, claimant might still have been employed. Despite his ability to work and his readiness and willingness to continue to work, the occurrence of an event over which claimant had no control automatically changed his economic status from a productive worker, earning in excess of $60 weekly, to a pensioner at $29.73 a month, without restriction however to his right to accept such employment as he might be able to find with other employers. The fact that some employers are reluctant to hire elderly, though physically capable workers, does not in and of itself make them unavailable for employment (Appeal Board, 9975-43). The test, we have held is not the available of work for the claimant, but the availability of the claimant for work (Appeal Board, 12,626-46; 17,200-48; 23,041-50). We are not unaware of the situation in which an aging worker too often finds himself in his endeavor to continue an attachment to the labor market. The problem has come to the attention of the public with recurrent frequency in the literature on the subject.

The plight of the aging and the aged in our population, particularly with reference to their lack of employment opportunities, has for some time engaged the sensitive awareness of both State and Federal legislators. The Social Security legislation of the 1930’s was the earliest attempt on the part of the Congress to deal with this problem. It has as its principal purposes assisting workers to maintain themselves without a dole in periods of unemployment and encouraging aged workers to leave the labor market by providing them with retirement benefits. More recently, the philosophy regarding retirement has changed somewhat. The Congress has recognized that many people of retirement age wish to continue at work, if only part time. The 1950 amendments to the Social Security Act raise from $14 to $50 the amount which OASI beneficiaries may earn monthly without reducing their pensions. They remove all limitation upon earnings of beneficiaries 75 or over. (Legislation and the Older Workers by Live E. Young, 19 Employment Security Review No. 5)

Our own State Legislature has been studying this perplexing problem of the aged in an endeavor to correct existing wrong beliefs and false attitudes towards an ever-increasing large segment of our employable population. Based on studies made by the New York State Joint Legislative Committee on Problems of the Aging, its chairman points out:

Although older workers frequently out-perform younger workers, are absent less, and have a lower rate of turnover, industry continues to maintain an age barrier on hiring at 35 for women and 45 for men. When a man reaches 65, though he is still able and willing to work and wants to work, compulsory retirement programs in industry cut him off from useful, remunerative activity, and so cut down the productive capacity of our nation.

The issue of whether or not an aged worker was available for employment as presented to the Indiana Courts. In that case, as in the one before us, an aged claimant was initially denied benefits on the basis of his lack of effort to find work. In overruling the disqualification, what the appellate Court of Indiana said in Nelson v. Review Board of Indiana Employment Security Division, (82 N.E. (2d) 523; 13371-Ind. Ct. D.; Ben. Ser., Vol. 12, No. 5) is opposite to the case at bar:

This court judicially knows that job opportunities are limited to individuals 70 years of age and over, and the record does not disclose a complete lack of effort to seek work on the part of the claimant or a refusal to accept any type of employment on the part of the claimant. It seems clearly apparent from a consideration of the circumstances that the failure of the claimant to make a further independent search for work was not the proximate cause of his continued unemployment. The fact that claimant had quit a job before because it constituted janitor work and for which he was penalized under the Act, cannot be held as a continuing basis for a denial of unemployment compensation benefits where the same individual makes claim for a later period, and presents himself without restrictions or conditions to a division of State government created by the Indiana Legislature with adequate trained personnel in continuous contact with the labor market to find available work for him. The claimant also made some slight effort to look for work, and there are no facts and circumstances from which it could be inferred that claimant subsequent to the renewal of his claim had refused any employment offered him. It seems significant that the record shows that the Employment Security Division offered not a single job to claimant. The availability test must be applied with a full consideration of the facts and circumstances of the particular case. There must be some basis for an inference that with some effort on behalf of claimant he could reasonably be expected to find work for himself. Such basis does not exist in this case.

It is not disputed in the case before us, that claimant’s unemployment is the result of industry’s attitude toward workers in his age class. Because of this involuntary unemployment, claimant seeks benefits. This is the very type of unemployment intended to be insured under the law. We have found that claimant did in fact exert efforts, though fruitless, to find employment. In addition he was registered with the employment service which has access to many more sources of employment than any individual claimant could possibly have. During claimant’s entire period of reporting for benefits at the insurance office and at the employment service, it is significant that not a single referral to a possible job opening was given to the claimant. Nor did either of these offices ever give claimant any other lead which might have resulted in possible employment.

* * *

How then can it be said that this claimant rendered herself unavailable for employment? Concededly, she complied with all of the provisions relating to eligibility for benefits found in the Statute and in the implementing regulations of the Commissioner. It is reasonable to believe that the Legislature, in providing for inter-related functions between the benefit claims-taking section and the employment service, intended that the Commissioner should expose claimants to the large reservoir of employment opportunities afforded by the latter service. This claimant did expose herself to this source of employment, but without success.

Claimant has thus fully complied with all of the provisions of the Law and met the tests laid down by the statute and the Commissioner’s regulations. Her inability to find work, therefore, cannot be used as a basis to establish that she was unavailable for work (Appeal Board, 16,359-47).

* * *

Claimant’s right to collect monthly payments under the employer’s pension plan cannot be affected by his remaining attached to the labor market. Nor does claimant’s status as a beneficiary of the plan ipso facto render him ineligible to receive Unemployment Insurance benefits (Appeal Board, 14,547-47). In the light of claimant’s course of conduct both prior to and subsequent to the termination of his employment, we are extremely reluctant to infer, as suggested, that claimant was unwilling to relinquish his OASI benefits in order to be gainfully re-employed at a salary, which if judged by his most recent earning capacity, would of necessity be far in excess of his OASI benefits (Appeal Board, 7764-42). Under all of the circumstances in this case, we conclude that no basis exists for the determination that claimant was unavailable for employment.

Appeal Board Decision: The initial determination of the local office holding that claimant was unavailable for employment, is overruled. The decision of the referee is reversed. (July 3, 1952)

COMMENT

1. This decision cautions against issuing disqualifying determinations on no other evidence but the receipt of a pension and federal Old Age benefits by a claimant who is involuntarily unemployed because of forced retirement and reluctance of employers to hire elderly, though physically capable workers.
2. When a claimant is retired and receives a pension or federal benefits, a thorough fact finding interview is needed to determine whether the claimant is ready, willing and able, without undue restrictions, to perform work for which he is reasonably fitted by training and experience. Such claimants should be expected to conform with the usual availability requirements, adjusted to their special circumstances. Each case will suggest its own specific line of inquiry. Among the facts which should be considered in determining availability are the following:
1. Pensions received (employer, union, or OASI) and whether claimant would forfeit such pension because of employment.
2. Willingness by claimant to accept other employment where opportunities to obtain usual work is limited for any reason. This may necessitate inquiry as to secondary occupations or other skills, usable in the current labor market.
3. Health, handicaps or other physical impairments which may effect availability. This may necessitate presentation of medical evidence.
4. Restrictions as to wages, type of work, location (travel, transportation), hours, etc.
5. Job efforts: This will necessitate proper counseling so the claimant is aware of what is required to establish availability. Appropriate employment contact may be through newspaper ads, Unions, private agencies, specific employers or groups of employers, etc. The frequency of employment contact, type of work sought and the reasonableness of claimant’s efforts as a whole are additional factors to be considered.
3. This release deals with claimants who are involuntarily unemployed. With respect to claimant’s who voluntarily retire, the Board stated in the decision:

It becomes important in this type of case to ascertain the circumstances under which the employee lost his employment. Clearly, if an employee voluntarily relinquishes a job to accept a pension, such conduct would be persuasive evidence of his withdrawal from the labor market. In such a case, it might well be said that the employee, by his own conduct, chooses to make himself unavailable for employment.

4. A careful study of the case here reported is recommended. It is also suggested that the rules under Index 740 and the "Comments" of A-750-926, A-750-996, A-750-1039 and A-750-1094 be reviewed.

 

A-750-1120

Index No. 1285-2

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

August 1, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations

Appeal Board Case Number 30,600-52

REFUSAL – UNWILLINGNESS TO PAY FEE FOR UNION WORK PERMIT

Refusal of temporary employment in a "Union Shop," because of unwillingness to pay a reasonable fee for a union work permit, is without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective October 4, 1951, on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience is sustained. (January 10, 1952)

Appealed By: Claimant

Findings of Fact: Claimant, an unskilled worker, is classified as a packer. He does not belong to any trade union. Between June 1950 and March 1951, he worked for a large grocery chain as a bread packer. This employment was terminated because of excessive absences. Thereafter, as a result of a referral by the employment service, claimant was next employed as a stockroom helper for about two and one-half weeks ending August 24, 1951. Claimant refiled for benefits effective September 10, 1951. On October 4, 1951 claimant accepted a referral to a wholesale winery, as a laborer. No experience was required. The job duties were to pack bottles into cartons and assist in labeling, filling and capping. The details set forth on the job order were discussed with the claimant. Among other things, he was told that the job would last approximately from two or three months and that the employer’s establishment was operated as a union shop. Admittedly, claimant was advised that he would be required to make arrangements with the union, then in contractual relations with the employer, to obtain a temporary work card, and that he might be required to pay either union dues or a work card fee. Subject to claimant’s procuring a temporary work card from the union, he was hired by the employer to commence working on October 8, 1951. Following his interview with the employer, claimant promptly visited the union office and obtain the required work card which permitted him to commence working, as a temporary employee, in the employer’s establishment for the period ending December 31, 1951. The union informed the claimant that in lieu of dues he was required to pay $10 in weekly installments, while working, in fulfillment of the union’s requirement for the issued work card. Although claimant accepted the temporary card he failed to report to work on October 8 as directed by the employer. As a result, claimant was disqualified from receiving benefits effective October 4, 1951. Between August 24 and December 7, 1951, claimant continued to remain unemployed. At the time of claimant’s referral, eight other applicants for employment likewise were referred to the same establishment. Each of these persons, upon being hired, accepted employment with the employer. The industry to which claimant was referred is highly unionized. Union shops unable to obtain services of union members temporarily employ non-union workers, who are required to obtain permit or work cards from the union in contractual relations with the establishments. The customary practice for new employees is either to pay the equivalent union dues then being paid by regular union members or in lieu thereof, a lump sum for a work card permitting non-union employees to work in union shops. Customarily, the single payment instead of union dues is liquidated in small, weekly installments out of each week’s earnings until fully paid. The claimant contested the initial determination made by the local office. The referee sustained the action of the local office and claimant appeals to this Board.

Appeal Board Opinion: Claimant’s sole ground for refusing the offered employment, as set forth in his request for a hearing, is based on his unwillingness to "pay $10 to the union for a temporary job." He further stated: "If I were offered a permanent job I would gladly pay the money to the union." Consequently, the only question presented by this appeal is whether the imposition of the employer’s condition, that claimant procure a temporary union card, will support claimant’s refusal to accept the offered work. Thus, within the framework of our Statute, we must determine whether or not the refusal was with good cause, within the meaning of Section 593.2 of the Law which, insofar as it is pertinent to the issue, provides as follows:

* * * No refusal to accept employment shall be deemed without good cause nor shall it disqualify any claimant otherwise eligible to receive benefit if

1. acceptance of such employment would either require the claimant to join a company union or would interfere with his joining or retaining membership in any labor organization; . . .

This provision in the statute is designed to prevent the use of the Unemployment Insurance Law to interfere with a claimant’s freedom of union affiliation or non-affiliation, except that the statutory clause imposes no barrier to a requirement that a claimant join a union, unless the organization which he is asked to join is a "company union." This Board has consistently sustained the disqualification of claimants for either refusing to accept employment, or for voluntarily leaving employment that necessitated their joining or retaining membership in a bona fide union under a preferential or closed shop arrangement (Appeal Board, 26,009-50; 12,854-476 13,815-46). Nor does an unwillingness to pay usual and reasonable union dues and initiation fees constitute good cause for either a refusal of employment or for a voluntary leaving of employment (Appeal Board, 16,783-48; 24,591-50; 11,875-45; 24,718-50). The mere fact that the employment offered to claimant was temporary would not justify his refusal to accept the employment (Appeal Board 5423-41; 5779-41). Does, then, the requirement that claimant pay $10 for a union work card bring his refusal of the work, with the resultant continuance of his unemployment, within the statutory meaning of the term "good cause," so as to protect him from the disqualification provision of the section? We believe it does not. The principal objective of the statute is to alleviate economic distress caused by involuntary unemployment. In addition to the four particular sets of circumstances explicitly set forth in the statute, under each of which a refusal cannot be deemed to be without good cause, sound policy requires that a claimant who refuses employment may nevertheless remain eligible for benefits only where there is some necessitous and compelling reason for the refusal of offered work (Appeal Board, 9576-43). The term "good cause" is not defined by the statute. As a concept, it must, be necessity, remain flexible and without rigid definition. Causes to be deemed good, must be substantial causes, founded in real circumstances, that will bear the test of reason. In short, a decision to refuse to take a job must be based upon real, substantial and reasonable circumstances, so that a reasonable man of ordinary prudence would be motivated or impelled to refuse the offered employment. We must regard without merit claimant’s unwillingness to pay the union $10, in small, weekly installments during a period of two and possibly three months of employment, when considered with his statement: "I would gladly pay the money to the union" if offered a permanent job. The claimant knew that the shop to which he was referred was under union regulations. It was therefore to be expected that certain requirements would have to be met by him (Appeal Board, 1828-39). Viewed in the light of the weekly salary of $52 offered claimant for a five-day, 40 hour week, it appears to us that the $10 union fee for a work card was a reasonable requirement, especially since it was payable in a number of small weekly installment payments during the period of his temporary employment. In this respect, no hardship would have been worked upon the claimant. The effect of the union terms and conditions superimposed on the work refused by the claimant, did not differ in its effect upon him from their effect on the eight other claimants who accepted the employment, and the many others employed in the industry which is highly unionized. Thus, it cannot be said that the condition, urged by the claimant as objectionable to him in justification for his refusal, was substantially less favorable to him than the condition generally prevailing for the workers in the industry. We regard the claimant’s election to remain idle, when he might have been working, as not being based on either real, substantial or reasonable grounds. Necessarily, it reflects upon the good faith of his refusal. In our opinion, claimant’s refusal of the offered employment was without good cause.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective October 4, 1951, is sustained. The decision of the referee is affirmed. (June 13, 1952)

COMMENT

This decision is mainly reported since it contains concise and clear statements of the Appeal Board’s attitude towards

1. the issue of required union membership,
2. the meaning of "good cause."

Careful study of these statements is recommended.

1. Required Union Membership.

The issue relates to cases where a claimant refuses or quits a job because it involves the requirement of joining a Union. The statements in the decision are in general agreement with previous cases released. Unwillingness to pay usual and reasonable Union dues and initiation fees does not represent good cause for refusal of employment or voluntary quits, including ‘constructive’ voluntary quits."

2. The Meaning of "Good Cause."

Aside from the four "statutory" good causes specified in Section 593, subd. 2, of the Law, there are other circumstances which may constitute good cause for a refusal or a voluntary quit so that no disqualification applies. Previous releases emphasized that the question whether a claimant had such good cause can be best tested by asking whether claimant’s action was that of a reasonably prudent person. The Comment of Serial No. A-750-972, for instance, includes these statements:

"If the conditions which are claimed to represent good cause are not covered by the specific provisions in these paragraphs (paragraphs (a), (b), (c) and (d) of Section 592, subd. 2 of the law), the finding whether there is a good cause is a matter of judgement resting with the industrial Commissioner. Such judgement is usually exercised by evaluating the claimant’s actions by that of a reasonably prudent person who is genuinely seeking employment." (Underscoring supplied)

The Board’s opinion, in the case here reported, uses the same approach and includes additional language which may serve as a framework for the issuance of correct determinations on issues of general "good cause" in refusal and voluntary quit cases. The pertinent portion of the decision reads as follows:

"The principle objective of the statute is to alleviate economic distress caused by involuntary unemployment. In addition to the four particular sets of circumstances explicitly set forth in the statute, under each of which a refusal cannot be deemed to be without good cause, sound policy requires that a claimant who refuses employment may nevertheless remain eligible for benefits only when there is some necessitous and compelling reason for the refusal of offered work (Appeal Board, 9576-43).

"The term ‘good cause’ is not defined by the statute. As a concept, it must, by necessity, remain flexible and without rigid definition. Causes, to be deemed good, must be substantial causes, founded in real circumstances, that will bear the test of reason. In short, a decision to refuse to take a job must be based upon real, substantial, and reasonable circumstances, so that a reasonable man of ordinary prudence would be motivated or impelled to refuse the offered employment."

These thoughts, although they relate to a refusal of employment in the specific case, obviously apply with equal force to voluntary quit cases.

 

A-750-1122

Index No. 790.4

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

August 8, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Willingness and Efforts; Other

Appeal Board Case Number 30,025-51

FAILURE TO INSIST UPON RE-EMPLOYMENT RIGHTS WITH LAST EMPLOYER

Where claimant was aware of his right under a union agreement to share in the work which was available in the establishment of his last employer, a failure to request such employment or to insist upon his right through his union representative showed a disinterest in re-employment and evinced unavailability.

(See Comment after Decision)

Referee’s Decision: The initial determination of the local office holding claimant ineligible for benefits, effective October 8, 1951, on the ground that he was unavailable for employment is overruled. (November 28, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a finisher, was last employed in a shop manufacturing ladies’ garments. He was laid off on March 18, 1951 because of lack of work. Claimant filed an additional claim for benefits on September 3, 1951. During claimant’s period of unemployment, he visited the employer’s shop on many occasions when there were men at work in the shop, including finishers, which was claimant’s trade. Claimant’s shop was in contractual relations with the union in which he was a member and under the terms of the union contract the employees in the shop had the right to share in the work. He could have demanded that he be given a share of the work, but he did not request it of the employer, nor did he request his union to enforce his right to share the work that was available. Based on interviews had with the claimant and a report received from the employer, the local office issued an initial determination holding claimant ineligible for benefits effective October 8, 1951, on the ground that he was unavailable for employment. 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 credible evidence discloses that claimant, when he visited the shop on numerous occasions saw men at work including those in his occupation. He concededly was aware of his right under the union agreement to share in such work that was available, but he did nothing about it. If he was interested in working he should have gone to his union representative and insisted upon his rights. This he failed to do. Under the circumstances, we conclude that the local office properly hold him ineligible for benefits effective October 8, 1951, on the ground that he was unavailable for employment.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible for benefits effective October 8, 1951, on the ground that he was unavailable for employment is sustained. The decision of the referee is reversed. (July 11, 1952)

COMMENT

This case shows another instance where a claimant was deemed unavailable for failing to take a specific course of action which could have reasonably resulted in re-employment. Other decisions in the Service dealing with the same principle are as follows:

Failure of claimant to avail himself of his union’s rotating list, which was designed to share available work at the trade among all members, plus lack of other effort to obtain employment, evinced unavailability. (A.B. 9933-43, Index 765.8, A-750-555)

A seaman whose seniority was sufficient to obtain a job announced in the hiring hall by bidding for it under the system in effect, but who failed to obtain employment in this manner, was held to be unavailable for employment rather than having refused a job, such decision of the Appeal Board being affirmed by the Court which found the evidence to be insufficient to hold, as a matter of law, that claimant refused employment under circumstances justifying a disqualification for this reason. (Appellate Division Decision, Matter of Kalm, A.B. 25,727-50)

 

A-750-1123

Index No. 1250C-3

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

August 8, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Night Work

Appeal Board Case Number 31,938-52

REFUSAL – EVENING HOURS INTERFERING WITH SOCIAL LIFE

Refusal of employment with hours extending into the late evening because those hours would interfere with the social life of claimant who had a work history of day time hours, is without good cause since such reasons are based on personal convenience rather than hardship.

Referee’s Decision: The initial determination of the local office effective November 20, 1951 disqualifying claimant from receiving benefits on the ground that she refused employment without good cause is overruled. (April 22, 1952)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant last worked intermittently for one and a half years ending July 1951 as a pantry girl in a restaurant in Buffalo with earnings of $30 a week. She was laid off from this employment. She previously worked from 1946 to 1949 as a liner of jewelry boxes. Claimant filed a claim for benefits on July 30, 1951, registered for employment and reported to March 4, 1952. She was given the occupational classifications of liner of jewelry boxes and pantry girl. On November 20, 1951, claimant was referred to a job as a pantry girl in a restaurant in Buffalo with hours from 3 p.m. to 11 p.m. at $30 for a six-day week. The employer furnished meals and uniforms. Claimant refused the referral because she did not want to work nights. She was willing to work until 7 p.m. and would have accepted the job offer on a day shift. According to claimant’s statement at the local office she intended to marry in March 1952 when her fiancé would enter military service and she wanted to be with him as much as possible. On November 20, 1951 claimant was referred to another job in a jewelry factory paying 80 cents an hour, but was not hired due to lack of experience. The local office issued an initial determination holding that claimant without good cause refused employment as a pantry girl on November 20, 1951.

Appeal Board Opinion: The referee overruled the determination on the premise that after claimant expressed a dislike for evening hours she was given a second referral to an industrial job in the nature of an alternative offer which she promptly accepted. We do not accept the referee’s conclusion. Claimant’s primary objection to the job in question was that the night hours would interfere with her social life. Her refusal to accept the offer was based on personal convenience rather than hardship. Since claimant had no compelling reason to refuse the offer, the disqualification imposed by the local office was proper.

Appeal Board Decision: The initial determination of the local office effective November 20, 1951 disqualifying claimant from receiving benefits on the ground that she refused employment without god cause is sustained. The decision of the referee is reversed. (July 11, 1952)

 

A-750-1125

Index No. 1460D-5

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

August 8, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Back Pay Awards

Appeal Board Case Number 31,113-52

"BACK PAY" AWARD COMPENSATION FOR PARTIAL PERIOD OF UNEMPLOYMENT

When claimant, after discharge by the employer, is reinstated by order of an arbitrator with an award for lost time but such award does not correspond to the full amount of wages for the period between discharge and reinstatement, claimant is considered not "totally unemployed" for only such length of his unemployment after the discharge which is represented by the amount of the award as measured by his customary wage rate with the employer.

Referee’s Decision: The initial determination of the local office ruling claimant, a rubber, ineligible for benefits, effective October 8, 1951, on the ground that he was not totally unemployed is sustained. (February 21, 1952)

Appealed By: Claimant

Findings of Fact: Claimant worked for nine months ending May 14, 1951 as a rubber for a manufacturer of case goods in Jamestown earning $90 a week. The employer was in contractual relations with claimant’s union. Because he sustained an injury on the job for which an award in workmen’s compensation benefits was made he could not continue his line of work. When he returned to the establishment for re-employment on October 8, 1951, after his recovery, he requested the employer to transfer him to lighter work, to which transfer he was entitled under the terms of the agreement between the employer and claimant’s union. The employer refused to re-hire claimant and he became unemployed as a result thereof. Claimant invoked the arbitration machinery for reinstatement pursuant to the union agreement and his grievance was submitted to an arbitrator. The arbitrator’s award set forth that the termination of the employment was not of claimant’s volition, that claimant should be reinstated with all rights unimpaired not later than December 17, 1951, and that the employer was directed to pay claimant the sum of $100, ""in lieu of any time lost as a result of his separation from employment during the period from October 8, 1951 to December 17, 1951." This award was not treated as wages in the employer's payroll records or in its reports to the taxing agencies. Claimant filed a claim for benefits effective October 15, 1951. By initial determination of the local office dated November 8, 1951 claimant was ruled ineligible for benefits effective October 15, 1951 on the ground that he was unavailable. An additional determination was issued by the local office under date of January 11, 1952 ruling claimant ineligible for benefits from October 8, 1951 to December 17, 1951 on the ground that he was not considered to be totally unemployed during that period because of the aforementioned award of $100 to him. Claimant contested these determinations and requested a hearing thereon. The referee sustained the determination as to lack of total unemployment from which decision the claimant appealed to this Board. The referee held that in view of his decision as to lack of total unemployment the issue as to unavailability was academic. Claimant returned to employment with his former employer on December 17,1951.

Appeal Board Opinion: The referee ruled that claimant was not totally unemployed from October 8, 1951 to December 17, 1951 on the ground he had received an award of back pay for this period. Claimant earned a wage of about $90 a week and his loss of earnings in the ten-week period involved amounted to about $900. It is inconceivable that the arbitrator’s award of $100 was intended to represent reimbursement to claimant for wages lost as a result of the employer’s violation of claimant’s right to employment under the bargaining agreement. It is clear that the employer did not consider the award as back pay since it did not treat it as wages in its books of account. Since the award bears no reasonable relationship to and did not compensate claimant for loss of wages suffered by him during the ten-week period there is no basis for the initial determination that claimant received "back pay" covering the entire period and was therefore not totally unemployed. The most that a can be said is that claimant received the equivalent of the amount of wages he would have earned in one week and one day. We so hold. However, since claimant filed his claim for benefits on October 15, 1951, after having been denied reinstatement on October 8, 1951, the week for which he received reimbursement did not fall within the filing period. We are concerned, therefore, only with the period on and after October 15, 1951. As to such period the claimant received the equivalent of back pay for only one day, and consequently may be considered as being not totally unemployed as of that day, namely, October 15, 1951. There is no evidence in the record to support the initial determination that claimant was unavailable for employment pending the outcome of the proceedings looking for reinstatement in his job.

Appeal Board Decision: The initial determination of the local office holding claimant was not totally unemployed is modified accordingly. The initial determination of unavailability is overruled. The decision of the referee is modified accordingly and, as so modified, is affirmed. (June 20, 1952)

COMMENT

At Serial A-750-304 and Matter of Stewart, 279 AD 500, it is stated that total unemployment does not exist during a period for which "back pay" awards are made by the National Labor Relations Board or by an arbitrator. This decision implements these releases with respect to cases where an award does not correspond to the full amount of wages lost because of the discharge. Claimant is in such event considered not "totally unemployed" only for that period of unemployment which is represented by the amount of the award as measured by his customary wage rate.

 

A-750-1126

Index No. 1675-1

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

August 8, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Military Service

Appeal Board Case Number 28,136-51

VOLUNTARY LEAVING – INDUCTION INTO ARMED FORCES NOT IMMINENT

Resignation from a job because of claimant’s desire "to take it easy" for at least one month before induction into the armed forces constitutes voluntary leaving of employment without good cause and a withdrawal from the labor market,

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective March 26, 1951, and for a period of 42 consecutive days following his certification to a bona fide return to the labor market, upon the ground he voluntarily left his employment without good cause and withdrew from the labor market is overruled. (June 8, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a clerk, was last employed in that capacity for about three years to February 2, 1951. On January 25, 1951, upon passing his physical examination for entrance into the Armed Forces, he was advised by his draft board that he would probably be inducted sometime during the month of March. Claimant resigned from his position on February 2 because he "wanted to take it easy" until he entered Service. Due to a reduction of the quotas, claimant had not been inducted as of the date of the hearing before the referee on May 9, 1951. Claimant filed a claim for benefits effective March 26, 1951. Claimant unsuccessfully sought reinstatement with his former employer. He made token efforts to obtain employment in his neighborhood. He restricted himself to a job within a "short traveling distance." Based on an interview, the local office issued an initial determination disqualifying claimant from receiving benefits, effective March 26, 1951, and for a period of 42 consecutive days following his certification to a bona fide return to the labor market, upon the ground he voluntarily left his employment without good cause and withdrew from the labor market. The claimant requested a hearing and the referee overruled the initial determination. The Industrial Commissioner thereupon appealed to this Board.

Appeal Board Opinion: The referee held that claimant was justified in leaving his employment because of the imminence of his entry into the Armed Forces. The referee further held that claimant had no withdrawn from the labor market. We are not in accord with the referee. There is nothing in the record to indicate that claimant’s induction was "imminent." He was advised by his draft board that his induction would be at least a month after the time he resigned on February 2. We cannot recognize claimant’s desire "to take it easy" for a period of at least one month before induction as good cause for leaving employment, within the meaning of the Unemployment Insurance Law. Under the circumstances of this case, when claimant voluntarily resigned from this position he must be deemed to have left the labor market. Cogent and convincing evidence of his re-entry into the labor market is required. While it is true claimant sought reinstatement with his former employer, the remainder of his efforts to obtain employment, slight and sporadic at best, were limited to his immediate neighborhood. In our opinion claimant has not demonstrated a bona fide return to the labor market within the meaning of the Unemployment Insurance Law.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective March 26, 1951, and for a period of 42 consecutive days following his certification to a bona fide return to the labor market, upon the ground he voluntarily left his employment without good cause and withdrew from the labor market, is sustained. The decision of the referee is reversed. (June 27, 1952)

 

A-750-1127

Index No. 1440-4

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

August 29, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Commission Basis

Appeal Board Case No. 27,111-51

TOTAL UNEMPLOYMENT, QUESTION OF - REAL ESTATE SALESMAN ON COMMISSION BASIS

A real estate salesman is employed (as differentiated from self-employment) and therefore, not totally unemployed where an employer-employee relationship exists as evidenced by "leads" being given, by a requirement of regularity with respect to hours devoted to obtaining business, compliance with rules established by employer in the conduct of business; commissions earned are allocable to the entire period of employment.

Referee’s Decision: The initial determination of the local office holding claimant ineligible for benefits, effective March 24, 1950, on the ground that he was not totally unemployed and was overpaid the sum of $312 in benefits is overruled. (March 28, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a manager in a milk concern, was last employed by the same firm for about 26 years to January 5, 1950. He was laid off due to a re-organization. He filed a claim for benefits on March 14, 1950. In response to a newspaper advertisement, claimant applied for a job as a real estate salesman and was hired commencing March 24, 1950. He procured a real estate salesman license. He worked six day a week from 10 a.m. to about 6 p.m. He also worked two nights a week. There was no written contract of hire, but it was agreed that he would work on a commission basis and pay his own expenses. His duties were to sell real estate. Leads were furnished by the employer. He worked for this employer until May 24, 1950. He earned $644.21 in commissions during this period, but received no money until June 9, 1950 at which time he received his first payment. He was commended by this employer for his diligent work. Upon severing his relations with his first employer in May, claimant without lapse of time, was immediately employed by another real estate firm on a commission basis. His duties, days and hours of employment, were substantially the same as at his previous position. He was so employed at the time of the hearing before the referee. Claimant did not disclose to the local office his association with these real estate firms until June 30, 1950, his first reporting date, after he received his first check for commissions earned with the first employer. He did not consider himself employed until after he received his first commission payment. During the period of claimant’s association with the two real estate firms, he sought employment with two milk concerns. Based on an interview, the local office issued an initial determination holding claimant ineligible for benefits, effective March 24, 1950, for lack of total unemployment and overpaid in the sum of $312 in benefits. This initial determination was dated July 6, 1950. On July 10, 1950, claimant protested this initial determination to an employee of the Division of Placement and Unemployment Insurance at the local office. He did not execute a formal request for a hearing until November 17, 1950. At the hearing before the referee, the Industrial Commissioner pressed the issue of timeliness. The referee held that the request for a hearing was made within the statutory time limit and overruled the initial determination of the local office which held claimant ineligible for benefits, effective March 24, 1950, for lack of total unemployment and that he was overpaid the sum of $312 in benefits. The Industrial Commissioner thereupon appealed to this Board.

Appeal Board Opinion: Section 620 of the Labor Law provides:

1. Disputed claims for benefits. A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party affected by such determination may, within twenty days after the mailing or personal delivery of notice of such determination, request a hearing.

There is no requirement that a claimant’s request for a hearing be made in writing or that even a formal request therefore is made. It is sufficient if claimant makes a protest or indicates a dissatisfaction with the initial determination in a manner so that a request for a hearing can be inferred or spelled out from his words or actions. This claimant’s protest of the initial determination made to an employee at the local office should be considered as a request for a hearing (Appeal Board, 7,585-42). In any event, claimant should be given the benefit of the doubt and afforded an opportunity of a hearing of a hearing on the merits (Appeal Board, 12,047-45). The referee cites a series of cases to support his decision that the claimant herein was totally unemployed during the period in question. Each and every case cited by the referee is clearly distinguishable from the instant case. In Appeal Board, 13,127-46, claimant, a real estate salesman, did not have fixed hours of employment, was not required to comply with rules binding on other salesmen made only periodic visits to the office to look for lists, and exerted only sporadic efforts to solicit business and consummate sales. He did not make any sales or earn any commissions during this period, and diligently sought employment for which he was qualified. In Appeal Board, 14,552-47, claimant, during the period in question, was associated with a real estate firm in order to learn the business. He worked on a commission basis. He had no fixed hours of employment and was not subject to any rules or course of conduct prescribed by the firm. He devoted but a few hours a day to observe the operation of the business and exerted little or no effort to make sales. He made diligent efforts to seek employment elsewhere. In appeal Board, 15,441-47, claimant was employed by a real estate firm. He worked on a commission basis. He was not required to devote a specific amount of time to his work. His duties consisted of listing property for sale, obtaining descriptions and approvals. He obtained leads through the medium of advertisements in newspapers. He did not sell real estate. He received commissions only when property listed by him was sold. He did not earn any commission during his reporting period. He diligently sought work as an accountant for which he was qualified. In appeal Board, 17,714-48, claimant signed a contract with a scale distributor to act as its sole representative within a designated territory. He was to act as a dealer not as an employee. He was to receive a commission and pay his own expenses. During the period in issue, he was undergoing a training period. He received instruction in the operation of scales and salesmanship. He paid his own expenses and received no commissions during the period. He devoted only such time to the work as he saw fit. During the period, he regularly reported to the employment office and sought employment. An analysis of the above cases cited by the referee reveals a basic factual difference which distinguishes them from the case at bar. In none of the cases cited was claimant required to work or make an effort to obtain business with some degree of regularity. Their activity was a side-line effort. Whatever efforts they exerted to obtain business was in the nature of stop-gap activity during their free time while they devoted themselves assiduously to obtaining permanent employment in a field in which they were qualified by training experience. In the cases above cited, the employer-employee relationship did not exist. The claimant herein had regular hours, worked diligently at his job and earned commissions. This work required his full time and continuous attention. He appears to have fashioned a new career for himself, namely, that of real estate salesman (Appeal Board, 365-38). The claimant did not report his employment to the local office because of his misapprehension of the law with respect to commissions. He felt that he was not employed because he had not actually been paid during the period in question. The commission which a salesman receives results from continued solicitation and cannot be allocated to the efforts expended on the day on which the sale is finally consummated or the commission paid (Appeal Board,289-38). The commission earned by the claimant is referable to his entire period of employment.

Appeal Board Decision: The claimant is entitled to a hearing on the merits of the initial determination. The initial determination of the local office holding claimant ineligible for benefits, effective March 24, 1950 upon the ground he was not totally unemployed and was overpaid the sum of $312 in benefits, is sustained. The decision of the referee is modified accordingly and as so modified, is affirmed. (August 24, 1951 – resettled October 19, 1951)

COMMENTS

1. In Appeal Board Decision 13,127-46 cited by the Board, claimant was held unemployed and available as his sales activities were on a "side-line" and "free-lance" basis, not under direction and control and not in an employer-employee relationship. Further, as stated by the Board herein, such claimant did not have fixed hours of employment, was not required to comply with rules binding on other salesmen, made only periodic visits to the office to look for lists, and exerted only sporadic efforts to elicit business and consummate sales; he did not make any sales or earn any commissions during the period and diligently sought employment for which he was qualified. The controlling differences in the case here reported and the cases cited by the Board are obvious.
2. Even if it were found that the relationship is not that of employer-employee but that of principal and independent contractor, the question of availability would arise in view of the time and efforts entailed and the commissions earned as real estate salesman.

 

A-75O-1128

Index No. 735 B.11

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

August 29 1952

INTERPRETATION SERVICE- BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Willingness and Efforts to find work

Appeal Board Case Number 31,497-52

AVAILABILITY, QUESTION OF-RETURN TO SUMMER HOME IN RESORT AREA DURING SLACK SEASON

A musician, regularly engaged by an established symphonic orchestra during its season in the winter, is available for employment within the meaning of the Unemployment Insurance Law during the off-season of such orchestra in the Summer, although sojourning in his summer home located in a resort area, provided he maintains contact with an agent whose business it is to secure musicians for symphonic orchestras and through whom he has occasionally obtained employment in the off-season, and provided he is prepared to accept employment of such nature at any place where his type of work could be procured.

Referee's Findings of Fact: Hearings were held at which claimant and representatives of his union and a representative of the Industrial Commissioner appeared. Testimony was taken. By agreement of the parties the records in Cases 12-52-51R and 12-56-51R were incorporated by reference. Claimant, a violinist, filed a claim for benefits at an insurance office in Kingston effective July 16,1951. By an initial determination he was declared ineligible for benefits because of unavailability effective July 16, 1951. The Notice of initial Determination is endorsed with a statement that the unavailability of the claimant is evidenced by his

"Removal from NYC which is your normal labor market. Removal to a summer residence for a temporary period results in a determination of unavailability."

Claimant is a specialty musician in that he plays only with symphonic orchestras. For approximately 25 years he has been a member of an orchestra furnishing the music at the Metropolitan Opera House. Claimant has developed a reputation in his field which has caused him to be generally known among the members of groups which ordinarily engage symphonic orchestras. In periods when there was no employment for the claimant at the Metropolitan Opera House he would occasionally obtain employment making recordings with other members of the orchestra. In all instances claimant's employment is obtained through the services of a person known as a contractor who maintains headquarters in New York City and to whom persons who hire symphonic orchestras apply for the services of claimant and other specialty musicians. In the period here at issue operations were suspended at the Metropolitan Opera House with the result that claimant was temporarily laid off. Claimant maintained a summer home at Bearsville for approximately ten years. After operations were suspended at the Metropolitan Opera House claimant established temporary residence at his summer home. However, prior to the filing of the claim in issue and after the suspension of operations at the Metropolitan Opera House, claimant learned of an opportunity for employment in connection with the making of records, and he accordingly left Bearsville to accept the employment in New York City. The contractor was aware of claimant's telephone number at Bearsville, and it was understood that claimant was ready, willing, and able to return to New York City or to proceed to any area at which an opportunity for employment existed, and that he would leave Bearsville for that purpose immediately upon receipt of a telephone call. After the completion of his work in connection with the making of the recordings, claimant returned to his home at Bearsville. Throughout the summer claimant maintained contact with the contractor and with the conditions affecting specialty musicians generally.

He worked on all opportunities when opportunities arose. In September, prior to the time when he was due to resume his employment at the Metropolitan Opera House, he received a telephone call from the contractor indicating that there was a vacancy in the orchestra furnishing music at the New York City Center. Claimant immediately accepted the employment, leaving Bearsville for New York City on the date on which he received the telephone call. He remained employed with the orchestra at the City Center until he resumed work at the Metropolitan Opera House. In the two cases, the records of which have been incorporated herein by reference, other members of the orchestra who resided temporarily at Bearsville had made similar claims for benefits and had been ruled ineligible because of unavailability. After hearing the issues presented in such cases I rendered my decision overruling the initial determinations. The appeals from my decisions are pending before the Appeal Board.

Referee's Opinion and Decision: The credible evidence indicates that claimant's unemployment was due entirely to circumstances over which he had no control. His temporary residence away from the City of New York was not for the purpose of sojourning in order to enjoy a vacation, but on the contrary, claimant was at all times prepared to return to New York City or to any area if his type of work could have been procured. The fact that claimant was away from New York City in no way interfered with his opportunities of procuring work because contact was maintained with those sources from which claimant could reasonably be expected to learn of employment opportunities in his field of endeavor. Under these circumstances, it may not be said that claimant rendered himself unavailable for employment within the contemplation of the provisions of the Unemployment Insurance Law (Appeal Board 24791-50 and 26342-51). The initial determination is overruled. (March 17, 1952 )

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. (August 8, 1952)

 

A-750-1132

Index No. 1305A-7

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

August 29, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Lack of Work or Industrial Controversy
Suspension Period and Effective Date

Appeal Board Case Number 29,810-51

EFFECTIVE DATE OF SUSPENSION – STRIKE OCCURRING DURING SKIP-WEEK LAYOFF

The strike suspension period for a skip-week worker begins to run on the date on which the strike takes effect, although that date occurs during his "off-week."

Referee’s Decision: The amended initial determination of the local office is sustained, but modified by changing the effective date from June 26 to July 3, 1951. (November 2, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a fur finisher, was employed in that capacity by a fur manufacturer. Claimant was a member of a union which called a strike against the members of an association of furriers of which her employer was a member. The strike was called on June 25 and was terminated on July 13. Claimant filed a claim for benefits effective June 25, 1951. Claimant was a skip-week worker. She worked Friday, June 22 and normally, would have returned to work on Monday, July 2. Based on an interview, the local office issued an initial determination suspending claimant’s benefit rights for the period June 25 through August 12, 1951, upon the ground she lost her employment due to an industrial controversy in the establishment in which she was employed and holding her overpaid the sum of $25 in benefits. Claimant requested a hearing at which the initial determination was amended to make the effective date of the suspension June 26 through July 13. The referee sustained, but modified the amended initial determination by changing the effective date of the suspension to July 3 through July 13 and ruled claimant was not overpaid. The Industrial Commissioner appeals to this Board from so much of the referee’s decision as changes the effective date of the suspension and holds claimant was not overpaid.

Appeal Board Opinion: The referee changed the effective date of the suspension from June 26 to July 3 on the theory that claimant lost her employment because of the strike on July 2 since, in any event, she would not have worked during the week commencing June 25. We are not in accord with the reasoning of the referee. In Appeal Board, 13,748-46 affirmed in Matter of Birkmeyer, 272 App. Div. 855, we said:

"In our view the legislature intended that all claimants involved in a strike or other industrial controversy should be treated alike during a single fixed period measured from the day following the strike or industrial controversy. The error in departing from this principal is, we think, illustrated in the referee’s distinction between those on sick leave when the strike commenced and those who took sick immediately thereafter. Although both categories obviously merit the same treatment, opposite results were arrived at on an artificial basis.

If the strike suspension period in the Law were penal in nature, there would be justification for segregating the claimants on the basis of their employment, availability and capability. The provisions in question are not penal but rather are designed to maintain the State’s policy of neutrality in an industrial controversy."

The principle enunciated in the foregoing case is determinative of the issue herein. The claimant must be deemed to have lost her employment because of an industrial controversy in the establishment in which she was employed and her benefit rights suspended effective June 26, 1951 (Appeal Board, 30,156-52).

Appeal Board Decision: The amended initial determination of the local office suspending the benefit rights of claimant effective June 26 through July 13 because of loss of employment due to an industrial controversy in the establishment in which she was employed, and holding that she was overpaid the sum of $26 in benefits, is sustained. The decision of the referee is modified accordingly and, as so modified, is affirmed. (July 18, 1952)

COMMENTS

1. Appellate Division decision, Matter of Birkmeyer, cited in this decision, was released in the Interpretation Service under Serial No. A-750-772.
2. Appeal Board decision 30,156-52 cited by the Board was not placed in the Interpretation Service. That decision involved a claimant who was temporarily laid off because of lack of work and who, if there had not been an intervening strike, would have resumed employment approximately two weeks later. The Board held, in effect, that claimant lost his employment because of an industrial controversy in the establishment in which he was last employed on the day on which the strike began.

"The seven weeks’ suspension period as provided in Section 592, subdivision 1, of the Unemployment Insurance Law, begins to run with the first working day on which a claimant does not perform work because of a strike, lockout or other industrial controversy in the establishment in which he was employed, even if the decision concerning cessation or work, such as a strike vote, was to become effective or was only reached on that day. (F.O.B. Interpretation – Special Bulletin, File No. A-710-22; Index No. 1395-6)"

However, that Bulletin was only released on April 25, 1952. The special issue was, therefore, not presented to the Board. It is suggested that the principles set forth in the Special Bulletin be applied to other cases.

 

A-750-1138

Index No. 1650A-3

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

October 2, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances and Annoyances

Referee’s Case Number 51-325-52R

VOLUNTARY LEAVING OF EMPLOYMENT – CONSTANT NAGGING AND CRITICISM

Constant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee’s voluntary leaving of employment.

Referee’s Findings of Fact: A hearing was had at which claimant and representatives of the employer and the Industrial Commissioner appeared. Testimony was taken. Claimant, a porter, filed a claim effective April 28, 1952. By initial determination effective the same date, he was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed at a club operated by a fraternal organization from August 7, 1951 to April 25, 1952, at 90 cents per hour, as a porter. He voluntarily left his employment on the latter date because the building superintendent was constantly criticizing his work and used vile and obscene language in addressing him. He indicated that he was unable to perform the work to the satisfaction of the superintendent who constantly nagged him regarding his work. The employer notified the insurance office that claimant had quit: "Work not satisfactory and we are just as pleased that he did quit of his own accord."

Referee’s Opinion and Decision: It is clear that the superintendent was dissatisfied with claimant’s services and, apparently, was desirous of terminating his services. Claimant quit his job because he felt that he could no longer endure the criticism and nagging of the superintendent. In Consiglio v. Administrator, Unemployment Compensation Act, 137 Conn. 693, 696 (Conn. Sup. Ct., VL-500.752-7, BSSUI.) The Court in part said:

"Is an employee justified in quitting his job because of nagging? That, it seems, would depend upon the extent and nature of the nagging. Goldberg testified, ‘I just couldn’t stand it anymore. I was afraid I was going to get very sick and I just couldn’t stand it.’ It is found by the Commissioner that ‘For a period of four or five months prior to February 20, 1951, the senior partner was finding fault with the claimant’s work but the claimant knew that most of the fault finding was meaningless.’ This latter statement is based, apparently, on what the son testified. Nagging may be meaningless to the fellow doing it but not necessarily to the fellow on the receiving end. It is evident that Goldberg was much concerned about the constant fault finding for the last four or five months of his employment. Did he act as a reasonable person would have acted in the light of all the circumstances in quitting his job?

"There is a difference between legitimate criticism and nagging. Criticism may be justified; it can finally, if kept up long enough, degenerate into a constant nagging. There is a limit to what a man is obliged to take in order to hold his job. It is evident that there was nagging. The claim is that he was supposed to take it, everybody did; that it was meaningless. We must use common sense in deciding this matter of extent to which the employees must take it. He can be flighty or he can be patient till finally the situation becomes unbearable. No employee should have to take constant nagging. In this case it was clearly not a quick temper or impulsive decision which made the employee quit. No sensible man is giving up a $135 a week job merely because he is sore or angry. An employer can be so mean as to drive an employee off the job. The claim that you are supposed to take it is not a sufficient answer."

The same reasoning applies in this case and I conclude that claimant was justified in voluntarily leaving his employment. The initial determination is overruled. (August 8, 1952)

 

A-750-1139

Index No. 1535-4

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

October 30, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION OR MISSTATEMENT
Reason for Leaving Employment

Appeal Board Case Number 33,214-52

WILFUL MISREPRESENTATION – STATING "NO WORK" AS REASON FOR UNEMPLOYMENT AFTER DISCHARGE BECAUSE OF WRONGDOING

Failure to disclose true reason for loss of employment which was due to claimant’s own wrongful actions, and ascribing such loss to "no work," constitutes a wilful false statement or representation to obtain benefits.

Referee’s Decision: The initial determination of the local office, holding claimants wilfully made false representations for the purpose of obtaining benefits and imposing a forfeit penalty of 24 effective days on each is overruled. (June 10, 1952)

Appealed By: Industrial Commissioner

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

* * *

Claimants filed for benefits effective December 17, 1951. By an initial determination effective the same date, each was disqualified for 42 days for voluntarily leaving their last employment without good cause and each was charged with an overpayment of $104. Initial determinations were also issued that each claimant had wilfully misrepresented to obtain benefits and their future benefits were reduced by 24 effective days.

Claimants are employed as inspectors in a factory which manufactures army duck cloth. Each has been employed for approximately 20 years. Prior to Friday, December 14, claimants who are piece workers were warned to inspect both sides of the duck cloth. On Friday, December 14, it was found that claimants, working together on one roll of duck cloth, had inspected only one side. An immediate hearing was held at which they were represented by their union and at the conclusion thereof they were discharged. Claimants inquired of their union representative and their superiors as to whether they should file for unemployment insurance benefits and were told that they should. When they applied, each claimant wrote on her application form that the reason she left or lost their job was because of "no work." It is because of those statements that claimants are charged with wilfully misrepresenting in order to obtain benefits. Claimants appealed from their discharge to the next appeal stage, and on December 20 their punishment was reduced to a suspension for four weeks. Claimants returned to their jobs on January 14.

We make the following additional findings of fact: Claimants protested these initial determinations and requested a hearing. This resulted in a decision of the referee, sustaining the initial determinations of the local office disqualifying claimants from receiving benefits for 42 days, effective December 17, 1951, on the ground that they voluntarily left their employment without good cause and were each overpaid the sum of $104 in benefits, but overruling the initial determinations of the local office holding that claimants wilfully made false representations for the purpose of obtaining benefits for which a forfeit penalty of 24 effective days each was imposed. No appeal was taken by the claimants from that portion of the referee’s decision which sustained the initial determination of voluntary leaving. The Industrial Commissioner appeals from that portion of the decision which overrules the initial determinations holding claimants wilfully made false representations.

Appeal Board Opinion: The referee held that claimants did not maliciously or intentionally mislead the local office for the purpose of obtaining benefits. We are not in accord with his conclusion. Claimants knew that there was work to be had in the establishment of their last employer. The only reason why they were unable to obtain such work and the reason why they were not actually employed at the time they filed their claim for benefits, was because of their discharge from such employment as the result of their own wrongful actions. Claimants knew that their unemployment was due to their discharge. They also knew that work was being performed in the establishment of their last employer at the time of their discharge. Consequently, when they informed the local office that they were unemployed because of "no work", they were wilfully making a misrepresentation of the true reason for their unemployment. They knew that the cause to which they were ascribing their unemployment as not the true one. We do not agree with the referee that the case of Matter of Dora Trepper, 278 App. Div. 993, reversing Appeal Board, 23,204-50 is distinguishable from this case. We believe, however, that the decision of the Court of Appeals in Matter of Max Bernstein, 303 N.Y. 755, affirming 278 app. Div. 625, which reversed Appeal Board, 22,265-50 is determinative of the issue in this case. Under the ruling therein, it must be held that these claimants were guilty of wilfully making false representations for the purpose of obtaining benefits.

Appeal Board Decision: The initial determinations of the local office disqualifying claimants for 42 consecutive days, effective December 17, 1951, on the ground that they voluntarily left their employment without good cause, resulting in an overpayment in the sum of $104 to each claimant, are sustained. The initial determinations of the local office holding claimants wilfully made false representations for the purpose of obtaining benefits and imposing a forfeit penalty of 24 effective days against each of them, are sustained. The decision of the referee is modified accordingly and, as so modified, is affirmed. A separate order is to be entered in each case. (September 26, 1952)

COMMENT

Appellate Division decision, Matter of Trepper, cited by the Board, appears in the Interpretation Service at Serial #A-750-1030; Appellate Division decision, Matter of Bernstein, appears at Serial #A-750-986.

 

A-750-1140

Index No. 1285-3

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

October 30, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations

Appeal Board Case Number 34,937-52

PROFFERED EMPLOYMENT REQUIRING IMMEDIATE UNION MEMBERSHIP – TAFT-HARTLEY LAW

If an employer demands immediate union membership as a condition of hire in employment to which the Federal Labor Management Act, 1947 (Taft-Hartley Act) applies, unwillingness to comply with such demand does not result in a disqualification for refusal without good cause since that Act declares such condition to be an unfair labor practice. Under that Act, union membership may only be required as a condition of employment on or after the thirtieth day following the beginning of employment if there is a union agreement to that effect.

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant, a salesman, filed effective February 11, 1952. By revised initial determination he was disqualified effective April 7 for refusal of employment without good cause. On April 7 claimant refused an offer of employment as an insurance salesperson solely because he objected to the condition imposed by the employer to the effect that it would be necessary for claimant immediately upon the acceptance of employment to join a union. Claimant had indicated that he had no objection to becoming a member of the union but he insisted that he was privileged to work for 30 days before being compelled to join the union. He maintained that the condition imposed by the employer was in conflict with the provisions of the Taft-Hartley Act, and that so long as the employer insisted upon the fulfillment of such condition, he would not accept the employment. The employer has corroborated the contention of claimant to the effect that it was made clear to claimant in the negotiations between him and the employer’s representative that it would be necessary for him to join the union immediately upon acceptance of the employment. At the hearing, in order to sustain his contention that he did not without good cause refuse employment, claimant submitted a copy of the Taft-Hartley Law and the record of the Congressional hearings leading up to the enactment of the Law.

Referee’s Opinion and Decision: To support the initial determination, the Commissioner’s representatives contend that the provisions of the Taft-Hartley Law are entirely immaterial and urge that notwithstanding the fact that a condition imposed by the employer might constitute an unfair labor practice as defined by said Law, claimant could not remain within the benefit provisions of the Unemployment Insurance Law after having refused employment solely on that ground. The insurance business in which the employer is engaged, and in which claimant would have been engaged and he accepted the employment, is within the purview of the provisions of the Taft-Hartley Law. (Polish National Alliance v N.L.R.B., 322 U.S. 643.) There is no provision in the Unemployment Insurance Law which specifically furnishes good cause to a job applicant for the refusal of employment where the condition of the hiring would constitute an unfair labor practice under the provisions of the Taft-Hartley Law. However, the Unemployment Insurance Law is not specific in enumerating all of the circumstances which furnish good cause for the refusal of employment. Recently the Appellate Division pointed out that, "The statute sets forth a list of reasons for ‘refusal to accept employment’ which are not to be regarded as a refusal not for good cause, but the list is not exclusive by its very terms but merely fixes certain negative criteria. The appellant argues for the exclusiveness of the enumeration but the statute does not read that way. There may be other reasons for refusal recognizable as well-grounded, and for good cause by the Commissioner or the Board." (Matter of Crowe, 280 App. Div. 427 reversing Appeal Board 28,204-51, A-750-1101.) Thus, it is apparent that good cause for the refusal of employment is to be fond, if it is based on reasons which would motivate an ordinarily reasonable and prudent person under similar circumstances in refusing the employment. It would be an anomaly to hold that it is unreasonable for a person to refuse to accept as a condition for employment the very condition which the Congress of the United States found that the right of a worker to engage in employment for a 30-day period without being compelled during that period to join a union, is a valuable right. Therefore, it can hardly be said that if a worker insists upon availing himself of that right, he thereby places himself outside of the benefit provisions of the Unemployment Insurance Law. (See Case 524-842-50R – no appeal taken.) I therefore hold that on the facts here adduced, claimant did not, without good cause, refuse employment. The revised initial determination is overruled. (September 9, 1952)

 

A-750-1142

Index No. 755A.7

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

December 3, 1952

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

Appeal Board Case No. 32,431-52

AVAILABILITY, QUESTION OF – RESTRICTION TO EMPLOYERS WHO WOULD ALSO RENT CLAIMANT’S EQUIPMENT

Claimant, such as a marine engineer owning a derrick-boat, primarily interested in renting this valuable equipment at a stipulated price is not available for employment within the meaning of the law, even though upon renting his equipment, he is placed on the renter’s payroll and receives an additional sum for servicing his equipment.

Referee’s Decision: The initial and alternative initial determinations of the local office respectively, holding claimant ineligible for benefits effective March 10, 1952, on the ground that he was not totally unemployed and holding him unavailable for employment effective the same date is overruled. (June 2, 1952)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant is a licensed marine engineer. In 1948 he purchased a derrick-boat which he valued at approximately $75,000. Since that time claimant had entered into an arrangement with a Mr. P. whereby claimant was paid a certain amount for the rental of the boat and an additional sum for his services of the boat. This arrangement was terminated in March 1952, when Mr. P. no longer had any work. Claimant has conducted an intensive advertising campaign advising the public that the derrick-boat is for hire. He also has submitted various bids for the rental of this derrick-boat. Claimant filed a claim for benefits effective March 10, 1952. Based on an interview had with the claimant, the local office issued an initial and alternative initial determination holding that claimant, effective March 10,1952, is not totally unemployed and was unavailable for employment and therefore ineligible for benefits. Claimant contested the determinations and requested a hearing. The referee overruled the initial and the alternative initial determinations and the Industrial Commissioner appeals to this Board.

Appeal Board Opinion: The record discloses that the claimant has an investment in a derrick-boat valued at a substantial sum of money. He has conducted an intensive campaign to hire this boat out to the public at a fixed rental and in additional has submitted bids for the use of his boat. When he rents his boat, he goes on the payroll of the contractor to whom the boat is rented. Under the circumstances, we conclude that the claimant was not available for employment during the period in issue since he was primarily interested in renting his derrick-boat. In view of our opinion with respect to claimant’s unavailability, it is not necessary to decide the issue with respect to claimant’s total unemployment. The alternative initial determination of the local office holding claimant ineligible for benefits effective March 10, 1952, on the ground that he was unavailable for employment, is sustained. The decision of the referee is reversed. (October 10, 1952)

 

A-750-1144 (Revised)

Index No. 1210B-5

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

June 8, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Delay in Acceptance

Court of Appeals Decision

Matter of Spack, 305 NY 753

REFUSAL, QUESTION OF – UNWILLINGNESS TO START WORK IMMEDIATELY

Failure by claimant to comply with prospective employer’s demand to start work immediately upon job interview constitutes refusal of employment without good cause if circumstances are such that the demand is reasonable.

Referee’s Decision: The initial determination of the local office, effective May 22, 1951, holding that, without good cause, claimant refused employment for which she is reasonably fitted by training and experience, is overruled. (July 27, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant had 11 years of experience as a sewing machine operator. She left her employment in June 1950, because of illness. Claimant filed a claim for benefits on November 27, 1950, and registered for employment. The employment office referred claimant to employment as a sewing machine operator in Yonkers, New York, on May 22, 1951. Claimant was interviewed by the prospective employer that day at 10:00 a.m. and was hired to commence work the same day. Claimant desired to commence work the following day. The employer insisted that she commence work at once and he informed claimant that the job would not be available to her the following day. Claimant refused to commence work as requested, stating that she did not have her tools, was not dressed in working apparel, and did not have her lunch with her. The travel time from the employer’s establishment to claimant’s home was not more than fifteen minutes by trolley car. She did not offer to go home to obtain her tools, lunch and working clothes so as to commence work that day, nor did she offer to use tools that are customarily loaned by the employer for a day or two. The local office issued an initial determination disqualifying claimant from receiving benefits effective May 22, 1951, on the ground that, without good cause, claimant refused employment for whish she is reasonably fitted by training and experience.

Appeal Board Opinion and Decision: The referee overruled the initial determination on the premise that the employer was unreasonable in asking claimant to commence work the same day that she was interviewed and that claimant’s attitude was understandable. We are unable to agree with his conclusion. Claimant had been unemployed since June 1950. The employment offered to her on May 22, 1951, met with her approval with respect to wages, hours and required travel. She could have gone from the employer’s establishment to her home in not more than fifteen minutes. She did not advance any substantial or compelling reason why she could not commence work the day that she was hired. Under the circumstances claimant, reasonably, could have been expected to obtain her tools, lunch and working clothes at her home and to commence work as requested, or she could have borrowed tools from the employer for that day and commenced work immediately. Having failed to secure the employment offered to her because of her course of conduct, the conclusion that she refused employment without good cause is warranted. The initial determination of the local office holding that claimant refused employment without good cause is sustained. The decision of the referee is reversed. (January 25, 1952)

Appellate Division Opinion and Decision: Appeal by claimant from a decision of the Unemployment Insurance Appeal Board which reversed a decision of the referee in claimant’s favor and disqualified claimant from benefits on the ground that claimant had refused employment without good cause. Claimant is an experienced sewing machine operator with a good work record over a period of several years. She lost her previous employment because of illness and drew unemployment insurance benefits for a time before the present incident arose. Claimant was referred to the employment here involved. Claimant promptly applied for the job, calling on the prospective employment at about 10:00 o’clock in the forenoon. She was accepted for the job and offered to report for work the following morning. The employer insisted that she start work immediately or not at all. Claimant did not have work clothes or her special tools with her. Obviously she could not have known in advance that she would be accepted and did not report prepared for work or expecting to go to work at that hour of the day. As far as the record discloses her offer to report the following morning was made in good faith. Under these circumstances the demand of the employer was unreasonable. Upon the undisputed facts we think that as a matter of law the claimant did not refuse employment at all irrespective of "without good cause". Decision of the Unemployment Insurance Appeal Board reversed, on the law, and the decision of the referee reinstated, with costs to claimant-appellant. (September 24, 1952)

Appealed By: Industrial Commissioner

Court of Appeals Decision: Order of Appellate Division reversed and determination of the Unemployment Insurance Appeal Board reinstated, without costs.

The finding that claimant refused employment without good cause was essentially one of fact, and, since there was substantial evidence to sustain it, and no error of law committed, the determination of the Unemployment Insurance Appeal Board should have been confirmed. (See, e.g., Matter of Humphrey v. State Ins. Fund, 398 N.Y. 327; see, also, Matter of Miller v. Kling, 291 N.Y. 65.) All concur. (Opinion Per Curiam) (May 22, 1953)

COMMENTS

A disqualification was held to apply since claimant’s conduct was responsible for not being hired. The claimant, not having brought needed work clothes and special tools to the interview which took place at 10 a.m., failed to advance any substantial or compelling reason why she could not, nevertheless, have commenced work the same day as requested. She could have reasonably been expected to go for this purpose to her home, a 15 minute traveling distance, or she could have borrowed tools from the employer and commence work immediately.

However, if circumstances would have been different and the employer’s demand would have been unreasonable, no disqualification would apply for failure to comply with such demand.

Reducing matters to a simple denominator, if claimant’s conduct is responsible for not being hired, a disqualification for refusal will apply when the conduct is not that of a reasonably prudent person genuinely interested in obtaining employment.

 

A-750-1145

Index No. 1210B-1

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

December 3, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Offer, What Constitutes

Appeal Board Case Number 31,790-52

REFUSAL OF EMPLOYMENT NOT IDENTICAL WITH THAT TO WHICH CLAIMANT WAS REFERRED

Refusal of employment meeting statutory requirements is without good cause even though the immediate employment offered by the prospective employer is not identical with that to which claimant was referred by the Employment Service.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective April 30, 1952, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is overruled. (June 23, 1952)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a sewing-machine operator, refiled for benefits, effective March 17, 1952. Claimant was experienced in work on ladies’ suit skirts. In her last employment she made $80 a week at piecework. She was a member of the union in that industry. The industry is largely unionized. On April 29, 1952 the employment office referred claimant to employment as an operator on skirts in a union shop. The pay indicated on the job order was 35 cents per skirt. On that day claimant had an interview with the employer who offered her 20 cents for cotton summer skirts being worked on that morning. The employer told claimant that in that afternoon he planned to start work on garments at the 35 cents rate. The employer asked claimant to report for work the next morning. She failed to do so because she considered the employer’s rates too low. The employer made different types of garments, with the rate ranging all the way to $1 a skirt. Piecework rates were fixed by agreement between the employer and claimant’s union, and those of the employer conformed thereto. There was a bonus of 39 percent on the cotton skirts, and 22 percent on the suit skirts. The operators at the employer’s place earned between $12 and $15 a day, depending on their speed. Based on the foregoing the local office issued a determination disqualifying claimant from receiving benefits, effective April 30, 1952, on the ground that, without good cause, she refused an offer of employment for which she is reasonably fitted by training and experience. Claimant contested the determination and requested a hearing before a referee. The referee overruled the determination from which decision the Industrial Commissioner appeals to this Board. The last day claimant worked was March 14, 1952. At the time of the hearing, on June 12, 1952, she was still unemployed.

Appeal Board Opinion: The referee overruled the initial determination of the local office on the premise that the job which the employer offered claimant was not the same as that offered to her by the employment office and she was, therefore, justified in refusing same. We cannot agree with the referee’s conclusion. The job offered claimant was one within her training and experience, and the pay offered was within the prevailing wage for such work as set by the union of which she was a member. Her refusal of the employment must be deemed without good cause within the meaning of the Unemployment Insurance Law.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective April 30, 1952, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience, is sustained. The decision of the referee is reversed. (October 24, 1952)

 

A-750-1146

Index No. 1555-1

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

December 16, 1952

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISRATION & REPORTING
Wilful Misrepresentation
Concealment of Work History

Appeal Board Case Number 33,200-52

DELIBERATE CONCEALMENT OF PRIOR WORK EXPERIENCE – FORFEIT PENALTY

Denial of having had experience in an occupation where there are ample employment opportunities constitutes a wilfully made false statement or representation within the meaning of Section 594 of the Law so that the forfeit penalty applies.

Referee’s Decision: The initial determination of misrepresentation is sustained. The other initial determinations are overruled. (July 14, 1952)

Appealed By: Claimant and Industrial Commissioner

Findings of Fact: Claimant, an assistant bookkeeper and salesperson, was last employed by an upholstery fabric concern. Her duties were evenly divided between showroom selling and ledger posting with some typing. Claimant can type and generally perform the duties of assistant bookkeeper. Prior to this employment claimant had performed office work, combined with incidental showroom selling. Claimant lost her last employment by reason of lack of work. She filed for benefits effective December 31, 1951 and registered for employment. She was interviewed at the employment office on February 20, 1952 and described herself as a "stylist". When questioned at this interview she denied having any employment in which she did office work. Positions for assistant bookkeepers at this time were plentiful as compared to those for showroom sales people, which latter claimant preferred, by reason of the fact that higher salaries prevailing in the latter type of work. Between the time of filing and the interview at the employment office, claimant became pregnant, although she did not become aware of that fact until examination by her physician on Mach 25, 1952. Subsequent to learning of her pregnancy, claimant abandoned the idea of obtaining work as a showroom salesperson and made active efforts to obtain employment as an office worker, but was rejected at several places were she applied because of her condition. Her doctor certified that she was capable of working full time. Based on this information the local office issued an alternative initial determination ruling claimant ineligible for benefits effective February 20,1952, on the ground that she was unavailable for employment, was overpaid $210 in benefits, and had made wilfully false statements to obtain benefits, her benefit rights being declared forfeited for 28 effective days by reason thereof. Claimant contested the determination and requested a hearing. The referee overruled the initial determination insofar as it held claimant unavailable for employment and the Industrial Commissioner appeals to this Board. The referee sustained the initial determination insofar as it held claimant made wilfully false statements to obtain benefits, but reduced the effective days forfeited from 28 to 24, and the claimant appealed to this Board.

Appeal Board Opinion: Claimant’s failure to state truthfully her previous experience as an office worker prevented a proper classification and consequent referral to jobs which were more readily available to her than the work to which she restricted herself. This was a self-imposed restriction which was not in keeping with her previous major skill and experience. We hold that claimant was unavailable for employment as of February 20,1952, and so continued until March 25, 1952, when she again demonstrated a genuine attachment to the labor market by search for employment consonant with her previous experience. Claimant was overpaid through this period and the benefits are recoverable, sine she had concealed pertinent facts relating to her claim for benefits. We find no reason for disturbing the referee’s decision holding that claimant made wilfully false statements to obtain benefits. By deliberate denial of having had any experience as an office worker she concealed from the Industrial Commissioner facts he was entitled to have in order to process claimant’s application for benefits.

Appeal Board Decision: The initial determination of the local office ruling claimant ineligible for benefits effective February 20, 1942, on the ground that she was unavailable for employment is modified to the extent that claimant became available for employment on March 25,1952, and as so modified, is sustained. The matter is remanded to the local office for re-computation and re-determination of the overpayment involved, in accordance with the foregoing. The decision of the referee, insofar as it overrules the initial determination of the local office holding claimant ineligible for benefits by reason of unavailability is modified accordingly. The initial determination of the local office as modified by the referee holding that claimant made a wilfully false statement for the purpose of obtaining benefits and imposing a forfeiture of 24 effective days as a penalty therefore is sustained. The decision of the referee, insofar as this latter initial determination is concerned, is affirmed. (October 31, 1952)

 

A-750-1150

Index 1725.3

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

DECEMBER 16, 1952

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Union Relations

Appeal Board Case Number 31,861-52

JEOPARDIZING UNION MEMBERSHIP BY JOINING NEW UNION WITH WHICH PRESENT EMPLOYER HAS CONTRACTUAL RELATIONS

Discharge for refusing to join the union with which the employer had contractual relations, or a voluntary leaving of employment for the same reason, does not result in a disqualification when claimant is a member of a different labor organization whose constitution provides for suspension and eventual expulsion of any member who joins any other labor organization.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective February 18, 1952, on the ground that she voluntarily left her employment without good cause is overruled. (April 17, 1952)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a button sewer, is a member of Local 169 of the A. union. Because she was unable to obtain employment within an employer in contractual relations with her union, claimant, as a result of her own efforts, obtained employment with the M. company in June 1951. This employer was in contractual relations with the I. union. Because claimant refused to join the I. union, her employment was terminated by the employer on February 15, 1952 at the insistence of that union. Claimant has been a member of the A. union for more than seven years. By virtue of her membership, claimant has accumulated certain benefit rights, including among others, the right to retirement pension and a paid-up life insurance policy upon attaining 20 years of employment and 10 years of union membership immediately preceding an application for these benefits. The A. union and the I. union are national labor organizations consisting of a member of subordinate local unions. Local 169 of the A. union and Local 91 of the I. union exercise overlapping jurisdiction in claimant's trade. The constitutions of both parent unions prohibit its respective members from simultaneously holding membership in any other labor organization. In furtherance of this policy, A.'s constitution provides for a summary suspension from membership, pending formal disciplinary proceedings leading to expulsion, of any member who is or becomes a member of any other labor organization. Although A.'s constitution provides that a member may apply to the executive board of his local union for a withdrawal card, he must establish to its satisfaction that he is about to leave the country or has ceased to be employed in any trade or industry within the jurisdiction of the A. union. If a withdrawal card is issued, the member becomes exempt from the payment of dues and assessments falling due during the period of his withdrawal, but he must surrender his membership book and lose all of his rights and privileges of membership. Such person may be readmitted to membership without paying an initial fee, provided he makes application for readmission within one year from the date of his withdrawal, is then eligible for membership and his application is approved. Any person who applies after one year from the date of his withdrawal is considered a new applicant for membership. On February 18, 1952, claimant filed an additional claim for benefits. By an initial determination effective the same date, the local office disqualified claimant from receiving benefits for 42 consecutive days, on the ground that she voluntarily left her employment without good cause. The claimant requested a hearing. The Industrial Commissioner's appeal is from the referee's decision overruling the initial determination of the local office. In the interim, shortly before March 26, 1952, claimant obtained employment in an establishment in contractual relations with the A. union.

Appeal Board Opinion: The claimant in this case found herself in a position which required her to either join the I. union, leave her employment or be discharged. Whether claimant's employment was terminated by a voluntary leaving or resulted from a discharge therefrom, because of an unwillingness to give up her membership rights in the A. union, in order to qualify for and join the I. union, the effect is the same. The question presented for determination is whether or not claimant's separation from her employment was with or without good cause within the meaning of the Unemployment Insurance Law. Section 593.1(b) permits the voluntary leaving of employment without disqualification if circumstances have developed in the course of such employment which would have justified the claimant in refusing such employment in the first instance under the conditions set forth in subdivision 2 of that section. Section 593.2(a) permits an individual to refuse employment without disqualification if the acceptance of such employment would interfere with his joining or retaining membership in any labor organization. We are of the opinion that the condition imposed upon the claimant, in order for her to remain in her employment, constituted an interference with her retaining membership in the labor organization of her choice (Appeal Board 15,517-47). Under Section 593 of the Law, her voluntary leaving was with good cause.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective February 18, 1952, on the ground that she voluntarily left her employment without good cause is overruled. The decision of the referee is affirmed. (November 14, 1952)

 

A-750-1152

Index 1020-7

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

JAUNARY 13, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
HEARINGS AND APPEALS
Hearing, Right to

Appeal Board Case Number 33,219-52

RIGHT TO HEARING - REQUEST BY CLIAMANT'S LAST EMPLOYER BUT NOT BASE PERIOD EMPLOYER

Claimant's last employer is entitled to a hearing on an initial determination holding that claimant left employment with good cause even though claimant did not work for such employer during his base period and benefits paid would not be charged to the employer's account.

Referee's Findings of Fact: A combined hearing was held at which claimant and representatives of the protesting employer and of the Industrial Commissioner appeared and testified. Claimant, a laboratory assistant, filed an original claim for benefits effective February 11, 1952, thereby establishing his base period as February 12, 1951, through February 11, 1952. He filed additional claims effective May 19 and May 23. By initial determination, claimant was disqualified for 4 consecutive days effective May 19 for voluntary leaving of employment without good cause. Another initial determination ruled that as of May 23, claimant was not subject to a similar disqualification. Claimant's last employer objected to that determination, demanding a hearing, and deposited $10 as required by Section 620.1(c) of the Unemployment Insurance Law, contending that claimant should have been disqualified for 42 days effective May 23 in addition to the first disqualification. Pursuant to its practice, the insurance office withheld claimant's benefits for 42 days as of May 23, subject to the outcome of this proceeding. That office finally determined that the first disqualification was not terminated by claimant's employment on May 22. Claimant worked for a drug manufacturing firm for approximately two months through noon of May 16. He occasionally ran errands for the purpose of securing materials and supplies for use in the laboratory. On May 15, his supervisor directed him to go to a firm, five or six blocks away, for chemical supplies. Claimant refused to comply because it was raining, and he was then told that the following day would be his last on the job. Later, after the rain stopped, claimant approached the supervisor and volunteered to run the errand. He was permitted to do so, but upon his return, when he asked the supervisor whether the job was still his, he received a negative response. On the next morning, claimant's father attempted to communicate with the supervisor in an effort to secure claimant's retention of the job. In view of what had occurred, claimant believed that intercession would be fruitless, and he asked his father not to intercede. The employment was terminated. On May 21, claimant accepted referral at the employment office to a job as an assistant in a laboratory. At the employment interview, according to him, he was hired to start work on the following day, in the laboratory. He accepted the job on a permanent basis. On the following day, however, he was assigned to work only in the factory. He quit the job for that reason. The insurance office determined that this leaving was with good cause in view of the variance between the duties for which claimant was hired and those to which he was assigned. He had never worked for this firm before.

Referee's Opinion and Decision: 1. The termination of claimant's first employment was correctly charged to him as a voluntary leaving without good cause. Claimant had performed errands before and it cannot be said that they were outside the scope of his job. 2. The firm for which claimant worked on May 22 was not, in my opinion, legally affected by the determination which ruled claimant not subject to a 42-day disqualification effective May 23. Claimant did not work for that firm during his base period, and accordingly any benefits paid to him during his current benefit year will not be charged to its account. (Unemployment Insurance Law, Section 581). It follows that the protesting employer has no standing to contest the payment of benefits to claimant. (Matter of Crockett v. International Railway Company, 170 App. Div. 122; Matson Terminals Inc. v. Employment Commission, 24 Cal. 2d 695; Bodison, Manufacturing Co. v. Employment Commission, 17 Cal. 2d 321; Abelleira v. District Court of Appeal, 17 Cal. 2d 280; Winchester Repeating Rams Co. v. Radcliffe, 134 Conn. 164; see Pennock, Unemployment Compensation and Judicial Review, 88 U. of Pa. L. Rev. 137). The Appeal Board decisions on the subject arose prior to the so-called experience rating amendments of 1951. (L. 1951, ch. 645). Considered generally, none of those which explicitly dealt with the problem reflects a rationale contrary to the views here expressed. (14,652-47; 14,588-47; 8,119-42; 7,094-42; 7,031-42; 4,098-40; 4,040-40; 3,901-40; cf. 19,044-49). In the Crockett case, an employer insured through the state fund appealed from a Workmen's Compensation award in favor of an injured employee. The Appellate Division dismissed the appeal, saying (170 App. div. at 123):

"It is true that the employer has a remote interest even though insured in the State fund, to the end that the risk which he claims not to be within the account may be so decided as affecting any subsequent premiums which he must pay. That interest, however, is to remote an interest to authorize his appeal in a matter where he is not otherwise aggrieved."

In the Bodinson case, the California Court pointed out (17 Cal. 2d at 330):

"Furthermore, it seems apparent that the employer whose reserve account is affected is the only person having sufficient incentive to challenge a decision awarding benefits."

In the Winchester case, a non-base year employer protested the payment of benefits to its former employees who were on strike. The Connecticut Court refused to entertain the appeal, commenting that the employer was not legally aggrieved even by the possibility that a substantial drain of the Unemployment Insurance Fund might cause it as well as other subject employers to pay emergency contributions. (Cf. Gange Lumber Co. v. Rowley, 326 U.S. 295). A number of other jurisdictions, it is true, have ruled that a last, albeit not a base period, employer has legal standing to challenge the payment of benefits. (Tube Reducing Corp. v. Unemployment Compensation Commission, 136 N.J. L. 410; Chrysler Corp. v. Unemployment Compensation Commission, 301 Mich. 351; Chrysler Corp. v. Smith, 297 Mich 438; Susquehanna Collieries Co. v. Board of Review, 136 Pa. sup. 110, affd. on opinion below, 338 Pa. St. 1. The rationale of these decisions, however, requires a conclusion that every subject employer is legally aggrieved by the payment of benefits to any claimant. (Cf. Pennock, 88 U. of Pa. L. Rev. at 141). The better rule is to deny legal standing to an employer whose "interest in the moneys of the Treasury . . . is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity." (Massachusetts v. Mellon, 262 U.s. 447,487). To quote the Court of Appeals: "The fact that it (the order appealed from) may remotely or contingently affect interests which he represents does not give him a right to appeal." (Ross v. Wigg, 100 N.Y. 243,246; see also Davis, Standing to Challenge and to Enforce Administrative Action, 49 Col. L.R. 759, 788-789; Report to Joint Legislative Committee on Unemployment Insurance /1951/ Appx. B, pp. 32-33). 3. The employer is not entitled to the return of its deposit. Section 620.1 (c) provides for the return "if the referee modifies or overruled the initial determination" but that "if the referee confirms the initial determination, the commissioner shall pay such deposit into the fund and credit the general account." The initial determination that claimant was not subject to disqualification effective May 23, is not being modified or overruled herein. The decision that the employer is not entitled to a hearing is, in effect, a confirmation of the determination. In re Lee, 171 F 266; Licklider v. Brown, 12 F. 2d 567; In re Malkan, 265 F. 868). Although the Appeal Board has ruled that the employer is entitled to the return where the confirmation is based upon a failure to pay the deposit within the statutory period and therefore its non-entitlement to a hearing (Appeal Board, 29,853-51) the Board has limited this exception to a case where, among other things "the payment of benefits to claimant continues until the (preliminary) issue . . . has been decided." Claimant herein, however, did not receive benefits for at least 42 days effective May 23. 4. Claimant accepted the employment on May 22 on a permanent basis. His unemployment thereafter was not attributable to his voluntary quit on May 15. The disqualification effective May 19 was, therefore, terminated by his work on May 22. The initial determination that claimant was not subject to another disqualification effective May 23, remains in effect; the determination that claimant's work on May 22 did not terminate the disqualification effective May 19 is overruled. (July 16, 1952)

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: The instant employer, as claimant's last employer, was entitled to contest the initial determination holding that claimant left his employment with said employer with good cause and was entitled to a hearing thereon. The fact that claimant did not work for said employer during his base period and any benefits paid to claimant would not be charged to its account is no obstacle to holding that it is entitled to contest the said initial determination. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as hereinabove indicated. In the Report of the Joint Legislative Committee on Unemployment Insurance (1951) the following is to be found on Page 34, paragraph four:

It is expected that the deposit device will have a favorable effect on employers' cooperation with the administration. Each "last" employer is always notified of the filing of a claim for benefits and, at the same time, is required (by regulation which has the force and effect of law) to give the commissioner, on request, all information in his possession which bears in any way on the claimant's eligibility. As a consequence of the experience rating provisions of this Act, the employer will have a financial incentive to furnish such information. If he does, and if the information is relevant, the claimant may be disqualified and there will be no need for the employer to ask for a hearing on the commissioner's determination of the claim. If he does not, or if the information furnished by him is irrelevant, then it is proper that he should be penalized, for his neglect and lack of cooperation with the administration, or for his ignorance of the Law, by having to make a $10 deposit if he wishes to be heard by a referee.

The instant employer, as claimant's last employer, was entitled to contest the initial determination of the local office holding that claimant left his employment on May 21, 1952 with good cause. The decision of the referee is modified accordingly and, as so modified, is affirmed. (November 21, 1952)

COMMENT

It should be noted that the employer is a New York State establishment. Whether the same conclusion would result if the employer was other than a New York State concern has not been decided by the Board. Likewise, the question as to whether liability for contributions is a factor to be considered has not been covered.

 

A-750-1156

Index 1650D-6

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

JANAURY 13, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPOYMENT
Grievance and Objections

Referee's Decision Case Number #525-1427-52R

VOLUNTARY LEAVING - REQUEST FOR EMPLOYEE TO BE A PARTY TO ILLEGAL ACT

Voluntary leaving of employment is with good cause when an employee is requested by employer to be a party to an illegal act.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared and testified. Claimant, a bookkeeper and secretary, refiled for benefits effective September 8, 1952. By initial determination effective the same date, she was disqualified for 42 consecutive days for voluntary leaving of employment without good cause. The disqualification was terminated effective September 15 when claimant became re-employed. Claimant was hired on September 2 at $7/week, the prevailing rate, for a five-day, 35 -hour week. On September 5 she was paid for the full week including September 1 by check for $65 less deductions, and $5 from petty cash. Claimant was told that she would be paid on the record at the rate of $65, and would receive $5 from petty cash each week, which would be to her advantage. Claimant did not return to the position. Claimant obtained other employment on September 15.

Referee's Opinion and Decision: Claimant left her job because the employer paid her salary in the correct amount, but carried her on the record in a smaller sum. Although she professed a belief that this would not preclude the employer from reducing her salary to $65 at any time in the future, I find that her reason for leaving was the moral and ethical one and that the arrangement was in violation of law. Voluntary leaving of employment is with good cause when the employee is requested to be a party to wrongful action by the employer. The initial determination is overruled. (December 3, 1952)

 

A-750-1159

Index 815-5

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

JANAURY 30, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
CLAIMS, REGISTRATION AND REPORTING
Filing and Certifying Requirements

Appellate Division Decision

Matter of Haller, 281 AD 737

FAILURE TO COMPLY WITH REGISTRATION REQUIREMENTS, QUESTION OF - REFUSAL TO SECURE CHILD CARE STATEMENT

Where claimant furnishes the names and addresses of the persons with whom she made arrangements for the care of her children during working hours, her refusal to submit a written statement by such persons does not constitute a failure to comply with reporting requirements.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective June 18, 1951, for failure to comply with reporting requirements is overruled. (September 4, 1951)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant, a wire brushman, filed a claim for benefits on March 15, 1951. At about that time, she was interviewed at the local office and questioned concerning the care of her two children, ages 4 and 6 years. She advised that she had made satisfactory arrangements for the care of her children in the event that she worked. Claimant appeared at the local office on June 28 with one of her children. She was questioned at that time as to the reason why she brought her child and stated that she was taking the child to the doctor's office on that date. She was further questioned as to her arrangements for child care if she worked and she supplied the local office with the names and addresses of two sisters, ages 15 and 16, both residing one block from her home, with whom she had made arrangements to take care of her children while she worked. One of these sisters had taken care of her children after school hours when claimant had previously worked on the night shift and claimant paid her $1.00 a day. Claimant's uncle who is retired and who resides with her attends to the children when she works on the day shift. On the following day, claimant was questioned concerning the financial arrangements between her and the baby sitters and she was requested to furnish a letter signed by the baby sitters. She called at the home of the baby sitters and told them of the local office request. The sisters informed claimant that they were willing to give her the letter, but that "it didn't seem important," and she did not obtain the statements from the girls. In a written statement made at a later local office interview on July 12, claimant asserted that she had already furnished the names and addresses of the baby sitters to the office. An initial determination was issued by the local office disqualifying claimant from receiving benefits, effective June 18, 1951, for failure to meet reporting requirements in that she did not submit the requested letter from the baby sitters. Claimant was at all times ready and willing to accept employment on any shift. She continued to report at the local office until July 15, 1951. On July 16, 1951, through her own efforts, she obtained permanent employment in a laboratory and worked there until January 1952, when she was forced to leave because she became sensitized to penicillin. Soon thereafter she obtained permanent employment as an assembler.

Appeal Board Opinion: The referee ruled that claimant sufficiently complied with all reporting requirements by furnishing the names and addresses of the parties she had engaged to act as baby sitters. The Commissioner contends on this appeal that claimant's failure to supply a letter form the baby sitters as requested constitutes a failure to comply with reporting requirements and that claimant was properly disqualified. There is no question in this case but that claimant was available for work and that she had made satisfactory arrangements for the care of her children while she worked either on the day or night shift. Any doubts in this respect are dispelled by her course of conduct subsequent to the period in issue. Nor does it appear that her good faith was at any time impugned. The sole question that remains is whether or not claimant should be denied benefits for the period June 18, 1951 to July 15, 1951, when she returned to employment. In any event, it would appear that under the Commissioner's own theory the proper date of disqualification would be June 28 since that was the date on which it is alleged she failed to comply with reporting requirements. When claimant furnished the names and addresses of the two baby sitters to the local office at its request, it was then in receipt of sufficient information to make the appropriate determination as to her rights. It did so, and she was accordingly paid benefits up to the time of the incident in question. The local office was at all times in a position to verify the information furnished by claimant in the event they disbelieved her. The request of June 28 was made after the local office was already in possession of the necessary information concerning claimant's status. The record establishes that claimant acted in good faith and attempted to comply with the demand to obtain the statements from the baby sitters but he was unsuccessful in her efforts. It cannot be said, therefore, that claimant arbitrarily refused or sought to evade compliance with the local office directive. In our view Matter of Sorrentino, 277 App. Div. 1073, reversing Appeal Board, 20,361-49, on which the Commissioner relies, has no application to the instant case. In the Sorrentino case, the claimant therein refused for personal reasons to divulge the names and addresses of employers allegedly contacted. The Court held that "the Commissioner is entitled to have answers to such questions which are reasonably within the scope of the authority delegated to him" and that the claimant's refusal to answer the question warranted the denial of benefits to him during the period of such refusal. In the instant case the claimant had actually answered the local office questions and furnished the desired information. Except for the short period involved, claimant's answers were accepted and the payment of benefits to her was authorized. The claimant did not refuse to answer any questions. Under all of the circumstances of this case, we hold that the record does not provide a sufficient basis to support the initial determination that claimant failed to comply with reporting requirements.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective June 18, 1951, for failure to comply with reporting requirements is overruled. The decision of the referee is affirmed. (April 9, 1952)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, overruling an initial determination made by the Industrial Commissioner disqualifying claimant from receiving unemployment insurance benefits effective June 18, 1951, for failure to comply with local office reporting requirements. The rule giving finality to factual determinations by the Appeal Board, when based upon substantial evidence, is operative against the Industrial Commissioner as well as against other parties (Sec. 623 Labor Law). The Unemployment Insurance Referee and the Unemployment Insurance Appeal Board both found that the claimant had sufficiently complied with all reasonable reporting requirements. A question had arisen as to the availability of the claimant for employment because the claimant had small children whom she could not leave unless she procured a "baby sitter" for them. The claimant advised the local office that she had arranged with girls residing in her neighborhood to take care of her children in the event she obtained employment. Upon request, she gave the local office the names and addresses of the girls. The local office insisted, however, that she obtain a letter or memorandum in writing which the girls agreed to perform the services. This claimant declined to do. The determination, under the circumstances, that the claimant had complied with the reporting requirements is supported by the evidence. Decision of the Unemployment Insurance Appeal Board affirmed, without costs. (December 30, 1952)

 

A-750-1161

Index 1225-1
1620-1

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

JANUARY 30, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Personal Reasons
VOLUNTARY LEAVING OF EMPLOYMENT

Appeal Board Case Number 34,048-52

OBJECTION TO WORKING ON MILITARY IMPLEMENTS - RELIGIOUS BELIEFS

A sincere objection against working on military implements of destruction because of religious beliefs, acceptance of such work being in fact an offense to claimant's religious and moral conscience, is not a proper basis for disqualification for voluntarily leaving employment without good cause when claimant was transferred to such work from work which was not objectionable to him.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 days, effective July 28, 1952, on the ground that he voluntarily left his employment without good cause is sustained. (September 25, 1952)

Appealed By: Claimant

Findings of Fact: Claimant's employer was engaged in the manufacture of boilers and also of hulls for military tanks. It operated day and night shifts. From January 28 to July 18, 1952, claimant was employed on the night shift as an arc welder on boilers. Due to a lack of steel, the employer discontinued the night shift on boilers. Because claimant had insufficient seniority, the employer was unable to transfer claimant to work on boilers on the day shift. However, claimant was offered employment as an arc welder on military tanks. On account of his religious scruples claimant refused to work on military tanks because they are instruments of destruction. As a result of claimant's refusal to work on tanks the employer was compelled to lay him off. Claimant is a member and minister of a religious society known as Jehovah's Witnesses. The religious teachings of this sect prohibit its members from participating in war. However, as to whether or not a member should engage in the production of instruments of destruction is left to the individual conscience of such member. claimant interpreted the teaching of his sect to prohibit his engaging in the production of instruments of destruction. When claimant applied for employment with this employer, he specified boiler shop work for this reason. Claimant filed a claim for benefits effective July 28, 1952 and registered for employment. Based upon a report from claimant's employer and after an interview, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 days, effective July 28, 1952, on the ground that he voluntarily left his employment without good cause. Claimant contested the initial determination and requested a hearing. The referee sustained the initial determination and the claimant appealed to this Board.

Appeal Board Opinion: The issue on this appeal is whether or not claimant had good cause under the Law for voluntarily leaving his employment. The referee sustained the initial determination of the local office on the premise that since claimant would not be penalized by his sect for engaging in such work, his personal conscience and religious scruples cannot be deemed to he good cause under the Law. We do not agree with the referee's position. The term "good cause" as used in Section 593 of the Unemployment Insurance Law need not be attributable or connected with the work but may be personal to the claimant (Appeal Board, 9576-43; Bliley Electric Co. v. Unemployment Compensation Board of Review and Sturdevant, 158 Pa. super 548, 45 A. (2d) 898). Thus we held that a claimant's refusal of employment which would interfere with his sabbath observance is good cause under the Law (Appeal Board, 17,684-48). The same principle was enunciated by the Board of Review of Pennsylvania as follows:

The evidence as now presented by the claimant discloses that claimant has been schooled from her childhood to believe in and daily practice the doctrines of the orthodox Jewish faith, and by reason of her training she possesses a fixed definite, and immutable conviction which made the proffered employment anathema to her moral conscience.

When we turn to the legislative definition of "suitable work" (section 4(t)), we find, inter alia, that the degree of risk involved to one's morals is to be considered in determining whether any work is suitable. The evidence is clear that to have accepted the proffered employment would have seriously offended claimant's morals and would have offended her ethical conscience, which springs from her life's training in the orthodox Jewish faith.

The test as enunciated by these cases is not whether or not the standing of the claimant in his church would be affected but rather as to whether or not the acceptance of the work would be an offense to claimant's conscience on the basis of religion and morals. There is no question in this case, and the referee so found, that claimant is sincere in his objections to work on military implements on the basis of his religious beliefs and that the acceptance of such work would be in fact an offense to his religious and moral conscience. Under such circumstances, his refusal to accept work on that nature was justifiable and the lay off which resulted therefrom cannot be deemed a voluntary leaving of his employment without good cause.

Appeal Board Decision: Claimant's leaving of his employment was with good cause under the Law. The initial determination of the local office is overruled. The decision of the referee is reversed. (December 12, 1952)

COMMENT

The principle, though relating to good cause for a voluntary quit under the circumstances of this case, will have equal validity if a refusal of employment for the same reasons is involved.

 

A-750-1163

Index 805-3

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

FEBRUARY 11, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
CLAIMS, REGISTRATION AND REPORTING
Filing and Certifying Requirements

Appeal Board Case Number 34,588-52

FAILURE TO REPORT TO PLACEMENT OFFICE AS REQUIRED - ALTERATION OF "DUE DATE"

Failure to report to the placement office on the date assigned for this purpose if coupled with an alteration of the reporting date on the "Claimant's Record" results in ineligibility until claimant subsequently reports to such office, notwithstanding his regular reporting to the insurance office in the interim period.

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective July 1 through July 29, 1952, on the ground that he failed to comply with reporting requirements, with consequent overpayment to him of $120 in benefits is modified in that claimant should have been credited with the filing of an additional claim, effective July 2, 1952 since he reported to the insurance office, on that date, thereby reducing the overpayment to $7.50. (October 22, 1952)

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 reported to the employment office when due on June 3, 1952. No offer of employment was made to him and he was instructed to return on July 1. An entry to such effect was made in his identification booklet. Subsequently, a notation was made on his insurance office record card that he was due to report to the employment office on July 1. Claimant did not report to the employment office on July 1. The entry in his identification booklet was altered to read July 30. Claimant reported to the insurance office on his regular due date, July 2, and on each Wednesday thereafter through July 30, and on each occasion submitted his identification booklet and certified for the weeks ending July 6, July 20 and July 27. He also reported to the employment office on July 30. The alteration of his due date was noticed by a senior employment interviewer, who retained claimant's identification booklet and forwarded it to the insurance office with a memorandum calling attention to the alteration. Claimant denied that he made the alteration and contended that the date of July 30 was originally assigned to him on June 3.

We make the additional findings of fact, that based upon the foregoing, together with an interview had with claimant, the local office issued an initial determination holding claimant ineligible to receive benefits, effective July 1 through July 29, 1952, for failure to comply with reporting requirements and charging him with an overpayment of $120 in benefits by reason thereof, on the ground that he failed to comply with reporting requirements. His benefit were forfeited for 24 effective days because of a wilful false statement in order to obtain benefits. Claimant protested the determinations and requested a hearing. The referee modified the initial determination by holding claimant ineligible to receive benefits effective July 1, 1952 and crediting claimant with the filing of an additional clam effective July 2, 1952, reducing the overpayment to $7.50. The referee sustained the determination as to misrepresentation. The Industrial Commissioner now appeals to this Board from that portion of the decision of the referee which modifies the initial determination of the local office as indicated above.

Appeal Board Opinion: The referee properly concluded that the alteration of the reporting date was not made by anyone connected with the Division of Employment, and that since claimant did not report to the employment office as directed on July 1, 1952, he should not have received credit for that day as a day of unemployment. We do not agree with the referee's conclusion that claimant should have been credited with the filing of an additional claim on July 2, 1952, since he reported to the insurance office on that day. Such holding is contrary to the regulations of the Industrial Commissioner, adopted by the Commissioner under authority to do so as provided by the Law. Regulation 42 requires a claimant to report to the employment office on the day he is directed to do so. (subd. (c)thereof provides: "The day on which claimant fails to report in accordance with this regulation and any subsequent day prior to the date of a report to the placement office, shall not be registered as days of total unemployment." This is a reasonable and necessary regulation for proper administration of the Law. Since claimant did not report to the placement office until July 30, the local office properly held claimant ineligible to receive benefits for the entire period from July 1 through July 29, 1952, and we find no circumstance in this case to warrant any deviation from the regulation.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective July 1 through July 29, 1952, and holding claimant overpaid $120 in benefits is sustained. The decision of the referee insofar as appealed from is modified accordingly and, as so modified, is affirmed. (December 31, 1952)

COMMENTS

1. Relevant to the effect of failure to report to the placement section, the Field Operations Manual states in Item III 5425:

"The day on which a claimant fails to report and any subsequent days of the week in which such failure occurred, prior to the day on which he next actually reports in the same week to either the employment or insurance office, cannot be certified for insurance purposes. An additional claim is required to reinstate the claim for any subsequent week if claimant fails to report at all during any week after a failure to report for placement purposes in such week. Such additional claim, if otherwise properly filed, will be predated to Monday of the week in which filed."

In effect, then, when claimant fails to report to the placement section, the claim is usually reinstated when claimant next reports to the insurance section by considering such reporting as the "constructive" filing of an additional claim. Generally, the failure to report to the placement section is noticed at that time, and claimant is given a new placement reporting date.

2. In the case here reported, claimant failed to report to the placement office on July 1 but reported to the insurance office on his regular assigned date, July 2 and each week thereafter. Notwithstanding such fact, the Appeal Board held that classman was ineligible to receive benefits between July 1 through July 29, since he did not report to the employment office until July 30. This means that the reporting on July 2 and thereafter was not construed as the filing of an additional claim. The difference from the ordinary case is the fact that claimant had altered his reporting date from July 1 to July 30 and thereby prevented discovery of his failure to report at the placement section. This circumstance distinguishes it from the usual situation and justifies an exception to the procedure mentioned above.

The principle reflected in the file of this release should therefore only be applied when the failure to report is coupled with a misrepresentation, such as an alteration of a reporting date entry, which makes it impossible to lead the claimant back into channels of procedures otherwise applied when an additional claim is filed. Expressed differently, the rule only applied when, because of claimant's action, no assignment of a new placement reporting date could be made.

3. This approach is not in conflict with Procedural Item III, 4001-b which reads as follows:

"In cases where misrepresentation (either wilful or otherwise) is discovered and as a result the claimant has credit for no effective days in a week previously credited, an additional claim will be considered to have been constructively refiled as of Monday of the next week in which he reported and accumulated one or more effective days."

That procedure has reference to those instances where the misrepresentation consists of a failure to report earnings, etc. with the result that there was no effective day accumulated in a given week, and an "additional" claim is required under Regulation 40 to reinstate the claim. The item has no reference to a failure to report for placement purposes as required by Regulation 42.

 

A-750-1164

Index 1290A-9

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

FEBRUARY 11, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages - Prevailing

Appellate Div. Decision
Matter of Barnett, 208 AD 1011

REFUSAL - OFFER AT $50 WHEN "MOST" EARN FROM $50 TO $60

Wages within the range of those paid to most employees in claimant's occupation are not "substantially less favorable to the claimant than those prevailing for similar work in the locality" even though they are lower than the wages paid to the majority of those among such employees with claimant's training and experience and even though the claimant previously earned wages at a higher level.

Referee's Findings of Fact: Hearings were held at which claimant and representatives of the Industrial Commissioner appeared. Testimony was taken. Claimant filed for benefits on May 29, 1950. She was disqualified for refusal of employment by initial determination effective August 4. Claimant has had over eight years experience as a legal stenographer. During the last three years, her salary was $55 a week. On August 4, the employment office offered claimant employment as legal stenographer at $50 a week. Claimant refused the job because the salary was too low. She also objected to the travel time because it would take her about an hour to travel from her home in Brooklyn to the employer's place of business in midtown Manhattan. According to the Bureau of Research and Statistics, most legal stenographers earn $50 to $60 a week. A survey of the salaries paid to legal stenographers showed that about 21 percent received $50 a week, about 25 percent received $55 a week and about 26 percent received $60 a week. In current job orders in the employment office usually $50 a week was offered. According to claimant, employers advertising in the New York Law Journal offered $55 to $60 a week. She has been employed since August 18 at $55 a week.

Referee's Opinion and Decision: During the last three years, claimant has been earning $55 a week. She obtained another position at this salary soon after the job offer in question. Claimant's work history was the best available evidence of the prevailing rate for legal stenographers with her training and experience. She was, accordingly, justified in refusing the job offer in question because the salary offered was substantially less favorable than the prevailing rate. I find $55 to $60 weekly to be the pay rate received by the majority of legal stenographers with claimant's training and lengthy experience. The initial determination is overruled. (January 26, 1951)

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 conclusion 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, except that we find that within a very short time after the job referral by the employment office, claimant through her own efforts, obtained a position as a law stenographer at a starting salary of $55 a week. 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 31, 1951)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Claimant was employed as a law stenographer for eight years. For three years she received $55 a week. She was laid off, filed a claim for benefits and was offered a job as law stenographer at $50 a week for five days. This offer was refused by claimant because the salary was too low. The referee and the Appeal Board have agreed with claimant and have held she was "justified in refusing the job offer in question because the salary offered was substantially less favorable than the prevailing rate." It is found that "most legal stenographers" earn from $50 to $60 a week. The finding also is that $55 to $60 a week is the pay rate received by the "majority" of legal stenographers "with claimant's training and experience." The test cannot be so specialized as a matter of law under the theory of the statute. The refusal to accept an offer of employment is justified where the offer is "substantially less favorable . . . than those prevailing for similar work in the locality." (Unemployment Insurance Law, Sec. 593, sub. 5(d)) Decision of the Unemployment Insurance Appeal Board reversed on the law, with costs to appellant. (November 17, 1952)

COMMENTS

1. The Referee, whose decision the Appeal Board affirmed, found that the majority of law stenographers with claimant's training and experience earned from $55 to $60. He concluded that the offer of $50 was "substantially less favorable than the prevailing rate."

The Court reversed the Board's decision by holding, in effect, that the rate of $50 was not substantially less favorable than that prevailing for similar work and by emphasizing that the test cannot be so specialized as a matter of law under the theory of the statute." The importance of the Court decision is this: It shows that a specialized majority range is not the test.

2. The principle in the case here reported, therefore, strengthens that presented in Appellate Division decision Matter of Wetzig, 279 AD 833, affirmed by Court of Appeals on January 19, 1953, 304 NY 916.

"Refusal of a job, because the offered wage are substantially below those last earned, is without good cause even though claimant has extensive experience in the occupation and the offered wages are at the lowest level of the range of prevailing wages for claimant's occupation, whereas the last wages earned by him were near the highest level of such range."

"The outstanding significance of the decision is the fact that under the Court's opinion the statutory requirement of prevailing wages should not be applied in a 'tailor-made' and subjective manner to the specific situation and conditions surrounding an individual claimant, such as his length of experience in the occupation or skill, or his wage history. The decision appears to stand for the principle that any such 'personalized' differentiation exceeds the statutory requirement of prevailing wages, and that that requirement is met if the offered wages, in a general and objective manner, are prevailing for the occupation in which the employment has been offered."

3. Pertinent decisions in the past were often based on the premise that "prevailing" wages mean wages paid to the majority of those workers who have the same special characteristics as claimant. The approach caused difficulties on frequent occasions and has been challenged from time to time. Job offers placed by employers with the Employment Service and wages generally offered to new employees may be below such specialized majority range which is too frequently influenced by periodic salary advancements of employees on the job and by other similar factors. The Referee in the case under discussion found that "in current job orders in the employment office usually $50 a week was offered, which was the rate offered to claimant. It is also often felt that a claimant is not a proper beneficiary under the Unemployment Insurance Program after he refused otherwise suitable employment that is offered at wages which compare with those currently paid to a substantial number of workers.

The Court decision, although not conclusive in respect to the last mentioned point, seems to tend toward such view and may therefore lead to a review of the position heretofore taken. If that should result, the thorny problem of prevailing wages would be nearer to a solution than ever before. That the Court decision may intimate such tendency is also suggested by the line of argumentation in the Attorney General's brief in this case. That brief includes the following statement:

"The prevailing rate of wages for legal stenographers is any wage at which a substantial number of legal stenographers are presently employed, since that is an occupation not unionized and where a wide variety of salaries exists so that it is impossible to select a single definite rate as prevailing."

 

A-750-1168

Index 1275B-2

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

MARCH 3, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
During Slack Period
VOLUNTARY LEAVING OF EMPLOYMENT
Experience and Training
Higher Skill

Appeal Board Case Number 31,753-52

REFERRAL AS OPERATOR TO LOWER PRICED LINE OF DRESSES IN ACCORDANCE WITH CONVERSION CHART

A job at union piecework rates in claimant's occupation as an operator in the garment industry, when it is within the limit of a conversion chart prepared by the Employment Service for the referral of operators to lower price lines during the slack period in the industry, satisfies the requirement of being "reasonably fitted by training and experience" for the employment in question.

Referee's Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for the period December 20, 1951 through January 23, 1952, on the ground that she voluntarily left her employment without good cause is overruled. (April 9, 1952).

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant, a sewing-machine operator, with twenty years experience, was thus employed until the early part of December 1951, when she was laid off due to lack of work. She refiled for benefits effective December 20, 1951, and registered for employment. Claimant is a member of a trade union having jurisdiction over her occupation. She was recalled to work by her employer on January 21, 1952. On December 18, 1951, claimant was referred to employment at her customary occupation with an employer who was then manufacturing a $12.75 line of dresses. The employment was with an employer who maintained contractual relations with the labor union of which claimant is a member. Union piecework rates were paid by the employer. She accepted the referral and after working one day, on December 19, 1951, voluntarily left such employment, maintaining that she could not earn sufficient wages. Claimant's previous employment, with her regular employer, for the most part, consisted of work on dresses in the $16.75 to $18.75 price range. On occasion, she worked on higher priced dresses when her employer had such work available for her. The referral to the employment in question occurred during a seasonal slack period in the industry. According to a conversion chart prepared by the New York State Employment Service, persons customarily employed as operators on a $16.75 line may be referred to work on dresses ranging in price from $10.75 through $26.75 during slack periods in the industry. Persons customarily employed as operators on an $18.75 line may be referred to lines selling from $12.75 through $26.75 during such slack periods. Based on an interview and the foregoing, the local office issued an initial determination disqualifying claimant from receiving benefits for the period December 20, 1951 through January 23, 1952, on the ground that she voluntarily left her employment without good cause. Claimant requested a hearing and the referee overruled he initial determination. The Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The referee, in overruling the initial determination of the local office, concluded that claimant's experience had been in the higher priced field. He held that, according to the conversion chart described above, she should have been referred to employment in the $16.75 to $29.75 price line. We are not in accord with this view. Claimant's contention that she normally worked on a $22.75 line of dresses, is not sustained by the record herein. It appears that while she may have had some experience in this price line, nevertheless, the bulk of her work was on the $16.75 to $18.75 price line. According to the conversion table, it was permissible, during seasonal slack periods, to refer her to work on cheaper lines. The referral was proper since it was within the conversion range contained in the chart. Claimant was properly classified. She is reasonably fitted by training and experience for the job to which she was referred. We are persuaded moreover, that had claimant tried the work for a period longer than one day, she would have become more proficient at it and thus would have had greater earnings. Claimant voluntarily left her employment without good cause. In our opinion, the testimony hereinabove referred to (Appeal Board, 22,912-50) is not germane to the facts of this case.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for the period December 20, 1951 through January 23, 1952, on the ground that she voluntarily left her employment without good cause, is sustained. Claimant was overpaid $63.25 in benefits. The decision of the referee is reversed. (December 31, 1952)

 

A-750-1169

Index 1640C-2

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

MARCH 3, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Experience or Training
Desire for Different Work

Appeal Board Case Number 34,697-52

VOLUNTARY LEAVING - DISSATISFACTION WITH LABORING WORK INVOLVED IN TRAINEE-MANAGER JOB

Voluntary leaving employment, as trainee-manager, accepted with full knowledge of the duties involved, because of disappointment with progress in three months and disagreement with the employer's method of training, which included laboring work as warehouseman, is without good cause.

Referee's Decision: The initial determination of the local office holding that claimant was eligible for benefits effective July 21, 1952 and that he voluntarily left his employment with good cause is sustained. (October 17, 1952)

Appealed By: Employer

Findings of Fact: Claimant is a college graduate, having received a B.S. degree in economics. Prior to March 1952 he was employed for about six months as an office manager for a milling company. From April 7, 1952 to July 19, 1952 he worked for the instant employer, a large co-operative, dealing in farm products. Claimant had applied to this employer for a position as trainee-manager. In the interview for that position, claimant was told that he would have to start as a warehouseman involving stock work of a laborious nature, that he would be subject to transfers from one locality to another and that advancements would be made on the basis of merit. No estimates were given to claimant as to when various stages in his advancement would take place. The employer operates in three states and has over 300 retail outlets. It handles 7,000 different items. Under its training program college graduates begin as warehousemen or stock clerks in order to familiarize themselves with the products handled by the company. Trainees for executive positions are later transferred to counter work and other types of work so that they may learn all phases of the employer's business. There is no timetable of advancement but such trainees usually reach the position of assistant manager within a two-year period. Claimant is married, resided in Binghamton and he was originally assigned to the Liberty, New York store and moved to that city with his wife. He continued to work in Liberty at a salary of $62.50 a week until July 10, 1952 when he was transferred to the employer's Batavia store at $65 per week. While in Liberty claimant suffered an injury to his back as a result of which he was attended by a physician who recommended that he use a surgical belt. Claimant was advised that his duties in the Batavia store would continue to be those of a warehouseman. He complained to the store manager and to the district manager that he had enough of that type of work and was told that he would be kept on that work for about another three months, after which he would be transferred to counter work. He thereupon gave notice that he was leaving his job on July 19, 1952, stating that "he was not suited for the work", and did so. Claimant felt that with his education and background he had had sufficient work at the laboring level and that his education was not being employed to the best of his ability. He had no prospect of other employment at the time. Claimant filed a claim for benefits effective July 21, 1952. He stated at the local office that he left his job because of "unsuitable work." The local office issued an initial determination ruling claimant eligible for benefits on the ground that he was forced to leave his position because of fear of future physical injury to his back, the apparent agreement of the employer that he was unable to do heavy work, lack of training by the company leading to promotional possibilities, frequent transfers, desire to use his college education, expense involved in maintaining two homes and his feeling of frustration of no future with the employer in question. The employer protested the initial determination and requested a hearing. The referee sustained the initial determination, from which decision the employer appealed to this Board. The employer's appeal was accompanied by the statutory deposit.

Appeal Board Opinion: The referee sustained the determination of eligibility on the ground that claimant was justified in leaving his employment. He reasoned that claimant, a college graduate, should not have been required to do laborer's work for a long period of time with the hope of receiving a promotion when no promotions were in sight or promised for the near future. The employer contends on this appeal that claimant was undergoing the usual program for college graduates training for executive work with it; that claimant knew in advance the nature of that program and that his leaving was due to his dissatisfaction with the manual work involved and his unwillingness to complete the required training period. It is argued that on such a basis claimant's leaving was without good cause. We believe there is substantial merit to the employer's position. Concededly, claimant knew in advance and agreed to undertake a training period involving manual labor and transfers in the locale of his employment. He was advised that the employer's training program called for such work because in the employer's judgment this was the best way to acquaint trainees with all of the complex phases of the employer's business. Although claimant did suffer from an injury to his back, it does not appear that he attributed his leaving to that cause. In his original statement to the local office he stated that he would not have left the job had he been transferred to a smaller store where he could receive training. Under the facts established, it is the opinion of this Board that claimant voluntarily left his employment because he disagreed with the employer's method of training employees for executive positions and further because be was disappointed with the progress which he made in three months. We do not deem this to constitute good cause for leaving employment within the meaning of the Unemployment Insurance Law, and we so hold.

Appeal Board Decision: The initial determination of the local office holding claimant eligible for benefits effective July 21, 1952, is hereby overruled. Claimant is disqualified for 42 days effective July 21, 1952 for voluntary leaving of employment without good cause. The employer is entitled to the return of its $25 deposit. The decision of the referee is reversed. (January 9, 1953)

 

A-750-1172

Index 1655-2

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

MARCH 3, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPOYMENT
Health or Safety

Appeal Board Case Number 33,924-52

VOLUNTARY LEAVING - HEALTH; FAILURE TO EXERCISE UNION RIGHT IN DEMANDING OTHER SUITABLE WORK

Physical inability to continue former work does not constitute good cause for voluntarily leaving employment when claimant fails to exercise the right, provided under the union agreement, of demanding work not detrimental to her health, being performed by others with less seniority.

Referee's Findings of Fact: A hearing was had at which claimant and representatives of the employer and the Industrial Commissioner appeared and testimony was taken. Claimant, a snap machine operator, filed a claim effective March 31, 1952. By initial determination effective the same date, she was disqualified for voluntary leaving of employment without good cause and for withdrawal from the labor market, until 42 days elapsed after certification to a bona fide return to the labor market. By another initial determination, she was charged with an overpayment of $60. Claimant was employed from September 1946 to September 20, 1951, by a manufacturer of men's jewelry, belts, etc., as a snap machine operator, at a base rate of 90 cents per hour, plus piecework rates. She was granted a sick leave from December 21, 1951 to April 4, 1952, because of a nervous condition. The employer reported to the insurance office that claimant called at the establishment on April 3, 1952, and voluntarily signed a statement that she was leaving her employment because of illness; and that she had in no way indicated that she was interested in employment of any kind. Claimant emphatically denied that she voluntarily resigned. She reported for work on April 3, and informed the employer that due to her nervous condition her physician had instructed her to refrain from performing employment on a piecework basis, and that she requested employment on an hourly basis. She was informed that none was available. The employer submitted a copy of the statement signed by the claimant in which it was alleged that she voluntarily left her employment because of health reasons. Such statement did not indicate that claimant voluntarily left her employment. It reveals that she was unwilling to return to employment on a piecework basis. Claimant submitted a statement secured from her physician which revealed that she had been under his care from January 30, 1950, and that she suffered from a nervous condition. The doctor indicated that piecework should be avoided. Claimant was a member of an independent union which was in contractual relationship with the employer. Under the union agreement, it appears that she had a right to "bump" other workers with less seniority from their employment. Claimant understood that this applied on a departmental basis and did not know that she could "bump" employees on a plant-wide basis. There were no hourly rate jobs in claimant's department. After leaving her employment, claimant made diligent efforts to secure other employment not involving working on a piecework basis.

Referee's Opinion and Decision: While there is a sharp conflict in the testimony, I resolve the doubt in favor of claimant. The credible testimony reveals that claimant on April 3, when she reported to the employer, was ready and willing to accept employment whereby she would not be required to work on a piecework basis and was informed that such work was not available for her. She was not aware that under the union agreement she had a right to "bump" another hourly employee on a plant-wide basis; nor was she so informed by the employer's representative. She had good cause for leaving her employment because working on a piecework basis proved detrimental to her health and well being. There is a complete lack of evidence to show that she withdrew from the labor market. To the contrary, she made reasonable efforts to secure other work after separating from her former employment. I conclude that claimant did not voluntarily leave her employment without good cause and did not withdraw from the labor market. She was not overpaid in benefits. The initial determinations are overruled. (September 11, 1952)

Appealed By: Employer.

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and before the Board, 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 error 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, except as follows: The Board makes the additional findings of fact that on April 3, 1952, claimant voluntarily resigned from her employment because she was not physically able to continue her former work; and although under the union agreement claimant had the right to demand the jobs of other workers with less seniority, she failed to do so. Under such circumstances, claimant's voluntary leaving of her employment is deemed to be without good cause and it is so held. When claimant filed an application for benefits she did not disclose pertinent facts which would have affected the determination as to the filing of a valid original claim. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as modified herein. The initial determination of the local office is modified by holding that claimant is disqualified for 42 days, effective March 31, 1952, for voluntary leaving of employment without good cause. Claimant was overpaid $60 in benefits. The decision of the referee is modified accordingly and, as so modified, is affirmed. (January 23, 1953)

 

A-750-1173

Index 1740 B-2

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

MARCH 3, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wages - Reduction
Union Relations

Appeal Board Case Number 545-1106-52R

VOLUNTARY QUIT - DISAGREEMENT WITH UNION WAGE RATE REDUCTION AGREEMENT

The action of the union in agreeing to a wage reduction and production method change, which affected all employees and which was ratified by the union membership, is a collective election by the union members and a voluntary leaving of employment thereafter because of dissatisfaction with such agreement is without good cause.

Referee's Findings of Fact: Combined hearings were had at which claimants, their witness, and representatives of their union, of the employer, and of the Industrial Commissioner appeared and testified. Claimants filed effective November 17, 1952. By initial determinations effective the same date, they were disqualified for 42 days for voluntary leaving of employment without good cause. Claimants' union was in contractual relations with their employer. R___ and Sa___ are merrow machine operators. Sc___ is a sewing machine operator. Each had worked for the employer for many years at union-agreed piecework rates. Prior to November 1952, the employer applied to the union for assistance because the firm was operating at a deficit. After investigation by the union, it was determined that the firm was losing money because it paid wages higher than that paid by other employers in similar work and its method of work was uneconomic. In the first week of November, an agreement was made between the employer and the union whereby the method of work was altered. Before such agreement, the garments polo shirts, had been manufactured from the waist up to the shoulders. The correct method was from the top to the bottom because an operation known as tacking was thereby eliminated. In addition, it was agreed that wages be reduced by eliminating payment of 15 cents extra for each hour under 35 per week, 17½ cents extra for each hour between 35 and 40 per week, and 20 cents extra for each hour over 40 per week. There was also a reduction in the piecework rate. All time workers were changed to a piecework basis. All the employees were affected by the change in rates and the agreement was ratified by the union membership. The change in the method of production required an adjustment on the part of the workers which ordinarily would take four to five weeks. The change in the salary rate diminished the earnings of claimants. Claimants terminated their employment because they objected to the reduction. R___ and Sa___ also objected to the change in the method of working. Sa__ was notified of the initial determination by mail on November 25. She orally protested the determination on December 15 when appearing as a witness for R___. She requested a hearing, in writing, on December 16. The Commissioner's representative contended that here request was untimely.

Referee's Opinion and Decision: Claimant Sa's___ oral protest was made within 20 days and is timely. Claimants worked in a union shop in which the rates of pay and the conditions of work were fixed by union agreement. By such agreement, the rates of pay and the method of production were changed. This affected all employees. The action of the union was a collective election by the members of the union. (Matter of Rakowski, 276 App. Div. 625, reversing Appeal Board, 18,773-49). The leaving of employment after such collective union agreement was without good cause under the Unemployment Insurance Law. (Appeal Board, 18,996-49). The initial determinations are sustained. (January 19, 1953)

 

A-750-1177

Index 1315-6

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

MARCH 26, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
"In the establishment," question of

Appeal Board Case Number 33,979-52

LOSS OF EMPLOYMENT BECAUSE OF INDUSTRIAL CONTROVERSY, QUESTION OF

A strike called by the union against a jobber in the garment industry is extended to the contractor who works exclusively for the jobber when the workers of the contractor, members of the same union, walk off their jobs and fail to return until the jobber complies with the union's demand, and consequently, such workers must be considered as having lost their employment as the result of an industrial controversy.

Referee's Decision: The initial determinations of the local office, suspending claimants' rights to benefits, effective June 18 through July 3, 1952, 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. (September 12, 1952)

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:

All of the claimants were employed as production workers in the establishment of P. Brothers Incorporated, a contractor on ladies' garments. Claimants were credited with filings as follows:

A., a hand presser, effective June 23; P., a sewing-machine operator, effective June 30; N., a sewing-machine operator, effective June 23; C., a sewing-machine operator, effective June 23; S., a sewing-machine operator, effective June 23; P., a presser, effective June 23, and C., a sewing-machine operator, effective June 19. Initial determinations were issued suspending the benefits of each of the claimants effective June 18, for loss of employment due to an industrial controversy in the establishment where employed. The controversy was deemed terminated July 3. At the hearing, some of the claimants requested that their claims be predated to the day following the termination of their employment (their last day of work was June 17). The respective insurance offices where the claims had been filed had not yet had opportunity to act on these requests.

All of the claimants were members of a ladies' garment workers union which had contractual relations with a contractors' association, of which their employer was a member, and with a jobbers' or manufacturers' association of which their employer's jobber was a member. The employer's jobber defaulted on its contractual obligations to make payments to the union retirement and health and welfare funds and continued in default after a decision of the impartial chairman of the industry. The union was thereupon relieved of its no strike pledge as to the jobber and some time prior to June 17, called a strike against the jobber.

During the afternoon of June 17, the union called all of the production employees of the contractor to a meeting. These employees including all of the claimants, did not thereafter return to work. The contractor, by agreement, was restricted to work for the one jobber and did not perform work for anyone else.

The contractor and jobber maintained separate physical premises in different boroughs of New York City.

We make the following additional findings of fact: Claimants returned to the contractor's shop after the difficulties between the jobber and the union were adjusted. The claimants contested the initial determinations and requested a hearing. The referee overruled the initial determinations and the Industrial Commissioner appeals to this Board.

Appeal Board Opinion: We cannot agree with the conclusion reached by the referee that the claimants did not lose their employment as the result of an industrial controversy in the establishment in which they were employed nor can we agree with the position taken by the Industrial Commissioner that the jobber and the contractor herein should be treated as one entity. The facts clearly show that the jobber and the contractor were two separate and distinct entities for all purposes, except for the fact that the jobber was under contractual obligation for certain payments to be made to the union for the health, welfare and retirement fund and was under obligation to pay the unemployment insurance tax based on the contractors payroll which funds were for the benefit of the contractor's employees. An analysis of the record clearly shows that these claimants were actually working on June 17 until about noontime when they were informed that they were to report to the union. The entire shop in accordance with the union request reported to the union headquarters and did not return to the job until the difficulties between the jobber and the union were straightened out. It is our opinion that these claimants, when they were instructed to walk off their jobs at a time when work was available for them, did so for the purpose of bringing pressure to bear upon their employer, the contractor, to compel the jobber to meet his contractual obligations with the union. Thus, the contractor's employees extended the controversy between them and the jobber into the contractor's establishment. It is our opinion that under these circumstances, the concerted walkout by these claimants from their shop constituted an industrial controversy in the establishment in which they were employed within the meaning of the Law, and, accordingly, their rights to benefits should be suspended. In view of our decision, there is no need to pass upon the request of some of these claimants to predate their claims for benefits.

Appeal Board Decision: The initial determinations of the local offices suspending claimants' rights to benefits, effective June 18 through July 3, 1952, on the ground that they lost their employment as the result of an industrial controversy in the establishment wherein they were employed, are sustained. The decision of the referee is reversed. (February 13, 1953)

 

A-750-1178 (Rev.)

Index 1460 F-1

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

DECEMBER 21, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employment

Appellate Div. Decision
Matter of Bell, 204 AD 635

TOTAL UNEMPLOYMENT, QUESTION OF; SEASONAL PROFESSIONAL ATHLETES ON CONTRACT

Professional athletes hired on an annual basis for an annual salary are not "totally unemployed" within the meaning of the Law during the "off-season" although not actually engaged in any activities for the employer. The fact that the employer may elect to permit them to be absent from active duty during all or part of the off-season, or does not object to their doing other work at such times, does not alter their legal status as "employed", for they must hold themselves in readiness and are paid therefor.

Referee's Decision: The initial determination of the Out of-State Resident Office holding claimant ineligible for benefits, effective March 31, 1952, on the ground that he was not totally unemployed is overruled. (September 11, 1952)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant is a professional hockey player. He was employed as a hockey player by a professional hockey club, a member of the American Hockey League, under a contract for one year commencing October 1, 1951, at an annual salary of $4,000. The contract contained the following provisions, among others:

1. Payment of such salary shall be in consecutive semi-monthly installments following the commencement of the regular League Championship Schedule of games or following the date of reporting, whichever is later; provided, however, that if the Player is not in the employ of the Club for the whole period of the Club's games in the American Hockey League Championship Schedule; then he shall receive only part of the salary in the ratio of the number of days of actual employment to the number of days of the League Championship Schedule of games.
2. The Player agrees to give his services and to play hockey in all League Championship, Exhibition, Play-Off and Calder Cup games to the best of his ability under the direction and control of the Club for the said season in accordance with the provisions hereof.

The Player further agrees:

1. to report to the Club training camp at the time and place fixed by the Club, in good physical condition;
2. to keep himself in good physical condition at all times during the season;
3. to give his best services and loyalty to the Club and to play hockey only for the Club unless his contract is released, assigned, exchanged or loaned by the Club;
4. to cooperate with the Club and participate in any and all promotional activities of the Club and the League which will in the opinion of the Club promote the welfare of the Club or professional hockey generally;
5. to conduct himself on an off the rink according to the highest standard of honesty, morality, fair play and sportsmanship, and to refrain from conduct detrimental to the best interests of the Club, the League or professional hockey generally.

The playing season in the league in which claimant played started some time in October 1951 and ran to March 16, 1952. Thereafter claimant returned to his home in Manitoba, Canada, where he filed an interstate clam for benefits against New York as the liable State, effective March 31, 1952. The employer reported to the Out-of-State Resident Office on April 10, 1952, that claimant "was signed to a professional contract, which expired for the season March 16, 1952". Claimant stated that he was paid only for the actual playing season and that he received no payments during the summer months. The employer permitted the players to accept any employment other than sports during the off-season. Claimant customarily works at other employment following the termination of the playing season. He applied for employment with a former employer and with a railroad company in Florida. He succeeded in obtaining employment as a railroad worker commencing June 1, 1952 and was thus employed until September 13, 1952. An initial determination was issued holding claimant ineligible for benefits effective March 31, 1952, on the ground that he was not totally unemployed in that he was under an annual contract with the hockey organization. Claimant protested and requested a hearing. The referee overruled the initial determination from which decision the Industrial Commissioner appealed to this Board.

Appeal Board Opinion and Decision: The referee held that under his contract with the employer claimant was compelled to either train or play hockey during the training period and the regular hockey season, which expired March 16, 1952 and that claimant was consequently totally unemployed during the period of his reporting. The Industrial Commissioner contends that since claimant was under contract for an annual period, he was legally bound to furnish services throughout the year and thus not totally unemployed or eligible for benefits during the entire year. The Commissioner's contention is without adequate support in the record and we believe that the referee reached the correct result in this case. The available evidence in the case establishes that the contract between the parties contemplated that claimant would perform services for the employer during the training and playing season only, which extended from October 1951 to March 16, 1952; and that claimant was not obligated under the contract to render any services nor was he subject to any call by the employer after the season closed on March 16, 1952. It is significant that the contract provides that if claimant were not to complete the season he would receive only part of his salary in the ratio of the number of days he actually worked to the number of days of the league schedule of games. Moreover, after the playing season claimant returned to his home, many hundreds of miles away, and with the knowledge of the employer, customarily worked at other employment until the next season opened. We are impressed with the argument advanced by claimant that his obligation to report to the employer's training camp in the fall was intended merely to prevent him from signing up with another club and that it in no way affected his status as a free agent following the playing season. The opinion in Appeal Board, 34,619-52 is incorporated herein by reference as though fully set forth herein. On the basis of the written contract an all the circumstances herein, we hold that claimant was totally unemployed and available for employment during the period at issue. The initial determination of the Out-of-State Resident Office holding claimant ineligible for benefits, effective March 31, 1952, on the ground that he was not totally unemployed is hereby overruled. The decision of the referee is affirmed. (February 27, 1953)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Claimant is a professional hockey player. On October 10, 1951, he entered into a written contract with the Professional Hockey Club of Syracuse, Inc., by the terms of which "The Club hereby employs the Player as a skilled Hockey Player for the term of one year commencing Oct. 1, 1951." Claimant's annual salary was to be $4,000.00, payable in consecutive semi-monthly installments, following the commencement of the League games. If claimant was not in the club's employ for the entire period of the League games, then his salary was to be that sum of money equal to the ratio of the number of days of his actual employment to the number of days of the League games. The active playing season in the League started during October, 1951, and continued until March 16, 1952. On March 31, 1952, claimant filed a claim for unemployment insurance benefits. The Industrial Commissioner ruled claimant ineligible on the ground he was not totally unemployed. After a hearing a referee overruled the initial determination of the Commissioner, and the Appeal Board affirmed the referee. The Commissioner appeals from the decision of the Appeal Board. The appeal poses only the question whether a professional athlete, hired on an annual basis, for an annual salary, is "totally unemployed" within the meaning of the Unemployment Insurance Law during the "off-season". The Unemployment Insurance Law (Labor Law, §511), defines "employment in this language: "'Employment' means any service under any contract of employment for hire, express or implied, written, or oral." At all times involved here, Labor Law, § 522, provided: "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." Looking at some of the terms of claimant's contract of employment we find numerous obligations on the part of claimant beyond playing hockey and beyond the "league season." For instance, he was required to play in "exhibition" games; to report for training "at the time and places fixed by the club in good physical condition"' to participate "in any and all promotional activities of the club"; to report for practice "at such time and place as the club may designate"; if disabled, "to submit himself for medical examination and treatment by a physician selected by the club"; to permit the taking and use of any photograph, motion picture or television of himself; to accept and be bound by a assignment of his contract; to report to the assignee of his contract "at such time and place as directed in the notice of assignment"; to arbitrate any dispute, and to do other things. On the negative side, claimant agreed not to do many things during the term of the contract, and such provisions are not limited to the playing season. From the express terms of the contract it would seem clear that claimant was obligated to perform services not only during the playing season, but during the "off-season," and was paid his salary for his services and for his contractual obligation to refrain from doing certain things during the entire year without limitation to the actual playing season. We think he was "employed" during the entire period of the contract, and, conversely, was not "totally unemployed" within the intent and purpose of the Unemployment Insurance Law. The fact that the employer may elect to permit claimant to be absent from active duty during all or part of the off-season, or does not object to his doing other work at such times, does not alter his legal status as "employed" by it, for he must hold himself in readiness and is paid therefor. To hold otherwise could open the door to an extension of the benefits of unemployment insurance far beyond well-understood and expressed purposes of the law. The Legislature recognized the need for the law to prevent the spread and lighten the unemployment "which now so often falls with crushing force upon the unemployed worker and his family" and expressly recognized it as an improvement over "the barren actualities of poor relief assistance." (Labor Law, § 501). It is common knowledge that many professional athletes and other seasonal employees receive very large annual salaries and were not contemplated as beneficiaries of unemployment insurance, though they do little or no actual work during the off-season. While there appears to be no judicial authority in this state upon the precise question, there is authority for quite analogous situations. (Matter of Leshner (Corsi), 268 App. Div. 582; Matter Korth, 266 App. Div. 934, Lv. to appeal denied 292 N.Y. 724; Matter of Steward (Corsi), 279 App. Div. 500). The weight of authority by Boards in other jurisdictions is in accord with the view expressed herein. (Missouri Unemployment Insurance Compensation Commission, decision No. IC - 4864 [1951 - hockey player]; Pennsylvania Board of Review, Decision No. B-27640, Case No. B-44-99-D-2979 [baseball player]). The decision of the Unemployment Insurance appeal Board should be reversed, and the initial determination of the Industrial Commissioner reinstated, without costs. (December 8, 1953).

COMMENTS

Although this decision deals with professional hockey players, it will, in the same manner, also govern cases of professional basketball, baseball, etc. players who are engaged under similar contracts.

 

A-750-1180

Index 1720-2

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

APRIL 15, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPOYMENT
Prospects of Other Work - Self-employment

Appeal Board Case Number 35,458-52

VOLUNTARILY LEAVING EMPOYMENT TO ENTER TEMPORARY SELF-EMPLOYMENT

Voluntarily leaving employment to enter temporary self-employment for the summer months is without good cause.

Referee's 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 filed for benefits September 8, 1952, and by initial determination effective the same date he was disqualified for 42 consecutive days for voluntarily leaving his last employment without good cause. He was charged with an overpayment of $30. For five years to June 2, 1952, claimant worked as an assembler for an automobile manufacturer. Because of his wife's illness, he went into debt and decided that he would seek more gainful employment. Prior to June 2 he arranged to take over, on a concession basis, three stands in an amusement park. Claimant realized that this venture would terminate around Labor Day and therefore made arrangements to work in a plastic factory after Labor Day. After claimant had his plans fully made, he resigned. Had he not assured himself of a steady employment he would not have quit his job. Claimant is married and has five dependents. Claimant operated his concessions from June 2 to Labor Day. Unfortunately, there was a slump in the plastic industry and claimant was unable to obtain the job in the fall that had been promised to him. The Commissioner's representative argues that since the concession business was a seasonal or temporary one, that claimant was correctly disqualified for leaving the job with the automobile manufacturer even though it was not his last one.

Referee's Opinion and Decision: The argument of the Commissioner's representative cannot prevail. Even though the self-employment was seasonal or temporary, claimant had made arrangements for subsequent employment before he resigned. Appeal Board 17,480-48 is accordingly in point. There claimant quit his job to enter into self-employment and the Board said,

"Under our free economic system, encouragement should be lent to the enterprising who seek in this way to better themselves. This we believe to be socially beneficial and hence to constitute good cause."

The initial determination is overruled. (December 1, 1952)

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After reviewing 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 are fully supported by the evidence in this case, and that no error of fact appear to have been made, the Board adopts the findings of fact made by the referee as the findings of fact of this Board, except as follows: Claimant had no absolute commitment to work in a plastic factory after Labor Day. He failed to disclose to the local office pertinent facts which would have affected the initial determination as to his filing of a valid original claim. Although we have adopted the findings of fact with the exception hereinabove stated, we do not agree with the conclusion reached by the referee based thereon that claimant had good cause for relinquishing his employment. A careful consideration of the evidence herein, leads us to the conclusion that claimant did not have good cause for leaving his employment within the meaning of the Law. His motive in establishing himself in business in order to improve his economic condition is understandable. However, claimant was aware of the fact that such self-employment was of a temporary nature and would terminate by Labor Day. For this reason Appeal Board, 17,480-48 relied on by the referee in inapplicable to the instant case. Claimant's alleged arrangement to work in a plastic factory after Labor Day was very indefinite and did not ripen into a commitment. The disqualification for voluntarily leaving of employment imposed by the local office against claimant was proper. The benefits he collected are recoverable. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days, effective September 8, 1952 is sustained. Claimant was overpaid $30 in benefits. The decision of the referee is reversed. (March 6, 1953)

COMMENTS

Voluntarily leaving employment to enter self-employment is generally considered to be with good cause and no disqualification results. (See A-750-937)

Exceptions to this principle are:

1. "Voluntarily leaving employment in anticipation of becoming self-employed but with no definite plans, was held to be without good cause.: (A.B. 23,543-50; A-750-985)
2. When the self-employment enterprise is of a temporary nature as in the case here reported.

 

A-750-1181

Index 1605G-1

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

APRIL 15, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Voluntary Leaving or Industrial Controversy

Appeal Board Case Number 34,274-52

FAILURE TO RETURN TO WORK WHEN INSTRUCTED BY UNION AFTER UNAUTHORIZED WORK STOPPAGE

Failure to return to work upon the termination of an industrial controversy constitutes voluntary leaving of employment which is without good cause when claimant's union had directed its members to return to work.

Referee's Decision: The initial determinations of the local office, disqualifying the claimants from receiving benefits for 42 consecutive days, effective as of their respective filings for benefits, on the ground that they voluntarily left their employment without good cause are overruled. (October 1, 1952)

Appealed By: Industrial Commissioner.

Appeal Board Findings of Fact: Claimant B., a distributor, and claimant S., a packer, worked in an industrial laundry employing about 450 persons. The claimants were members of a union in contractual relations with the employer. A two-year contract governing the terms and conditions of employment of the employees of the establishment was in effect when, on May 8, 1952, about 35 or 40 employees, primarily in the shipping department, ceased work and demanded wage increases. On the following morning, a union official held a meeting at the employer's establishment attended by about 250 plant employees including the claimants. He informed the employees that the work stoppage was unauthorized by the union and in violation of the existing collective bargaining agreement. He directed them to return to work or suffer loss of their employment. The employer was willing to take up the question of wage increases at a later date, but insisted that the employees return to work. All of the employees in the plant did so, except about 30 or 35 persons including the claimants, who insisted that their demand for a wage increase be granted immediately. The employer refused their demand and gave notice that unless they returned to work, their jobs would be filled with new employees. The claimants failed to return to work and the employer hired replacements for their jobs. Claimant B. filed an original claim for benefits, effective May 26, 1952. In each instance, an initial determination was issued disqualifying the claimant for 42 consecutive days, effective the date of his filing, on the ground that he had voluntarily left his employment without good cause, and in the alternative, suspending his right to benefits, effective May 9 and May 10 respectively, for loss of employment due to an industrial controversy. Claimant B. was ruled overpaid $66 in benefits. The referee having overruled the initial determinations holding the claimants had voluntarily left their employment without good cause, the Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The Industrial Commissioner contends on appeal that claimants' refusal to return to work when the labor dispute had ended to all intents and purposes was equivalent to a voluntary leaving of employment without good cause. We believe this point to be well taken. Although the claimants were directed by their union official to return to work or suffer a possible loss of employment, they nevertheless failed to do so. Under such circumstances, we must hold that the claimants voluntarily left their employment without good cause. Inasmuch as claimant B. failed to disclose to the local office pertinent facts which would have affected the determination as to his filing of a valid original claim, the benefits he received are recoverable.

Appeal Board Decision: The initial determinations of the local office holding that the claimants voluntarily left their employment without good cause, are sustained. Claimant B. was overpaid $66 in benefits, which are recoverable. The decision of the referee, insofar as appealed from, is reversed. (March 6, 1953)

 

A-750-1183

Index No. 795.2

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

April 15, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFIT
AVAILABILITY AND CAPABILITY
Miscellaneous Causes

Appeal Board Case Number 35,695-53

FAILURE TO DISCLOSE DISABILITY PRECLUDING CORRECT CLASSIFICATION AND REFERRAL

Failure to disclose a physical disability as the true reason for refusing referral to employment in claimant’s usual occupation, rendered claimant unavailable for employment since it precluded a proper new occupational classification and the possibility of referral to suitable employment.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits on the ground that he refused employment without good cause is sustained. (October 7, 1952)

Appealed By: Claimant

Findings of Fact: Claimant has had upwards of 20 years of employment as a barber. On his last job, which he held for more than seven years, his pay was $45 a week plus 50 percent of earnings over $60. Claimant filed a claim for benefits August 18, 1952, and registered for employment. On August 26, 1952, claimant was offered referral to employment as a barber. The pay was $46 a week plus 50 percent of earnings over $66. Claimant refused the referral because he was "tired of being a barber". Claimant had been suffering from an eye condition which was growing progressively worse, but did not disclose this to the local office for fear that, had he done so, he would not have been eligible for benefits. Claimant’s doctor had advised him to give up the barber trade and seek another type of work not involving the constant use of his eyes. Claimant had decided, therefore, to obtain a job as a watchman or guard, which work he felt he was physically able to do. When claimant reported to the employment service on October 14, 1952, he was reclassified from barber to watchman. He was, at that time, referred to an agency for the rehabilitation for the blind, where he reported, and is now awaiting his turn for training. Claimant did not disclose that the true reason for refusing the employment offered to him was his physical condition until the date of the hearing before the referee. Based on an interview with claimant, the local office issued an initial determination disqualifying claimant from receiving benefits, effective August 26, 1952, on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience and, an alternative determination holding claimant ineligible for benefits, effective August 18, 1952, on the ground that he was unavailable for employment. Claimant protested the determinations and requested a hearing. The referee sustained that part of the initial determination holding claimant’s refusal of employment was without good cause. Claimant appealed to this Board, which, by decision dated November 21, 1952, affirmed the decision of the referee. An application was duly made to the Board by claimant, pursuant to Section 534 of the Unemployment Insurance Law, to reopen said decision of the Board and was granted.

Appeal Board Opinion: An affidavit by claimant’s physician presented at the hearing before the Board, which the Referee did not have the opportunity to consider, discloses that claimant has an eye condition which is progressively deteriorating. It is therefore clear that claimant had good cause for refusing the employment which was offered to him, because to have accepted would have impaired his health. However, claimant’s failure to disclose this condition to the local office personnel as a true reason for his refusal, rendered him unavailable for employment within the meaning of the Law, in that it precluded a proper occupational classification of claimant and the possibility of referral to employment in his new classification. Claimant was, therefore, unavailable effective August 26, 1952, the date of refusal, until he first disclosed to the referee on September 24 the reason underlying his refusal.

Appeal Board Decision: The decision of John E. McGarry, a member of this Board, dated November 21, 1952 is hereby rescinded. The alternative initial determination of the local office, holding claimant ineligible for benefits, effective August 18, 1952, on the ground that he was unavailable for employment, is modified in accordance with the foregoing and, as so modified, is sustained. The initial determination of the local office, disqualifying claimant from receiving benefits, effective August 26, 1952, on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience, is overruled. The decision of the referee is modified in accordance with the foregoing and, as so modified, is affirmed. (March 13, 1953)

 

A-750-1191

Index No. 755A.3

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

May 7, 1953

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

Appeal Board Case No. 36,602-53

AVAILABILITY – RESTRICTION TO EMPLOYMENT AS ACTOR WHEN QUALIFIED FOR OTHER WORK

A claimant who restrict his search of employment to the acting profession only, and refuses to consider work in any other field although his principal source of income during his base period was in another occupation, is unavailable for employment within the meaning of the law. (Claimant had 9 weeks’ employment as an actor and 31 weeks intermittent employment as a salesman.)

Referee’s Findings of Fact: A hearing was had at which claimant and a representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, an actor, filed a claim effective September 15, 1952. By initial determination effective January 12, 1953, claimant was ruled ineligible because of unavailability for employment. Since filing for benefits, claimant has not sought employment other than as an actor and will not accept any work other than as actor. He is using his present period of unemployment and using his unemployment insurance benefits to further his career as an actor by attending an acting class twice a week. Claimant worked as an actor for nine weeks in a summer stock company in 1951 and for ten weeks in 1952. He last worked August 24, 1952. In addition, claimant had two nights’ work on television in 1952 and four weeks’ work as an actor in 1951. Claimant had 31 weeks’ intermittent employment from September 1951, to June 1952, as a salesman and earned $1490, upon which earnings plus his nine weeks’ work in a summer stock company his benefit rate is based. On January 23, claimant was asked to list the places where he sought employment since he became unemployed and he named three prospective employers.

Referee’s Opinion and Decision: Claimant, by confining his job efforts to seeking work as an actor and confining his application for work only to three employers since August 24, 1952, compels the conclusion that he is unavailable for employment and his unavailability continued to the date of the hearing. The initial determination is sustained. (February 27, 1953)

Appealed By: Claimant

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, except we find that claimant made some effort to find employment as an actor since his last employment. However, claimant restricted his search for employment to the acting profession only and refused to consider work in any other field. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as above. Claimant’s restrictions of his search for employment to the acting profession and his refusal to accept any other employment, even though his principal source of income during the base period was as a salesman, renders him unavailable for employment within the meaning of the Unemployment Insurance Law. The decision of the referee is affirmed. (April 24, 1953)

 

A-750-1192

Index 1740D-3

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

MAY 7, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Failure to Pay Wages

Appeal Board Case Number OSR-693-53R

VOLUNTARY LEAVING - CONTENTION OF FAILURE TO RECEIVE ADDITIONAL WAGES DUE

Good cause for voluntary leaving employment does not exist when claimant quits because he claims additional wages which the employer disputes, when such dispute is under arbitration in accordance with the terms of the union agreement.

Referee's Findings of Fact: A hearing was held in California at which claimant and an employment security officer appeared and testified. A hearing was held in New York at which a representative of the Industrial Commissioner appeared and testified. Claimant, a first assistant engineer, filed for benefits in San Francisco, California, effective October 27, 1952, as of which date by initial determination he was disqualified for 42 consecutive days for leaving employment voluntarily without good cause. The employment in issue is that which claimant had aboard the S.S. Sea Legend. On April 18 the vessel arrived at Beira, Portuguese East Africa, but was unable to land its cargo because of unfavorable conditions in the port. The vessel did not leave until June 27. Of this period, 26 days were spent by the vessel at safe anchorage in the channel 18 miles from the port. The men were not permitted shore leave during these 26 days. According to Section 16 of the agreement between the National Marine Engineer's Beneficial Association, claimant's union, and the Committee for Companies and Agents, representing the shipping company,

"If for any reason within the exclusive control of the Master, members of the Licensed Engine Department who are not on watch and are entitled to shore leave and who are required to remain on board a vessel in a safe port when the vessel is alongside the dock or at a safe anchorage, shall receive overtime for all such time between the hours of 6 p.m. and 7 a.m. Monday through Friday and on Saturday, Sundays and holidays that they are deprived of shore leave.

Where local government restrictions prohibit shore leave, such orders must be in writing from proper shore authorities and shall be posted on the vessel's bulleting board and entry made in the ship's log book. If written orders cannot be obtained such information shall be posted on the bulletin board and also noted in the log book, stating the authority for the order.

This shall not apply in cases of emergencies."

Section 19 indicates the rate of overtime pay to be $2.95 per hour. Section 2 provides for grievance procedure and the arbitration of all disputes relating to the interpretation of the agreement. The master of the vessel did not comply with the provisions requiring him to post information on the bulletin board or to make log entries. Accordingly, all crew personnel made a demand for overtime pay. The shipping company was originally prepared to pay the overtime but on ascertaining that $25,000 to $30,000 was involved, refused to pay unless the matter was arbitrated. The vessel reached Coos Bay, Oregon on October 12, when claimant left the ship, apparently because of the refusal of the company to meet his demand for overtime pay which amounted to about $950. Claimant also filed for federal old age benefits since he is past 65 years of age.

Referee's Opinion and Decision: Ordinarily, where an employer fails to pay wages due an employee, the latter has good cause for leaving his employment. However, the wages in dispute here were not established as due and owing to claimant. True, the employer, according to claimant, was willing to pay for some of the overtime pay due, but on ascertaining the large amount, withdrew its approval. This does not necessarily establish that the employer conceded the contentions of the claimant and others similarly situated. We have only the ex parte testimony of claimant that the captain of the vessel was remiss in failing to post the necessary notices or make the necessary entries in the log book. The disputed wages are still under arbitration. (At least they were so in February 1953, the date of the hearing in San Francisco.) I cannot make a conclusive finding that claimant was entitled as a matter of fact and law to the wages in dispute. His allegation of the amount due does not necessarily make the amount due. Accordingly, I hold that his hasty departure from his job rather than his waiting to learn the outcome of the arbitration proceeding, was an unreasonable act. Ordinary grievance procedure is provided in the agreement between his union and the employer's association. I hold that claimant left his employment voluntarily without good cause. The initial determination is sustained.

 

A-750-1197

Index No. 740.8

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

June 3, 1953

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABLE AND CAPABILITY
Pensions – Retirement

Appellate Division Decision

Matter of Bourne

Appeal Board Case No. 31,741-52

AVAILABILITY OF INVOLUNTARILY RETIRED CLAIMANT – WAGE RESTRICTION

A retired employee of advanced years, to be eligible for unemployment insurance benefits, must possess remaining abilities usable in the labor market and be free from restrictions which greatly reduce the possibility of obtaining employment. Thus, when a salary restriction is made which is not realistic considering claimant’s age and prior work history, claimant does not meet such test and is unavailable within the meaning of the Law.

(See Comments after Decision)

Referee’s Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, an insurance agent, filed for benefits on January 14, 1952. By revised initial determination effective that date, he was ruled ineligible because of unavailability. Claimant was employed by an insurance company for 27 years to December 31, 1951, on which date he was involuntarily retired. He receives a pension of $85 per month from his employer, and Federal Old Age benefits at the rate of $67 per month. His wife receives such benefits at $33 per month. Claimant alleged that he was willing to work and has been actively seeking employment. Most of his contacts were for work as salesman, a field in which he has had his only work experience. He estimated that he applied for work at approximately 150 different establishments. He applied for work with manufacturers in the garment center, a package liquor store, a hardware store, a jewelry store, a glove manufacturer and a department store. At the insurance office he indicated that he desired a minimum salary of $50 a week but would accept $45 a week. At the hearing, he reduced that minimum to $40 per week. He alleged that it would not pay him to forego his social security benefits at any salary lower than $40 per week. Since approximately March 24, he has been answering advertisements taken from a local newspaper. He estimated he answered six such advertisements.

Referee’s Opinion and Decision: Claimant has exhibited his attachment to the labor market by a sustained effort to find employment. However, the bulk of his employment contacts have been in search of sales work, the only field in which he had previous experience. Because of his receipt of social security benefits, he would not accept less than $40 per week. In view of his lack of experience in any field other than insurance sales, his salary requirement is not realistic. In effect, he would be required to accept the usual rate paid to inexperienced workers. Accordingly, I find that claimant’s restriction, when taken together with his age and prior work history, substantially limited his opportunities of becoming employed and he was correctly ruled ineligible because of unavailability. The initial determination is sustained. (April 8, 1952)

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. (August 8, 1952)

Appealed By: Claimant

Appellate Division Opinion and Decision: This case suggests the rising pressure of an aging population upon public unemployment insurance facilities; but the economic and social questions it raises are somewhat broader than the legal point which brings it here. Claimant is now sixty-seven years old. For twenty-seven years he was employed by the Prudential Insurance Company as an industrial insurance agent. He was an "honor award winner" of the company. At the end of 1951, when he was sixty-five, he was involuntarily retired. He was then earning $5,000 a year. He did not want to stop work; he was in good health; but the policy of the company seems to have been to retire employees in this class at that age. Prudential allowed him a net pension of $76 a month. When his employment stopped he also received social security benefits of $67 a month; his wife from the same source received $33 a month. The total family net income from these three sources was $176 a month, or about $46 a week. Claimant then began an assiduous search for employment. He testified he saw 150 persons in the course of his search. He said: "I go to friends, associates; some of my old policyholders. I am willing to work because I am able to work although I am not so young. I don’t want even the social security." Since the claimant was receiving $46 a week, and since if he took employment his social security benefits would be suspended, he felt that he ought not to take employment at less than $50 a week. He was unable to obtain employment at this rate. He then reduced his demand to $45 weekly, and later agreed to accept employment at $40 a week. Even at this rate he was unable to get employment. He tried the field of clerical work in which he had been engaged many years ago; he tried to obtain work as a salesman. He addressed a letter to the Division of Placement and Unemployment Insurance in which he said: "I am willing, ready and able to work. I am now devoting my time and effort to visiting business establishments and am willing to accept any position doing clerical work or any selling job as I am an experienced salesman." On claimant’s application to the Division of Placement and Unemployment Insurance for unemployment benefits, the ruling of the division was that he was unavailable for employment within the purpose of the statute. The referee on review affirmed this determination of unavailability. The referee found that while claimant had exhibited "his attachment to the labor market by sustained effort to find employment" his salary requirement was "not realistic" because all he could reasonably expect to receive would be the "usual rate paid to inexperienced workers". The referee concluded that the restriction placed by claimant on the amount of salary "when taken together with his age and prior work history" operated to limit "his opportunities of becoming employed". This decision was affirmed by the Appeal Board. We think the decision is within the scope and intent of the statute. It is a mater of growing importance to the community to continue to utilize the skills and experience of its older people; and as the life span expands the problem becomes progressively more pressing. The Unemployment Insurance Law is intended to protect and continue the working activity of all members of the community. It is not merely for the protection of young workers but also of workers of advanced years who remain in the labor market. We take unusual care in this decision not to suggest or to imply that age alone necessarily results in non-availability in the labor market. Availability is the statutory test; but it must be applied individually to the facts of each case as the administrator sees them. Age, linked to a lack of physical or mental capacity to work, or age coupled with restrictions, which cut down greatly the possibility of employment, may fairly result in a finding of non-availability. But an able aged man is an available man if he has remaining abilities that can be sold on the market. When such a man is willing to meet the market his employment is covered by the statute. In affirming the determination in this case we hold merely that on this record it was within the power of the Board to find that the restrictions imposed by claimant himself kept him aloof from the market. The determination should be affirmed with costs. (May 13,1953)

COMMENTS

This court decision deserves careful study. It is in complete agreement with Division policy as reflected in the "Comments" of release A-750-1117 (Index 740.5). In order to assure a full understanding of such policy the "Comments" of that release, which appear to be tailor-made for the case here reported, are again set forth below:

1. This decision cautions against issuing disqualifying determinations on no other evidence but the receipt of a pension and federal Old Age benefits by a claimant who is involuntarily unemployed because of forced retirement and reluctance of employers to hire elderly, though physically capable workers.

 

2. When a claimant is retired and received a pension or federal benefits, a thorough fact finding interview is needed to determine whether the claimant is ready, willing and able, without undue restrictions, to perform work for which he is reasonably fitted by training and experience. Such claimants should be expected to conform with the usual availability requirements, adjusted to their special circumstances. Each case will suggest its own specific line of inquiry. Among facts, which should be considered in determining availability, are the following:

 

1. Pensions received (employer, union, or OASI) and whether claimant would forfeit such pension because of employment.

 

2. Willingness by claimant to accept other employment where opportunities to obtain usual work is limited for any reason. This may necessitate inquiry as to secondary occupations or other skills, usable in the current labor market.

 

3. Health, handicaps, or other physical impairments which may affect availability. This may necessitate presentation of medical evidence.

 

4. Restrictions as to wages, type of work, location (travel, transportation), hours, etc.

 

5. Job efforts: This will necessitate proper counseling so the claimant is aware of what is required to establish availability. Appropriate employment contacts may be through newspaper ads, unions, private agencies, specific employers or groups of employers, etc. The frequency of employment contact, type of work sought and the reasonableness of claimant’s efforts as a whole are additional factors to be considered.

 

3. This release deals with claimants who are involuntarily unemployed. With respect to claimant’s who are voluntarily retire, the Board stated in the decision:

 

It becomes important in this type of case to ascertain the circumstances under which the employee lost his employment. Clearly, if an employee voluntarily relinquishes a job to accept a pension, such conduct would be persuasive evidence of his withdrawal from the labor market. In such a case, it might well be said that the employee, by his own conduct, chooses to make himself unavailable for employment.

4. A careful study of the case here reported is recommended. It is also suggested that the rules under Index 740 and the "Comments" of A-750-926 and A-750-1039 be reviewed."

 

A-750-1198

Index 1690-3

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

JUNE 8, 1953

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Pensions - Retirement

Appeal Board Case Number 36,796-53

VOLUNTARY LEAVING EMPLOYMENT TO PROTECT PENSION RIGHTS

Voluntary leaving of employment to withdraw temporarily from the labor market in order to protect pension rights is without good cause. Limitation of subsequent return to the labor market to a restricted period (five months) so as not to jeopardize pensions thereafter accruing, does not render claimant unavailable when it is not shown that such restriction materially reduces claimant's opportunities to obtain employment.

Appealed By: The Industrial Commissioner appeals from the decision of the referee dated March 3, 1953, insofar as it overrules the added initial determination effective December 29, 1952, disqualifying claimant until 42 effective days elapsed after he became available for employment on the ground that he voluntarily left his employment without good cause. Claimant appeals insofar as the decision holds claimant ineligible for benefits, effective December 29, 1952, on the ground that he was unavailable for employment.

Findings of Fact: Claimant is 58 years of age and had worked on a railroad from 1923 to 1946. He was injured in an accident on the job and he was no longer able to continue his work on the railroad. He receives $74.98 per month in disability benefits under the Railroad Retirement Act. He was not able to return to the labor market until 1951. The Railroad Retirement Act, Title 45, U.S. Code Annotated, 1952 Supplement, Section 228-b, authorizes the payment of an annuity to (5) "Individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment." It further provides as follows:

An employee, in receipt of such annuity who earns more than $75 in services for hire, or in self-employment, in each of any six consecutive calendar months, shall be deemed to cease to be so disabled in the last of such six months; . . . (Underscoring supplied)

From June 1951 to November 1951 claimant worked as a caretaker in a greenhouse. On January 13, 1952 he obtained employment as a night watchman at a salary of $58.16 a week and worked on the job until June 8, 1952 and again from July 8, 1952 to December 10, 1952. He left his employment on each occasion because he did not want to forfeit his disability benefits. He reported for work in January 1952 but the employer refused to continue him on the job because it wanted a permanent employee. Claimant's disability pension was cancelled by the Railroad Retirement Board effective January 1, 1953, because claimant's earnings in December 1952, exceeded $75. Claimant filed a claim for benefits, effective December 29. 1952. In an interview he stated that he had left his employment as watchman on both occasions because, in order to receive his disability benefits, he is not allowed to earn more than $75 in each of six consecutive months. The local office issued an initial determination holding claimant ineligible for benefits, effective December 29, 1952, on the ground that he was unavailable for employment. The basis of the determination was that claimant imposed unreasonable restrictions upon his availability by refusing to give up his pension and would have to leave his employment every six months. Claimant contested the determination and requested a hearing. At the hearing the Industrial Commissioner issued an added initial determination, effective December 29, 1952, disqualifying claimant from receiving benefits until 42 consecutive days elapsed after he became available for employment on the ground that he voluntarily left his employment without good cause and was unavailable for employment. The referee sustained the amended initial determination, as modified by the referee to hold that claimant voluntarily left his employment with good cause from which decision the claimant and the Industrial Commissioner, respectively, appealed to this Board.

Appeal Board Opinion: The referee, relying on Appeal Board, 14,016-46 (Released in Interpretation Service; Ser. No. A-750-776), relating to a person who withdrew from the labor market to avail himself of Federal old age benefits, ruled that claimant voluntarily left his employment with good cause. We cannot concur with the referee's conclusion. In the case relied on by the referee, the Board stated in part:

Undoubtedly, had the claimant continued in the labor market but left his employment to avail himself of pension rights with the intention to find employment elsewhere, such voluntary leaving would not be with good cause.

It is not contended that in leaving his employment in December 1952 claimant acted arbitrarily or that he did not have bona fide reasons for doing so. Claimant was confronted with the choice of either continuing on his job for the sixth consecutive month or jeopardizing his disability benefits under the Railroad Retirement Act. While his desire to protect his pension was understandable, it cannot be said that his leaving under the circumstances was with good cause within the meaning of the Unemployment Insurance Law. In resolving the issue of unavailability against claimant, the referee ruled that to receive unemployment insurance benefits under the New York Law, a claimant must be willing to forego Railroad Retirement benefits which restrict employment. He held, in effect, that claimant's unwillingness to take employment which would cause the stoppage of these payments was an unreasonable restriction which rendered claimant unavailable for employment. We find no legal basis to support the referee's conclusion.

It is clear that claimant must be deemed to have withdrawn from the labor market during the sixth consecutive month of any continuous employment. This was true of December 1952, since, any additional earnings in that month would result in the forfeiture of this pension. However, it does not follow that his availability continued into the following five-month period. Here, claimant was willing to accept employment without any restrictions for five consecutive months. There is nothing in the record to show that under these conditions claimant's chances of obtaining employment were seriously affected. Significantly, claimant's work pattern since his return to the labor market in 1951, shows that his chances were not materially reduced. In view of the underlying reasons for claimant's imposition of these conditions and the lack of any showing that this would prevent him from obtaining any employment, it would be inequitable to bar him from unemployment insurance benefits because he was unwilling to forfeit his disability pension. Consequently, it must be held that claimant was unavailable from December 29, 1952, through December 31, 1952, and was available thereafter. Since it now appears that claimant's pension was cancelled effective January 1, 1953 there is no basis in any event, for holding him unavailable for employment subsequent to that date.

Appeal Board Decision: The initial determination of the local office as amended effective December 29, 1952, disqualifying claimant from receiving benefits until 42 consecutive days elapsed after he became available for employment on the ground that he voluntarily left his employment without good cause and was unavailable for employment is modified to hold claimant unavailable for employment from December 29, 1952 through December 31, 1952 and that he was available for employment thereafter. The decision of the referee is modified accordingly and, as so modified, is affirmed. (May 8, 1953)

 

A-750-1199

Index No. 765.1

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

June 8, 1953

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

Appeal Board Case No. 36,874-53

EFFORTS TO OBTAIN EMPLOYMENT – COMPETENT EVIDENCE IN DETERMINING AVAILABILITY

When a claimant’s readiness and willingness to accept work is brought into question by his conduct or other facts indicating possible unavailability, the presence or absence of efforts to obtain employment, other than merely registering with the employment service as required, constitutes overt acts indicative of a claimant’s state of mind, and is competent evidence to be judged in determining the probability of a claimant’s assertions in the light of the established and admitted facts.

Referee’s Decision: The initial determination of the local office ruling that claimant was ineligible to receive benefits, effective February 9, 1953, because she was unavailable for employment is sustained. (March 20, 1953)

Appealed By: Claimant

Findings of Fact: Claimant was employed for seven years as a waitress at a country club. Her employment terminated when the club ceased operations in September 1952. On November 23, claimant, as the result of her own efforts, obtained employment with a golf club and worked only on every third weekend due to the season of the year. Claimant filed an original claim for benefits, effective September 2, 1952, and registered for employment. She accepted two referrals to employment from the employment service. One of the jobs offered proved unsuitable and in the other instance claimant was not hired. She attempted to obtain work with several New York City restaurant chains and restaurants in Long Island City. She followed advertisements in two newspapers without success. She was at all times ready to accept a six-day a week job and was willing to forego her weekend employment at the golf club if she found full-time employment. The local office issued an initial determination, effective February 9, 1953, ruling claimant was unavailable for employment on the ground that she was unwilling to accept employment in addition to the weekend job she then held. Claimant objected to the initial determination and requested a hearing before the referee. It is from his decision sustaining the initial determination of the local office that claimant appeals to this Board.

Appeal Board Opinion: The sole issue in this case is whether or not claimant was available for employment on and after February 9, 1953. The referee held that claimant failed to meet the test of availability under the Law because of her failure to make diligent efforts to find employment. Although not susceptible of a precise definition, we have long held that "available for work" means a claimant’s readiness, willingness and ability to continue to perform work for which he is reasonably fitted by training and experience (Appeal Board, 2065-40; 2717-40; 5540-41). When a claimant’s readiness and willingness to accept work is brought into question by his conduct or other facts indicating possible unavailability, the presence or absence of efforts to obtain employment, other than merely registering with the employment service as required, constitutes overt acts indicative of a claimant’s state of mind, and is competent evidence to be judged in determining the probability of claimant’s assertions in the light of the established and admitted facts (Appeal Board, 6759-42). The claimant in this case did not rely solely upon the employment service for employment. On her own initiative she obtained employment which, due to the season of the year, was but intermittent. She accepted a referral to a six-day a week job but was not hired. She canvassed restaurant chains where she thought she had a possibility of obtaining employment. Under such circumstances, we believe that claimant has fully complied with all of the provisions of the Law and met the test laid down by the statute. The record fails to disclose any facts or circumstances that occurred after February 9, 1953, to sustain the conclusion that claimant’s availability for employment was any different after that day than before that day. There is but one other point to comment upon. The referee made a finding that the claimant was not registered with a private employment agency. This fact may or may not have been persuasive in leading the referee to his conclusion that claimant did not exert sufficient efforts to find employment. Although we have indicated that where a claimant registers with a private employment agency it might be some evidence of an effort to find employment, it does not follow that when a claimant fails to register with a private agency that it is any evidence of a lack of diligence on her part in seeking employment (See Appeal Board, 36,751-53).

Appeal Board Decision: The initial determination of the local office, ruling claimant ineligible for benefits, effective February 9, 1953, on the ground that she was unavailable for employment, is overruled. The decision of the referee is reversed. (May 15, 1953)